Since the detailed and ambivalent account of the FOB that @klonick recently published in @NewYorker is generating so much discussion, I thought it might be useful to place the FOB in a broader historical trajectory: what is new here and what isn’t? h/t @rickhills 1/15
First, most obvious pt: we have dealt with similar problems before! We tend to regard the FB prob--a private corp controlling the mass public sphere—as unprecedented, but that is just not the case. At the Founding, the fed gov was primary regulator of the mass public. 2/15
But ever since the fed gov decided in 1850s to not create a public telegraph—a decision that shocked many, including its inventor, Robert Morse, who thought only a dem gov should have this power—private corps have played a crucial role in regulating our public sphere. 3/15
FB is NOT the first corp that has had to act as a private speech police. This is not even the 1st time a corp has created an advisory board to give its speech decisions more legitimacy and thereby stave off unfriendly regulation (what I take to be the FOB's goals). 4/15
In the 1920s, the media behemoth of that age, NBC, created its own Advisory Council to develop speech rules for the many radio stations it controlled. Like the FOB, the Advisory Council was stocked with prominent people—John W. Davis, solicitor general of the US . . . 5/15
Charles Evan Hughes, future CJ of the US Supreme Court, and Elihu Root. Like the FOB, the Advisory Council was designed to take difficult speech Qs off the desk of the executives. Like the FOB it made imp’t policy decisions. 6/15
For example, the Advisory Council decided that news about the feminist mvmt for birth control was not appropriate to air on the radio b/c the public was not ready to hear such things. (This is from Louise Benjamin’s book on the Council)…
The Advisory Council also developed the core requirmt of the Fairness Doctrine when it decreed that when presenting controversial public Qs radio stations should “give equal opportunity to both sides or as many sides as there are”. 7/15
The example of NBC Advisory Council thus suggests that we should not ignore the FOB b/c the decisions by private regulatory bodies can profoundly affect how we/regulators think about questions about which there is no public consensus yet... 8/15
Questions like: what are the speech rules that should govern the digital public sphere? In this context, the FOB’s decisions can anchor public convo, just like the Advisory Council decisions did (and obv can do so for good but also for bad). 9/15
So I think it is perfectly appropriate to pay attention to what FOB is doing, but also to be skeptical about its mission, its limits, and its effects. And if we don’t want to have to pay attention, we need to develop alternative institutions to do what FOB is doing. 10/15
The history of the NBC Advisory Council also points us to what is new here: NOT the problem of private speech regulation of the mass public sphere. That is an old problem! What is new is the possibility that the gov may not also be able to robustly regulate this sphere.11/15
After the Advisory Council first developed the core requirmt of the FCC Fairness Doctrine, skepticism that NBC would implement this requrmt effectively led the fed govt to implement it, to provide basic rules for radio that were NOT just advisory. 12/15
Today, with a much more laissez faire First Amendment, it is not obv that even if Congress were to decide it didn’t like what FB was doing, it could do much about it. It is much more likely today that the Court would deem such intervention unconstitutional. 13/15
I think this is a misreading of the First A and am going to soon publish something saying as much (stay tuned!). But what it suggests about the @klonick piece is that the prob with the the FOB is NOT that we are talking about it too much. 14/15
The problem is the profoundly constrained legal environment in which FOB is operating. It is this that I wish people were talking about MORE. To blame FB or @klonick for this state of affairs is deeply misguided. End.
It's amazing that you cannot edit tweets. Anyway meant to think @RickHills2 for suggesting I write this thread, but tagged the wrong Rick Hills. Oops!

• • •

Missing some Tweet in this thread? You can try to force a refresh

Keep Current with Genevieve Lakier

Genevieve Lakier Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!


Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @glakier

19 Jan
A quick thread for those worried about the impact of the Great Deplatforming on freedom of speech in the US: the platforms are not the only private companies that control who gets to speak in the mass public sphere. Radio and television companies do too! 1/12
Today SCOTUS will hear args in a case raising the Q : what kinds of evidence must the FCC have before it can lift caps on radio and TV ownership meant to guard against the domination of the mass public by any one viewpt or actor. 2/…
These ownership caps were payback for the great corporate giveaway of the 1934, when the fed gov gave YOUR public property (the airwaves) almost entirely to for-profit companies, who continue to control YOUR property for free. 3/12
Read 13 tweets
13 Jan
It is interesting to me, apropos my earlier thread,
that one of the things those arguing for impeachment keep emphasizing is Trump’s lies.
Rep Newhouse, for example, to explain why he favors impeachment stated that the mob that invaded the Capitol was “inflamed by the language and misinformation of the President of the United States.”

The House Judiciary Comm has similarly accused Trump (correctly, obv.) of attempting to convince "his supporters, falsely, that they actually voted him back into power.”…
Read 8 tweets
10 Jan
A thread on Trump’s deplatforming and why I think the debate about it reveals the bankruptcy of contemporary free speech law. 1/17
Many of those who approve of the platforms’ decisions to ban Trump argue that current First A law grants speakers no right of access to privately owned property. and conclude that there is no free speech issue here. 2/17
They’re right on the doctrine: the Roberts Court has gone to extraordinary lengths to make clear that private actors enjoy total freedom under the First A to censor whatever speech they like. 3/17
Read 17 tweets
1 Nov 20
A disturbing report on the continuing aftermath of the BLM protests.…
It's disturbing in part because it's not obvious that existing First Amendment doctrine provides any protection to protestors who are prosecuted for resisting arrest or brandishing a weapon like a liquor bottle but who are really prosecuted because of their speech.
As in other contexts, prosecutorial discretion ends up taking a big bite out of our constitutional rights. Judges play a role too! The article reports that in one case a judge agreed to lower a protestor's bond only if he agreed to refrain from further public protest.
Read 4 tweets

Did Thread Reader help you today?

Support us! We are indie developers!

This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!