1/ It would be great if professors of public policy with law degrees would stop spreading misinformation about the law (ironically while complaining about misinformation on social media).
Prof. Reich has two ideas that he thinks don't undermine free speech. He's simply wrong.
Prof. Reich has two ideas that he thinks don't undermine free speech. He's simply wrong.
https://twitter.com/RBReich/status/1472929028411518976
2/ First, he proposes "revoking" Section 230. While in and of itself that doesn't necessarily implicate the First Amendment, he is operating on a faulty premise: that somehow without Section 230, legal liability would attach to the speech he finds odious.
Not so.
Not so.
3/ It's clear what he is referring to. Racist/hateful speech is protected by the First Amendment. One could not successfully sue the speaker of hateful speech due to the First Amendment (see Snyder v. Phelps), so it's curious that he thinks social media platforms would be liable.
4/ It's also not illegal or tortious to be "divisive" in one's speech. Nor is "misleading" speech categorically excluded from First Amendment protection. See U.S. v. Alvarez.
5/ "Harmful" speech is a mushy category, but that too is unlikely to give rise to liability. Courts have for years refused to impose a duty of care on TV stations, book/game publishers, newspapers, etc. to prevent harm to consumers of ideas based on First Amendment principles.
6/ Reich's argument is facially appealing to people who think "something must be done," but the same First Amendment principles that have protected (and continue to protect) social media's predecessors are going to make the liability he wants a nonstarter.
7/ His second idea, however, is absolutely a First Amendment no-no.
Cable stations/providers are simply *not* broadcasters. That might seem like a semantics argument, but it's important.
Cable stations/providers are simply *not* broadcasters. That might seem like a semantics argument, but it's important.
8/ The Fairness Doctrine only applied to broadcast spectrum users, and for good reason: that spectrum is a finite, publicly-owned resource. Nothing about cable, online, or any other information provider can be said to be utilizing any such resource.
9/ And the Fairness Doctrine would have been unconstitutional if it applied to non-broadcast entities, in direct contravention of the First Amendment's prohibition of compelled speech.
10/ In fact, it was tried! Florida attempted its own "fairness doctrine" of sorts for newspapers, and the Supreme Court struck it down in Tornillo.
11/ Nothing suggests that govt can constitutionally force cable stations to cover anything, let alone to include views that they do not wish to.
To the extent that Reich thinks Congress should try, First Amendment be damned, well...so much for "without undermining free speech"
To the extent that Reich thinks Congress should try, First Amendment be damned, well...so much for "without undermining free speech"
It really should not be too much to ask from people who enjoy a perception of credibility and a large platform to dig a little deeper than "we must do something, this is something, ergo we must do this"
Not for nothing, anyone who says "well platforms won't be liable but they won't allow Content I Don't Like to avoid the cost of having to deal with the crush of litigation from People Angry About Content I Don't Like" doesn't actually care one single bit about the First Amendment
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