Your Problem Is Not With Section 230, But The 1st Amendment
from the so-good-luck-with-that dept
Everyone wants to do something about Section 230. It’s baffling how seldom we talk about what happens next. What if Section 230 is repealed tomorrow? Must Twitter cease fact-checking the President? Must Google display all search results in chronological order? Perhaps PragerU would finally have a tenable claim against YouTube; and Jason Fyk might one day return to showering the Facebook masses with his prized collection of pissing videos.
Suffice to say, that’s not how any of this works.
Contrary to what seems to be popular belief, Section 230 isn’t what’s stopping the government from pulling the plug on Twitter for taking down NY Post tweets or exposing bloviating, lying, elected officials. Indeed, without Section 230, plaintiffs with a big tech axe to grind still have a significant hurdle to overcome: The First Amendment.
As private entities, websites have always enjoyed First Amendment—freedom of speech—protections for the content they choose (and choose not) to carry. What many erroneously (and ironically) declare as “censorship” is really no different from the editorial discretion enjoyed by newspapers, broadcasters, and your local bookstore. When it comes to the online world, we simply call it content moderation. The decision to fact-check, remove, reinstate, or simply leave content up, is wholly within the First Amendment’s purview. On the flip side, as private, non-government actors, websites do not owe their users the same First Amendment protection for their content.
Or, as TechFreedom’s brilliant Ashkhen Kazaryan wisely puts it, the First Amendment protects Twitter from Trump, but not Trump from Twitter.
What then is Section 230’s use if the First Amendment already stands in the way? Put simply, Section 230 says websites are not liable for third-party content. In practice, Section 230 merely serves as a free speech fast-lane. Under Section 230, websites can reach the same inevitable conclusions they would reach under the First Amendment, only faster and cheaper. Importantly, Section 230 grants websites and users peace of mind knowing that plaintiffs are less likely to sue them for exercising their editorial discretion—and even if they do—websites and users are almost always guaranteed a fast, cheap, and painless win. That peace of mind is especially crucial for market entrants posed to unseat the big tech incumbents.
With that, it seems that Americans haven’t fallen out of love with Section 230, rather, alarmingly, they’ve fallen out of love with the First Amendment. In case you’re wondering if you too have fallen out of love with the freedom of speech, consider the following:
If you're upset that Twitter and Facebook keep removing content that favors your political viewpoints,
Your problem is with the First Amendment, not Section 230.
If you're upset that your favorite social media site won't take down content that offends you,
Your problem is with the First Amendment, not Section 230.
If you're mad at search engines for indexing websites you don't agree with,
Your problem is with the First Amendment, not Section 230.
If you're mad at a website for removing your posts - even when it seems unreasonable
Your problem is with the First Amendment, not Section 230.
If you don't like the way a website aggregates content on your feed or in your search results,
Your problem is with the First Amendment, not Section 230.
If you wish websites had to carry and remove only specific pre-approved types of content
Your problem is with the First Amendment, not Section 230.
If you wish social media services had to be politically neutral,
Your problem is with the First Amendment, not Section 230.
If someone wrote a negative online review about you or your business,
Your problem is with the First Amendment, not Section 230.
If you hate pornography,
Your problem is with the First Amendment, not Section 230.
If you hate Trump’s Tweets
Your problem is with the First Amendment, not Section 230.
If you hate fact-checks,
Your problem is with the First Amendment, not Section 230.
If you love fact-checks and wish Facebook had to do more of them,
Your problem is with the First Amendment, not Section 230.
And at the end of the day, If you hate editorial discretion and free speech,
You probably just hate the First Amendment... not Section 230.
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Filed Under: 1st amendment, content moderation, free speech, reform, section 230
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CC: Koby
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If you claim to hate section 230...
Then you're probably a politician.
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Re: If you claim to hate section 230...
What, Koby is a politician???
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Re: Re: If you claim to hate section 230...
"Koby is a politician???"
Dubious. He is, however, quite eagerly carrying water for the alt-right crowd for some reason. Whether because he's brainwashed himself into running a true doublethink compartment in his mind or because he has fiscal interest in pushing an outright lie in the hope it will eventually stick is irrelevant.
It's become pretty obvious that his only interest in attacking 230 and 1A is the way it keeps a certain crowd from being able to post about how the holocaust is false, jews are powerhungry puppetmasters and black people a lesser race serving the NWO as footsoldiers, on platforms which actually perform moderation.
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I have but one response to this article:
A-fuckin’-men! 🙏
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Re: I have but one response to this article:
I had the same sense that this would be a specifically fitting response to the structure.
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but, its easier to go after section 230 than the 1st amendment.
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I think the problem some folk have is not necessarily with the 1st amendment or section 230 but with laws in general. They think the laws are too strict for their free spirits while allowing far too much leeway for others and as a consequence they break the laws thinking it is a-ok whilst denigrating others for the same damn thing.
For example, jamming the highways obstructing traffic. It's fun and games when your team is doing it. Do they see the hypocrisy?
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I don’t think very many people see obstructing traffic as “fun and games” regardless of which “side” they’re on — especially in light of, y’know, the vehicular murder of Heather Heyer at the hands of a White supremacist.
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Re:
He is specifically refrencing the Trump trains over the weekend which suddenly found republican support for blocking traffic, preventing commerce, and requiring the Biden campaign bus to call for a police escort when they were surrounded by armed trump supporters. Of course I imagine their willingness to run people over is why they chose to protest in cars, rather than on foot.
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Re: Re:
Yes.
They sure seemed to be having the time of their lives crashing into other vehicles and leaving the scene of the "accident". In other locations they blocked access to voting and the police had to force them to move, did not see any that any were arrested. Less aggressive behaviors involve yelling of racial slurs and other such nasty stuff.
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The hypocrisy is mind-boggling until you figure out that they believe that the rules shouldn't apply to them.
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Such is privilege.
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Of course. The Bush era showed they don't care one iota about freedom of speech, if they could delete all speech from anyone left of Ronald Reagan from the internet, they would do so in a heartbeat without any humming and hawwing about fairness, censortship or deplatforming... Unfortunately for them, outside of facebook, they are unable to mute left wing voices on the internet and can't force people to accept hatespeech and their continual attempts to push disinformation to keep people afraid of the dreaded 'others', so they'll keep stabbing at doing so through legislation, until the internet becomes the next talk radio.
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Re:
I agree with the substance, but I think you missed the rightward-slide of their positions. Ronald Reagan became like Jesus; they invoke the name, but the actual man, if he dared to appear today, would be tarred and feathered as a leftist commie liberal socialist.
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Re: Re:
Depends on whether he won the primary.
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Re: Re: Re:
Not really. He'd lay out that historical line about "Tear down this wall!" and be flabbergasted about the party which held him to the skies over the last time he said it suddenly dragging him off for a lynching.
Reagan, today, would be a centrist-right democrat.
Eisenhower would be a little to the right of Bernie Sanders.
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I don't think so. You know the line, "Democrats fall in love, Republicans fall in line"?
Most Trump voters were Romney voters too. And McCain voters, and probably Dole voters.
Whatever their guy says, that's the party line, regardless of what the party line was yesterday.
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Re: Re: Re: Re: Re:
"Whatever their guy says, that's the party line, regardless of what the party line was yesterday."
Partially true. Reagan, today, wouldn't win the primary. Hell, he'd be asked to go join his fellow democrats.
Eisenhower would be chewed out for being a bleeding-heart liberal and asked to take his "commie propaganda" to China.
The republican "base" today values a certain set of criteria, such as "Conservative" values apparently best described by choice lines from Mein Kampf and confederate rhetoric. Any candidate not properly expressing such views won't get a platform in that party. Not any longer.
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As always, these people only hate others having free speech to say [whatever] when what's said doesn't agree with what they believe.
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Not the complete picture
I don't think this gives the complete picture. For every complaint listed there are many possible responses that are not only not hindered by the 1st Amendment, but are protected by it. You can not use the service/web site, you can argue why things should be changed, you can suggest a boycott of the site/service and/or sponsors, you can delete your account, etc. etc. The complaint then becomes that these responses aren't effective and then you want to use the power of the government to force the site/service to make changes. THAT is when the 1st Amendment comes into play and thank whatever deity or spirits you care to invoke for it.
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Re: Not the complete picture
By the time we are talking about complaining about section 230, we are way past the types of action you discuss and into into 1st amendment territory. Techdirt has engaged on the idea that these people could let the market decide, but that they don't want to. They want the reach of facebook or twitter, not Parlor or 4 chan. This isn't about that step. This is about the first amendment step.
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Re: Re: Not the complete picture
Right, they can't make a persuasive case for the change they want and rather than accept that their view is not shared by most of the the current users or move to a place where their views are better received, they what to use the government to force others to do what they want. Of course they also believe that others should never use the government to force them to change.
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more than anything, the problem seems to be with these people who want to remove yet another of the Amendmentd because they cant bear the people having any rights, any freedom or any protection! in other words, they simply want the USA to carry on being transformed into a reincarnation of Nazi germany, of a police state, with only the security forces having the right to do anything/everything they want at the expense of eveyone else! if they think this will give them back the number 1 spot on the world stage, they are very much mistaken! sooner or later, this treatment results in revolt! the people will only take so much, for so long and then they retaliate! what so many seem to be unaware of is that it's only the rich, the famous and their friends who want this and who benefit from it. everyone else loses out!
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If you wish you could sue big-pocket websites like Facebook or Twitter over user-generated content in case you'd almost certainly lose but in the hope that they'd pay you off anyway just to make your nuisance lawsuit go away,
Yeah, OK, in this case your problem is with section 230.
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Hey Jess, you dropped this:
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Re:
Ah the classics, rather than rebut the argument you attempt to discredit the person making them.
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Re:
Right, Techdirt are such Google shills that they published with this article. Such obvious Google-hocking it is.
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Section 230 is a convenient scapegoat. People know that if they declare themselves to be anti-First Amendment, that's going to make them look bad. But if they merely criticize an obscure, little-understood provision of a mostly-vestigial 1990s law to regulate the Internet, that doesn't sound nearly as bad.
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'Which content is that?' 'Oh... you know...'
It's similar to how they love to declare that social media is taking down 'conservative' content in vague terms but when you ask them to point to which content in particular they tend to get rather silent or upset that you're not just accepting their claims at face value, because they know that someone claiming to be censored for being 'conservative' is a hell of a lot more sympathetic than someone who was moderated for being a bigoted asshole.
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Re: 'Which content is that?' 'Oh... you know...'
I remember we used to have a very vocal commenter here who'd make strong, absolutist claims and then become belligerent when you'd ask him to provide even the most minimal support for them.
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Re: Re: 'Which content is that?' 'Oh... you know...'
"...we used to have a very vocal commenter here who'd make strong, absolutist claims and then become belligerent when you'd ask him to provide even the most minimal support for them."
Oh, he's still around. Baghdad Bob has, however, started skimping on making those absolutist claims and has settled for just being belligerent.
Can't blame him, really. Every time he tries to fit an argument into his rhetoric it was a premise so flawed it fell into the "The sun god is a square teletubby who hates gays" classification of pure gibberish. If he fit more than one argument into the comment his second argument would always take the first argument out back and shoot it.
I guess over the ten years or so in which he's haunted the forums here and on Torrentfreak he's at least learned - in his more lucid moments - that all he's got is baseless ad hom and marginalization.
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Re: Re: Re: 'Which content is that?' 'Oh... you know...'
Nah, I was talking about Mason.
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Re: Re: Re: Re: 'Which content is that?' 'Oh... you know...'
You sure that just wasn't while Baghdad Bob still liked to use actual accounts for his shitposting?
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Re: Re: Re: Re: Re: 'Which content is that?' 'Oh... you know...'
Nah. Mason's spelling and grammar were too coherent.
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230 does nothing more than make sure that lawsuits are targeting the correct party, along with making it clear that platforms have every right to decide what speech they will and will not allow on their property, so those attacking 230 aren't just against the first amendment they're also against property rights and personal responsibility, which is just a tad hypocritical given which party the loudest objectors tend to belong to.
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Re:
It does two other things, both bad.
Firstly, it lets facebook etc. hide behind the original authors of the material they choose to promote, giving them complete immunity for that decision in a way that the editor of a traditional newspaper is not, even though they are the ones who choose what to bury in obscurity and what to promote to the world.Historically, that has done more good than harm to the right, partly because of Zuck's own politics and partly because they work the algorithms better. If facebook find a public post that says "That One Guy is a child molestor" they can promote the hell out if it, but because they're online there's nothing you could do about it.
Secondly, it gives paid online service providers the right to unilaterally cancel contracts in the middle of a billing period without the customer having any protection under normal contract law.
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Re: Re:
[Asserts facts not in evidence]
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Re: Re:
Remind me: is a newspaper legally responsible for the content of letters to the editor? Because that’s the closest equivalent to §230 immunity for third-party content. Is a newspaper legally responsible for decisions to not publish something? Because that’s the closest equivalent to suing for removing content from Facebook or something.
When has this ever happened? Either way, that applies equally to many other subscriptions if the contract allows it. Double-check the terms of service you agree to.
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What has started this to be a problem?
Why would anyone want this to go further?
THEIR opion was removed?
OR and opinion posted by another person they wanted to rely/respond/debate/Take to court, was removed?
Can we get those that want EVERYTHING, recorded and no Erasure, to agree on Something that COULD be erased.
Mostly due to the fact of EDITING. And no site wishes to EDIT the whole thing, as well as that also makes it an opinion OF that site.
The problem with a good debate tends to be HOW each side see's the problem/opinion/obstacle, and The facts involved tend to be more opinion then anything else.
Allot of this can go back to the McCarthy Era. Who is right, who is wrong, and what is the price of an OPINION.
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My problem with Section 230 is that it's used as a defense for sites where people can meet up to buy or sell guns without background checks, regardless of laws that require them or not.
My problem with Section 230 is that there are those attempting to use it as a defense for corporations to turn their storefronts into flea markets full of counterfeit and defective goods where, if you get harmed and seek legal recourse, you may not be able to find the fly-by-night vendor you bought something from.
My problem with Section 230 is that in certain instances such as those prior examples, the scope that it defends, and the scope that Techdirt seems to want it to defend, look to be expanding in ways that could perpetuate harm. Ways that 1) Wouldn't exist if that scope hadn't been expanded, and 2) Would leave people without ways to seek due recompense if they found themselves harmed.
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For what reason should the website be held accountable if a third party commits the actual harm?
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Re:
Armslist should've been held accountable because they're a site focused on buying and selling deadly weapons and accessories and equipment for those deadly weapons. Sure, they have their "If you use this site you must be at least 18 years of age, agree that you'll follow all laws, and agree you won't use Armslist for illegal purposes" schpiel, but their Twitter makes it pretty clear that they don't care one lick about those laws, but are merely using that disclaimer and 230 as a shield.
Amazon should be held accountable because they're a storefront that's a key part of the transaction that's taking place on the website, no matter who you're buying from. They receive a cut from all sales done through their storefront. And when a third-party merchant chooses to use Amazon's fulfillment centers, they receive even more of a cut. The items are listed on Amazon's site, Amazon process the payments, and in plenty of cases, the employees that Amazon pays fulfill the orders. E-Bay this ain't:
Amazon facilitating this many purchases and making this much money while playing a key role in the process of the commerce going on means that they should be held liable in the case that someone gets harmed but the merchant can't be found or is in another country where no legal action can be taken upon them. It seems that in the Oberdorf v. Amazon case, the court agreed, for which I am glad.
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Re: Re:
Selling deadly weapons and accessories is perfectly legal in the United States like it or not. Similarly they don't have any obligation to police the many jurisdictions of gun laws and hidden details. There is nothing to hold them accountable for.
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Re:
I am reminded of the complaints about backpage, where when people committed sex trafficking the police could go to the platform and find out who it was.
Are you looking for a similar outcome?
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Re:
I hope you understand this, but dont think you will.
Buyer beware has always been the CORP WAY.
CHEAP as hell, and make it look PRETTY, does not make a good product.
Guns? are already being sold under the counter, even without the Internet.
A smart police force USE'S what is available and if it AINT THERE, they know nothing of what is happening.
Think about that. If they have the availability to find an underground newspaper, to see Who in there area is selling guns. Do you think they will try to USE IT?
The easiest way to catch a thief is to Fill a house will somethings they WANT, and sit outside waiting. But if they are willing to do it themselves, all the better.
If you dont let it seem that they have abit of privacy, they will hide DEEPER, and do things by the backdoor where you CANT SEE IT.
Then lets go 1 step farther. WHO are you trying to protect from being an IDIOT, and doing it on a Public access internet site?
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Re:
Right. Hold the website accountable for actions of other people. or are you rather insinuating that the sites themselves are encouraging illegal behavior? If that's the case, guess what doesn't apply as a "defense"?
P.S., Section 230 is not a "defense".
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Re: Re:
As I wrote and linked to above, Armslist seems just fine and dandy with illegal behavior, knows the audience that they have and want to attract, but uses a basic agreement and Section 230 as a shield. Armslist managed to get off scot-free. I think that something is very wrong there.
Amazon is a key facilitator of all transactions that take place on their website, involved in most transactions in a way that other sites like eBay aren't, especially when they get merchants to pay Amazon for the physical infrastructure and labor that directly facilitates those purchases. Amazon should be able to be held liable for defective and counterfeit products and harm caused by said products when the merchant that Amazon trusted enough to do business with disappears without a trace, or if the merchant is in another country where someone can't reasonably seek legal recourse. Luckily, in the Oberdorf case, Amazon wasn't able to use Section 230 as a defense, but for some reason, Techdirt saw this as an affront.
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The affront lies in the idea of “blame the tool, not the people who use it”. If someone buys a hammer from Home Depot and uses it to bludgeon someone else to death, should either that specific Home Depot, the Home Depot company as a whole, the manufacturer of the hammer, the cashier who rang up the murderer, or any given combination of those entities receive some of the blame for that murder?
If the people who run a service provably and knowingly commit illegal/unlawful acts with their service, they should be held accountable for the acts they committed. But regardless of whether they are or are not doing that, they shouldn’t be held accountable for wholly unrelated actions by third parties in which the owners/operators of that service played no part.
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Re:
If Home Depot is marketing to people who want to bludgeon people to death with hammers, then Home Depot should be found liable.
Armslist very clearly doesn't give a shit about background checks or any sort of gun laws or regs. Their Twitter where they say that all gun laws are unconstitutional and share shit that supports murderers like Rittenhouse is their marketing. Armslist should've been held liable in the case in Wisconsin.
If Amazon (the owner/operator) trusts a merchant enough to enter into an agreement with them for that merchant's goods to be sold on Amazon, and Amazon handles payment processing and gets a cut of the sale and any additional services such as fulfilment and shipping, then they are indeed related. Amazon has a hand in letting defective products onto their storefront. Therefore they should able be held liable when that product is defective, and only one party is able to be found. And the court that ruled in the Oberdorf case agreed.
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Re: Re:
"Armslist very clearly doesn't give a shit about background checks or any sort of gun laws or regs. Their Twitter where they say that all gun laws are unconstitutional and share shit that supports murderers like Rittenhouse is their marketing. Armslist should've been held liable in the case in Wisconsin."
Yeah, and in any other country than the US this would have caused a bigger mess. However, in the US, the gun is a tool which has, as express purpose, efficient killing. And it's a legal tool at that, the ownership of which is protected by constitutional law.
Hence why, when an arms dealer proclaims the efficiency of a gun in killing people and the buyer explicitly states he purchases the weapon in order to kill people, in the US this is exactly like the vendor proclaiming the efficiency of a hammer in construction and the buyer saying he wants a tool to deal with hammering nails in.
It's likely that armslist knew full well that they were advertising weaponry to unhinged people who would go out and murder people. And in the US there's nothing legally wrong with that.
If the reason you're going after the first amendment in the hope that it will somehow handicap the second amendment...your logic is broken.
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Re: Re: Re:
ArmsList is advertising their services to right-wing and nazi musketfuckers, not hunters or people who require self-defense. This is like if Home Depot was advertising to biker gangs that they sell ball-peen hammers that are perfect for concealing and bringing to a fight where you need to crack some skulls.
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Re: Re:
Do you know how a honey pot works?
Let a service do the work, but there is monitoring in the backgroun by policing agencies.
Why not have it out in public, so those few idiots that DONT GET THE INTERNET, show up and do stupid things, and the Police end up at their doors.
Ever hear about a magazine called Soldier of fortune? Great resource to monitor Who is reading it and Who is buying things with it.
Or are you trying to Help the idiots hide better?
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Re: Re: Re:
https://www.facebook.com/SOFMAG/
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Re:
You don't need modification to Section 230 to regulate online marketplaces for gun sales. Congress already has that power under the interstate commerce clause. There is nothing stopping Congress from making a law such that:
Any website hosting 3rd party sales of firearms must: Require an account by all users disclosing name, address, birth date; the website must verify the name on the account is accurate by requiring a state ID or birth certificate; any person selling X or more guns in a year must have and provide a dealership license in good standing with the ATF; all gun sales data must be kept for X years.
Hitting Section 230 is a hammer, use your scalpel. It is easy enough for Congress to cut down on illegal gun dealers on such websites with proper regulation.
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Re: Re:
I'm not asking for modification of Section 230. I'm fine with it protecting a broad swath of online content and platforms. What I'm worried about is case law and precedent expanding 230 to protect certain activities that seem to be out of its bounds in ways that seem like they'd cause more harm than good and leave the people harmed with no real recourse. I think the courts made the wrong decision in the case against ArmsList, and the right decision in the case against Amazon.
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Re:
"My problem with Section 230 is that it's used as a defense for sites where people can meet up to buy or sell guns without background checks, regardless of laws that require them or not."
Which, in the US, is completely legal, the way it's done. Because if it wasn't then any G-man with an interest in an easy collar could simply track those people down and, uh, slap them with a "misdemeanor" I guess.
Stop blaming the messenger about US gun law being hilariously broken and fragmented across state lines.
"My problem with Section 230 is that there are those attempting to use it as a defense for corporations to turn their storefronts into flea markets full of counterfeit and defective goods where, if you get harmed and seek legal recourse, you may not be able to find the fly-by-night vendor you bought something from."
So again, fully legal, and exactly like any other flea market you care to name, caveat emptor applies.
"My problem with Section 230..."
You don't have a problem with 230. Just as the OP states what you have a problem with is that the first amendment allows people to talk to each other even when said people may be bad people.
Off hand you'd be happier living in China than in the US if your arguments hold ANY true intent. Soviet Russia is, alas, no longer an alternative for you.
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Antitrust?
My problem isn't necessarily with Twitter or Facebook allowing/blocking anything, but more with how few providers there are. The power over speech here is constitutionally protected, but I would assert that it's too concentrated.
I don't see changes to section 230 as in any real way related to the answer to this.
I see content-agnostic antitrust as potentially being part of a path to better outcomes. Ideally, there should be dozens or hundreds of platforms, not less than a dozen. No one platform should be able to reach even 15% of all social media users. (Which is not to say I mean to suggest legislating exactly that. I don't know what the solution would look like in detail yet.)
Anyhow. Crazy?
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I…I’m sorry, what do Twitter and Facebook provide — other than access to a large audience, which is something you’re not entitled to have — that Gab, Parler, Mastodon instances, or literally any other social media service doesn’t provide?
Oh, you’re one of those schmucks who thinks “neutrality” is the way to “better outcomes”. Tell me, have you surfed 4chan lately? Because they’re neutral towards a hell of a lot of speech, and…well, one minute of surfing /b/ will tell you a lot about 4chan that I don’t think you know right now.
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I think you're reading something into what I wrote that, at the very least, I didn't in tend to put there.
I do not think "neutrality" is the way to "better outcomes".
I do think we need to not apply precisely the same standards to everyone everywhere in all circumstances, and need a large number of competing and evolving standards and mechanisms that we don't really have, in any practical sense, now.
I predict that the outcome would not look "neutral" (except perhaps in small niche communities that tended to drive others out).
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Fair enough; I regret the error.
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Re: Antitrust?
My problem isn't necessarily with Twitter or Facebook allowing/blocking anything, but more with how few providers there are. The power over speech here is constitutionally protected, but I would assert that it's too concentrated.
There's a really simple answer to that: Build a competing platform that offers people a better experience. It'll be an uphill battle convincing people to move to be sure, but the fact that people tend to stick with that they've already got is no reason to have someone else step in and force platforms to act a specific way.
Ideally, there should be dozens or hundreds of platforms, not less than a dozen.
That... would be an insane mess, and rather counter-productive when it comes to social media where you want all the people you interact with to be if not on the same platform then easy to communicate with thanks to cross-platform stuff.
That said there's nothing stopping that from being the case even now, as assuming they've got the money to pay for everything anyone can set up a platform and try to convince people to swap or sign up there as well, so there's really no need for the government to step in on that regard.
No one platform should be able to reach even 15% of all social media users. (Which is not to say I mean to suggest legislating exactly that. I don't know what the solution would look like in detail yet.)
Platforms become popular because people want to use them, so the only way you could limit what percentage of users they had would be to set limits punishing both platforms and users for the platforms being popular, which would be just a tad absurd and cause a serious chilling effect in the field as platforms would risk being penalized for getting too many users.
Anyhow. Crazy?
Not crazy so much as unrealistic and counter-productive, as it seems the things you have issues with are not something that needs outside intervention and the things you seem to want intervention for would be highly damaging and punishing the wrong things.
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The Mastodon protocol exists to do exactly this.
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Yep! I'm aware of both Mastadon and, well, email. And SMS and MMS, and how gateways between providers work for those (since I've worked on emergency notification systems that plugged into those, and I know talking to all of them is not as simple as talking to one of them).
Not to mention phone service providers. Service is federated and the capability for migration of identity (number) is mandated by the FCC in the US. And yet people can talk to each other, don't even usually have to know who someone has service with.
There are ways to design systems that can interoperate. Maybe that's where to aim any regulation? Prevent/forbid lock-in, mandate allowing "porting" similar to how phone number porting is a required capability for phone providers?
Don't know. I don't see there being any chance of this taking off in practice, so I haven't worked through it with any rigor.
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Forcing platforms to interoperate presents as many 1A questions as forcing platforms to host all legally protected speech. Should the law force Gab and a Mastodon instance to federate with each other if the owners of both Gab and the Masto instance doesn’t want speech from either service showing up on the other? If the law should force that federation, who would choose which standards, if any, should apply to what speech is considered “acceptable” on the federated timeline shared by those two services?
Any service that operates on a protocol suited for interoperability should have the absolute right to determine whether to interoperate with any and all other services running on that same protocol. I can think of no reasonable counterargument that doesn’t also violate the freedom of association protected by the First Amendment.
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Re:
"Forcing platforms to interoperate presents as many 1A questions as forcing platforms to host all legally protected speech."
Well, yes, but there are workarounds. There was an AC around here some time back who was all-in advocating Doctorow's "adversarial interoperability" argument.
If platforms were better at allowing third parties to access the posting protocols the platforms would still retain all of their moderation rules, but you'd start seeing "meta-platforms" for the weird people who might want to mix Gab input into their twitter feed.
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Re:
Your example of the phone system, SMS and MMS are basically a one to one communication system. With that system if you want to talk to 100 people, you have to ring each one individually. Social media is intend as a many to many system, and the more nodes you need to communicate with, so to send the same message to 100 people on different nodes, you send it 100 times, or have others relay it so that it is sent 100 times.
Highly distributed systems, also cause more threading issue, especially if they introduce significant delay. Different people will see the messages arrive in different orders. Also setting up special interest groups becomes more difficult, because they will often be fragmented by being many small groups that cannot find each other because they have no initial members in common.
If you want twitter like tags, which are very useful for building ad-hoc special purpose groups, such as translators to help rescue efforts after an earth quake, or help communities recover from extreme weather event, like after hurricane Sandy. messages have to go to all nodes, as the sender has no idea who to send a message to, but can request a skill or service that will likely be seen by a very large number of people.
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The problem is greedy corporatist power grab.
Trying to control ALL speech. Period.
Even worse, prohibiting ALL disagreement.
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Re: The problem is greedy corporatist power grab.
Considering how many arguments I’ve gotten into during my limited time with Twitter and Facebook on those sites, and how many people I see complain about YouTube, Twitter, and Facebook on those sites without repercussions, I don’t see “Big Tech” prohibiting all disagreement.
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The problem is greedy corporatist power grab.
Trying to control ALL speech. Period.
Even worse, prohibiting ALL disagreement.
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No, 1A doesn't authorize controlling the speech of others.
No, you try to greatly expand 1A to authorizes or empowers corporate control of ALL speech.
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Re: No, 1A doesn't authorize controlling the speech of others.
Twitter can’t control others’ speech anywhere but Twitter.
Facebook can’t control others’ speech anywhere but Facebook.
YouTube can’t control others’ speech anywhere but YouTube.
Techdirt can’t control others’ speech anywhere but Techdirt.
Reddit can’t control others’ speech anywhere but Reddit.
4-chan can’t control others’ speech anywhere but 4-chan.
Parler can’t control others’ speech anywhere but Parler.
TikTok can’t control others’ speech anywhere but TikTok.
A newspaper can’t control others’ speech anywhere but that newspaper (or equivalent site(s)).
A broadcaster can’t control others’ speech anywhere but their broadcasts (or equivalent site(s)).
A bookstore can’t control others’ speech anywhere but that bookstore.
This isn’t about corporations controlling all speech, or even all speech on the internet. It’s about corporations controlling speech on their respective platforms and nowhere else. It’s not “you can’t say that anywhere”; it’s “you can’t say that here”.
The 1A doesn’t guarantee the right to an audience.
The 1A doesn’t guarantee the right to access someone else’s private property.
The 1A doesn’t guarantee the right to stay on someone’s private property once access has been granted.
The 1A doesn’t guarantee the right to say whatever you like wherever you like without consequences from private citizens or NGOs.
The 1A doesn’t prevent private persons from controlling others’ speech within their space(s).
The 1A does guarantee the right to not publish or repeat what you don’t want to, even if that speech you refuse to convey comes from someone else. Common law rights over private property guarantee any private person—including private corporations—the right to refuse, grant, and revoke access to their privately owned space(s) for any reason. The 1A guarantees the right to convey any change in another’s right to access one’s privately owned space(s).
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"your problem is with 1A" claims 1A authorizes total control.
No, the actuality is that HOSTS ARE NOT EDITORS. They're hosts. Mere mechanism.
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Re: "your problem is with 1A" claims 1A authorizes total control
The hosts own servers on which your speech actually gets stored, not simply passed along. You might have had a point if the data was in transit (well, not really), but it’s not; it’s stored on their actual machines. Furthermore, the fact is that they aren’t just pipelines, and you can easily switch to another similar service at no financial cost.
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Neither Section 230 nor the First Amendment authorize...
... say, the owner of a trucking company to refuse delivery of papers because doesn't like a newspaper's editorial choices. -- That's never been allowed. A competitor could buy up all trucking companies and shut down delivery of all other papers. That's restraint of trade too.
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Re: Neither Section 230 nor the First Amendment authorize...
Umm yes it does - there isn't a protected class there. Buying up all trucking companies is nonsensical given the many alternatives for paper delivery routes and that would be an /actual/ antitrust issue of market dominance as opposed to "they are big and I don't like them!:.
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Re: Neither Section 230 nor the First Amendment authorize...
"... say, the owner of a trucking company to refuse delivery of papers because doesn't like a newspaper's editorial choices. -- That's never been allowed."
Are you high? This happens all the time. And it's fully legal - not just in the US but everywhere.
If a trucking company owner gets up one fine day and says "I don't like the NYT editorial. Henceforth we take none of their business!" the one and only thing that owner needs to worry about is whether or not he has a signed contract with the NYT which specifies he has to give advance warning before terminating the business.
I suddenly understand, Baghdad Bob - you don't understand the concept of property to begin with. This explains so much!
So let's start right back from the beginning then; When you post on twitter or Facebook your comment is handled and stored on private servers which then place that comment on the private user interface for people visiting that private web address to see.
If the private owner of that property doesn't welcome you then out you go. It's literally no different in principle than the pub owner or arena owner who has a blacklist of patrons who are no longer welcome for one reason or other.
Your argument just keeps boiling down to the idea that if someone likes to hold parties and has been liberal enough not to demand actual invitations from attendees then that house owner should no longer have the right to show people he doesn't like the door.
No one owes you a platform. What 1A means is very straightforward; That the government is not allowed to deprive you of speech.
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The mechanical host of a website is NOT the publisher.
Corporatists are simply trying to confuse that clear fact.
Let's take Techdirt. Does the host of Techdirt have an absolute right to shut down Techdirt? -- Say for the moment that ALL hosts find Techdirt repugnant, don't try to wiggle out by saying "he'd find another host". -- Of course not. A mere host needs good clear cause in Common Law to deny service even to Maz.
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Re: The mechanical host of a website is NOT the publisher.
As far as I can tell, yes they do. At least legally. I believe that there was an article saying as much.
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Re: The mechanical host of a website is NOT the publisher.
"A mere host needs good clear cause in Common Law to deny service even to Maz."
Nope. There is probably a contract somewhere which specifies a set amount of advance notice which needs to be given but every company, anywhere can stand up and say "we terminate business with you" without ANY need to provide reason or cause.
At which point the aforementioned contract say something like "OK, X days advance notice then the contract is considered terminated".
So yes, Techdirt's host is quite free to call "Maz" up and tell him "Get lost" today. The host needs no reason to do so. At all.
It's the same as that your landlord has the ability to walk up to you and say "Get lost" and you'll either have to find a reason you can take to court as to why you should remain or you have your X months-of-termination notice and then you need to walk on your own or face eviction.
How can you not realize this, in the US?
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The new Public Forums are NOT be controlled by corporations.
THIS is the actual intention of Masnick and this fiend: ARBITRARY UNACCOUNTABLE CORPORATE CONTROL OF ALL SPEECH.
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You're not defending the First Amendment for individuals!
Just try to flip it so authorizes -- "license" as one fiend put it last week right here -- corporate control.
1A doesn't confer any such power as you claim. But even if did, it cannot over-ride The Public's right to FREE SPEECH in Public Forums, not controlled by mere legal fictions.
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Re: You're not defending the First Amendment for individuals!
The First Amendment only says that the government cannot control speech in public fora. Corporations have every right to do so if they have control and ownership of the public forum in question as long as they aren’t doing anything that has been historically reserved exclusively to the government. A corporation has just as much right to kick you off of their lawn as you have the right to kick people off of your lawn, even if they generally allow the public to make speeches there (which they aren’t required to do), and even if the “lawn” is their website or other virtual space.
Additionally, Twitter, Facebook, etc. are also publishing speech, and the 1A does allow anyone—including corporations—to moderate what they publish. The right to free speech includes the right to, say, remove someone else’s political signs from your front lawn.
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Re: You're not defending the First Amendment for individuals!
The public has no right to free speech in ANY private forum. Not any more than you are entitled to have "free speech" in someone else's front yard.
And that remains the case no matter which nation you go to, from the most liberal to the most authoritarian, NO nation on earth has a set of laws that insane. "The public" usually doesn't have any rights at all because "The Public" is not an entity. Individuals do have a lot of rights. None of those rights let the individual walk onto someone else's property and refuse to leave..
What the first amendment does is very simple. It prevents government from shutting you up. You can stand in a public square and scream from a soapbox - and that's free speech, taking place in public space. Try to do the same in someone else's living room or bar and you are shown the door. It's that simple. Public Space means a location owned by state or government authority. Nowhere else. It doesn't matter if Facebook hosts accounts for every person on earth, it's still not public property.
An online forum? That's private property. Run on privately owned servers. Hosted on privately owned network connections. You could argue - successfully, imho - that the physical transfer should be untampered with, as the road network you use to get to the end address is core infrastructure, but having traveled the roads no one owes you entry and a podium at the privately owned end addresses.
Facebook, Twitter, Gab, Parler, Ars Technica, Torrentfreak, Techdirt, and the NYT online edition? All privately owned and thus have no obligation to provide room to speak for anyone.
I recall we used to try to inform you of this years ago on Torrentfreak, Baghdad Bob. It's not a good look for you that you keep failing to understand what a five year old can learn and comprehend in five minutes.
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IF your view were right, then we need to make hosts UTILITIES.
Do your electric company have a right to shut your power off so that YOU can't make these false claims? NO, and it shouldn't.
If you corporatists keep pressing this notion, you'll be UTILITIZED. Speech is too important to be in hands of a few.
Time to Treat [Social Media] Like the Essential Service It Is
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Brainy, I’mma need you to turn off your computer and go to the nearest hospital, because it’s clear that you think Techdirt is an existential threat to you and you need immediate psychiatric help for that issue.
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Re:
Thing is getting help and actually getting better requires that the person admit that there's a problem and want to get better, and they quite clearly relish the batshit insanity that is what passes for their life.
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Re:
Freehaven, I’m gonna level with you: You need to step away from the computer, take some deep breaths, grab a drink of water, and contemplate what exactly you’ve accomplished by replying to and feeding the trolls over the years. What’s stopping you and everyone else from just flagging the trolls, moving on, and trying to comment with something more substantial that’s not a reply to their nonsense?
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Re:
Look who is making up up batshit theories now . . . You!
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Re: IF your view were right, then we need to make hosts UTILITIE
If my electric company shuts off my power, I can’t switch to another electric company without both of me and the new electric company (and possibly the old one) incurring a ton of expenses replacing and building new infrastructure for it. If a social media company kicks me off of their platform, I can easily find another platform (like 4-Chan or 8-Chan) at no cost or, at little to no cost, create my own Mastadon instance to act as a platform.
Additionally, at no point does any of my speech actually get stored at the electric company, while Twitter’s servers do store every Tweet and Facebook every Facebook post unless and until they are somehow deleted. In fact, the electric company is never actually sent or made to send out any of my speech, so this analogy is really bad. At least an ISP controls the conduits through which my speech gets sent and received; an electric company has no business in my speech even if it wasn’t a utility.
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Re: IF your view were right, then we need to make hosts UTILITIE
"Do your electric company have a right to shut your power off so that YOU can't make these false claims? NO, and it shouldn't."
Sure it does. It's not a good look and that power company will be out of business if it turns out that they politicize electricity supply. But they can do it.
Here, Baghdad Bob, I'll prove it to you. Go find your local power company. Read their terms of service to which you signed when you began accepting delivery of power from them. There will be a clause in there about termination notice. You will find they can stop delivering power to you at will, no questions asked, with only a stay-of-termination of X amount of working days as spelled out in the terms of service.
So yeah, the power company can shut you off. No reasons given and no questions asked. They can do that. If they do this to enough people they will be out of business and another power company will slide right in so it'd be stupid to do so. But they can if they want to.
I must say it's somehow weird that you usually try to pass yourself off as a staunch capitalist but every time you really start frothing at the mouth what you advocate is dictionary-definition communism, where people who own property can not dictate who gets to use that property or for what purpose and how you assume a corporation - a private entity - has to justify it's existence to the public - from your prior comments.
I'm not sure quoting Chairman Mao was what you were after but if your ideology is aligned to that of The Great Helmsman at least have the courage to be open about it.
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Law professor comes down on anti-American corporate power grab
Here ya go, Maz and minions, and the fiend who wrote the falsehoods above.
https://jonathanturley.org/2020/11/02/the-case-for-internet-originalism/
First, Turley is too generous:
NO, was not a "mistake" but deliberate intention to divert "the story" from the Bidens to whether it should be blocked. IN. TEN. TION. AL. They'd rather ANY OTHER topic even if they're shown to be fiends. It's what the kids do right here.
On to the main.
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Re: Law professor comes down on anti-American corporate power gr
It's all good, pithy, and undeniably true, therefore Techdirt hates it.
That'll be the way legislators and Supreme Court decide too.
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And it still is. That Twitter and Facebook — two smaller sub-platforms of the broader Internet “platform” — have the power and reach that they do is concerning. But that doesn’t make them the only platforms for “free speech” on the Internet. Imageboards from 4chan to 8kun (for bad or for worse), Mastodon instances, Discord and any other web service with two-way communication all exist and all operate independently from Twitter and Facebook. That doesn’t even get into one-way/“read-only” sites such as blogs and personal websites on which the owners control what speech appears.
Seriously, Brainy: Please get some help. Coming here on a regular basis to tell us how much you hate this site doesn’t hurt this site — it hurts only you.
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censorship
Absolute horseshit. It's still censorship no matter who does it.
Letting four big tech companies all with the same political bias control discourse is circumvention of the 1st amendment without ever having to get a bill passed congress.
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Re: censorship
Another one who doesn't understand the 1st amendment.
Here's a hint: You aren't entitled to use someones private property to carry your speech against their wishes, because forcing them to carry that speech infringes on their 1st amendment rights. What you are arguing for is fascism and state-controlled media.
Also, where in the 1st amendment does it say that media can't have a bias?
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Re: censorship
Is it censorship if I can't get my article published by the New York Times, The Washington Post, etc., etc.?
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Re: censorship
https://xkcd.com/1357/
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'You keep using that word...'
It always amazes me how often those that decry violations of the first amendment have no gorram idea what it does and does not actually say.
Once more for the slow then: You have zero first amendment rights on someone else's property, so whether they tell you to turn it down a notch, tell you you're flat out not welcome at all or give you the boot after you've been there for a while your first amendment rights have not in any way been violated or 'circumvented'.
Hypocritically enough on the other hand trying to demand that privately owned platforms host speech that they don't want to very much is a violation of the first amendment, so if you really do care about the first amendment and aren't just whining because the popular platforms keep kicking assholes off their property then the proper response is to find or create a platform that welcomes people like yourself, rather than trying to violate the first amendment rights of others by forcing them to host you speech against their wishes.
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Re: censorship
Letting four big tech companies all with the same political bias control discourse is circumvention of the 1st amendment without ever having to get a bill passed congress.
So agitate for the government to set up a free and truly public forum where the first amendment applies. There you will be able to spout to your heart's content. Of course, you will still be unhappy because nobody will read your spouting because nobody is interested in your stupid, abusive rubbish.
You can't seem to grasp that with the freedom to speak comes the even more vital right to ignore and avoid idiots.
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<p>Basically, if you have a problem with Section 230 you don't want free speech. What you want is to either force someone else to let you use their soapbox free of charge or you want to take away someone else's soapbox.</p>
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Re:
...leaving aside that your HTML doesn't work, why do you need a paragraph tag if you don't have a second paragraph?
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FAIRNESS and ability to BE IN public places actually over-arches
even the First Amendment. What could 1A even mean if denied access to the large audience on major sites?
So, by going on about 1A you're actually trying to limit discussion to your alleged take. But Common Law includes much more, key point being that the the good of We The People is at the top.
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Re: FAIRNESS and ability to BE IN public places actually over-ar
The 1st amendment says nothing about being granted an audience!
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Blue, you've been here for a decade claiming that copyright law is needed to sue kids because your Hollywood execs might be down a few bucks. You wouldn't know "common good" if it gave you octuplets.
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Re: FAIRNESS and ability to BE IN public places actually over-ar
And We the People have decided that you aren't worth listening to.
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Re: FAIRNESS and ability to BE IN public places actually over-ar
"What could 1A even mean if denied access to the large audience on major sites?"
Step 1; Grab a bullhorn and a soapbox.
Step 2; Go to any public space or park.
Step 3; Put down soapbox.
Step 4; Step up on soapbox.
Step 5; Employ bullhorn to scream your message to everyone within the inner city.
Please take note that no matter how popular the local watering hole is if you employ the same method on private property, expect to be showed the door.
You have no right to vent your message from a private venue, no matter how popular it is. You do have the right to set up such a venue on your own and try to convince people to go there rather than to your competitor.
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Re: FAIRNESS and ability to BE IN public places actually over-ar
Where does it say you are guaranteed an audience? Indeed before the Internet, the only way to a large audience was to get a publisher to accept your work for publication, and their rules for acceptance make all Internet moderation look like accept almost anything.
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Re: FAIRNESS and ability to BE IN public places actually over-ar
Twitter is not a public place in the sense that it is owned by the public. A space that is open to the public is not the same as a space that belongs to the public. A store or restaurant is open to the public; a public park or sidewalk belongs to the public. Any person—human or corporation—can restrict access to their property even if that property is opened to the public but cannot restrict access to space that belongs to the public. This applies equally to online spaces.
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Re: FAIRNESS and ability to BE IN public places actually over-ar
Also, you are guaranteed the right to make or not make speech. You are not guaranteed any audience (aside from the right to petition the government) at all, let alone a large one, nor are you guaranteed the right to be heard. Furthermore, where “common law” and the Constitution conflict, the Constitution wins.
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Why can't my beef be with both?
I live in Canada where we have neither the First Amendment nor this provision (and yes I am aware of the NAFTA clause), and while our speech laws are relatively permissive, the Americans are nuts.
The entire concept of this law seems to rest on the absurd notion advanced by your courts that corporations are human beings subject to the same "rights" as actual meatfolk, rights that your lot continue to deprive actual human beings of. The US had to have a war killing some 50,000 of its own in order to allow Blacks the franchise. A Black president comes along a century afterward, and the reaction upon completion of his tenure is to allow Zuck to perpetrate a massive psy-op that installed a Nazi-sympathetic psychopath in office who presides over the deaths of 300,000+ in a deadly pandemic. You allow people to carry bazookas into burger joints to "defend" this so-called free speech right. Your onetime allies alienated by the orange despot are doing their damnedest to pass laws restricting the opportunity of skinheads, Q idiots and other gutter punks from inflaming tensions with weaponized trolling, but are restrained by the fact that Facebook and its kin continue to hide behind the shield of protections in the free-for-all States. Zuckerberg, Dorsey, etc. belong on trial at the Hague like the Julius Streicher copycats they are, but no, you wouldn't sign onto the ICC either because actually being held accountable for what your country has inflicted upon the world would be another supposed violation of these sacrosanct "freedoms."
The stink of your inconsistent techno-libertarianism is wafting over our side of the fence. You lot are tougher upon Disney pirates than racists. There is no copyright act to restrict hate speech and it seems the crew at this board would prefer neither. Why can't you just have a referendum to fix your outdated and perverse constitution? Ours permitted a proper vote in 1995 on the matter of Quebec separatism. Close as it was, I hesitate to think how it might have gone were it influenced by the likes of rapid-fire disinformation a la Brexit, another cockup from Zuck Inc. and Cambridge Analytics exported from the States. As it is those of us in Ontario are suffering under the criminal incompetence of a Trumpish dope fiend installed by a similar psy-op campaign vilifying his predecessor with conspiracy theories and homophobic misogyny. It's not just guns, the weapons you are exporting. It's Facebook, Twitter, YouTube... I've come to the conclusion that Silicon Valley is a munitions factory and the U.S. is a hotbed of global terrorism. You monopolize the "market of ideas" with pollution and poison junk.
Regardless, it seems the only "citizens' assemblies" the US seems to have are on the date of federal elections, at which point no further involvement in participatory democracy is deemed necessary. Or spontaneous exercises in "constitutional liberties" by aggrieved MAGA types at shopping malls and elementary schools. Inflamed, more often than not, by whatever rot the constitution permits the worst elements of society to run unfettered online and radicalize the populace. The tangerine tyrant's twitter feed itself is practically a Mein Kampf manifesto in bumper sticker form, but Turmp has his free speech, Dorsey has no requirement to boot him off, and the rest of us are left with no recourse but to "counter it with more speech."
You have left the world at the mercy of a billion-dollar algorithm, and made us all desperate subjects enslaved to the tyranny of your "freedom." I hope saner heads prevail at some point on the matter of your ossified and incoherent constitution, and that for the short term, the incoming administration guts this law that allowed Twitler to propagandize his way into the high office, and cc's the Canadian and Mexican governments to redline it from NAFTA. I will be writing my MP and the prime minister with a polite request to do so once the new American government is sworn in.
I'm aware I'll get downvoted to oblivion for this rant, but as far as I'm concerned, the "26 words that created the Internet" have been as detrimental to humanity writ large as the "14 words" of the white nationalists it's inflamed around the world. Starting with public enemy number one the orange nationalist himself.
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