Prof. Somin repeats his errors


Philip Hamburger, Columbia professor, is the CEO and President of the New Civil Liberties Alliance. The New Civil Liberties Alliance represents most of the individual claimants (mostly scientists). Murthy v. Missouri.

Hamburger responded to Ilya somin again in the ongoing debate by writing this post (Here’s how to get in touch with us You can also find out more about the following: Here’s how to get in touch with usFreedom of Speech and coercion 


 I am grateful to Professor Somin for his defense and his coercion view of the First Amendment. He has clarified our differences.

Text. Prof. Somin’s response is oddly indifferent towards the First Amendment’s text. Prohibiting is coercion. The First Amendment deliberately distinguishes abridging The following is a list of the most recent and relevant articles. It is prohibited to use the word “prohibition”. If, as he suggests in his amendment, coercion is the yardstick of freedom of speech, then why did it refer to abridging The freedom of speech? He would have us think that even though it carefully spoke of abridging This textual indication should be ignored.

Prof. Somin grudgingly admits that “[t]There may be a difference between ‘abridging and ‘prohibiting’. No, kidding. He continues to introduce a coercion-standard by treating Free Download As the choice or discretion of individual speakers. The word “speaker” is not used in this context. Free Download This does not mean that the distinction between abridging You can also find out more about the following: Prohibition Clearly drawn in the text.

Limitation of Power Prof. Somin persists in treating the rights of citizens as commodities that can be traded, and not as legal limits to government. To be more precise, the First Amendment freedom of expression was a limit to government, not a right. In fact, the First Amendment states this explicitly by saying: “Congress shall not make any law.” . .” In 1785, the Declaration of Independence hinted that rights were limits to power. Symsbury Case—a Connecticut decision holding a legislature could not take property even with consent or acquiescence, apparently because that “was Not in the power of the General Assembly Constitutionally to Do.”

Other words, private consent does not relieve the government from the First Amendment’s power limit. Prof. Somin has a point that an individual could choose to not exercise their right to freedom of expression, but no amount of consent will give the government power to limit that freedom.

Protected Sphere of Liberty Prof. Somin fails to grasp that the First Amendment’s clauses on speech protect a sphere, which is the same for everyone and that the government cannot abridge. This conception of freedom of expression is evident in the founding-era theory that freedom of speech was a natural right. See Philip Hamburger, Natural Rights, Natural Law, American Constitutions 908-09. The point here is not that one must believe in natural rights but that the government was prohibited from reducing an area of protected liberty, by coercion or with consent.

Prof. Somin’s vision of free speech has the danger of allowing government to buy off its critics. In fact, the government can use consent to reduce the speech rights of students, nonprofits, and others, so that Americans have no shared interest in a common realm of freedom. His perspective is that there are few speech rights the government cannot buy, and no shared freedoms that all Americans could rally around. See Purchasing Submission 107-08 (Harvard 2021).

Terms of service misunderstood Prof. Somin appears to assume that platforms only complied with government demands for censorship after changing their terms and conditions. This is false. Often, platforms simply caved in to the government and did not change their terms. He also assumes users can sue for violating the terms of service, but this is usually untrue.

Not the Platform Speech Even if he didn’t depart much from the text, or the eighteenth-century conceptions on freedom of expression, his theory still fails because he assumes that platforms are speakers. In his view, the posts on the platforms are their speech, and the government can abridge the freedom of speech as along as it gets consent—that is, as long as it doesn’t use coercion.

The posts that are made on the platforms by individuals are not a part of the platform. It is not clear how to get there. The speech of the platforms. Not even the platforms are as vocal. Instead, they allege that they have a First Amendment editorial discretion—that is, a right of expressive discrimination against their users. Prof. Somin makes a mistake by assuming that posts on platforms are the platform’s speech, and that consent from the platforms is the cure for suppression. In reality, the posts that individuals place on the platforms are their speech. Even under Prof. Somin’s anti-textual, ahistorical, and anti-text theory, the government would still need the consent from the individuals.

Information Asymmetry Prof. Somin has expressed his distaste with the shifting notions about consent in contracts. I did not want to endorse a particular view, but simply to note that his vision of a sharp contrast between consent and coercion is at odds with current legal doctrine as well as the medical and psychological literature about consent.

You accuse me of contradiction. Prof. Somin has even accused me of contradicting my own position because I “take an expansive view of what is prohibited under the First Amendment, when it’s non-coercive governments’ pressure to bar social network posts, but take a very narrow vision when it’s Texas’s or Florida’s efforts to force social media companies to host speech which they disapprove.” In the latter case, there is obvious and blatant coercion.” This is not an accurate representation of my opinions.

As Prof. Somin can easily understand, my historical informed view is that for hundreds of years the common carrier doctrine applied to communication carriers and that doctrine was never considered a threat until now to freedom of speech. The point is conceptually that a conduit does not equal a speaker. In fact, the platforms’ attempts to claim editorial discretion fail when it is realized that they are claiming expressive discrimination against users.

Excuses Suppression Prof. Somin reveals a lack of commitment to the freedom of speech by saying that some speech can be “publicly bad,” such as “misinformation.” In other words, he apparently does not recognize that much alleged misinformation was true—indeed, was understood to be true by the people suppressing it—and its suppression adversely affected public policy. He also appears to believe that the government or platforms are qualified to be arbiters of truth. He further reveals his priors when he argues that one should not be too worried about the current censorship regime because it only reduces some expressions of offensive views, leaving other instances online—as if the volume of opinion does not matter, and as if the value of speech is to be measured in bulk, without concern for the suppression of individual voices.

All of this is disturbing, especially coming from a libertarian. I suggest he reread John Stuart Mill’s On Liberty.

Conclusion. Put simply, Prof. Somin’s vision of the First Amendment is flatly wrong—textually, historically, and conceptually. It is also incorrect in fact to assume that his theory is valid because the censored words are the platforms. This is not true.


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