[jcranmer]

> The argument has been made that this is actually a First Amendment violation because of the state action: https://twitter.com/ggreenwald/status/1363175977531150338

The argument has been made, but not successfully. The thing is, threatening to pass a (flagrantly unconstitutional) law if companies don't do something isn't enough of a direct tie by itself to make someone a state actor. Especially when those countries from time to time ask Congress to pass such a law.

[Karunamon]

What would likely pass constitutional muster and get these companies to pay attention is the threat to either revoke Section 230 or modify it so that its protections are conditional rather than absolute.

The constitution has nothing to say on the matter of holding them responsible for the libelous, defamatory, harassing, terrorist, etc. content they fail to moderate away every day.

[jcranmer]

The world without §230 offers two possibilities: no moderation (with all the ills that brings), or moderation tuned to have a 0% false negative rate--and as a result a rather high false positive rate. Most likely, social media companies will choose the latter over the former. And given that about half [1] the people who complain about the current state of moderation think it's too heavy-handed, I think they'll be even less thrilled than they are now to have false positive rates skyrocket.

[1] I suspect it's actually a fair bit more than half, given the semi-frequent occurrences of cases like this article that no one really wants to defend.

[Karunamon]

Why would they choose the latter when it's the most expensive option?

Also, outright revocation of 230 is just one option. Companies at Facebook/Twitter/Reddit scale would do nearly anything to keep that protection since moderation at that scale simply is not possible. This gives an inroad to all kinds of regulation.

Alternatively, your second scenario happens, and it likely leads to the destruction of large, centralized social media, and a proliferation of decentralized, hard-to-sue alternatives. This too, is a win.

[AnthonyMouse]

Now you're getting into the details of the potential retaliation when that isn't really the point.

If a company is discriminating on the basis of race and government officials tell them to stop, there is no constitutional problem there, even if it comes with an implied threat of enforcement or new legislation, because passing a law against discrimination on the basis of race is not a constitutional violation. The government can directly punish that behavior so there is no problem to indirectly or implicitly punish it.

If a company is allowing protected speech the government doesn't like and government officials tell them to stop, that's different. Because it would be unconstitutional for them to pass a law saying the same thing. And there are many other ways the government can punish a business, e.g. by breaking them up. So the implied threat is, censor or we'll break you up, or mess with Section 230, or some other thing you won't like. It's coercing them to do the thing the government isn't allowed to coerce them to do, under threat of adverse regulation that the same government could withdraw in response to compliance.

What the adverse regulation is doesn't matter. It doesn't even have to be specified. The problem is the direction to do something the government isn't allowed to make them do.