‘Preeminent’ Constitutional Legal Scholar Files Embarrassingly Confused Amicus Brief In Favor Of Texas’ Ability To Tell Websites How To Moderate

from the i’m-embarrassed-for-you department

In 2021, Columbia Law professor Philip Hamburger, whose own website at the school describes him as “one of the preeminent scholars writing today on constitutional law,” beclowned himself in the pages of the Wall Street Journal’s editorial pages (which seem always open for a beclowning, so long as the beclowning supports Rupert Murdoch’s blinkered worldview).

He first wrote an op-ed attacking Section 230 of the CDA, but which got almost all of the basic facts wrong. It’s one thing for graduates of Twitter Law to make these kinds of mistakes, but a supposedly “preeminent scholar” on constitutional law who made it appear as though he had neither read the law, nor any of the many (many, many) court rulings on the law, it is kind of embarrassing. Indeed, the most embarrassing part is how this “preeminent” constitutional scholar didn’t seem to realize that it’s not Section 230 that enables the right for a website to moderate, but the 1st Amendment. Rather than realizing that maybe he was in over his depth, Professor Hamburger pulled a Principal Skinner and insisted that, no, it was the children who were wrong. He wrote a second WSJ op-ed, arguing that, according to him (and basically him alone), websites don’t actually have a 1st Amendment right to moderate. It was even more embarrassing than the first one. I honestly feel bad for students at Columbia Law who apparently will be learning blatantly false interpretations of the Constitution.

Either way, it’s one thing to be wrong on the pages of the WSJ’s opinion section. It’s another thing entirely to file your wrongness in a court of law. But that’s what preeminent constitutional law scholar Philip Hamburger has now done, in filing the wrongest amicus brief I’ve seen in a while, in support of Texas’s unconstitutional social media content moderation law.

Over the last few years we’ve seen repeatedly how confused Twitter LawTM graduates love to cite the Packingham case to mean something it very clearly does not mean. In Packingham, the Supreme Court (properly) ruled that government laws that bar people from the entire internet clearly go too far. In that ruling, the majority opinion mentions that it is unconstitutional for the government to bar people from going online, because the internet represents “the modern public square.” Unserious people have, incorrectly, taken this to mean that the Supreme Court has declared private websites some sort of quasi-governmental role, requiring openness to all. It has not. Again, the ruling in Packingham is that the government cannot pass laws that ban individuals from the internet. It does not say that private companies cannot do so. And anyone arguing otherwise suggests they don’t know what they’re talking about — so of course Hamburger begins his piece citing “the modern public square” line from Packingham.

It jumps from that wrong foot to another wrong foot — using the term “censorious” (meaning: “severely critical of others”) when he actually means “censorial” but even if he was using the right term, this wouldn’t make any more sense:

Nonetheless, censorious gatekeepers circumscribe this square, eliminating and silencing views with which they disagree. As a result, voters receive inadequate information, minority religious and cultural views are suppressed, and vital scientific data and dissenting scientific opinion cannot be disseminated. Not only are nonconforming views scrubbed, but often those who take such perspectives are permanently deplatformed—in effect, depersoned for purposes of effective public speech. The State of Texas has a profound interest in protecting vibrant political, religious, cultural, and scientific debate. HB 20 protects that interest—to which amicus is dedicated.

Of course, this is nonsense on multiple levels, and if someone handed in a law school paper arguing this, they’d fail (I guess, except in Prof. Hamburger’s class). Private companies hosting speech have always had the right to refuse to host certain speech. It’s why the WSJ opinion page publishes blatantly false information written by the likes of Philip Hamburger, but need not publish my article “If You Took Philip Hamburger’s Class At Columbia Law, You Are Probably Dumber For It.” That’s the WSJ’s right to refuse my article, just as it’s Facebook’s right to refuse to host content that violates its rules.

As for the idea that this leads to “inadequate information, minority religious and cultural views [being] suppressed,” well, again, that’s nonsense. People have significantly more access to information today than at literally any point in human history. Hell, for most of history (once voting was allowed) voters had significantly less information than they have access to today, and minority religious and cultural views were basically unavailable at all to most.

At no point in history has the 1st Amendment meant or implied that every publisher MUST publish all views. Yet, Hamburger seems to think it does. This is not just historically, factually, and legally wrong. It’s embarrassing nonsense that raises serious questions about Prof. Hamburger’s ability to understand the first thing about constitutional law, let alone analyze this particular Texas law.

From there, Prof. Hamburger goes deep into fantasy land in his arguments. I have neither the time, nor the desire, to go page by page debunking each and every embarrassing error of history and law in the piece, but let’s just go through the summary of the argument to give you a sense.

First, common carrier regulation of the sort adopted by the statute is entirely consistent with the First Amendment. Under centuries-old precedent that no court has ever questioned, Texas has the power to regulate the social media platforms covered by HB 20 (“the Platforms”) as common carriers.

No, first, the idea that no one has ever questioned the rights of a government to unilaterally declare certain services common carriers is laughable. I mean, I’ll just note that during the net neutrality fight in 2015 that anti-neutrality lobbyists pointed to… Philip Hamburger’s book, Is the Administrative State Unlawful as proof that the FCC could not declare broadband a common carrier. Hamburger, of course, would argue that there’s a difference between an administrative agency (ie, the FCC) and a legislature declaring something a common carrier, but the difference here is somewhat meaningless, given that the FCC’s net neutrality order was done under the basis of Congressional law (the Telecom Act) which granted them that right.

Of course, as we recently noted, you can’t just randomly call something a common carrier. It has to meet certain conditions to be considered one, and social media websites come nowhere close to meeting any of the characteristics of a traditional common carrier. So, yes, what Texas has done here, especially given the impact on 1st Amendment protections, is very much questionable (as the lower court found, and a court in Florida similarly found).

Second, Texas has a compelling interest in protecting the free exchange of expression, and HB 20 is narrowly tailored to that interest. Such an interest, however, is unnecessary to defend HB 20, because the Platforms have little or no speech interest here. They are affected only in their role as common carriers or
conducts for other people’s speech, not their own speech. Moreover, to the extent the Platforms enjoy section 230 immunity for silencing speech on their conduits, see 47 USC § 230, they are censoring the speech under color of federal law. They have no free speech interest in this federally privatized censorship, and, even if they had such an interest, it would be of no avail against the state’s compelling interest in
protecting free expression.

hoo boy. Where to start on this one? I think this is the most embarrassingly confused paragraph in the whole thing. Hamburger has to claim that the state has a “compelling interest” here because that’s part of the 1st Amendment’s strict scrutiny test for getting around 1st Amendment concerns (as is “narrowly tailored”) but it confuses just about everything here. Claiming that states have a “compelling interest” in compelling private parties to perpetually host speech they disagree with is utter nonsense.

Indeed, while Hamburger is focused on “compelling” interest, he is ignoring the Supreme Court’s pretty clear prohibition on compelled speech. It’s kind of fatal to his entire argument, and he just… ignores it. The famous line in the Barnette case is: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Bizarrely, Hamburger seems to be claiming that… Section 230 actually is the opposite of what it is, and that it’s the government censoring people. Except it’s literally the exact opposite. Platforms have always had a 1st Amendment right to refuse to host the speech of others. All Section 230 was doing was making it clear that when they did moderate, they didn’t magically take on the legal liability of the stuff they didn’t moderate. That’s not, as Hamburger implies, “censoring the speech under color of federal law” because they always had that right under the 1st Amendment. That’s what’s so embarrassing here. Hamburger has everything completely backwards — just as he did in his WSJ pieces of him, but rather than recognize his own factual errors of him, he’s just doubling down.

Further, the idea that websites “have no speech interest” in deciding what speech to host on their own website is just so ridiculously wrong I don’t even know what to say beyond: Columbia Law: do you have a program to check the competence of your teachers?

Third, HB 20 does not conflict with 47 USC § 230(c)(2). That federal section protects platforms from liability, in the sense of damages, for restricting material that falls into specified categories of content. But HB 20 bars only viewpoint discrimination, not content discrimination, and it provides for declaratory
and injunctive relief, no damages. It thus is entirely consistent with section 230.

Lol, wow? First of all, (c)(2) is not limited to “specified categories of content.” It includes the catch-all “otherwise objectionable” to make it clear that it’s designed to enable the websites to be free of liability (which also goes beyond “damages”) for efforts to take down content that they find objectionable (ie, that violates their rules). But, really, the funny part here is claiming that “viewpoint discrimination” is somehow different than “content discrimination” and that the bar on liability only applies to damages, not injunctive relief. All of that is just…wrong.

I feel sorry for lawyers who get their JD from Columbia.

Filed Under: 1st amendment, compelled speech, content moderation, philip hamburger, section 230, social media, texas

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