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

21 Apr
Livetweeting this hearing on app store competition

The central premise, that app stores have "gatekeeper" control, is greatly exaggerated, if not wrong
Klobuchar emphasizes that Apple won't allow sideloading of apps onto iOS photos (as Google does)

But Apple has, since 2018, allowed progressive web apps (PWAs) to run in the Safari mobile browser

And PWAs are increasingly able to duplicate the functionality of "native" apps
PWAs have some significant advantages over native apps (found in app stores): notably, you can build the same app to run on all major web browsers (except Firefox), so you don't have to build separate Android and iOS versions
Read 32 tweets
21 Apr
Just tuned in to @LinaMKhan's confirmation hearing. Of course, Wicker focuses on whether social media can be treated as common carriers, citing Justice Thomas

Apples & oranges: Lina's paper was about *economic* regulation of Amazon, not content moderation, protected by the 1A
Unfortunately, she didn't make that distinction clear, just saying that we need to be "a bit market specific"

I debunk Thomas's opinion here (with @corbinkbarthold) lawfareblog.com/justice-thomas…
And I explain the line between regulating economic conduct (what Dems are focused on) and regulating editorial judgments (what Republicans are focused on here:
gaidigitalreport.com/2020/10/04/sec…
Read 9 tweets
19 Apr
Republicans have relentlessly attacked "Big Tech" companies for "censoring" conservatives

Under pressure, Apple has caved, reinstating the #Parler app even though, for example, openly Nazi content is still readily available on the site. And that's just the tip of the iceberg...
It's hard to know what's really on Parler because the site doesn't allow full text search: unlike on Facebook or Twitter, you can only search for user names and hashtags

Even before the January 6 insurrection, Parler censored certain hashtags, like the N-Word
This was the bare minimum of what it took to create the veneer of respectability required to pretend that the site wasn't the cesspool of hate speech that it actually is

Parler seems to have expanded the list of banned hashtags to include other code words (eg "skittles"=Muslims)
Read 21 tweets
19 Apr
Hawley's bill would force Amazon to spin off its Web Services division

He doesn't even allege any economic harms flowing from owning both a marketplace and a hosting service

Obviously, he's trying to punish Amazon for booting Parler after the January 6 insurrection
Hawley isn't subtle about the motive for the bill: he's trying to use #antitrust law to retaliate against a private company for exercising editorial judgment in a way that Hawley doesn't like Image
The bill's text isn't out yet, but "online hosting services" may well cover other Internet infrastructure, including hosting domain names & "hosting" apps in the Play store

If so, the bill would punish Google, too
Read 7 tweets
30 Mar
At noon, Prof. Hamburger will repeat his nonsense claims that the First Amendment is a sword by which government can force private websites to host speech they find reprehensible.
His Fairness Doctrine for the Internet is the opposite of what the right has argued for decades, as @AriCohn and I explained here

lawfareblog.com/wall-street-jo…
Read 28 tweets
25 Mar
Another "Big Tech" hearing today (noon ET) with G, TW & FB CEOs

Dems will complain that tech companies don't moderate enough content and Republicans will say they're being "censored"

Both sides will attack 230, but the real issue is the First Amendment

energycommerce.house.gov/committee-acti…
Websites have the same First Amendment rights as parade organizers, newspapers or other media to exclude speech they find objectionable, however "unfair" their decisions may be

It's just not the government's job to second-guess those content moderation decisions
Republicans used to understand this. They spent 80 years attacking Fairness Doctrine mandates for broadcasting, yet are now demanding a Fairness Doctrine of their own

Here's Rep @CathyMcMorris Rodgers firmly rejecting such nonsense in late 2019
Read 134 tweets

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