Yes, Actually, The 1st Amendment Does Mean That Twitter Can Kick You Off Its Platform, Wall Street Journal

Back in February, we did a thorough debunking of Columbia Law Professor Philip Hamburger arguing (bizarrely, and blatantly incorrectly) that Section 230 violates the Constitution in the pages of the Wall Street Journal. It was a nearly fact free opinion piece that got so much wrong I was vicariously embarrassed for anyone who ever got a law degree from Columbia University. In the intervening months, it does not appear that Prof. Hamburger has done anything to educate himself. Instead, he appears to be digging in, with the help of the Wall Street Journal again. Leaving aside the fact that the Wall Street Journal's parent company has been lobbying against Section 230, and its various news properties have been among the most vocal in spreading blatantly false information about the law, I guess this is no surprise. But if the Wall Street Journal really believes this nonsense, then why won't it let me publish my op-ed in their pages about how the WSJ is the worst newspaper ever, and regularly prints lies and nonsense to please its scheming owner in his hatred of the internet?

Anyway, Hamburger's latest is, I guess, in some ways a response to everyone pointing out that he was wrong in his first op-ed. A key argument actual experts made was that what Hamburger was really mad at regarding content moderation was not Section 230 (as he claimed), but the 1st Amendment, which gave websites all the leeway they wanted to moderate content. So Hamburger's new response, written with former Trump DOJ official Clare Morell, tries to argue that the 1st Amendment doesn't actually protect website content moderation choices. It's almost difficult to believe, but it's even more wrong than his February article.

Does the Constitution require Americans to accept Big Tech censorship? The claim is counterintuitive but the logic is clear: If you submit a letter to this newspaper, the editors have no legal obligation to publish it, and a statute requiring them to do so would be struck down as a violation of the Journal’s First Amendment rights. Facebook and Twitter, the argument goes, have the same right not to provide a platform to views they find objectionable.

The claim is not counterintuitive. It's one of those basic "property rights" things that most of us believe in. And the logic is clear, because... uh... that's how the 1st Amendment works. But Hamburger has just discovered the other hammer that a bunch of clueless Twitter-pretend-lawyers discover when someone points this out. He thinks that "antidiscrimination" laws are the answer. Again, this is mildly embarrassing when @JoeBob2354192081 on Twitter comes up with it. It's horribly embarrassing when a law professor at one of the top law schools in America comes up with it.

Another reason to doubt the First Amendment claim: Antidiscrimination laws are familiar limits on speech. The U.S. has a range of local, state and federal antidiscrimination laws with significant speech consequences, and courts haven’t held that they violate the First Amendment. One has a First Amendment right to bigoted speech, but not, according to the courts, in circumstances that, for example, amount to discrimination in employment or public accommodations.

Antidiscrimination laws apply to protected classes, and they are designed in response to long histories of systematic oppression. Your political party is not a protected class. And being an elitist fool is not a systematically oppressed class.

From there, Hamburger pulls out another debunked tool from the Twitter lawyers' playbook: "common carrier."

Yet another reason is that large tech platforms and services function as common carriers. The states and the federal government have the power to regulate common carriers, and this certainly includes the authority to ban discrimination. The common-carrier tradition can be traced to the common law, which viewed persons serving as common carriers as privileged by government. At the same time, it barred them from discriminating.

We've been through this before. Common carrier designations are extremely limited and they serve a particular purpose: specifically for natural monopoly interchangeable commodity services that serve in transporting things (that's the carrier part) whether it's people, goods, or communications. But social media isn't just about transporting information from here to there. It's about hosting it -- forever. And that's why common carriage laws make no sense at all. They're also not interchangeable commodity services.

Also, it appears that Professor Hamburger does not actually understand the releva