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Comment by rayiner | Hacker News Reader

Let me see if I understand the left’s conception of free speech here.

1) A corporation producing a political movie about a candidate isn’t free speech.

2) But a corporation censoring content based on political views is free speech.

1. A corporation is a legal fiction created by government gift to signify that the individuals participating in the corporation's affairs have limited financial exposure when they would otherwise be subject to unlimited exposure for the corporation's debts and liabilities. If, as a condition of that limited liability, a relevant governing body wants to restrict what can be published in the name of a corporation, no individual's free speech is being restricted. Congress should be able to impose such restrictions under the Commerce Clause and/or the Republican Form of Government Clause; states should be able to do so under their general police powers; all subject to the usual constitutional restrictions (equal protection, due process, etc.).

2. A corporation can (or at least should be able to) allow or forbid content on its own platform as it sees fit --- but by the same reasoning as #1, a relevant state legislature should be able impose conditions on limited liability, and logically those conditions could include free-speech [EDIT:] restrictions on content moderation (subject to federal constitutional constraints, e.g., under the Supremacy Clause).

Without relitigating Citizens United, I would think that content moderation is far less worthy of speech protections than the political movie in Citizens United.

Content moderation is basically house cleaning. Companies do it to make their platforms more pleasant for customers, the same reason stores sweep the floors. But that makes it less deserving of speech protections because it’s not expressive. Put differently, when the ACLU publishes something, people attribute that to the ACLU and the ACLU has the right to control its message. But nobody attributes things people post on Twitter to Twitter.

ISTM that you're putting the cart before the horse: We don't need to be discussing whether content moderation needs speech protection, because the people who advocate for government regulation of content moderation haven't proved up the need for, and appropriateness of, such regulation.

(In litigation terms, since we're both lawyers: It's premature to focus on whether to give platforms free-speech protection for their content moderation would be akin to an affirmative defense: The question doesn't need to be reached unless and until those urging regulation of moderation succeed in making a Twombly/Iqbal plausible case, which in my judgment they haven't.)

I edited my #2 in my GP post because we might be talking past each other in the second graf of your parent post above.

The "left's" position is that both are free speech.

Free speech means that someone is allowed to engage in speech, not that they are immune from the social or market consequences for their speech.

The "left's" contention with Citizens United was that spending money was treated as speech. But spending money is not speech. It's an act. Speech is content.

> The "left's" contention with Citizens United was that spending money was treated as speech. But spending money is not speech. It's an act. Speech is content.

Citizens United involved creating and distributing a movie about Hilary Clinton. Spending money was incidental to the speech.

Twitter spends money on its platform too. Does that give the government power to regulate what Twitter publishes?

For those who don't get the reference. #1 is referring to the Citizens United SCOTUS ruling.

Oh, so important context was left out. Standard argument technique.

This might be extremely controversial but I think Facebook should be able to take down pornography on their platform. Since pornography is considered speech in the US that means I’m not a free speech absolutist. I’m not sure where the right line to draw is but it’s clear platforms need some censorship rights over their platforms.

How about "pornography is OK but only if you're $RACE?"

The issue at issue isn't "can they moderate content" but "should content moderation be applied equally"

That doesn't appear to be the case in HB 20, at all, although proponents have certainly tried to claim it is.

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