I am so sorry to hear about your in-laws’ cancer. My thoughts are with you, my friend!

Sending ya much love!

R

Indeed. A public venue is more like a public accommodation, than like public policy or a public park. It's a private entity that does business with the public. The federal government can regulate public accommodations under the commerce clause. But until such regulation is enacted, the starting assumption is that the owners can do as they please.

On that point, I was quibbling with terminology, rather than disagreeing directly. The management of a public venue can exclude audience members, for pretty much any reason other than unlawful discrimination. And they can exclude performers/speakers on the basis of viewpoint. There are assumed to be plenty of other venues.

I hadn't. Checking it out now. Thank you for bringing it to my attention.

You replied just now, citing the law that says such a hall is, in fact, a public venue. The law says it's public, contrary to CW's point, because the public assembles there for entertainment. But the entertainment, of course, is that which is presented by the private management. Just because it's a public venue, that doesn't mean management can be compelled (in Chris' example) to let the rockers on stage, which is guaranteed to cause their desired audience to run for the exits and never come back.

And here's where things break down a bit, in terms of legal precedent, and free speech, and private venues, etc.

In social media, the all-American public audience and the obnoxious punk rock band trying to get on stage at a Disney attraction are the SAME entity. There is no stage - booked by management. There is no floor or seating - occupied by the public looking to be entertained by management's choice of acts. Everyone is performing for everyone in social media. The very act of watching another generates money for the management, without concern for who is watching and who is being watched at any point.

To shut down an act is to shut down the audience, because the audience is the act. To shut down the audience is to shut down the act, ditto.

Naturally Facebook and the rest believe they have to set limits regarding the various acts' attractiveness and ugly behavior (i.e. speech), in order to retain a larger and more profitable audience than the ones who are attracted to sites that specialize in alienation or hate or vitriol. But equally naturally, Facebook doesn't want anyone else to tell them what those limits are, because every restriction of the acts - i.e. the audiences - is a potential money-loser or winner by their own calculations, and an outside entity like government just might get the balance wrong.

Now, is this a public venue, or not? Does the government have an interest based on public needs? I don't think this sounds like any music hall or any other publicly open, but privately owned, venue that I ever heard of, or that the law has ever heard of. Neither Chris' example, nor the law you've cited, seems to apply very well to this entirely new phenomenon in the history of freedom of speech, and freedom of the press.

did you by any chance read that ABA article? it goes into some detail about what is and is not considered a public square.

JL

"Public entertainment venue means a place that is open to the public (whether or not upon payment of a fee for admission and whether or not the management reserves the right to exclude individual members of the public) for entertainment but does not include a shop. The term includes, but is not limited to, cinemas, theatres, concert halls, electronic games centers, indoor sports centers (including a bowling alley), art galleries, museums, and premises upon which any display or exhibition promoted as such is conducted."

https://www.lawinsider.com/dictionary/public-entertainment-venue

Thanks for the breakdown and analysis of some differences between discrimination law and free speech law for corporations! I guess I am wondering if your 2), about how internet forums are 'akin' to newspapers and so come under 1st amendment press protection, is really going to hold water much longer; ditto on the idea that being banned from a million-audience forum site doesn't abridge your speech because you still have the option to stand by a stop sign with some slogans painted on cardboard.

It seems to me, without much actual expertise on my part, that these forums are approaching the status of common carrier, performing a public square function whose provision by a for-profit private corporation merits just as much government regulation as Congress feels it needs.

I know that's not the law right now - but I don't feel sure it won't be the law going forward. That's why I drew the connection to 19th century railroads: not because the internet is a railroad, but because railroad technology was so far beyond the previous capacities of ground transport that everyone recognized over a period of time that existing laws just didn't apply in useful ways. And the laws changed.

No. Censorship happens when anyone with the power to forbid someone's speech does so. Forbidding speech is bad because it's an abuse of power. Not because there are elections directing the power at least somewhat in line with the opinions of a plurality of voters, and not because there are checks and balances providing institutional limitations on the abuse of power.

I don't know how to argue for this. It's too self-evident. Any argument would be backward, from less-obvious premises to a more-obvious conclusion.

Can you argue that checks and balances are what make this particular abuse of power bad? Or voting? Or some other feature, whatever you consider to be the essential difference between government and other aggregations of power?

my pleasure. the wiz and the muppet movie both really do stand the test of time. what really amazes me about the wiz is how even forty-something years later the brilliance of the whole production shines through, from the choreography to the score to the vocals to even the piles of trash on the yellow brick sidewalk. it's all so intentional and complete in a way one wouldn't expect of a film from that era.

JL

i think you're being unnecessarily hard on michale. he has plenty of blogs to choose from, and i'm sure he's currently posting on some of them right now. plus he posts on a wide variety of topics, some of which actually contain reasoned discourse. plus he likes pie.

JL

Don suffers from the Michale problem. If he had his own blog, no one would read it...

i'd really like to see a column that reconciles the views in the current post with your views on knight institute v. trump, where the president's twitter feed WAS considered by the SCOTUS to be a public forum, with first amendment protections afforded to the posters.

JL

Dude. Why is CW obligated to flog a truly bad, simplistic solves nothing One Demand? You've got all the freedom (too much, IMO) down here in the Comments section to flog your truly bad, simplistic solves nothing One Demand...yourself!

BTW, how's that going? From the looks of it here in Weigantia, not so hot, eh?,

JL

I guess you never know when something you posted could make a huge difference to somebody, but I listened along with y'all on Sunday (got behind... as usual), and this is literally the first chance I have had to answer anybody. I did want to say I needed those Muppets, and I had forgotten how awesome "The Wiz" was... and you saved my really horrible day.

EM's and everybody else's songs were (are always/usually) great too... only thing missing:

https://www.youtube.com/watch?v=I_2D8Eo15wE

Russ! I would have answered you sooner, but I'm dealing with a 90-year-old in-law with newly diagnosed pancreatic cancer (massive metastasis... death sentence, basically).

Y'all take care of yourselves. :)

http://www.chrisweigant.com/2021/05/21/friday-talking-points-just-not-a-good-bad-guy/#comment-177902

If one looks at the structure of the deals that consolidated...I mean created... these media monoliths, one will find that for around 7 more years Fox Corp., Warner Media and Comcast receive protection under this clause due to how ownership/divestiture for various pieces of the companies will happen.

"But I admit I'm a little lost in the midst of your absolute insistence that the private company can do what it wants with its own, because its space is not a 'public space'. As you admit, if it were a public space, like for instance a restaurant or a store or a bakery, it would not be allowed to say, "we only serve white people" or "we only bake cakes for straight couples".

What's the difference? You don't really explain. You say it's just NOT a public space because Facebook spent millions building its site - kind of like the racist restauranteur spent thousands building his little bigoted business."

I'll take a stab at it. The differences are:

1) Business services provided to the general public that include physical goods, i.e., food services (cakes, restaurants), clothing (department stores), barbershops and nail salons, amusement parks etc. are specifically covered by non discrimination civil rights laws, under the concept of public accommodation (this covers hotels and motels too) (but not doctors, who can refuse anybody any treatment for whatever reason except in life threatening circumstances i.e. emergency aid) while internet companies who provide a more ephemeral service, a non physical space for something non tangible... the exchange of ideas, concepts etc. are not.

2) Internet companies that are forums are more akin to newspapers and other forms of media, that include both reporting on and the advertising of events etc. and therefore are covered by the constitutional right of free speech, freedom of association, intellectual copyright laws, etc. They are more like a motorcycle club, or the Shriners, or Free Masons, or the Rotary Club, etc. and less like a sports team for example.

It's the difference between a purely social grouping or private organization on the one hand, and something that has gone completely commercially public on the other. Where do you draw the line is always going to be a source of contention. With the constitution specifically carving out the single exception of one private business...namely the free press. Now how you define what falls under the term press is another matter.

You have to look at the context of history also. Back in the 1950's, a black man could drive his car from Texas to Georgia and not fine one hotel he could sleep in overnight or one establishment where he could use the bathroom. This is what civil rights laws regarding discrimination in public accommodations were meant to address.

A man denied the use of a bathroom or motel can't very well create his own out of thin air, other than using the roadside bush and getting arrested for public indecency or vagrancy.

But a man denied getting something published in a newspaper or on the radio can always print and distribute his own flyer or hold a sign on the side of the road, etc.

None of these silly euphemisms will last any longer than Victory Cabbage did.

But I admit I'm a little lost in the midst of your absolute insistence that the private company can do what it wants with its own, because its space is not a 'public space'. As you admit, if it were a public space, like for instance a restaurant or a store or a bakery, it would not be allowed to say, "we only serve white people" or "we only bake cakes for straight couples".

What's the difference? You don't really explain. You say it's just NOT a public space because Facebook spent millions building its site - kind of like the racist restauranteur spent thousands building his little bigoted business.

You say conservatives, or fascists, or child pornographers have a right to make their own Facebook - but that's not remotely possible in real life, as you know. And I don't want those people on my social media newsfeed either. But I'd like a much clearer explanation of why I have the right to not confront those people on my screen every night, but don't have the right to exclude racial or other protected groups from my shopping or dining experiences. "Free speech" and "private property / enterprise" doesn't seem to cut it, as far as I can tell, because those phrases just didn't work any more regarding race (and the other now-protected groups) after about 1965.

I know the history of racial (and other) civil rights discriminations is not exactly the history of digital forums and online free speech. But I am suspicious of declarations that the two have nothing - nothing, you hear? - in common.

get edible.

JL