From Matt Yglisias:
I think that's right.I’ve been thinking lately about something I’ve decided to call “lawyer-brain” though it is of course not exclusive to or universal among lawyers.
What it amounts to is the belief that things that are not courts of law should act like courts of law, where every decision is made with heavy emphasis on both adhering to precedent and setting new precedent and an extremely high priority is placed on the application of neutral principles. Courts act this way for a reason. But nowadays we often see demands that other institutions — social media companies, op-ed pages, elected officials, vaccine administrators, etc. — act like appellate judges when there’s no actual reason everything should be like a court. The bouncers at bars and clubs will normally give some kind of reason before they kick someone out, but it’s not a binding precedent and you have no right to appeal. The limiting principle is that your bar goes out of business if you can’t run it properly. Hotels have policies, which is a way of managing the staff and setting customer expectations, but the managers can also just make ad hoc exceptions if they want to.
“Check out time is at 11AM” is not a constitutional principle, and even if you write it as “Check out time is at 11AM — no exceptions,” they can still make an exception.
What economist-brain asks about Trump’s deplatforming is not “how will this precedent be used?” but “what are the incentives?” Do social media companies have strong financial incentives to be overly censorious of disfavored political views? The answer is no — if anything the incentive is to amplify non-mainstream views out of proportion to their prevalence in the population.
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