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Is platform anti-conservative bias a thing? We don’t really know bc we have no good data from platforms. We just hear from people chasing media attention. In a deep sense it’s unknowable, unless we can agree on whether e.g. barring actual Nazis = bias against conservatives. 1/
Can Congress do something to correct platform bias? If that means telling platforms what lawful speech they may and may not remove, I think the answer is no. The First Amendment stops Congress from doing that. Kavanaugh would be a key vote on the platforms’ side here. 2/
We could call a law like that “platform regulation,” but ultimately it would be about regulating what *we* say, with someone – presumably a large federal agency – enforcing “viewpoint neutrality” or “fairness” requirements. More on that here: hoover.org/research/who-d… 3/
Taking away platforms’ ability to exclude material that offends most users/advertisers would also make them instantly and massively less valuable to investors. They would raise a property rights-based challenge under the Takings Clause. I haven’t seen decent analysis on that. 4/
Tackling this as a competition question makes the most sense conceptually. But I don’t think the law is there. Current a/t analysis against platforms doesn’t seem to focus on this angle. Competition/speech gatekeeper concerns are at the heart of relevant 1st Am cases, though. 5/
Amazingly, the Court has a case in this line -- about the relative rights of speakers and gatekeepers who control communications channels -- right now. cyberlaw.stanford.edu/blog/2019/01/o… Again, keep your eye on Kavanaugh and expect a ruling that effectively favors platforms. 6/
Bringing platforms to heel by taking away CDA 230 would be lazy and destructive. Crossing out a current law that holds up a big chunk of the economy and enables services ordinary people depend on, without drafting a *very* smart replacement, would be an epic legislative fail. 7/
If platforms cld only be legally liable “publishers” or unmoderated “carriers,” every site would be like a 1980s broadcaster (a few speakers, heavily vetted by lawyers) or an unmoderated free-for-all mosh pit (picture Twitter on its worst day). 8/
