Jeremy Kessler, Columbia Law School, has posted The Short, Strange Career of Viewpoint Discrimination: From Teachers Unions to Social Media Platforms, which is forthcoming in Platform Regulation and Freedom of Expression in the US and Europe: Across the Great Divide, edited by Ronald J. Krotoszynski et al. (Oxford University Press):
In Moody v. NetChoice, the Supreme Court treated the norm against viewpoint discrimination as intuitive and timeless. Yet the majority opinion's portrayal of social media platforms as the victims of viewpoint discrimination relied entirely on post-1970 caselaw. That is because what this Chapter calls “viewpoint discourse” was an invention of the 1970s legal elite. That elite was responding to a distinctive social problem: the growing power of public-sector unions and politically progressive nonprofits. These groups represented particularly assertive factions of the “new” or “information” class: the ever-expanding population of workers who earn a wage by manipulating information, whether stored on hard drives or in the human mind. Though far from a monolith, this class tends: to undermine traditional values; to interfere with the profit-maximizing strategies of the “old” class (those who own the bulk of monetary capital); and to trouble democratically elected authority with ceaseless, censorious infighting.
Between 1983, when the Supreme Court finally adopted the language of “viewpoint discrimination” and “viewpoint neutrality,” and 1995, a striking decisional pattern emerged. With one, partial exception, whenever the Court vindicated a claim of viewpoint discrimination, it did so to protect speech that coded as politically conservative or for-profit from politically progressive, information-class curation. By contrast, whenever the Court found an absence of viewpoint discrimination, it did so to reassert the authority of public administrators beset by contending information-class factions.
The rise of “the platform economy" scrambled the logic of viewpoint discourse. The platform economy refers to a situation in which a highly skilled faction of the information class rejoins the old class. This union between old- and new-class factions not only operates but owns a set of assets (“the modern public square”) that produces profit primarily by expropriating the value of the information class as a whole. The ideological, political economic, and doctrinal tensions created by this development were exemplified in Moody, as both the states of Florida and Texas and the Supreme Court tried to honor the norm against viewpoint discrimination. The states sought to do so by protecting politically conservative viewpoints from politically progressive curation. The Moody Court sought to do so by protecting for-profit speakers and the federal executive branch from state governments captured by information-class factions deemed – if only for a moment – to be both economically and politically unproductive. The fact that social media platforms are privately owned was not dispositive of this result. To the contrary, history suggests that the ideological and political economic imperatives of viewpoint discourse have tended to drive the Court's demarcation of the boundary between public and private curation.
--Dan Ernst
