Monday, June 10, 2019
I do plan to write a bit about the Law and Society Association and Grunin Center conferences that I attended over the past two weeks. But today, I am compelled to briefly post about a newly decided U.S. Supreme Court case and a recent blog post. The connection? Both reference in relevant part postal delivery services, public and private.
I was alerted to the Supreme Court opinion (in Return Mail v. U.S. Postal Service) by Tom Norris, one of our fabulous BLPB readers in Nashville. The subject of the case is the U.S. government's attempt to assert patent invalidity as a defense to a claim of infringement. The Court finds that the government is not a "person" for purposes of the relevant provisions of the U.S. Patent and Trademark Act. The National Law Journal article to which Tom pointed me offers a nice summary. I really enjoy legal actions that focus on the "person" definitions in statutes and decisional law. This one offers some interesting policy arguments (as do most)--in both the opinion of the Court and the dissent.
The blog post (Modern Mailmen) is coauthored by Leonid Sirota and Akshaya Kamalnath, the latter of whom I met at the Law and Society Association annual meeting and conference in Washington, DC. The post compares and contrasts the regulation of social media providers to the regulation of postal services. Key points follow.
As lawmakers are talking about regulating speech on social media platforms, a comparison with postal services is instructive. The postal service is not required or even allowed to scrutinize people’s mail and make decisions about whether or not to deliver it. So why should its technologically more advanced relatives have to identify and remove misinformation or statements supposed to be “hate speech”? Of course, social media can be used to commit crime, including engaging in hate speech as defined in the criminal law of some countries including Canada. The post collaborated with law enforcement where necessary to investigate fraud and other criminal activities and social media companies should do the same. Social media companies should obviously comply with court orders if someone is found to have committed a crime. The issue is whether they should be expected to engage in preventive enforcement.
The further question about whether we should require these tech platforms to service all users equally, like the postal service is expected to, is more complicated. This is because the dominant postal service is usually run by the state, while the tech platforms like Facebook are run by corporations in the private sector. While we can ask a state-run enterprise to provide services to all equally, more thought needs to be given before private enterprises are held to the same standard. Yet, government regulation is being considered because, among other things, there are complaints about the spread of what activists deem to be “hate speech”, and also complaints about the silencing of conservative voices on social media.
Ultimately, the coauthors conclude that the regulatory touch on social media providers should be light and focused.
Parenthetically, it also seems appropriate to note that all of this attention to postal services comes at a time when the U.S. Postal Service's business model is subject to possible change. This testimony offers some detail. As the testimony notes, the U.S. Postal Service has been losing money for a number of years and may need a substantial operating overhaul to survive. That will be an interesting matter to follow as restructuring plans are formulated and implemented.