Berin Szóka Profile picture
May 14, 2021 8 tweets 3 min read Read on X
1/ There's nothing "conservative" (or constitutional) about the MAGA Fairness Doctrine for the Internet

They're recycling 1960s left's “media access theory”

Me in the WSJ: wsj.com/articles/sen-j…
2/ The First Amendment doesn't give you a right to speak on someone else's property. It actually guarantees *their* right to tell you to take a hike, no matter now "unfair" that might be

Because the 1A is a shield against government meddling in media, not a sword
3/ No, we cant just extend "net neutrality" to social media, because social media have always offered an inherently edited service
4/ Justice Thomas thinks websites can be compelled to be "neutral conduits"

But they're not like the telephone network. They're essentially like newspapers, as @CorbinKBarthold and I have explained:
lawfareblog.com/justice-thomas…
5/ The WSJ has published a lot of MAGA confusion about the First Amendment recently. @AriCohn and I debunk that here:
lawfareblog.com/wall-street-jo…
6/ MAGA arguments for forcing websites to carry their speech are just the bizarro right-wing version of what Prof. Jerome Barron argued in the 1967 law review article that gave birth to the far left's "media access theory"
7/ Conservatives spent decades fighting the idea that the First Amendment gave anyone a right to speak on someone else's private property

Now, as on so many fronts, the Trumpist right has completely switched sides
8/ The Supreme Court firmly rejected media access theory in Miami Herald (1974): even newspapers with local monopolies have a First Amendment right to refuse to carry the speech of others

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More from @BerinSzoka

Jun 28
SCOTUS overrules Chevron in Loper Bright, but not past decisions relying on Chevron—with respect to the lawfulness of "specific agency actions." So Brand X is still good law in deferring to the FCC's 2002 classification of cable modem as Title I, but not for reversing that 🧵 Image
Gorsuch, concurring, singles out Brand X as an example of why Chevron must be overturned: only if courts read statutes for themselves can we achieve stable interpretations and avoid endless ping-pong matches Image
It's crystal clear that the FCC not won't be able to rely on Chevron in defending Title II classification of broadband

I don't see how, without Chevron deference, the FCC could win
Read 10 tweets
Mar 8, 2023
1. This will not be a good hearing: 4 witnesses (3 lawyers) who want to fundamentally change #Section230 and only 1 to defend the law that made today's interactive Internet possible, who isn't a lawyer, so won't be able to debunk the misinformation about how 230 actually works]
2. @SenateJudiciary failed to publish their written testimony in advance. SOP is to publish testimony 1-2 day before the hearing to foster a more informed discussion.

But, of course, that's not really the purpose of this hearing...
3. Blumenthal: we have bipartisan consensus on reining in Big Tech. We don't agree on everything but I want to thank Sen. Hawley for his leadership on this issue

Hawley be all like: Image
Read 44 tweets
Mar 7, 2023
1. I've disagreed with @gigibsohn about the biggest telecom issues for 15 years—but those issues aren't why her nomination floundered. Multiple Dem Senators feared supporting someone who had called out Fox for what it was in the Trump years: "state-sponsored propaganda"
2. In 2020, Senate Republicans summoned Twitter, Facebook & Google CEOs for a hearing on their alleged "bias" against conservatives. The Dem chair asked why broadcasters weren't there. Gigi tweeted this:
3. 🐘s claim Gigi wants to "censor" Fox News. Nonsense. She merely objected to🐘s weaponizing the hearing against new media companies they hate for nakedly political reasons, while saying nothing about old media that spew MAGA propaganda
Read 15 tweets
Mar 6, 2023
Live now: State of the Net conference #SOTN, featuring Assistant Attorney General for #antitrust Jonathan Kanter & @B_Fung

stateofthenet.org/sotn-23/
#SOTN #Section230 panel opens with @ma_franks claiming the law protects only against liability for defamation and related claims supremecourt.gov/DocketPDF/21/2…

If that were all 230 did, why did Congress spell out things didn't 230 affect completely unrelated to defamation and the like?
@ma_franks .@MA_Franks relies entirely on the "Good Samaritan" heading for 230(c) to argue that (c)(1) must require good faith efforts to block content. If Congress had intended to make (c)(1) immunity contingent on good faith, it would have said so, as it did in (c)(2)(A)

#SOTN
Read 12 tweets
Sep 16, 2022
The Fifth Circuit opinion just dropped, upholding Texas's law compelling social media sites to host speech they don't want to host.

techfreedom.org/wp-content/upl…
The court refused to strike down the TX law as facially unconstitutional because of overbreadth, suggesting that it would have to be challenged as to specific applications

Just like Florida's 1903 must-carry mandate was unconstitutional as applied to all newspapers all the time? Image
lol no

The Packingham Court referred to tech companies as "town squares" in a purely colloquial sense. The case involved a state law compelling tech companies not to host sex offenders, so the Court didn't say anything about whether they were public fora absent such compulsion Image
Read 23 tweets
Sep 15, 2022
1/ Today, the #FTC will vote to issue a staff report about last year's workshop on Dark Patterns—at which Prof. @harrybr, who helped coined the term, warned that it was "vague." Let's hope the report gets a lot more specific about what kind of cases the FTC will bring Image
2/ The concept of “darkness” implies that consumers are necessarily unaware of what is happening. This kind of opacity may be problematic, but by itself, insufficient under Section 5(n) of the FTC Act. Image
3/ An unfair practice must involve harm that is not “reasonably avoidable by consumers themselves.” In other words, it is the harm, not the practice that must be obscure to consumers.
Read 8 tweets

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