Prof. Volokh approves of arbitrary censorship of blog comments

Prof. Volokh is the founder of a very popular multiblogger law blog, the Volokh Conspiracy. The Volokh Conspiracy has been cited by law journal articles at least 62 times, more times than any other law blog except one.

Volokh has argued in favor of arbitrary blog censorship by wrongly claiming that the "fairness doctrine," which the Supreme Court ruled in Red Lion Broadcasting Co. v FCC is constitutional when applied to broadcasters, cannot constitutionally be applied to blogs. The "fairness doctrine" was an FCC requirement that broadcasters present a balance of viewpoints on controversial issues. Some background about the "fairness doctrine" is given here and here. In a very old (1996?) article that he still stands by, "Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex," Volokh wrote in Section I-B-1, "The Right to Exclude Content,"
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Broadcasting: The Court has tolerated "more intrusive regulation of broadcast speakers than of speakers in other media"; in particular, Red Lion Broadcasting Co. v FCC upheld a rule requiring broadcasters to give time to opposing views. But the Court has refused to extend its relatively deferential scrutiny of broadcasting controls to other media, such as newspapers or cable TV. Red Lion has been read as turning entirely on "the unique physical limitations of the broadcast medium"--the physical scarcity of available broadcast channels. No such limitations exist for electronic conferences; there are thousands of conferences available to everyone who has Internet access (which includes users of Prodigy, CompuServe, America Online, and similar services). Even if one counts only the three big services, three is still more than the number of cable operators or large local newspapers that serve the typical city. Given that the Court has refused to apply Red Lion to cable and newspapers, I don't see how it could justify applying Red Lion to electronic conferences.(emphasis added)

When this article was written, probably around 1996, blogs were almost unknown, but today the term "electronic conferences" would include blogs.

Volokh thinks that there is just one space-limitation issue here, the issue of a limitation on the number of sites (e.g., numbers of broadcast channels, newspapers, and blogs), but there is also another space-limitation issue, the issue of a limitation on comment space per site. Court decisions should take both kinds of limitations into account.

(1) Limitation on the number of sites --
This limitation acts most strongly on broadcast media, as evidenced by the above statement, "Red Lion has been read as turning entirely on 'the unique physical limitations of the broadcast medium'-- the physical scarcity of available broadcast channels." There is no "physical limitation" on the number of newspapers, but there is a de facto limitation on the number of newspapers because of the great expense of establishing a major newspaper. There is no limit on the number of blogs, but blogs that get heavy traffic are more equal than blogs that get light traffic. The more popular blogs are de facto major public forums, and for that reason arbitrary censorship of comments on such blogs is of particular concern.

(2) Limitation on comment space per site --
Again, the broadcast media of radio and television are impacted most strongly -- there is no way to expand the air time in a 24-hour day. This time limitation's impact on broadcast media is actually an argument against the Red Lion decision -- there is no way that a broadcaster could possibly present all viewpoints. The impact of space limitation is smaller on newspapers -- newspapers can be expanded in order to present more viewpoints. However, as a practical matter, some major newspapers receive hundreds or thousands of letters per day and couldn't possibly print all of them. However, in the case of blogs, comment space is virtually unlimited and free of charge to bloggers and IMO this is the strongest argument against arbitrary censorship or any other form of arbitrary selection of comments that are submitted to blogs.

Also, as I said, the argument against arbitrary censorship of visitors' comments is especially strong in the case of blogs that are authoritatively cited by court opinions, scholarly journal articles, and other authorities. Many of these authorities are parts of the government or are private entities that are supported directly or indirectly by tax dollars.

Also, as I said, this arbitrary censorship is not just a legal issue but is also an ethical and moral issue.

Of course, as a big shot blogger on a very popular blog, Volokh doesn't need to be concerned about arbitrary censorship of his own comments.

I challenged Volokh to post this fairness-doctrine issue on his law blog but he weaseled out.