Month: July 2021

What the Declaration of Independence Said and Meant

[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government.” It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding]

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed,” another idea for which the Declaration is famous.

The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that “all men are endowed by their Creator with certain unalienable rights–and that among these are life, liberty, and the pursuit of happiness.

The Declaration was much relied upon by Abraham Lincoln and many others before him:

Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all”–the principle that clears the path for all–gives hope to all–and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.

The Declaration had to be explained away–quite unconvincingly–by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the People.”

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to “a long train of abuses and usurpations” and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.

In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

This first sentence is often forgotten. It asserts that Americans as a whole (and not as members of their respective colonies) are a distinct “people.” To “dissolve the political bands” revokes the “social compact” that existed between the Americans and the rest of “the People” of the British commonwealth, reinstates the “state of nature” between Americans and the government of Great Britain, and makes “the Laws of Nature” the standard by which this dissolution and whatever government is to follow are judged. “Declare the causes” indicates they are publicly stating the reasons and justifying their actions rather than acting as thieves in the night. The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an “appeal to heaven”—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: “The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.” The reference to a “decent respect to the opinions of mankind” might be viewed as a kind of an international public opinion test. Or perhaps the emphasis is on the word “respect,” recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. “

The most famous line of the Declaration. On the one hand, this will become a great embarrassment to a people who permitted slavery. On the other hand, making public claims like this has consequences—that’s why people make them publicly. To be held to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration. And it forms the basis for Martin Luther King’s metaphor of the civil rights movement as a promissory note that a later generation has come to collect.

Notice that the rights of “life,” “liberty” and “the pursuit of happiness” are individual, not collective or group rights. They belong to “We the People”—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals.

What are “unalienable,” or more commonly, “inalienable rights”? Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England’s claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.

A standard trilogy throughout this period was “life, liberty, and property.” For example, the Declaration and Resolves of the First Continental Congress (1774) read: “That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: Resolved, 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.” Or, as John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”

When drafting the Declaration in June of 1776, Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia’s provincial convention. Here is how Mason’s draft read:

THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Notice how George Mason’s oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have “certain . . . natural rights” of life, liberty, and property, but these rights cannot be taken away “by any compact.” Again, these rights each belong to individuals. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment’s reference to the “rights…retained by the people.”

Interestingly, Mason’s draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the officially adopted version read (with the modifications in italics):

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This version is still in effect today.

According to historian Pauline Meier, by changing “are born equally free” to “are by nature equally free,” and “inherent natural rights” to “inherent rights,” and then by adding “when they enter into a state of society,” defenders of slavery in the Virginia convention could contend that slaves were not covered because they “had never entered Virginia’s society, which was confined to whites.” Yet it was the language of Mason’s radical draft—rather than either Virginia’s final wording or Jefferson’s more succinct formulation—that became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason’s original references to “born equally free” and to “natural rights” into their declarations of rights while omitting the phrase “when they enter into a state of society.” Indeed, it is remarkable that these states would have had Mason’s draft language, rather than the version actually adopted by Virginia, from which to copy. Here is Massachusetts’ version:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Virginia slaveholders’ concerns about Mason’s formulation proved to be warranted. In 1783, the Massachusetts Supreme Judicial Court relied upon this more radical language to invalidate slavery in that state. And its influence continued. In 1823, it was incorporated into an influential circuit court opinion by Justice Bushrod Washington defining the “privileges and immunities” of citizens in the several states as “protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.”

Justice Washington’s opinion in Corfield (to which we will return), with Mason’s language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.

“That to secure these rights, Governments are instituted among Men.… “

Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Here, even more clearly than in Mason’s draft, the Declaration stipulates that the ultimate end or purpose of republican governments is “to secure these” preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged. This language identifies what is perhaps the central underlying “republican” assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government.

“…deriving their just powers from the consent of the governed.”

Today, there is a tendency to focus entirely on the second half of this sentence, referencing “the consent of the governed,” to the exclusion of the first part, which refers to securing our natural rights. Then, by reading “the consent of the governed” as equivalent to “the will of the people,” the second part of the sentence seems to support majoritarian rule by the people’s “representatives.” In this way, “consent of the governed” is read to mean “consent to majoritarian rule.” Put another way, the people can consent to anything, including rule by a majority in the legislature who will then decide the scope of their rights as individuals.

But read carefully, one sees that in this passage the Declaration speaks of “just powers,” suggesting that only some powers are “justly” held by government, while others are beyond its proper authority. And notice also that “the consent of the governed” assumes that the people do not themselves rule or govern, but are “governed” by those individual persons who make up the “governments” that “are instituted among men.”

The Declaration stipulates that those who govern the people are supposed “to secure” their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered “by any compact.” Therefore, the “consent of the governed,” to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.

In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the “fundamental” or “human” rights of individuals and minorities.

If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the “consent of the governed” tells us which government gets to undertake the mission of “securing” the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this end.

“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”

Affirms at least two propositions: On the one hand, long-established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution. All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance. Therefore, the very existence of this Declaration is evidence that things are very bad indeed.

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Revolution is justified only if there “is a long train of abuses and usurpations, pursuing invariably the same Object”—evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of “light and transient causes,” that is, the more ordinary violations of rights by government.

“Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III—Eds.] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.“

What follows is a bill of indictment. Several of these items end up in the Bill of Rights. Others are addressed by the form of the government established—first by the Articles of Confederation, and ultimately by the Constitution.

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “First comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) the protection of these rights is the first duty of government; and (3) even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition; (4) at least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.

At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration’s claim that such rights “are endowed by their Creator,” leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe this is a mistake.

The political theory announced in the Declaration of Independence can be summed up in a single sentence: First come rights, and then comes government. This proposition is not, as some would say, a libertarian theory of government. The Declaration of Independence shows it to be the officially adopted American Theory of Government.

  • According to the American Theory of Government, the rights of individuals do not originate with any government but pre-exist its formation;
  • According to the American Theory of Government, the protection of these rights is both the purpose and first duty of government;
  • According to the American Theory of Government, at least some of these rights are so fundamental that they are inalienable, meaning that they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so;
  • According to the American Theory of Government, because these rights are inalienable, even after a government is formed, they provide a standard by which its performance is measured; in extreme cases, a government’s systemic violation of these rights or failure to protect them can justify its alteration and abolition. In the words of the Declaration, “whenever any Form of Government becomes destructive of these ends,” that is the securing of these rights, “it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

The original public meaning of the text of the Declaration of Independence is distinct from the original public meaning of the U.S. Constitution. The Constitution, however it is properly interpreted, does not justify itself. To be legitimate, it must be consistent with political principles that are capable of justifying it. Moreover, these same publicly identified original principles are needed inform how the original public meaning of the Constitution is to be faithfully to be applied when the text of
the Constitution is not alone specific enough to decide a case or controversy.

The original principles that the Founders thought underlie and justify the Constitution were neither shrouded in mystery nor to be found by parsing the writings of Locke, Montesquieu, or Machiavelli.

On July 2nd, 1776, the Congress of the United States voted for independence from Great Britain. On July 4th, 1776, it officially adopted the American Theory of Government, which was publicly articulated in the Declaration of Independence.

Happy Independence Day!

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Reflections on the Declaration of Independence and the American Revolution


DeclarationofIndependence

The Declaration of Independence.

 

Over the years, I have written a number of Independence Day pieces. Many of them have obvious continuing relevance to such issues as identity politics, nationalism, immigration, the role of slavery in American history, and others.

In this post, I compile what I hope will be a useful list of links to those works. Enjoy!

“The Declaration of Independence and the Case for Non-Ethnic Secession,” July 4, 2009.

“The Declaration of Independence and the Case for a Polity Based on Universal Principles,” July 4, 2017.

“The Universalist Principles of the Declaration of Independence,” July 4, 2019.

“The Case Against the Case Against the American Revolution,” July 4, 2019. A rebuttal to longstanding claims—advanced by critics on both right and left—that the Revolution did more harm than good

“Slavery, the Declaration of Independence and Frederick Douglass’ ‘What to the Slave is the Fourth of July?'”, July 4, 2020. Douglass’s famous speech sheds light on some of America’s greatest evils—but also on the great good done by the Revolution and Founding.

“Juneteenth and the Universalist Principles of the American Revolution,” June 19, 2021. Why there is no inconsistency in celebrating both July 4 and the abolition of slavery. Indeed, the two are mutually reinforcing.

“Immigration and the Principles of the Declaration of Independence, July 4, 2021.

UPDATE: I have updated the above to include today’s post on immigration and the Declaration.

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The Political Shape of the Debate About Regulating Social Media

Another excerpt from my Social Media as Common Carriers? article (see also this thread):

[* * *]

These days, calls to treat social media platforms as common carriers are mostly coming from the Right, likely because such platforms are perceived (rightly or wrongly) as run by progressives who are especially likely to censor conservative voices. But the link to the argument in the Citizens United dissent may help explain why some top scholars on the Left, such as Erwin Chemerinsky,[41] Michael Dorf,[42] Genevieve Lakier,[43] and Nelson Tebbe,[44] have suggested similar regulations.[45]

Some advocacy groups on the Left have likewise accused platforms of improperly restricting their speech.[46] And of course even many conservatives, while generally more skeptical of government regulation of private actors, have long been open to some regulation, especially when the private companies have been seen as monopolies or close to it.[47]

Hard-core libertarians, who oppose virtually all government regulation of private business transactions, are likely to oppose common carrier status for platforms (and perhaps the concept of a common carrier altogether).[48] And of course many liberals, moderates, and conservatives may conclude that, even if such common carrier rules aren’t theoretically impermissible, they are likely to be unsound in practice. But my point here is simply that the concerns about platform power are not exclusively a matter for one or another side of the ideological divide.

[41] Prasad Krishnamurthy & Erwin Chemerinsky, How Congress Can Prevent Big Tech from Becoming the Speech Police, Hill (Feb. 18, 2021), https:‌//‌perma.cc/‌645W-LMLP.

[42] Michael C. Dorf, Could Clarence Thomas Be Right About Twitter?, Verdict (Apr. 14 2021), https:‌//‌perma.cc/‌D7AB-8Z4M.

[43] Genevieve Lakier & Nelson Tebbe, After the “Great Deplatforming”: Reconsidering the Shape of the First Amendment, Law & Political Economy [LPE] Project (Mar. 1. 2021), https:‌//‌perma.cc/‌56F3-KMBE.

[44] Id.

[45] Rebecca Tushnet had long before likewise expressed some concern about excessive intermediary power. Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986, 1010, 1015 (2008).

[46] See, e.g., Natasha Lennard, Facebook’s Ban on Far-Left Pages Is an Extension of Trump Propaganda, Intercept (Aug. 20, 2020), https:‌//‌perma.cc/‌Z2JC-YEEB (arguing that Facebook was banning a wide variety of “anarchist[] and anti-fascist[]” groups); Andre Damon, Facebook Purges Left-Wing Pages and Individuals, Int. Comm. of the Fourth International [World Socialist Web Site] (Jan. 23 2021), https:‌//‌perma.cc/‌7EX8-ADUY.

[47] See, e.g., Ryan Cooper, Even Republicans are Getting Fed Up with Monopolies. Here’s Why, The Week (Apr. 1 2016), https:‌//‌perma.cc/‌Z876-N337. Likewise, some arguments for wedding providers’ right to refuse service to same-sex weddings under religious freedom protections or under the compelled speech doctrine—generally seen as a conservative position—have acknowledged that those exemptions might be denied if there are too few other alternatives to those businesses’ services. See, e.g., Douglas Laycock, Afterword, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 200–01 (2008) (“Religious dissenters can live their own values, but not if they occupy choke points that empower them to prevent same-sex couples from living their own values. If the dissenters want complete moral autonomy on this issue, they must refrain from occupying such a choke point.”); Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. REV. 1417, 1485 (2012) (“An objector in the stream of commerce may object only if a ‘substantial hardship’ would not result.”); Executive Summary of Statement of William Bassett et al., Hearing Before Hawaii Senate Committee on Judiciary and Labor 9–10 (Oct. 28, 2013), https://ift.tt/3xkE1II; Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595, 1629–30 (2018); cf. Attorney Gen. v. DeSilets, 636 N.E.2d 233, 242–43 (Mass. 1994) (concluding that whether landlords should get religious exemption from bans on housing discrimination against unmarried couples should turn on “whether the rental housing policies of people such as the defendants can be accommodated, at least in the [particular geographical] area, without significantly impeding the availability of rental housing for people who are cohabiting,” and in particular on whether “a large percentage of [housing] units are unavailable to cohabitants”); see also John Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 172 (2012) (calling for a similarly “fact-specific contextual analysis” with regard to private clubs’ right to exclude).

[48] See, e.g., Katherine Mangu-Ward, Don’t Try to Fix Big Tech with Politics, Reason, July 2021, https:‌//‌perma.cc/‌8CQ7-2J6T (Mangu-Ward is the editor-in-chief of Reason magazine, the most prominent libertarian publication in the U.S.); John Samples, Why the Government Should Not Regulate Content Moderation of Social Media, Cato Institute (Apr. 9, 2019), https://ift.tt/3AvUZ8N (Samples is Vice President of the Cato Institute, one of the most prominent libertarian think tanks in the U.S.).

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What Difference Would a Justice Breyer Retirement Make?


Breyer 3

The Supreme Court’s October 2020 term is in the books, and there is no word on whether Justice Stephen Breyer will retire in order to ensure that President Biden names his replacement. Justice Breyer has hired the full complement of clerks for the coming term, and it appears he wants to have one more year as the senior-most liberal on the Court. If the Court is going to be split 6-3, Breyer may be thinking, he might as well be the voice of the three.

Most of those urging Justice Breyer to retired focus on the long term balance of the Court. Breyer should retire now, they argue, so as to ensure that his seat is filled by a Democratic president with a Democratic Senate. This would keep a liberal seat in liberal hands well into the future by replacing a justice in his 80s with one in her 40s or 50s. Those trying to pressure Breyer to retire also worry about what would happen were the Senate to fall back into Republican hands.

Replacing Justice Breyer with a Democratic appointee would maintain the Court’s current balance on many high-profile issues, such as race, abortion, religion and even property rights. But I think it is a mistake to assume that a younger, liberal justice would replicate Justice Breyer’s jurisprudence and voting pattern across the board. In at least one area—criminal justice—I suspect that a new liberal justice would differ significantly from Justice Breyer.

Throughout his time on the Court, Justice Breyer has been a notably pro-government justice. This has meant support for government regulation, but it has also meant more sympathy for police officers and prosecutors than the typical liberal justice. While Justice Breyer has turned against the death penalty, his pragmatism has also made him more open to government arguments that the rights of suspects and defendants need to be balanced against practical considerations. When the Court splits along formalist-pragmatist lines over criminal procedure, Breyer usually sides with the pragmatists.

A younger liberal justice would likely be more skeptical of government, and law enforcement in particular, than Justice Breyer has been. In a sense, you could say a Breyer replacement would likely be a bit more libertarian. Some of the difference would likely be due to a greater sensitivity to the racial implications of deferring to government power, but some of it would also be generational. As I’ve noted before, we are already seeing hints of a generational split on criminal justice among the conservative justices, as in Van Buren, and I suspect we will see a similar divergence between Justice Breyer and a younger liberal replacement, if and when he eventually leaves the Court.

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New Op-Ed: Conservative Justices Warn Kavanaugh and Barrett Lack ‘Fortitude’

The Supreme Court’s Term has now drawn to a close. So far, we don’t have any leaks about internal struggles on the Supreme Court. Yet, on at least two occasions this Term, Justices Thomas, Alito, and Gorsuch have expressed concern about the two newest members of the Court. Specifically, the Thomas-3 allege that Justices Kavanaugh and Barrett lack backbone. Blink, and you’ll miss these serious allegations. But parse the Court’s cases carefully–especially the shadow docket–and the red flags are unmistakeable.

Newsweek has published my new op-ed, titled Conservative Justices Warn Kavanaugh and Barrett Lack ‘Fortitude.’

Here is the introduction:

For the first time in a generation, there are six conservative justices on the Supreme Court. In time, this sextet will incrementally push the Court to the right. Yet, three of them are already sounding an alarm. Twice this term, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.

In an excessive force case, the conservative trio wrote that the two newest Justices were “unwilling to…bear[] the criticism that” denying the prisoner’s appeal “would inevitably elicit.” And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the “fortitude” to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

It is fairly common for justices to criticize their colleagues’ legal judgments. But it is rare for justices to claim that their colleagues are motivated by cowardice. The putative 6-3 conservative majority is, in fact, far from monolithic. At present, we have a 3-3-3 Court. There are three progressives, three conservatives and three members in the middle. Only time will tell whether Justices Kavanaugh and Barrett will sidle up to Chief Justice John Roberts’ P.R.-based jurisprudence, or whether they will stand on their constitutional principles.

These warnings came in two cases. First, Fulton:

Gorsuch charged that the majority “dodg[ed] the question today.” In a not-so-subtle warning to the other two Trump appointees, Gorsuch wrote that “these cases will keep coming until the Court musters the fortitude to supply an answer.” Gorsuch thus called out Kavanaugh and Barrett for lacking “fortitude” in the present moment. This personal attack no doubt reflects simmering tensions within the Court, and those tensions have now spilled into public view.

Second, Lombardo v. City of St. Louis:

Alito, joined by Thomas and Gorsuch, dissented. Based on the process of elimination, Kavanaugh and Barrett agreed with the Court’s strange punt. Alito savaged his colleagues. He wrote that the Court was “unwilling to…bear[] the criticism that” denying the appeal “would inevitably elicit.” In all likelihood, this punt merely delayed the government’s inevitable victory. But, in the meantime, the Supreme Court gets credit for keeping the case alive. Once again, the Court aired its dirty laundry in public. The three conservatives alleged that Kavanaugh and Barrett were afraid of public criticism, and instead chose to virtue-signal.

The 3-3-3 dynamic was evident in other cases, including South Bay II, Arlene’s Flowers, Republican Party of Pennsylvania v. Degraffenreid, and others.

We should take these warnings seriously.

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Economic Power Being Leveraged to Control Political Discourse

You can also read the article in PDF, or read all the posts that have been posted so far on this thread; but in this post, I excerpt the start of the policy analysis.

A commenter on the Introduction post, by the way, remarked that such calls for treating social media platforms as common carriers aren’t very libertarian or conservative—and they’re not. They stem from a concern that’s mostly associated with liberals (though not foreign to conservatives): the concern over excessive private corporate power, which sometimes needs to be checked by government power. I’m generally skeptical about such concerns (more on that later), but I wonder whether in this instance this traditional liberal worry is justified. More below, and more on the First Amendment questions coming up soon.

[* * *]

Let’s begin with the policy question, and ask: Why might we want phone companies to be barred from cutting off service based on subscribers’ viewpoints?

Say a phone company argues: We don’t want our service to be used to promote racial hatred or advocacy of Communism or conspiracy theories, and our other subscribers don’t want it, either. We want to be able to cancel phone lines of subscribers who are publicly known to be engaging in “hate speech” or advocating violence or revolution.[17] That speech is “terrible,” and it “hurts society.”[18] Why does the law preclude the companies from doing this—even when they’re not monopolies, such as landline companies might be,[19] but are highly competitive cell phone providers?

I take it one answer might be something like this: We don’t want large business corporations deciding what Americans can say in a particular medium of public communication. Sometimes, in the few areas where the First Amendment permits government regulation, the people’s representatives decide that. Usually, individual speakers and listeners decide that.[20] But companies that provide communications infrastructure should provide the infrastructure, not control what may be communicated on it.[21] When “dominant digital platforms” have the power “to cut off speech,” we should be as concerned about that power as we are about, say, government power to exclude people from limited public forums.[22]

This is generally the attitude, I think, even as to many platforms that aren’t legally common carriers. For instance, though the FCC has held phone companies are not common carriers as to text messaging, the rationale for that decision was the need to block unwanted robotexting—and as to messages among willing customers, a concurring opinion assured readers that, “Tomorrow, like today, our text messages will go through.”[23]

Likewise, e-mail systems are generally not treated as common carriers, and can in theory legally screen messages based on their viewpoints or on their supposedly spreading conspiracy theories or misinformation. Still, I suspect that most people would be surprised if Microsoft (Outlook) and Google (Gmail) decided to control their communications this way. In the words of New York’s high court, an e-mail system’s “role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers’ conversations.”[24]

Of course, phone companies or delivery companies might well use their power wisely, to block speech that the government can’t suppress but that is still bad—bad for its subjects who are being insulted or harassed or defamed, bad for democracy, bad for public health, bad for the victims of crimes that the speech might inspire.[25] But such companies, like all human institutions, can act badly as well as well. And common-carrier law allows us “not to place all one’s hopes in the good will of corporate actor.”[26]

This is connected to the argument of the Court’s majority in Austin v. Michigan Chamber of Commerce and of the four dissenters in Citizens United v. FEC: The power of immensely rich corporations may “give corporations unfair influence” and “distort public debate[s].”[27] Or, in the words of the liberal think tank Demos, criticizing Citizens United: “Concentrated wealth has a distorting effect on democracy[;] therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace.”[28]

I think the Citizens United majority was right to hold that this couldn’t justify restricting corporations’ own speech. But the argument for limiting the power of massive corporations strikes me as especially strong—and, as the next Part will argue, consistent with the First Amendment—when the corporations are using their immense “financial resources” not just to try to persuade listeners through the corporations’ own speech, but to suppress others’ speech.

Indeed, much of Justice Stevens’ argument in his Citizens United dissent would apply to such selective blocking decisions by infrastructure companies:

A legislature might [reasonably] conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match…. [Because of the speech of corporations,] the opinions of real people may be marginalized…. “[Corporate] expenditure restrictions … are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.”

Corporate “domination” of electioneering can [also] generate the impression that corporations dominate our democracy…. The predictable result is cynicism and disenchantment: an increased perception that large spenders call the tune and a reduced willingness of voters to take part in democratic governance.

To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation…. Unregulated corporate electioneering might diminish the ability of citizens to hold officials accountable to the people, and disserve the goal of a public debate that is uninhibited, robust, and wide-open.[29]

Though Justice Stevens wrote this about corporate speech about particular candidates,[30] I think it applies to corporate restrictions on speech about public issues more broadly, since such restrictions can obviously affect elections, whether imminent ones or future ones. And of course such speech about public issues can range from detailed ideological argument, to short slogans (“Fuck the Draft” / “God Hates Fags”[31]), and to the personal-as-political (such as sexual minorities’ coming out of the closet or some speakers’ refusal to use transgender people’s preferred names or pronouns[32]).

These concerns also apply to social media platforms as much as to phone companies and other business corporations. For many advocacy groups, social media presence is as important as having a phone line, and might even be more so.[33]

It’s true that groups could communicate even without Facebook or Twitter, and historically had of course done so before social media was invented. But likewise they could communicate without phone lines, as political movements did throughout much of American history.

In an environment where advocacy groups compete with each other for support and attention—and do so by communicating to the public—denying a group a vastly important means of public communication is a serious burden. And it’s a serious leveraging of the platforms’ economic power to affect the community’s political life.[34]

Indeed, it’s a much more serious leveraging, I think, than with corporate election-related speech as such. Corporate independent expenditures related to political campaigns are a relatively minor portion of all political expenditures (likely only about 5–10%), roughly the same as unions.[35] “While corporations and unions gained potential political power as a result of Citizens United, it’s individual donors who are fueling the explosion of money in recent elections.”[36] But the social media platforms put together have far greater control over the speech marketplace. Likewise, Justice Stevens argued that, “The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match”[37]—and one could add that 47 U.S.C. § 230(c)(1) immunity from libel and similar lawsuits has likewise allowed platforms to amass and deploy financial resources on a scale that few corporations can match.

And recall that Justice Stevens was concerned about a fairly indirect form of speech restriction: “corporations grabbing up the prime broadcasting slots on the eve of an election” and thus “drowning out … noncorporate voices”[38] (something that appears not to happen that much). Corporations’ actually restricting what people can say on hugely important social media platforms seems like an even more significant interference with public debate. “That private technology platforms exert unparalleled power over political discourse is deeply undemocratic,” write Prasad Krishnamurthy and Erwin Chemerinsky,[39] and I’m inclined to agree.

This is particularly so for platforms that are near monopolies in their particular fields. But even in the absence of a monopoly, “similar terms, similar market forces, and the societal pressures all services face regarding a controversial or distasteful product” may end up broadly restricting viewpoints of which Big Tech managers and employees.[40]

To be sure, all this doesn’t mean that diminishing this power is necessarily a wise idea. Perhaps some solutions to the problem are even more undemocratic, or perhaps the platforms’ free speech rights justify even such undemocratic results (more on that in the next Part). But we should seriously consider whether something can and should be done about that power, and treating the platforms’ hosting function like we treat phone companies seems like one plausible option.

[17] Assume all this is done without listening in on private phone calls, but just by consulting public statements (e.g., an extremist group’s public ads that list a phone number) or reviewing texts that come from a phone number and that were passed along to the phone company by the recipient. Texting is generally not governed by common carrier rules, but telephone service is; and seeing a text from a phone number might move the phone company to cancel that number’s phone service and not just its text service.

[18] [Add citation.]

[19] These days, even landline phone companies often face competition from cable operators, which can provide phone service, as well as cellular companies.

[20] When speakers and listeners disagree, telephone companies can implement viewpoint-neutral technologies helping listeners, such as call blocking; but let’s focus here on speakers speaking to willing listeners.

[21] See Angela J. Campbell, Publish or Carriage: Approaches to Analyzing the First Amendment Rights of Telephone Companies, 70 N.C. L. Rev. 1071, 1133 n.326 (1992).

[22] Biden v. Knight First Am. Inst. at Columbia Univ., 141 S. Ct. 1220, 1224, 1227 (2021) (Thomas, J., concurring).

[23] In re Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, FCC 18-178, at 6 (Dec. 13, 2018) (O’Rielly, Comm’r).

[24] Lunney v. Prodigy Servs. Co., 723 N.E.2d 539, 542 (N.Y. 1999). The court so held in concluding that e-mail systems should be categorically immune from libel liability for their users’ messages to each other, just as phone companies are; the case arose before 47 U.S.C. § 230 was enacted, so the court chose to decide it as a matter of state libel law, rather than considering whether § 230 should be applied retroactively. Id. at 543.

[25] See, e.g., Mary Anne Franks, The Free Speech Black Hole: Can The Internet Escape the Gravitational Pull of the First Amendment?, Knight First Amend. Inst. Colum Univ. (Aug. 21, 2019), https:‌//‌perma.cc/‌HAX8-3RZN .

[26] Genevieve Lakier & Nelson Tebbe, After the “Great Deplatforming”: Reconsidering the Shape of the First Amendment, Law & Political Economy [LPE] Project (Mar. 1. 2021), https:‌//‌perma.cc/‌56F3-KMBE.

[27] Citizens United v. FEC, 558 U.S. 310, 469, (2010) (Stevens, J., dissenting) (cleaned up).

[28] Liz Kennedy, 10 Ways Citizens United Endangers Democracy, Demos (Jan. 19, 2012), https:‌//‌perma.cc/‌NMX4-NNUE; see also Adam Candeub, Reading Section 230 as Written: Content Moderation and the Beggar’s Democracy, 1 J. Free Speech L. __ (2021) (expressing concern about “an elite oligarchy controlling information”).

[29] Citizens United, 558 U.S. at 469 (cleaned up in part).

[30] See also Kyle Langvardt, Will the First Amendment Scale? (forthcoming 2021) (likewise suggesting that social media platforms’ decisions “by selectively amplifying and tamping newspaper coverage of competing candidates in the run-up to the election, and then on election day tweaking the emotional content of news feeds to drive and depress voter turnout along party lines” would raise similar concerns).

[31] Cohen v. California, 403 U.S. 15, 16  (1971); 562 U.S. 443, 448 (2011).

[32] See, e.g., Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P. 2d 592, 610–11 (Cal. 1979) (concluding that people’s “identify[ing] themselves as homosexual” is a form of “political activity”); Meriwether v. Hartop, 992 F.3d 492, 506 (6th Cir. 2021) (concluding that not using a person’s preferred pronouns “touches on gender identity—a hotly contested matter of public concern”).

[33] Phone lines might be necessary for individuals if they need to call 911 or deal with various necessities of life (e.g., making a doctor’s appointment). But a phone company’s decision to cancel an advocacy group’s publicly advertised phone line—or at least block incoming phone calls to that line—wouldn’t generally jeopardize individual health and safety.

[34] By way of analogy, Adam Smith wrote against taxing “necessar[y]” commodities, but noted that necessity needs to be measured based on the realities of current life, not of the past. “By necessaries I understand not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without. A linen shirt, for example, is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably though they had no linen. But in the present times, through the greater part of Europe, a creditable day-labourer would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct.” Adam Smith, The Wealth of Nations 368 (1843). So it is with social media: More than just the Greeks and Romans lived very comfortably without them, but in our society access to the major social media platforms is a necessity—especially in a competitive political environment—for political groups.

[35] Corporations contributed about $300 million to outside spending groups in the 2012–18 federal election campaign cycles, and unions contributed about $275 million. Karl Evers-Hillstrom, More Money, Less Transparency: A Decade Under Citizens United, OpenSecrets.org (Jan. 14, 2020), https:‌//‌perma.cc/‌KQ46-VUQM. The corporate contributions “made up 10 percent of funding to these groups in the 2012 cycle, a high water mark,” falling to 5% in 2018. Id. There is also an unknown amount of undisclosed spending (which includes some corporate spending) through groups such as 501(c)(4) organizations that engage in both political and nonpolitical activities; the government could in principle require disclosure of contributions to such groups, but current law does not comprehensively do so.

[36] Id.

[37] Citizens United v. FEC, 558 U.S. 310, 469 (2010).

[38] Id. at 470 (cleaned up).

[39] Prasad Krishnamurthy & Erwin Chemerinsky, How Congress Can Prevent Big Tech from Becoming the Speech Police, Hill (Feb. 18, 2021), https:‌//‌perma.cc/‌645W-LMLP.

[40] See, e.g., Jennifer Huddleston, Consequences of Classifying Elements of the Internet as a Common Carrier, American Action Forum (Feb. 23, 2021), https://ift.tt/36jSfxz (so arguing, in the process of arguing against regulating social media platforms); Epstein, supra note 9, at 5–6 (so arguing, in the process of tentatively arguing in favor of regulating social media platforms).

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Subway Is Making A Major Menu Overhaul

Subway Is Making A Major Menu Overhaul

By Jonathan Maze of Restaurant Business

Subway is making what it calls the biggest menu refresh in its history, a broad overhaul that includes a combination of upgraded ingredients or new, updated or returned sandwiches designed to reinvigorate the sandwich giant.

The “Eat Fresh Refresh” arrives in the chain’s 21,000 U.S. restaurants on July 13, when it is giving away a six-inch Turkey Cali Fresh sub, one of its new sandwiches,  between 10 a.m. and noon.

Subway is also taking the unusual step of closing its restaurants early the night before, at 6 p.m., which it is calling a “refresh break” to prepare its employees for the debut of the new menu.

The changes will include 11 newly improved ingredients, including upgrades to its signature Italian bread as well as its Hearty Multigrain bread. The company has also created four new sandwiches and is bringing back two others, Roast Beef and Rotisserie Chicken, that had been removed from the menu last summer. Another four sandwiches have been upgraded due to the better ingredients.

Company executives also assured that they are putting the weight of Subway’s marketing budget behind the effort.

“This is one of the boldest changes in core menu in decades,” Trevor Haynes, president of North America at the Milford, Conn.-based sandwich giant. “It’s really the beginning of a multi-year journey.”

In addition to the menu changes, Subway says it is rolling out Subway Delivers—a white-label delivery provided by DoorDash that will be available on the company’s website and app. The service will be available in select areas but will ultimately be available nationally. It is part of continued efforts by the company to simplify the digital ordering experience.

The changes come at a crucial time for the chain, whose franchisees have closed more than 5,000 locations over the past five years. Subway’s operators are walking away from the brand, there are rumors of a potential sale (which the company has denied) and ownership is taking controversial steps such as offering a new franchise agreement with a 10% royalty.

In the middle of this the company is facing questions about the contents of its tuna, thanks to a lawsuit in California followed by tests by the New York Times that proved inconclusive—Subway once again made assurances that its tuna is, in fact, tuna.

Subway in recent years has made several efforts to get customers enthused about its products, including new sandwiches, revamped interiors and various technology efforts.  

Yet this one is both bigger and different, company executives say. Some franchisees agree. “This is a whole new taste profile,” said John Dell, who owns 130 locations in Tennessee, Kentucky and Florida. “But it doesn’t change the way we do business.”

The most notable change is the bread. The chain’s Italian bread is baked for longer, at a hotter temperature, 370 degrees, to give it a crispier crust. The company also upgraded the recipe to its multigrain bread, which is made with Amber soft grain and three types of seeds.

“Every sub shop needs phenomenal bread,” Haynes said.

It’s the first time since 2000 that Subway made any changes to its bread. Back then, the company switched from digging a trench at the top of the bread to slicing it and also added seasonings. 

The new procedure is designed to “minimize any disruption” to the company’s franchisees, who operate the chain’s restaurants. And both Dell and David Liseno, a four-unit franchisee in New York State, dismissed any potential operations concerns with the new baking process. “We need to have the best bread we can have in the restaurant,” Dell said.

In addition to the bread, Subway will offer smashed avocado with sea salt; BelGioioso Fresh Mozzarella and a new Parmesan Vinaigrette.

The chain is also upgrading its ham, turkey, steak and bacon. It will also start selling four new subs, including Turkey Cali Fresh featuring turkey, bacon, avocado, mozzarella, mayo, spinach, red onion and tomatoes on multigrain; a version with steak; a new Subway Club with turkey, ham, roast beef, lettuce, tomato and onions on multigrain and a new All-American Club with turkey, ham, bacon, American cheese, lettuce, tomatoes and onions on Italian.

Executives said that the company isn’t adding new products to make it more complex for franchisees to operate. And the operators said that the company needed to take steps to upgrade its menu and stay ahead of the competition.

“We realize that as a brand we need to innovate,” Liseno said. “As the market leader we’re the hunted. And if you’re not staying one step above the competition, you’re falling behind.” The menu, he promised, “is going to be epic.”

Tyler Durden
Tue, 07/06/2021 – 12:20

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Social Media Platforms as Common Carriers?

You can also read the article in PDF, or read all the posts that have been posted so far on this thread. I still have time to make edits, and I’d love to hear what corrections or suggestions or counterarguments people have. Here, to start with, is the Introduction:

[* * *]

Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications.[1] That would be unconstitutional,[2] however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren’t bound by the First Amendment, they too are common carriers[3] and thus can’t refuse to ship books sent by “extremist” publishers.[4]

Likewise for phone companies, whether land-line monopolies or competitive cell phone providers.[5] Verizon can’t cancel the Klan’s recruiting phone number, even if that number is publicly advertised so that Verizon can know how it’s being used without relying on any private information.[6] To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others’ views.[7] But they are common carriers as to their function of providing customers with telephone communications services.

And this seems to me to be a valuable feature of our regulatory system, not just an odd side effect of common carrier law. Certain kinds of important infrastructure, under these rules, are available equally to all speakers, regardless of the speakers’ ideologies. Government enterprises (such as the post office) shouldn’t decide which organizations or ideas should be handicapped in public debates. And neither should large private businesses, such as phone companies or package delivery services.

That is important even as to groups and viewpoints that are seen as extreme. But it is especially important as to viable political candidates, ideas, or media outlets that are serious competitors in democratic life. When elections are closely divided, even small interference with various groups’ ability to affect public opinion can make a big difference in outcomes.[8] FedEx and Verizon shouldn’t have the power to thus affect elections by refusing to carry certain views.

On the other hand, say the Los Angeles Times refuses to run an ad promoting the KKK, or promoting Antifa, or opposing vaccination. There is good reason to support the Times’ right to do this. People read the Times in part precisely because of its editorial judgment, its ability to winnow the good and sensible views out of the vast mass of nonsense and folly; treating the Times as a common carrier would make it useless. And indeed the Times would have a First Amendment right to refuse to publish whatever material it chooses.[9]

The same would likely happen if a bookstore refused to distribute books like that. Perhaps both the newspaper and the bookstore might be condemned as unduly narrow-minded, if they go too far in excluding such material, at least unless they promote themselves as being ideologically focused. But for material that is seen as sufficiently extreme, newspapers’ and bookstores’ rejecting such material is quite normal.

The question, of course, is where we might fit the various functions of social media platforms.[10] This Article will offer some (often tentative) thoughts on this questions. I’ll begin by asking in Part I whether it’s wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their “hosting function”—the distribution of an author’s posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed.

I’ll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms’ own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents, including PruneYard Shopping Center v. Roberts; Turner Broadcasting System v. FCC; Rums­feld v. FAIR; Miami Herald Co. v. Tornillo; Wooley v. Maynard; Pacific Gas & Electric Co. v. Public Utilities Commission; Riley v. National Federation of the Blind; Hurley v. Irish-American Gay, Lesbian & Bisexual Group; NIFLA v. Becerra; Boy Scouts of America v. Dale; and Janus v. AFSCME. (I discuss elsewhere whether such laws, if enacted on the state level, would be barred by 47 U.S.C. § 230(c)(2)(A) and the Dormant Commerce Clause.[11]) And then I’ll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions.

On balance, I’ll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell common-carrier treatment: As to some of the platform features that are most valuable to content creators—such as platforms’ recommending certain posts to users who aren’t already subscribed to their authors’ feeds—platforms retain the First Amendment right to choose what to include in those recommendations and what to exclude from them.

And I also don’t want to oversell the label “common carrier.” I think the analogy to certain familiar common carriers, such as phone companies and package delivery services, is helpful; but it’s only an analogy. Even if it proves to be a helpful analogy, there’s little reason to think that all the details of common carrier law ought to be fully adopted for social media platforms, or that the threshold for regulation should be defined by traditional common carrier rules.[12]

Other analogies can also be helpful: As Part II.A will argue, the clearest First Amendment analogs would be cable must-carry rules and rights of access to the real estate of shopping malls and universities.[13] Justice Thomas has recently suggested that public accommodation laws might be useful analogies as well;[14] indeed, some courts have recently treated media web sites as places of public accommodations for purposes of disability law,[15] and laws in some jurisdictions already ban discrimination based on political affiliation or ideology.[16] The point is simply that the insights behind how certain communication and distribution services—and certain forms of property more generally—may and may not be regulated could also be helpful for thinking about various functions of social media platforms.

[1] Assume that it wouldn’t need to open sealed envelopes, because the nature of the material is clear from the identity of the mailer or from the cover of an unwrapped magazine.

[2] See Lamont v. Postmaster General, 381 U.S. 301, 307 (1965).

[3] See, e.g., FedEx Corp. v. United States, 121 F. App’x 125, 126 (6th Cir. 2005).

[4] See 49 U.S.C. § 13101(a)(1)(D) (setting forth general policy against “unreasonable discrimination”), § 14101(a) (requiring common carrier to provide “transportation or service on reasonable request”); Mitchell v. United States, 313 U.S. 80, 94–95 (1941) (interpreting predecessor to this statute as banning race discrimination by common carriers, because such discrimination “would be an invasion of a fundamental individual right” if done by the government). They may sometimes be expected to monitor shipments for illegal content, see, e.g., U.S. Dep’t of Justice, UPS Agrees To Forfeit $40 Million In Payments From Illicit Online Pharmacies For Shipping Services, Mar. 29, 2013, https://ift.tt/3yllE6g, but they can’t block materials simply because they don’t like the ideas expressed within them.

[5] 47 U.S.C. § 202(a); Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2317 (2021); Michael Kent Curtis & Eugene D. Mazo, Campaign Finance and the Ecology of Democratic Speech, 103 Ky. L.J. 529, 557 (2015).

[6] Christopher Yoo, The First Amendment Rights of Common Carriers: Net Neutrality, Privacy, and Beyond (forthcoming 2021), notes cases holding that allowed phone companies some power to block certain uses of their services, chiefly for dial-a-porn. But those all involved statutes that the courts read as specially limiting the common carrier obligation. Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1293–95 (9th Cir. 1987) (state law “prohibiting the distribution of sexually explicit material to minors,” which was seen as “embod[ying]” a “public policy” of “protecting minors from ‘adult entertainment'”); Carlin Comnc’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1361 n.5 (11th Cir. 1986) (47 U.S.C. § 201 exclusion of the service from common carrier obligations); Network Commc’ns v. Mich. Bell Tel. Co., 703 F. Supp. 1267, 1275 (E.D. Mich. 1989) (same); Info. Providers’ Coal. for Def. of First Amend. v. FCC, 928 F.2d 866, 877 (9th Cir. 1991) (47 U.S.C. §§ 233(b), (c)(1) exclusion of “indecent” communications).

[7] Pacific Gas & Elec. Co. v. Pub. Util. Comm’n, 475 U.S. 1 (1986), so held as to public utilities generally, and there is no reason why this analysis would be different for common carriers.

[8] Cf. Jonathan Zittrain, Engineering an Election, 127 Harv. L. Rev. F. 335 (2014).

[9] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974).

[10] For earlier examples of calls to treat social media platforms as common carriers, see, e.g., K. Sabeel Rahman, Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities, 2 Geo. L. Tech. Rev. 234 (2018); Adam Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 433 (2020); Tunku Varadarajan (interviewing Richard Epstein), The ‘Common Carrier’ Solution to Social-Media Censorship, Wall St. J., Jan. 15, 2021; Richard Epstein, Should Platforms Be Treated as Common Carriers? It Depends–Perhaps (working paper). For a very early suggestion along those lines, though not aimed at modern social media platforms, see David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public vs. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1, 40–47 (1998).

[11] See Adam Candeub & Eugene Volokh, Interpreting 47 U.S.C. § 230(c)(2), 1 J. Free Speech L. __ (2021); Eugene Volokh, Does 47 U.S.C. § 230(c)(2) Violate the First Amendment? (in draft); Eugene Volokh, State Social Media Mandates and the Dormant Commerce Clause (in draft).

[12] Social media platforms today aren’t common carriers under some traditional definitions of the term, because they don’t hold themselves out as “neutral conduits of information.” Matthew Feeney, Are Social Media Companies Common Carriers?, Cato Inst. (May 24, 2021, 3:39 pm), https://ift.tt/3ypGQYT; Berin Szóka & Corbin Barthold, Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021, 10:30 am), https://ift.tt/3qP8wnJ. But cases such as Rumsfeld v. FAIR and Turner Broadcasting v. FCC show that access mandates may be imposed even on institutions—such as universities and cable operators—that are far from neutral conduits in many of their operations (e.g., defining their curriculum, hiring faculty, organizing conferences, or selecting what channels to include) and that may seek to be nonneutral in further ways (say, in selecting who may recruit on campus).

And even an entity that publicly announces that it wants to exclude some people may still be required to include them, whether this is because it’s treated as a common carrier, a public utility, or as subject to a sui generis public access regime—after all, one facet of common carrier status is that the common carrier is barred from discriminating. See, e.g., 47 U.S.C. § 202(a). Common carrier status, for instance, barred railroads from discriminating among passengers based on race, even before such discrimination was expressly forbidden by public accommodations statutes. See, e.g., Mitchell v. United States, 313 U.S. 80, 97 (1941). Likewise, PruneYard was required to allow leafleters even though it had an express “policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes.” PruneYard, 447 U.S. at 77. This was likewise true for the universities in Rumsfeld, and the cable systems in Turner.

Likewise, telephone companies were barred from excluding people based on mere suspicion that they were using the service for illegal purposes, such as gambling. Andrews v. Chesapeake & Potomac Tel. Co., 83 F. Supp. 966, 968–69 (D.D.C. 1949); Nadel v. N.Y. Tel. Co., 170 N.Y.S.2d 95, 98 (N.Y. Sup. Ct. 1957). One rationale for this bar was that, “Public utilities and common carriers are not the censors of public or private morals, nor are they authorized or required to investigate or regulate the public or private conduct of those who seek service at their hands.” Pa. Publications v. Pa. Pub. Util. Comm’n, 36 A.2d 777, 781 (Pa. 1944) (cleaned up); People v. Brophy, 120 P.2d 946, 956 (Cal. App. 1942); Commonwealth v. Western Union Tel. Co., 67 S.W. 59, 60 (Ky. 1901).

[13] See infra Part II.A.1.

[14] Biden v. Knight First Am. Inst. at Columbia Univ., 141 S. Ct. 1220, 1224, 1227 (2021) (Thomas, J., concurring).

[15] See Winegard v. Crain Commc’ns, Inc., No. 20-CV-01509 (AJN), 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021); Sullivan v. BDG Media, Inc., 71 Misc. 3d 863 (N.Y. Sup. Ct. 2021); Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012); see also Sullivan v. Study.com LLC, No. 18-CV-1939 (JPO), 2019 WL 1299966 (S.D.N.Y. Mar. 21, 2019) (treating such a media site as a place of public accommodation, though in a case where defendant did not contest that proposition). For more on whether web sites that are ancillary to the sale of other goods and services are places of public accommodations for purposes of federal disability discrimination law, see Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277 (11th Cir. 2021) (saying no); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905–06 (9th Cir. 2019) (saying yes); Blake E. Reid, Internet Architecture and Disability, 95 Ind. L.J. 591, 597–99 (2020) (summarizing the dispute).

[16] These jurisdictions include D.C., Seattle, Madison, Ann Arbor, Champaign-Urbana, the counties containing Detroit and Ft. Lauderdale, and several other cities, counties, and territories, and possibly also California. See Eugene Volokh, Can Places of Public Accommodation Exclude People Based on Their Politics?, Volokh Conspiracy, Apr. 8, 2021, at 5:46 pm, https://ift.tt/3dHR7b2. Some of the laws ban only discrimination based on party affiliation, but others ban discrimination based on broader political beliefs as well. The main federal public accommodations law, Title II of the Civil Rights Act of 1964, doesn’t currently treat social media platforms as places of public accommodation, Lewis v. Google LLC, No. 20-16073, 2021 WL 1423118, (9th Cir. Apr. 15, 2021), and in any event doesn’t ban discrimination based on ideological belief; but the question would be whether it, and similar laws, should be extended.

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