Deplatformed: The Supreme Court Hears Social Media Oral Arguments

>> Eugene Volokh: Welcome to Free Speech Unmuted. I'm your co-host, Eugene Volokh. I'm an incoming senior fellow at the Hoover Institution, and I've been teaching at UCLA School of Law.

>> Jane Bambauer: And I'm Jane Bambauer, professor of law and journalism at the University of Florida. So today, Eugene, we're going to be talking about the net choice cases that were just argued before the Supreme Court yesterday, at least as of our recording, it was yesterday.

And these concern a pair of statutes in Florida and Texas, where the state legislatures attempted to address what at least they perceived as ideological bias on social media platforms. So the goals of the statutes were to prevent social media companies from either deplatforming, banning, or suspending some of the users of these platforms based on their political speech, or even from so-called shadow-banning or deprioritizing their content as it appears on other people's news feeds.

So the first question I have for you is whether this counts as censorship. And maybe before I let you answer that question, we can listen to a little bit of the oral arguments. This is a discussion between Justice Alito and Paul Clement, who's arguing on behalf of the social media companies.

 

>> Paul Clement: It's a way to take all of the content that is potentially posted on the site, exercise editorial discretion in order to make it less offensive to users and advertisers.

>> Justice Alito: Is it anything more than a euphemism for censorship? Let me just ask you this. If somebody in 1917 was prosecuted and thrown in jail for opposing US participation in World War I, was that content moderation?

So if the government's doing it, then content moderation might be a euphemism for censorship. If a private party is doing it, content moderation is a euphemism for editorial discretion. And there's a fundamental difference between the two.

>> Jane Bambauer: So, Eugene, what do you think? Is this case about censorship or not?

 

>> Eugene Volokh: Well, both sides think it's about censorship. The platforms are saying, you're censoring editorial decisions, and the states are saying, well, you, platforms are censoring your users. Just a reminder that the word censorship, like many important words, liberty, equality, justice, it's not entirely well-defined. Here's one way of thinking about it, what I call the platform spectrum.

By platforms here, I just mean places where people can speak. So on one extreme are newspapers. Newspapers are places where people can speak, both the newspaper's own writers, but also op ed writers, letter to the editor writers, advertisers, and the like. And there, of course, newspapers have the right, they have to have the right to pick and choose what goes into the newspaper.

Otherwise, if they had to be content and viewpoint neutral, nobody would wanna read them. Because we read newspapers in part because of their editorial discretion. And First Amendment law tracks this. It's a practical reality here. The Supreme Court has made clear in a case called Miami Herald versus Tornillo in the 1970s that newspapers have a first amendment right to pick and choose what to include.

So in that kind of situation, if a newspaper is just saying, we won't publish your op ed, I do think it's a mistake to think of it as censorship. And likewise, magazines, which in recent years, been more opinionated, recent decades, more opinionated than newspapers. Or another example, there's a case called Hurley which involved a St. Patrick's Day parade.

And the court said, well, St. Patrick's Day parade organizers are entitled to pick and choose which floats go into the parade. Again, I don't think that we'd view that as censorship when they're making this decision, because that's what makes the parade, is the decision of which floats to include and perhaps which to exclude.

But let's look at the other extreme of the spectrum. What about telephone companies or telegraph companies back in the day? Well, they're generally treated, I oversimplify here, but generally treated as so-called common carriers. They can't say, we just don't like communists because we're capitalists, and they wanna destroy us.

So what we're gonna do is we're going to cancel the phone lines of, say, the local communist party chapter. They're not allowed to do that. By the way, that's not just for traditional landline monopolies. Even the famously competitive cell phone companies are common carriers. So there, if the telephone company were to say, if we don't like your views, you could lose your phone line.

So you better watch out. I think we might say, yes, the phone company, private entity, but the phone company is censoring its users. You gave a couple of other cases. I mentioned the Miami Herald and cases to newspapers, and the Hurley cases to parades. Well, the Supreme Court held in a case called Pruneyard Shopping Center back in 1980 that if a state wanted to, it doesn't have to.

But if a state wanted to have a rule that the public has a right to leaflet and gather signatures and otherwise speak at large outdoor shopping malls, the state can indeed impose that rule. That's an interference with the property rights of the shopping mall owner, but property rights are far from absolute there.

Can be regulated in various ways. And the court said that doesn't violate the First Amendment rights of the shopping mall owner because the government can say, look, even on this private property, the shopping mall owner has to allow the public to speak. Again, once that rule is established, you might say, if a shopping mall owner kicks you off because it doesn't like your message, well, maybe that is censorship.

Let me mention one other case that came up a lot in the discussion and a lot in the briefs, a case called Rumsfeld v Forum. And that involved a congressional statute that required universities, as a condition of funding, to allow the same kind of access by military recruiters as was available to other recruiters.

This was at a time when many universities excluded military recruiters cuz the military was discriminating and don't ask, don't tell discriminating based on sexual orientation. The court said, well, it's true this is tied to funding, but it actually doesn't matter that it's tied to funding. Even if the government were to mandate this kind of access to private property, it's entitled to do that.

That's not a violation of the First Amendment rights of the private university. Private university, of course, is free to speak however it wants. It can even speak out criticizing the military recruiters, but it could be required to provide access to this. So you've got the spectrum. Some things like newspapers or like parades have to have the ability to pick and choose what's included, and that's protected by the First Amendment.

But other private entities, like shopping malls, maybe like universities, when it comes to recruiting space. Telephone companies, UPS and FedEx, which aren't allowed, as I understand it, to generally just say, well, we don't wanna deliver from the socialist bookstore or the Christian bookstore. Those are treated as the other end of the spectrum.

They could be required to kinda take all comers without viewpoint discrimination. So it might be that the question of what is censorship, or more precisely, when can Can the government protect private speakers from private property owners exclusion rules is actually a complicated question.

>> Jane Bambauer: Yeah, you know what's interesting?

Justice Kavanaugh sounded like he was ready to question even the far end of the spectrum. But so I'm curious where you would put the social media companies, or along that spectrum, tend to think that the best analogy, to the extent that we must analogize as sort of every case requires us to do, is to that parade, and I say this because of all the.

I understand that this is not quite like a newspaper, that the scale of content and the degree to which social media companies mostly let content be what it is and host almost all of it, and the lack of resource constraint makes it somewhat different from the newspaper. But the fact that they allow almost everything to pass, but still do some content moderation, does seem to me to be pretty analogous to Hurley.

Let's listen, if you don't mind, to a part of the oral argument where Justice Kagan sort of suggests the same logic.

>> Justice Kagan: I just want to sort of understand your position, and I wanna narrow this to the paradigmatic social media companies sort of news feed postings, Facebook, YouTube, Twitter, Slash x.

So suppose that I say, just take this as a given, all right, you can argue with the facts, but don't have. I suppose that I say, for the most part, all these places say, we're open for business, post whatever you like and we'll host it. But there are exceptions to that, and clearly content based exceptions, which the companies take seriously.

So let's say they say, we think that misinformation of particular kinds is extremely damaging to society, misinformation about voting, misinformation about certain public health issues. And so, too, we think that hate speech or bullying is extremely problematic, and so we are going to enforce rules against this. They're only going to apply to a small percentage of the things that people want to post, for the most part, they're open for business.

But we are serious about those content based restrictions. All right, so in that world, why isn't that a classic First Amendment violation for the state to come in and say, we're not going to allow you to enforce those sorts of restrictions, even though you're basically, it's like an editorial judgment, you're excluding particular kinds of speech.

 

>> Jane Bambauer: So what I like about this is I think that that's right, that fundamentally, what these social media companies are, are actually media companies, and I think this is becoming more true rather than less as time goes on, that at one time, access to your friends and the ability to find someplace to easily post your content.

Access was sort of the main service of these platforms, but today it's the newsfeed algorithm, it's the sortation and curation that either drives users, listeners toward or away from the different platforms, Eugene, what do you think?

>> Eugene Volokh: Well, so I think that it's important to disaggregate the various features of the various platforms, the various functions of the various platforms.

Functions, really, of each platform one, for example, is that the platforms often allow you to just send messages to individual messages to fellow users. Kind of like email systems allow you to send messages to individual users, or phone services allow you to call up an individual user. We didn't used to call them users, and you could tell from a bunch of the justices they were quite uneasy about the prospect that there's a First Amendment right to say, we're gonna refuse to allow you to send direct messages that we don't like the viewpoints of.

That's the kind of situation which does look a lot like traditional common carriage, and that is to say, like a traditional phone company, where it's understood you could require it to carry everything. The other extreme, again, if you think about this also as a spectrum, a similar spectrum to the one I described before, is the newsfeed, where they essentially say, here are the things we recommend to you.

Here are the news stories that we think are most interesting yeah, that does sound like a lot like the front page of a newspaper. It's something that people might look at, if not quite beginning to end, but look at the first several items, it's very carefully selected by the platform.

So then there's stuff in between, so one classic example is, I want to go and see what particular user say at real Donald Trump, what that user is saying. So I go to that page, and then that page turns out was deleted, how should we view that? And here, I think it's actually pretty helpful to look at one particular sentence from Hurley, where Hurley was distinguishing an earlier case called Turner Broadcasting.

That case upheld a requirement that a cable system carries certain channels, certain broadcast channels. Now, Turner Broadcasting had a whole bunch of rationales for it, and Hurley distinguished Turner in various ways, but here's one way it distinguished it. It said, unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience.

Although each parade unit generally identifies itself, each is understood to contribute something to a common theme. So it seems to me that that common theme might well be present in, say, the newsfeed, where the common theme may just be, here are things that we think are the very few really most interesting things, most important things that are happening now for you.

But on the other hand, when I'm going to a particular Twitter feed or going to a particular Facebook page, it does look a lot like I am treating the platform as indeed consisting of individual unrelated segments, your page, some other friend's page, some politician's page that happen to be transmitted together for individual selection by members of the audience.

So it may well be that the court will draw some distinctions there between the various functions. In fact, from the argument, I'm almost certain that it will draw the distinctions. I think there's going to be a majority that say majority of the justices who will say, look, just because it's your property, just because it's your service, doesn't mean you have a First Amendment right to exclude people safe from direct messaging each other or to restrict the kinds of direct messages that you'd sent.

I think a majority will also say, well, if you're providing the newsfeed, then you're entitled to pick and choose just like the newspaper is for its front page. The interesting question is what will happen with regard to these individual pages that people might go to? But at the same time, sometimes, in fact, often on these platforms, they don't directly go to them.

They expect the platform to pick and choose from among their favorite pages. So there may be a hybrid situation, on the one hand, it's individual selection. But on the other hand, it's aided by the platform's algorithm. That's the real challenge. My sense is probably the justices will say that the platforms do have a First Amendment right to say, well, we're just gonna kick someone off the service.

Or at least keep their, keep their posts from showing up for anybody other than, say, their direct subscribers or some such.

>> Jane Bambauer: So you think they will have a First Amendment right to kick people off their service? Is that what you said?

>> Eugene Volokh: So I think as a general matter, when it comes to the public facing pages, probably.

I'm not sure, though. I'm not sure, it's hard to know. It seems pretty clear that Justice Kavanaugh will take that view. It sounds like Chief Justice Roberts would take that view. And it's probably Justice Sotomayor harder to tell about, say, Justices Gorsuch and Barrett and Hagin and Jackson.

I do think Justices Alito and Thomas might think that there's a room for a lot of regulation.

>> Jane Bambauer: I agree, so I have two predictions. One is that you, Eugene, will be cited in at least one opinion when they come down.

>> Eugene Volokh: Well, you know what we law professors say, he or she who dies with the most citations wins.

 

>> Jane Bambauer: Well, then you are on your way to the leaderboard. I'm sure you're already there, though. So let's listen for a second to another clip where you, Eugene, are name checked. And then I'm gonna give a different prediction from the one you just gave.

>> Speaker 6: Organizing it in ways that reflect preferences that are expressive of their terms and conditions.

In that event, do you think it would be editorial control in a First Amendment sense?

>> Speaker 7: No, and I think it's important to separate the organizing, and I agree with Justice Jackson that it's important to separate the various functions, the organizing function, from the hosting function. This is a point that Professor Volek has made in his article that we cite.

I mean, simply because they are required to host certain speech, that does not actually meaningfully prevent them from organizing that speech. So I think the court has to separate out regulation of the organization from simply preventing them from censoring. And the reason, your honor, it is different from a newspaper, I think, is two principal points.

First, we've been talking a lot about selection. But second, space constraints. Space constraints are something that this court, in fair and in Tornio, relied on as one factor that is relevant. And the social media companies don't have any space constraints, which means that a requirement to host an additional piece of content is a relatively less.

 

>> Speaker 6: Well, let me just interrupt you there.

>> Jane Bambauer: So there we heard the attorney for the state of Florida making use of Eugene's article, by the way, there were three additional times. I believe, that the same article was referenced.

>> Eugene Volokh: I think two for the same article and then one more for it for a different.

 

>> Jane Bambauer: For a different article. Okay, my goodness. So I agree with you that the justices for sure, will find a constitutional flaw with the shadow banning part of the statutes. I also tend to agree that at least five justices are going to find that there is enough editorial interest on the part of the platforms to allow them to have to recognize a First Amendment right to suspend users or accounts.

Given that, I think that the DM service, the direct messaging service. At least when it comes to the platforms that happen to be triggered by the way these statutes are written. I think those go with the way of the suspension, because I think that's, I don't know, I see it as a sort of ancillary service.

You're part of the platform, this public-facing, or at least, if not completely public, at least large network of content that is both provided and curated towards certain communicative goals. And this direct messaging is sort of just so you don't have to leave the platform to go directly, email or call the individuals who are already allowed to be on it.

So I'm pretty confident, I guess, that, that they see First Amendment interests across the board. There was a little bit of debate, it sounded like, about whether there was reason to draw a narrow opinion, given that it's a facial challenge, and to-

>> Eugene Volokh: Yes, so what?

>> Jane Bambauer: I'm less confident about that.

What sort of an opinion do you think they'll write?

>> Eugene Volokh: Well, it's very hard.

>> Jane Bambauer: Maybe we should explain the difference between a facial challenge.

>> Eugene Volokh: I think we should.

>> Jane Bambauer: Go ahead.

>> Eugene Volokh: So one of the things that was really striking about this argument is how often some of the justices went back to this basic question.

So there are two kinds of challenges one can bring to a law. One is, one can say the law is just unconstitutional. Just is not valid, period. So one example might be, in the race context, the law that says black and white people have to walk on different sides of the street.

Well, clearly unconstitutional hard to imagine a scenario in which it would be constitutional. You don't need to point to particular facts. Just the law on its face is unconstitutional. So I'll give you another example. There's a titles of nobility clause. So if somebody were to say, we have a law that makes Jane Bambauer, Lady Jane Bambower, she will be our first baroness.

I would support that emotionally, although not as a good democracy-loving American, but emotionally, I would support that. But that would be a law that's unconstitutional on its face, just-.

>> Jane Bambauer: We must have a baroness, I'm the right one.

>> Eugene Volokh: Exactly, exactly, just on its face, it contradicts some basic constitutional principle, period.

You might not even ask how it would be applied. It's just unconstitutional. But most challenges are as applied challenges. They say, well, this law as applied to this particular situation is unconstitutional, but it might be constitutional as to others. So we won't strike down the law as unconstitutional across the board.

We'll just say it's unconstitutional in certain applications, maybe very many applications, but still not all. Now, for most laws, it's pretty hard to get it struck down on its face, because the general rule, and I oversimplify here. But the general rule is the law is unconstitutional in its face only if it's unconstitutional in all of its applications.

Like the race classification that I described, unconstitutional in all of its applications can be struck down in its face. But if it's constitutional even in some applications, well, then we should preserve it for those applications and strike it down only in those applications where it's unconstitutional. Now, the rule in free speech cases has for decades been different in the free speech context and in a few others, maybe, but certainly in the free speech context.

The court has recognized the so-called over breadth doctrine. Again, to oversimplify, that doctrine says that if a law is unconstitutional in a substantial number of its applications relative to its permissible reach. Then, we will strike it down on its face cuz otherwise, it might have too much of a chilling effect while it's being challenged as applied here and there, it'll chill a lot of speech in the meantime.

Used to be a very Very well accepted form of First Amendment challenge. And in recent years, we've seen a pushback. So, just to give an example. I'm sorry, let me give an illustration. So there is a First Amendment doctrine called fighting words, which is that personal, face to face insults that are likely to start a fight are constitutionally unprotected.

Because they're likely to start a fight, and because they're personal and face to face and it's not really about some politically offensive statements. So imagine the government were to have a law that says offensive speech or vulgar speech in public places is illegal. Well, that could be applied in some situations to these so called fighting words.

But there's so many other kinds of speech that are not fighting words that are still offensive or vulgar, that that law would be struck down as overbroad. That was quite well settled for many decades. And in recent years, especially, many justices have been retreating for that. Justice Thomas has most expressly called for that doctrine to be overruled.

But in some recent cases, some other justices also seem to have some impatience with that. Their view is, look, don't talk to us about the law in the abstract as it might be applied to someone or other. We want to hear about a particular factual context, and then we'll decide whether the law is unconstitutional in this context.

In the process, our decision may make clear it's unconstitutional in some other related context, but we much prefer as applied challenges. We don't want these facial challenges. So one possibility is some justices might say, look, this law is constitutional as applied perhaps to certain kinds of things, such as direct messaging and such.

So maybe we'll even hint at when it might be unconstitutional as well. But given that, at this point, we're facing these facial challenges, we're gonna send it back down, perhaps, as applied challenges to be brought, and then maybe have some of these instructions which will pass along in the meantime, be applied in the process.

 

>> Jane Bambauer: I think you're right. I mean, they might do that, but I think that would be a terrible outcome, because the motivation for the laws and the archetype example are the deplatforming of Donald Trump. The shadow banning of conservative voices, or sort of vaccine skeptics, that sort of thing.

So saving the law because of some examples that weren't even on the mind of the legislature, and basically direct messages, which was not part of the package of things that really animated people. Would be sort of, it would not just be a shame in terms of it, sort of wasting a lot of effort and energy litigating the core case, only to have to redo it in a couple years.

So not only is it wasteful, but I think it basically provides a blueprint for what legislatures can do. Also just have like a massive law that sort of gums up a lot of speech, but has hopefully at some point ex post, you can come up with some examples of ways in which it might be constitutional and keep the bill alive, at least for a few more years.

 

>> Eugene Volokh: I think that the overburd doctrine is a good idea. I think, I'm with you, that it's probably a good idea just to say, look, we want to encourage the legislature to write a narrow law that's constitutionally permissible in all or almost all of its applications. And we don't want these laws to remain on the books, possibly deterring speech while they're being kind of litigated piecemeal.

So I'm generally a fan of the overburth doctrine. I'm not sure there are a lot of fans of the overburth doctrine on the court today. I mean, I'd heard skepticism from various justices both on the left and on the right of the court about it. I think in part because I think judges generally prefer to talk about facts in the record before them rather than hypothetical examples about how the law may be applied or even is expected to be applied in other situations.

So it may be that they're just gonna say, that over breath doctrine, we're retreating from it, or maybe they won't say it, but that's what they'll do. That sometimes happens. And if that's so, then I do think the litigants have the option of just bringing more as applied challenges.

And so I think, I'm not sure that that's going to be that much of a blank check to the legislature. It's just, it's going to require a change in litigation tactics.

>> Jane Bambauer: Right. Okay, and I guess last question, there was also a potential question about whether, if this is remanded, if there are any issues that need to be resolved.

Whether it's either because the court decides to step away from over breadth or because of any other reason, maybe finding some merit in some of the arguments from either of the states. Do you think that they will leave the stay in place in Florida and also stay the enactment of Texas in the meantime?

 

>> Eugene Volokh: As a large language model, I'm not equipped. No, I'm sorry. As someone whose predictions, even on the core substantive questions, have not been that great. I very much hesitate to make any predictions about procedural posture on remand. If there is a remand, it's a great question that you ask, and it certainly will be a very important question.

 

>> Jane Bambauer: It's consequential, right?

>> Eugene Volokh: Exactly, because the procedural rules are tremendously important here. I can't really predict anything here. I wanna flag something else. And this is just totally stepping back. This did not come up at all in the oral argument, but I think there's something of an overlay of this behind what's going on.

So let's look back to 2010. Seems an eternity ago. Not that long, really. And Citizens United, remember, Citizens United was the case about whether the First Amendment protects corporations rights to speak about candidates, to endorse or oppose candidates for federal office. It has been long, very well settled that corporations do have some, in fact, quite broad free speech rights.

New York Times v Sullivan New York Times is a corporation. Corporate employers have long been understood since the 1940s to have free speech rights to express at least certain views about unionization and the like. But the question is whether they had the right to speak in particular about political races and political candidates.

And the view, I oversimplify here mostly from the right, was, well, yes, corporations are entitled to speak. And just because you think they have too much power, well, maybe you're exaggerating the amount of power they have. And even if they do, well, powerful entities are entitled to speak as well.

And the view from the left for Justice Stevens is, for example, descendant Citizens United. By then he was one of the courts or center left justices. And also the view, I think, of many liberal media outlets and others. Well, was, well, no, you have to be able to rein in corporate power in American political life.

It's a problem when economically powerful entities, the extraordinarily rich corporations out there, even just can speak out in ways that might drown out individuals voices and therefore. For leverage their economic power into political power. Interesting how things have flipped, a lot has flipped in various ways. But now, we have conservatives worried about corporate power and many liberals are saying, no, no, no, of course, these corporations have very broad First Amendment rights.

Now, you could draw some distinctions, for example, conservatives will say, well, we were right in citizens united, cuz that just had to do with the corporations rights to speak. These cases have to do with corporations rights to block people's speech. So we wanna support, as in Citizens United corporations right to speak.

But we don't think they have a First Amendment right to block people's right to speak, even on their own property.

>> Jane Bambauer: I'm not even sure that position represents most of the conservative right anymore, given that also corporations are taking strong political stands on topics like trans rights and that too is.

 

>> Eugene Volokh: Yeah, I don't know, it's possible that many on the right would say, well, no, Justice Stevens was right in Citizens United or maybe they wouldn't say it, but again, they'd act that way.

>> Jane Bambauer: But anyway, I'm not sure, but then on the left.

>> Eugene Volokh: Right, but on the left you could say, well, traditional business corporations, well, of course, their rights need to be limited in order to protect the rights of individuals.

But media corporations, well, of course, they have broader free speech rights than, say, General Motors, or Tesla, or whatever else. So Musk may own X, I don't wanna call it X Twitter. He owned Twitter and Tesla, and in his capacity as the owner of Twitter, he does have these extra rights that the owner of Tesla might not, even if it's the same person.

So what's going on here is that the social media platforms are media corporations, and ought to have all of these First Amendment rights, even if it does give them tremendous influence potentially over American political life. But these are, I think, important questions to think about. I doubt that the Supreme Court will talk about Citizens United in the opinion, but I do think that's something of the overlay here.

What should we think as conservatives? Sorry, liberals, libertarians, kind of mushy. I'm pro-free market, but I'm not deaf to these concerns, traditionally from the left about private economic power. What should we think about private economic power of vast corporations being turned into power over political discourse.

>> Jane Bambauer: Okay, well, so you think Citizens United might get ignored even though it's lurking in the background, and I agree with that.

 

>> Eugene Volokh: Well, I'm not saying it's doctrinally on point, I'm just saying there's something we should be thinking about here.

>> Jane Bambauer: It shows a shift in first amendment culture, yeah, I totally agree. But I think another case that might not even get cited is Reno v ACLU, the canonical case that decided that the Internet is different, that content is a click away.

It's very easy to both expose your thoughts to others and to find whatever it is you want. And I think another way in which sort of political spectrum has shifted over the last 10 to 15 years is a great distrust and sense of threat from these large platforms.

One, I sense, it's a distrust that you, yourself or that you see some merit to.

>> Eugene Volokh: Well, I see Meridian distrusting everyone. Well, not you, Jane, I trust you, but- Right, in fairness, good answer. Why should we completely trust big government, or big tech, or even small tech, right?

 

>> Jane Bambauer: Well, I guess, I mean something different, that there's a lack of trust, that there is a market at all. And there, I think I greatly disagree with the overall perception that these dominant companies are just sitting in their position of power, and deciding how to manipulate users however they wish.

And I think instead, these are large companies, there's no doubt about that, but they are fiercely competitive with each other and with other startups. And this point was made by Paul Clement on behalf of net choice as well, that a few years ago, nobody was thinking about TikTok.

And now every major company, YouTube, Google, Facebook, they're trying to crack the code and figure out how they can make their services more like TikTok. So I'm still not convinced that we have a censorship problem, a private censorship problem that lasts more than, say, a year or two.

And so I think there, too, just in terms of our sense of the level of threat of these companies, we might have some differences there as well.

>> Eugene Volokh: Yeah, there's a lot to what you say, and look, there's no problem that's so bad, or almost no problem that's so bad that regulation can't make it worse.

So even setting aside the first Amendment problem, it may very well be that imperfect as the competition of the market may be here. And there are all sorts of imperfections, especially when these network effects that kind of tend to allow the biggest companies to grow bigger. Imperfect as it may be, it's better than having government regulation or especially government regulation by states.

Here, it's two states, but it could be 50 states, each with their own regulatory scheme, possibly inconsistent with each other. And with various kinds of threats of financial penalties that will lead the platforms to do things, perhaps overreact in ways that either over restrict speech or under restricted in various ways, there could be huge problems.

I'm not, by any means, kind of a cheerleader for these particular laws. And even as a First Amendment matter, I think these laws are defensible or at least some versions of these laws. I'm not sure I'd have written them quite the way that Florida and Texas laws were written.

But some versions of these laws might be defensible as a First Amendment matter. But maybe I'm wrong, maybe they are unconstitutional. And even if they're constitutional, they may be a bad idea. So I totally agree, this is a very difficult question. And I think that's one thing we saw on the court, is that the justices were likewise struggling with these concerns.

 

>> Jane Bambauer: Well, we should end it there.

>> Eugene Volokh: Well, great pleasure talking to you about this.

>> Jane Bambauer: Great pleasure talking to you, too, Eugene, and we'll see everyone in the next podcast.