Some Thoughts On Twitter Pulling The Plug On Trump's Account
from the questions-to-think-through dept
Background
First of all, corporations enjoy First Amendment protections, among other constitutional protections. Although some of my friends decry that proposition, given the Supreme Court's current composition, that is not going to change during my lifetime. And the First Amendment protects the right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companies like Twitter from controlling the speech that they allow.
Second, withdrawing or adapting the section 230 liability shield is one way to impose limits on platform's adoption or implementation of their content control policies, perhaps, but there is no reason to think that any withdrawal that is likely to pass, and that would be constitutional (because it does not involve viewpoint discrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easily be calibrated. I strongly support the principles of section 230, which allow online platforms to decide what speech they will allow on their platforms by protecting them against liability for speech that they carry (with very limited exceptions). They are not common carriers, like USPS or the PSTN’s. (Thus, Apple and Google could cabin Parler by threatening to deny it access to the App and Play Stores, and Amazon could deny Parler web hosting services, all on the ground that Parler failed to successfully enforce rules against advocacy of political violence. I find it mind-boggling that people who call themselves “conservative” are railing about the plug being pulled on a platform for the stated reason that it allegedly fails to block calls for political violence). And they are not government bodies, which are (largely) forbidden to engage in content discrimination, and especially viewpoint discrimination, in allowing or suppressing speech. Section 230, both as a legal principle but also as a social principle, not only allows platforms to tolerate speech that I find abhorrent, but also allows them to exclude speech that I detest, or speech that I adore.
Third, the drafters of section 230 recognized that platforms would have content policies, and considered it desirable for them to have content policies. Indeed, you can’t run a platform without content policies. Anybody who has ever tried to moderate a discussion group will fully appreciate these considerations. And content moderation is HARD. The periodic “COMO” sessions addressing “Content Moderation at Scale” explored the difficulties through a series of hypotheticals. What became clear is that people of good will, even those with relatively common policy perspectives, trying to apply even the best of content policies, will get it wrong sometimes – and that is even if they have lots of time to evaluate a single statement.
It is inevitable that different platforms will take different stances about what speech they will tolerate and what speech they will exclude—in part because of the audiences at which they aim.
The Reasons for Banning Trump
Turning to Twitter, and to Trump in particular: Twitter has for many years had a variety of rules about speech that may and may not be posted to Twitter, which they call their trust and safety guidelines. This includes a ban on speech glorifying or promoting violence; it also includes a ban on false statements about the election. (Many years ago I was asked if I would be willing to be on their outside trust and safety council; I decided it would not be appropriate for me to do that for a number of reasons).
I have never been a fan of social media companies trying to assess the truth or falsity of factual statements, or the hurtfulness of opinions and rhetoric deployed there. The assumption of such a role is likely to lead to the suppression of voices that criticize the rich and powerful (that is, those who can afford to hire lawyers to file baseless lawsuits, or who can deploy government power to attack their critics), or on abusive law enforcement officials themselves. But Trump’s misuse of Twitter and other platforms to foment a violent attack on democratic elections has taken matters to another level.
In the weeks leading up to the attack by a mob of Trump supporters on the Congress, Trump used both tweets and other public communications to try to steal the election from his victorious opponents. At the same time, he tried to use his connections with officials in several states where he had lost to induce them to overturn his losses in those states. Then, with his campaign of frivolous litigation and threats to state election officials having come to naught, he and his mouthpieces escalated heir attack on democratic elections, encouraging his supporters to engage in a physical confrontation with members of Congress in an apparent effort to delay the certification of his electoral college loss. There is every reason to believe that many of the supporters who tried to storm the Capitol believed that they were acting at Trump’s behest, and some analyses suggest that Trump’s language was carefully calculated to encourage the supporters to use violence. My reading of the language leads me to conclude that the calls for violence were insufficiently expressed to make them indictable under the standards set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), just as my view is that his threats to Georgia state election officials, on a recording, fell short of criminal threats or incitement.
Assuming, as I do, Trump cannot be held legally responsible for inciting the riot, he was still morally responsible for it. And even assuming, as I do, that he cannot be convicted for these communications, that doesn’t mean that a private company, unbound by First Amendment standards, would be unjustified in deeming them a gross violation of its policies against advocating or glorifying violence, and hence treating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of the public who repeatedly abuse their access to infringe copyright—indeed, the DMCA gives them a powerful legal incentive to do so. (In my legal practice, I have had to deal with web hosting services that were considering removal of consumer-friendly platforms that were receiving bogus claims othat my clients were hosting defamation or other tortious speech. Despite their section 230 protection, they often simply did not want to deal with the trouble).
In that context, it is no surprise that a platform cancelled the account of a politician who repeatedly abused his access to foment a riot. And Trump, after all, is wealthy enough, and remains powerful enough, to use other means to amplify his speech. Indeed, he has one mainstream news channel and several smaller ones that are dying to carry his speech.
But, at the same time, Twitter has allowed exceptions to those rules, and one very prominent exception is that senior government officials, particularly heads of state, are given more leeway on the theory that there is public interest in letting the public know what such people are saying. As a practical matter, Trump has had almost complete immunity from the sorts of restrictions that constrained other Twitter users. Much of what he has posted was a gross violation of Twitter’s rules, but he was allowed to get away with it. Note that Trump’s hold on the special exception is due to expire on January 20.
What I think has really happened is that, for a variety of reasons, Twitter decided to take away Trump’s special exception, and his ban — based on a range of past conduct — was the inevitable result of that change of position. Twitter has both taken away the special exception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit to incite a violent attack on Congress that was aimed at overturning a democratic election in which he was defeated, that seems to me to be within the range of understandable reaction.
Twitter’s Obfuscation
But the reasons that Twitter gave for its decision strike me as laughable – recall he was suspended for 24 hours, then allowed back on the condition that he delete certain tweets and stop violating the rules. He did delete the tweets in question, and to my mind nothing he did after being reinstated violated their rules. He gave appearance of trying to satisfy them.
Twitter’s blog post explaining the Trump ban, asserted that two Trump tweets violated their rules against glorifying violence. But the two posts they quoted did nothing to “glorify" violence” What this comes down to is that Twitter says Trump has been banned because some of his supporters (in unspecified instances) are allegedly reading his post-suspension tweets in various dangerous ways. And misreading what he said, I might add.
One of the tweets praised his supporters — the 75,000,000 voters who supported him. He called them patriots. He said they should be respected and should continue to have a loud voice. That does not encourage violence.
The other tweet said he won't be at the inauguration. Yes, a break with tradition, but maybe the best response is, good riddance!
Twitter says (and some other reports have echoed these concerns) that there are plans for armed protests and another attack on the Capitol. That is of great concern. But Twitter does not say that Trump is involved in that planning or that he tweeted anything about them. I did notice in passing a report that, after his initial 12-hour suspension was lifted, Trump had retweeted some of those statements. But the report also said that Twitter had cited those retweets in its decision and plainly it has not, so the fact-checking of the report is suspect. I have not been able to locate the report. And, because the Twitter account has been deleted in its entirety, I can’t verify the report (and I have not been able to find any screenshots).
Now, when Twitter justifies its decisions by relying on tweets that do not, in actuality, violate its rules, it just tends to suggest that what it has done is arbitrary. And that is not useful.
What May Really Be the Reasons
It appears to me that Twitter’s official views on Trump’s status evolved very quickly in the past week. Although top executives felt that so long as he was president he should continue to enjoy his special exception, Twitter staff apparently were very much of a different opinion, and forcefully so. There was apparently a staff petition, and then a large intra-staff meeting, in which Twitter’s top executives were raked over the coals by their staff for their inaction against the Trump account. That may well have mattered.
Additionally, Twitter was facing intense pressure on Capitol Hill and in the public arena to be more forceful about Trump’s incitement of the attach on the Capitol, and I believe they were genuinely concerned that, left with his Twitter account, he might well have used it to incite further violence on January 17 (Q being the 17th letter of the alphabet) and January 20. Not because the two tweets did that, but because the guy is out of control. The explanatory blog post refers to the covert planning for January 17 and January 20 repeat attacks, and I think it is quite possible that Twitter was worried that Trump might abuse his privileges. I wish the company had just said that (comparable to Facebook’s explanation) and said that, in retrospect, they had decided that its initial sanction for Trump’s previous violations of its rules was not sufficiently severe.
Perhaps More Cynical Explanations
First: Both Twitter and Facebook have cut back on Trump knowing that he is not going to have the powers of the presidency much longer, and that, indeed, both the White House and, soon, both Houses of Congress are going to be in Democratic hands. Just as they went out of their way to propitiate conservatives who claim (falsely) that social media companies discriminate disproportionately against conservatives, while those conservatives ran the Senate and the White House, these companies don’t want to be adverse to the new power in DC.
Second, and this is a related point: Trump liked to talk about how much benefit he derived from his Twitter account, but the converse is also true: Twitter has profited enormously from Trump’s account, which creates enormous controversy and hence draws many eyes to Twitter where they will see ads. A number of people in the tech sector have been saying that the situation has simply evolved to the point where the benefits that Twitter was getting from hosting @realDonaldTrump were getting to be greatly exceeded by the costs.
Third: One exception to section 230 immunity is for speech that violates the federal criminal laws. Some people have suggested that federal law enforcement officials may have reached out to Twitter to warn that if its facilities are used to incite more riots in Washington DC, such as on January 17 and January 20, it might face grand jury scrutiny. Now, to my mind the First Amendment’s Brandenburg standard would likely bar prosecution for mere passive hosting of prosecutable incitement; the Brandenburg standard requires not just incitement of imminent lawless conduct, but intent to incite imminent lawless conduct, and passive hosting of speech of which the host is not aware does not involve intent. But the possible exposure without section 230 immunity, and needing to rely only on the First Amendment, might well have been a chastening factor.
Paul Alan Levy is a free speech litigator in Washington DC
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Filed Under: content moderation, donald trump
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The problem is the "allegedly" part. There's nothing really solid to indicate that Parler was worse than Facebook, Twitter, and Youtube as far as calls to violence go. With Glenn Greenwald reporting that none of the people arrested so far seem to have been Parler users. Yet rather than Google, Apple, and Amazon punishing Facebook, Twitter, and Youtube, they punished Parler with no real chance for it to address their "concerns". All seemingly for no real reason beyond Parler's reputation with being popular with the right-wing nutjobs and their lack of being established as strongly as the others.
That's plenty of reason for concern, even if you're happy Trump is on the way out, condemn the Captiol riot, and know good and well there was no election fraud to speak of.
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The problem is the "allegedly" part. There's nothing really solid to indicate that Parler was worse than Facebook, Twitter, and Youtube as far as calls to violence go.
Uh, I can tell you that the discussion on Parler was way, way, way worse.
Yet rather than Google, Apple, and Amazon punishing Facebook, Twitter, and Youtube, they punished Parler with no real chance for it to address their "concerns".
I somewhat agree with this, but what hasn't been said is that Google told Parler to change its policies a while ago (not just recently). So Parler did have a chance to address at least Google's concerns. And didn't.
All seemingly for no real reason beyond Parler's reputation with being popular with the right-wing nutjobs and their lack of being established as strongly as the others.
I don't see how you can say there was no reason but its popularity -- even if you disagree with the reasons. There were clearly people agitating for more violence on the site. A lot of it.
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Related side note: breitbart's disqus comments got reset to zero today and now most comment submissions are "held for moderation". It's simply glorious.
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As I recall, around the time that Google actually removed Parler, Apple was warning Parler to make changes or get out. So Apple also gave Parler a chance to address Apple’s concerns.
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I call bullshit on that. Access to the general public was easy, and Parler was a high profile target. It would have been trivial for reporters to get on it and find tons of examples. We also know that Parler's CEO was trigger happy on banning people, so it would have been very easy to find a bunch of calls to violence, report them and then demonstrate that Parler didn't take it seriously.
Gab already demonstrated that the double standard exists based on popularity. Unfortunately for Apple, they publicly documented their app approval process complete with screenshots.
I suggest you read it for yourself. It shows immense bad faith on Apple's part. Gab bent over backwards to accommodate the requirements Apple put out like requiring users to opt-in to see content that normally is not approved.
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"I call bullshit on that."
Nope, it's true. Go to r/parlerwatch as an example, I've certainly never seen anything on that level on Facebook or Twitter. Though, for full disclosure, I don't tend to follow certain types of people so I might have a relatively clean feed.
"We also know that Parler's CEO was trigger happy on banning people"
We also know he's a right wing nutjob, so even if he is personally responsible for enacting bans in general (unlikely), he's not going to be targeting his own.
"Gab bent over backwards to accommodate the requirements Apple put out like requiring users to opt-in to see content that normally is not approved."
Yeah, apps specifically created to attract the type of people who got kicked off Twitter for being white supremacists and have been linked to multiple mass shootings will probably need to show good faith more explicitly than your average app.
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Just did. Scrolled through several pages with "highest rated" as the sort filter. All I saw was commentary and no scary screenshots.
Meanwhile an app that is credibly linked to mass murder and attempted actual genocide (Facebook) gets a free pass.
Or how about livestreaming the torture of a teenager?
But yeah, keep pretending that words are fungible with actions here. Facebook should have been given the corporate death penalty under the standard used on Gab and Parler.
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"Scrolled through several pages with "highest rated" as the sort filter. All I saw was commentary and no scary screenshots."
As the message on top tells you, it's increased a lot in popularity recently due to last week's events and expanded to cover some non-Parler sources so you might have to adjust some time filters and so on. But, believe me, a month or so ago it was mainly the ravings of lunatics.
"Meanwhile an app that is credibly linked to mass murder and attempted actual genocide (Facebook) gets a free pass"
Well, apart from the fact that Facebook went through its approval process a decade or more ago ago before any of that happened, there's a definite concentration of insanity that happens on things like Gab and Parler that's not as present on Facebook. That can happen over there, of course, but it's equally likely for most people to be sharing food picture, pet activity, film society watch parties and many other non-threatening things on Facebook. Can you say that those other platforms are commonly used for that instead of highly charged political activity? Because I've not seen that, although that might be because I only view them from a very safe distance.
The main issue here seems to be that while there's a minority of Facebook's 2.7 billion users who participate in such things, that activity is the main attracting factor for users of Gab and Parler.
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I've spent a lot of time perusing Gab. I can tell you it definitely has a ton of normal users who are overlooked. In fact, that's more true now than ever given that the NatSoc scum are being swarmed by normal users fleeing Twitter and Parler.
Gab and Parler never positioned themselves as "alt-right hosts." They positioned themselves as hosts willing to host that content except where it meets broadly understood definitions of illegal conduct.
Was Parler used to help with the riots? It appears to be the case. We also know that Twitter and Facebook were used to help coordinate the "protests" over the summer that "just so happened" to involve acts like violently taking over police stations, carving out autonomous zones and burning city blocks.
The excuses you used above about percentages might make you feel good, but what they essentially do is ensure that as long as the big guys stay big they can be slow or turn a blind eye toward blatantly illegal behavior without fear of reprisal.
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"Gab and Parler never positioned themselves as "alt-right hosts.""
They positioned themselves as an alternative for people who were getting kicked off places like Twitter. While there were other reasons, many of the people getting kicked off those places were alt-right, white supremacist or otherwise unsavoury individuals. It was such a toxic environment on Gab that Milo Yiannopoulos was whining about the amount of homophobic abuse he was getting after he joined to be with his fellow rejects.
"They positioned themselves as hosts willing to host that content"
Exactly. THAT content. Which content? The stuff that wasn't acceptable elsewhere. What kind of content do you think that was?
"We also know that Twitter and Facebook were used to help coordinate the "protests" over the summer that "just so happened" to involve acts like violently taking over police stations, carving out autonomous zones and burning city blocks"
We also know that a lot of that violence was not directly associated with the organisers of that protests, and that there were billions of users of those platforms who were nowhere near those protests at the time.
"The excuses you used above about percentages might make you feel good"
Yes, it makes me happy that only a tiny percentage of people on the larger sites are actually dangerous assholes, and that they are being kicked off for being dangerous assholes. Why should I therefore not be concerned about the sewers they scurry into after that?
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That's all subjective. Facebook won't take down "Trump is not my President," but takes down "Biden is not my President." Ironically, under the election denial policy.
You think the two are different? They're not. The Steele Dossier was thoroughly debunked, as hard as QAnon stuff has generally been. People who cite it are literally as big of stupid, asshole conspiracy theorists as the people you're citing. The emoluments clause? Please. Under that logic, Bill Gates couldn't run for office because any contract that benefits Microsoft would increase his net worth even if his stock were held in trust.
You had nothing, your side attempted to overthrow a peaceful election and all that's ever happened since is the whining about how "it's different when we do it because shut up."
Likewise we also know that Trump did not call for any actions that were different than when Nancy Pelosi, Sally Kohn, AOC and others called for uprisings and things like that last year while the violence was ongoing. Yet none of them got banned by Twitter.
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"Facebook won't take down "Trump is not my President," but takes down "Biden is not my President.""
That doesn't sound right without context. Do you have a citation?
"You think the two are different? They're not"
Again, what's the context? That probably explains the different reactions.
"Under that logic, Bill Gates couldn't run for office"
Has he ever expressed a desire to do so? If so, what was the reaction? If not, who cares?
"You had nothing, your side attempted to overthrow a peaceful election"
I'm an Englishman who had no relationship to the recent attempt at armed insurrection to prevent the legal transfer of power. Which side do you imagine I'm on?
"Likewise we also know that Trump did not call for any actions that were different than when Nancy Pelosi, Sally Kohn, AOC and others called for uprisings and things like that last year while the violence was ongoing."
Oh, you appear to be taking your information from the fiction section of the library. Sorry to have taken you seriously.
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“That’s all subjective”
That just pretty words for “yeah that’s true” lol
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To give a couple of examples, this seemed to be the general tone on Parler a few weeks ago:
https://www.reddit.com/r/ParlerWatch/comments/ki4z53/the_rate_at_which_this_is_accelerating_is/
This was a general theme that seemed to come up directly after the Capitol insurrection:
https://www.reddit.com/r/ParlerWatch/comments/ksk5q4/this_idiot_who_i_think_is_verifie d_is_telling/
While in lighter news, there were a lot of stories similar to this, where would-be Parler users were too stupid to understand that they had to join a different site rather than a Facebook group:
https://www.reddit.com/r/ParlerWatch/comments/k8r6qw/cant_figure_out_how_to_join_parler_but_s omehow/
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PaulT, every twitter feed is different depending also on the location of the user. Loging in with a German IP via VPN gives you a ton of CoronaDiktatur hashtags for example- clear AfD anti-scientific propaganda.
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How is allegedly a problem? Parler's freedom to do as they will isn't in any peril here, the worst they are getting is "not helped". On the other hand, people are wanting to force amazon into service for someone they don't want to work for.
Whether they Parler is as bad as amazon thinks or broke any laws is in the "who cares" category.
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'So far' and 'seem' being the important parts, and his source was Parler themselves, let's not forget that. And even if they are being 100% honest that's 13 people out of hundreds of people involved in the terrorist act who will have charges filed in due course, including people like the Proud Boys, Oath Keepers, right wing 'celebrities' who absolutely were on their service.
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"Yet rather than Google, Apple, and Amazon punishing Facebook, Twitter, and Youtube, they punished Parler with no real chance for it to address their "concerns""
Someone correct me if I'm wrong, but there's probably little that Amazon could do to those sites since they don't host on AWS.
Also, you might want to explain to me why Google would punish YouTube, or at least rethink what you're saying so that it makes some kind of sense.
As for "no real chance to address their concerns", Amazon's statement about removing Parler from AWS does suggest that they were given the chance to clean up their act then were removed after they failed/refused to do so.
"All seemingly for no real reason beyond Parler's reputation with being popular with the right-wing nutjobs"
I suggest you have a look at the type of things that were being said there (there's plenty of venues to see this stuff). Then have a think about why you seem to think that people should be forced to host that on their property if they find it unacceptable to do so.
"That's plenty of reason for concern"
No, it's not. Of far more concern would be if Amazon et al were aware of the dangerous and disgusting stuff being done on Parler, but were rendered powerless by the government to disassociate themselves from it.
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"people should be forced to host that on their property if they find it unacceptable to do so."
The phone company is a private company yet they can't disconnect users for content, while large ISPs like Comcast seem to care only about copyright violations. Transportation companies are privately run yet can't refuse service arbitrarily; even when the police remove someone from a bus or whatever they find them another way to get where they are going.
The proper phrasing of the question is whether or not social media should be treated as a common carrier or public square, and the courts so far have said tht they should not, that an alternative to Parler will spring up, or an alternative to its hosts, and it probably will.
If we cared this much about free speech USENET never would have lost relevance.
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USENET lost relevance for the simple reason that newer and simpler ways to communicate came along.
And holding up USENET as an example of free speech disregard the fact that it was the owners of a particular server who decided which groups where available on it. I heard people grumble that alt.binaries wasn't available on all servers, but nobody complained that is was a free speech issue. Also, the only valid comparison between USENET and Twitter or Facebook is when referencing one server, not USENET as a whole.
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"USENET lost relevance for the simple reason that newer and simpler ways to communicate came along"
Most people never knew what USENET was. Their first experiences online involved either the web or AOL's walled garden, and they'd never consider a purely text based format. That's what happens with mainstream adoption - the USENETs and BBSs and MUDs of the world were the playground of nerds, not something the average social media user would ever even consider.
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"The phone company is a private company yet they can't disconnect users for content"
They don't host content, they merely provide a method by which two or more people can talk with each other. It's not a real direct analogy, not least because they are classified as common carriers and ISPs are not.
"while large ISPs like Comcast seem to care only about copyright violations"
They can care about whatever they wish, and would have less control over what they can restrict if net neutrality protections hadn't been eroded, but that's an issue far removed from section 230 and concerns over Twitter having control over what they want on their platform.
"Transportation companies are privately run yet can't refuse service arbitrarily"
I'm pretty sure they can, they just can't open packages to see what's inside, or refuse service based on a protected class such as race.
"The proper phrasing of the question is whether or not social media should be treated as a common carrier or public square"
That can literally never work. ISPs, sure, because they are supposed to only be transporting data from one location to another. Platforms are an entirely different issues, and I suggest you read up on this a little more if this difference confuses you. To use an analogy - the ISP is the road, the platform is a destination. You obviously have to use different standards to apply to freeway traffic than you do the mall parking lot and store selection.
"If we cared this much about free speech USENET never would have lost relevance."
USENET lost relevance because it did not present a service that a majority of mainstream users wished to use, because it was text based (compare that to the largely image based social media platforms - even Twitter is used a lot to share pictures and video in ways USENET could not), and in its latter heyday it was largely used for spam and binaries groups that dealt heavily in infringing material.
You can pine for the old days as much as you want, but there's a reason the general public started using the internet a lot more when the web rather than USENET was king. It's also worth noting that USENET still exists, but there are reasons people are not defaulting back to that as their main communication method, and I suspect it's not just because you normally have to pay to use it.
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"There's nothing really solid to indicate that Parler was worse than Facebook, Twitter, and Youtube as far as calls to violence go."
Google this sentence; "parler-erupted-with-talk-of-revolution-as-mobs-stormed-capitol"
Facebook still has moderation. As does Parler of course, but the messages Facebook is moderating away over the capitol insurrection isn't going to be the same Parler moderates away.
Try getting this sentence to fly on FB; ""The time has come Patriots. This is our time. Time to take back our country. Time to fight for our freedom,"
"That's plenty of reason for concern, even if you're happy Trump is on the way out, condemn the Captiol riot, and know good and well there was no election fraud to speak of."
What is plenty concerning is rather that the 70% of the US population not invested in Trump are still not realizing that the remaining 30% already see themselves as being at war. The only reason battle lines haven't been drawn is because there's no clear border you can draw with the Proud Boys and south-shall-rise-again crowd on one side and the actually sane people on the other.
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Brandenburg was decided wrongly
If you assume, in good faith, that the chief magistrate of the republic cannot be indicted and convicted under the Brandenburg standard for leading a violent insurrection against the peaceful transfer of power to his successor in office, then it is clear that that standard was wrongly decided upon. It must be altered.
We are discussing an attempted coup.
The speech at issue was an integral part of the plan for that coup.
They had a gallows erected outside of the Capitol.
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Re: Brandenburg was decided wrongly
You need to prove he directly "led a violent insurrection". Go for it.
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Re: Re: Brandenburg was decided wrongly
So you support the impeachment resolution.
Glad to hear you think it's time to go.
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Re: Re: Brandenburg was decided wrongly
“You need to prove he directly led”
No we don’t lol
I have seen men convicted for words by juries.
Contrary to MAGA belief if you keep saying things like this over a matter a years that establishes pattern in a court of law despite what you say becuase people WILL NOT BELIVE YOU.
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Re: Re: Re: Brandenburg was decided wrongly
On the day after H. Res. 24 has passed in the House, there's a point here that bears some small emphasis.
Personally, I have perhaps an inordinate amount of respect for Paul Levy's abilities and opinions as a lawyer.
When he tells me that “the calls for violence were insufficiently expressed to make them indictable under the standards set forth in” Brandenburg v Ohio (1969), then I am simply more inclined to believe that Brandenburg was wrongly decided, than I am to question his reading of the caselaw.
It's worth noting, though, another opinion, which I saw printed over at the BBC website yesterday: “Capitol riots: Did Trump's words at rally incite violence?”. That article contains “legal analysis from Professor Garrett Epps of the University of Baltimore”, who considers it an “an agonisingly close case.”
Nevertheless, Paul Levy has told me that he sees the facts of Mr Trump's case as sufficiently close to—
And, in this thread, I have just accepted that assumption, based on my regard for Paul Levy's knowledge of the law.
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Re: Brandenburg was decided wrongly
What do you have against John Roberts?
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Re: Re: Brandenburg was decided wrongly
Wikipedia: Chief Magistrate: References to the U.S. presidency
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Re: Brandenburg was decided wrongly
Yeah... sorta...
It resembled a gallows but would have collapsed if you tried to hang a squirrel. It was really nothing more than an "art piece" for demonstrative purposes. Still, they made their intentions clear.
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Re: Re: Brandenburg was decided wrongly
No surprise that it wasn't an OSHA-approved gallows.
“Capitol assault a more sinister attack than first appeared”, by Jay Reeves, Lisa Mascaro, and Calvin Woodward, AP, Jan 11, 2021
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Re: Re: Brandenburg was decided wrongly
Was it an art piece, or was it just an incompetent attempt at a gallows? As many criminals have learned throughout history, their own incompetence at carrying out crimes does not in any respect excuse them. You still go to jail for bank robbery if you give the teller a note that says you have a gub.
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Re: Re: Re: Brandenburg was decided wrongly
Here's one of the best photos I've seen.
Definitely not OSHA-approved.
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Re: Re: Re: Re: Brandenburg was decided wrongly
I swear I can see that gallows tilting. You try to hang anyone from that it'll tip, dropping the person to be hung a significant distance and risk landing the top beam on top of him/her, causing a potentially serious injury.
Yeah, OSHA would never approve that.
Even so if you erect a gallows outside, march inside packing bundles of zip ties, and then beeline for the normally hard-to-find offices of selected politicians you can probably bet what is on offer by the mob isn't going to be a picnic and a solemn handover of a writ of complaint.
Any lawyer would use reasonable doubt to shred a court case, of course, but every american shocked and outraged over the events should realize that the crackpots and conspiracy nuts that they felt compelled to tolerate and compromise with so far are willing and eager to kill.
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Re: Re: Brandenburg was decided wrongly
"It resembled a gallows but would have collapsed if you tried to hang a squirrel."
The intent and message are clear even if they lacked construction skills. The infamous shoe bomber couldn't get his bomb to work, that doesn't mean he wasn't a terrorist.
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Re: Brandenburg was decided wrongly
I still agree that Trump’s comments ought to be 1A-protected under Brandenburg, especially if they can’t prove intent.
What people decide to do with the speech is irrelevant.
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Re: Re: Brandenburg was decided wrongly
MATERIALS IN SUPPORT OF H. RES. 24 (Jan 12, 2021), pp.15-16
(Footnotes omitted.)
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Re: Re: Re: Brandenburg was decided wrongly
I leave that to the courts.
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Occam's Razor
A lot of pretzel-twisting to try and justify the censorship of speech with which you disagree. The first amendment protects ALL political speech. Social media are public platforms, and not primarily publishers.
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Re: Occam's Razor
Indeed, but only against government interference, and its only relevance to company actions is it protects them from the government compelling them to support or suppress political speech. .
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Re: Occam's Razor
The first amendment protects ALL political speech
You left out the next part which is "from GOVERNMENT regulations."
The 1st Amendment ALSO protects against government compelled speech, meaning that companies have always been free to deny the use of their services for expression.
Nothing says that a private company must allow idiots to speak.
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Re: Re: Occam's Razor
And you didn't read the next sentence. Public platforms for speech must not be treated any different from that union guy outside the store protesting for higher wages. I don't care if a private company installed the sidewalk, he still has every right to be there in that public space.
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Re: Re: Re: Occam's Razor
Private company can report you for causing a disturbance but even if it couldn't, twitter isn't a public space.
You could yell on the sidewalk, you can't yell inside the store without facing repercussions.
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Yes or no, Koby: Do you believe the U.S. government should take over Twitter in its entirety?
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Re:
"Yes or no, Koby: Do you believe the U.S. government should take over Twitter in its entirety?"
He'll never answer that, because he knows it won't look good when every argument he has advocates seizing the means of production and make government the arbiter of what can and can not be said.
The "alt-right" is ironic in condemning leftism while they cheeerfully advocate that as far as mass communications go, private property needs to be abolished as a concept.
Which isn't new, of course. National socialism has always been a hideous mix of corporatism and communism.
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Re: Re: Re: Occam's Razor
Well, it so happens we aren't discussing "public platforms", so your argument has no meaning.
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Re: Re: Re: Occam's Razor
Twitter is not equivalent to a publicly owned street in front of a store. It’s a privately owned location. If you’re protesting on a privately owned street without permission from the people who own it, you can legally be removed against your will and cited for trespassing or even causing a disturbance.
But really, the more apt comparison wouldn’t be a person protesting on a street at all. This would be where the union guy is protesting inside the store.
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Re: Re: Re: Occam's Razor
"I don't care if a private company installed the sidewalk"
You should, though you won't since as ever your point depends wholly on an ignorant misrepresentation of the facts. You have the right to protest on the PUBLIC sidewalk outside the store. You don't have the right to protest on the PRIVATE space outside the store if it happens to be inside a mall.
Try getting fundamental reality through your thick skull, it will help you address the way things actually work.
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Re: Re: Re: Occam's Razor
I've read this a few times and it makes no sense at all.
First, it's bizarre to see a Trumpist like yourself suddenly supporting very specific labor laws that favor union strike speech -- but that's a very specific law put in place for a very specific purpose.
That has nothing whatsoever to do with allowing "everyone" to comment on Twitter.
I'm honestly trying to see how you possibly see a connection and it's hurting my brain.
Koby: don't be stupid. Grow the fuck up and take some responsibility.
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Re: Re: Occam's Razor
Indeed. But there's one thing that concerns me:
If I have the meaning of that phrase correct, this means that Twitter possibly suspended the account because people in the government were pressuring them to. That would be a legitimate First Amendment concern.
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Re: Re: Re: Occam's Razor
If you had just been subjected to a mob attack created by Trumps incitement, would you not be pressuring Twitter to silence him?
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Re: Occam's Razor
You left out the part about "privately-owned" public platforms. Under current law and jurisprudence, since they are not owned by the government, they are free to moderate as they choose.
You can viably disagree with their actions, or their stated reasons for their actions (as Paul Levy did in this article) but to claim that the service they provide or the meaningless "publisher" claim causes them to be bound by the First Amendment indicates you really have yet to understand the limits of the First Amendment.
It's very simple:
Is the person or organization part of government, and utilizing their governmental position or resources?
If yes, bound by First Amendment.
If no, protected by First Amendment.
Twitter falls under the "no" category.
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Which of the following are owned by the government and are thus public platforms, where “public” means “owned by the public/government”?
Twitter
Facebook
Instagram
Tumblr
YouTube
MySpace
any given Mastodon instance
4chan
8kun
Gab
If the answer is “none of the above”, you’ll probably be able to guess my One Simple Question for you.
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Re: Occam's Razor
[Projects facts not in evidence]
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Re: Occam's Razor
No, the 1A doesn’t protect all political speech (see Brandenburg and defamation, which may well be political speech).
No, there was no censorship here. Trump can take his speech somewhere else.
No, social media are not publicly owned platforms; they are privately owned platforms that are unfettered by 1A restrictions, which solely prevent the government from restricting or forcing speech. Private corporations are not restricted by the 1A.
No, there is no meaningful, relevant dichotomy of platform and (primary) publisher. They can be both, and it changes nothing.
No, there was no pretzel-twisting here—it’s backed up by well-established legal principles, social principles, and simple logic.
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Which depending on the target audience and their activities can be an incitement to action action and violence.
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Re:
Exactly. "They are very fine people" in no way glorifies nazis!
Until you are referring to nazi's.
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But regular people do not have First Amendment protections from corporations.
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Re:
You conspicuously left out the fact that regular people also face no first-amendment harm from corporations...
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Like claiming you don't have protections from unicorn cavalry
Correct but irrelevant, because it would be nonsensical to have protections against harms that don't exist. I don't have 'first amendment protections' against a homeowner kicking me out should they host a party and I start swearing at guests because that's not a right I ever had, and likewise users of a privately owned platform have no first amendment rights to use that platform so they don't need protection for their 'first amendment rights' when it comes to a privately owned platform.
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Re: Like claiming you don't have protections from unicorn cavalr
Yeah, you don't have rights to attend the party if the homeowner doesn't want you there. But, what if they kicked you out because a government official hinted that they'd be in big trouble if they didn't?
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Re: Re: Like claiming you don't have protections from unicorn ca
Then your 1A concerns are with the government official, not the homeowner who actually kicked you out.
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Re:
"But regular people do not have First Amendment protections from corporations."
Correct, since the 1A explicitly places restrictions on government activity, and corporations are not a branch of the government.
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this is so simple...
Free speech is a government thing, not a corporate thing. Governments protect free speech simply by not squelching it. And that's all free speech is. Governments not doing something.
Corporations have no role in this. They produce "speech" or acquire it by some means - hire a director to make a big budget movie, allow a President to start an ongoing Twitter rant - and then they sell tickets to the movie or get advertisers to pay them for the huge page view numbers that ensue.
They don't care if the speech is good or bad or right or wrong. They just want to make money off it. When the director becomes unpopular or the President becomes toxic and starts to scare advertisers or threaten to get the company into legal trouble, then they kick them to the curb.
The director and the President were just workers creating products for them to sell. If the product is no longer profitable, the worker gets fired. People keep on not understanding that when you post something on social media, you are making a product for a corporation to sell and not cut you in on the profit.
Maybe if you're on YouTube and very successful, you get a small % of ad revenues, but that's it. You're basically an unpaid employee. Corporations boot employees, paid or otherwise, all the time. And employees have no expectations of free speech when on the job.
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Re: this is so simple...
Thank you. Most here already know what Free Speech is but your definition is the most succinct I've seen. If the resident -twats- trolls still don't get it after that then they've just proven how utterly stupid and ignorable they really are.
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Re: Re: this is so simple...
"If the resident -twats- trolls still don't get it after that then they've just proven how utterly stupid and ignorable they really are."
Here's the thing - the trolls so eagerly calling for government to compel speech on social media - Koby, restless94110, seedeevee, and good old Baghdad Bob - know damn well they're in the wrong.
It's just that they don't care. Their whole argument is intended to ignore factual reality in favor of a hopeful narrative which forces people to host nazi/white supremacy propaganda of the same kind as can be seen on Gab. And we can clearly tell that this is so just by cursorily examining past comments of the section 230-critics and look for the indication they just lifted their comments and arguments straight from stormfront.
I'd say, given historical similarities, that although we aren't at the point of having a bohemian corporal wannabe elected lifetime chancellor just yet, the US has just seen their own version of the reichstagsputsch - which was the early unsuccessful push by the nazis to grab power in Germany, carried out in as hamfisted a fashion as the mess in the Capitol.
I would have been very surprised indeed if the "alt-right" wasn't hollering their own version of events - a glorious revolution - from every rooftop they could reach.
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Re: Re: Re: this is so simple...
EDIT; reichstagsputsch should have been bierhallenputsch. Apologies.
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Re: this is so simple...
"Start your own social media company."
Parler did that.
Now it's an antitrust violation ("group boycott/refusal to deal").
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Re: Re: this is so simple...
Tell that to Nike who had to file for bankruptcy after being boycotted in 2018 due to the Kaepernick-controversy. Just let me remind you what Trump said about it:
If you replace NFL and NIKE with Trump-supporters and Parler in the above quote you will have the situation today. It's not rocket science you know, if people gets upset with you and don't want to deal with you, it's not an anti-trust violation, it's a boycott.
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Re: Re: Re: this is so simple...
Except the difference is a customer boycott is not covered under antitrust law, but a supplier/backbone boycott would. More like if stores refused to carry Adidas that would be a horizontal control similar to what is being done to Parler.
Was Netscape unpopular as well? Amiga a total failure as a machine?
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Re: Re: Re: Re: this is so simple...
Stores can boycott any brand they like, and they have done so. That is not really an antitrust issue in general.
And a supplier/backbone can very well refuse to do business with a party and it won't be an antitrust violation. In general terms, for it to be an antitrust violation, the action must be unreasonable, pertain to restraint of trade and/or monopolization-actions in an effort to stifle competition. Dropping Parler as customer doesn't fit that at all. If AWS had a competing social media platform that was competing with Parler, perhaps then it would have been an antitrust issue.
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Re: this is so simple...
YouTube creators get 68 percent of the revenue, protection against piracy, and Google's work as an ad broker is excellent. They also save money on hosting fees or advertising since they're sending traffic directly to your video. Anyone with 1,000 or more subscribers can monetize any video. One key to making money is to have your video turn up as an Autoplay after a big video.
UGC has always been unpaid and uncompensated, except for allowing people to build an audience they can later monetize. Still, the users gain quite a bit from having access to the backbone.
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Re: this is so simple...
"You're basically an unpaid employee."
No, you're not. You're a person who offered content to YouTube in exchange for ad revenue, a free platform with wide reach and a large audience, access to its algorithms to promote your content, virtually guaranteed uptime and bandwidth availability at no upfront cost, and all the other benefits that made you choose YouTube instead of its competitors or a homebrewed solution.
If you decide to set up a shop on eBay, Etsy or Amazon, that doesn't mean you're employed by them. That means that they are a supplier of services that you decided to contract in order to sell your wares.
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No matter what happens with Trump, or Parler, or section 230, this new year will be known as...
...the Internet Purge!
Social networks will chop down forests of trolls, abusers, and also good people. It's irreversible.
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Re:
"this new year will be known as......the Internet Purge!"
Is this item what impacted your life the most in 2020?
Well then, you are truly blessed.
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Trump's behavior shows the flaws in Section 230: Twitter and Facebook weren't facing criminal liability for "the actions of their users," but for their SEPARATE role in spreading the harm. The same is true of defamation: lies that originate on 4chan but wind up in your employer's or first date's hands were put there not by the original user, but by the distributor of the libel.
The extreme situation with Section 230 is what happened last week: no liability for platforms. "Criminal" liability against a corporation is useless and while 230 does not protect federal crimes, it does immunize big tech from the civil lawsuits like the one I'm sure some of the victims would otherwise file (and still might).
Supporters of 230 have long argued that platforms are not responsible for the conduct of their users. It is doubtful the public will agree with this going forward, given the role played by these platforms in the insurrection last week. That this landed on the doorsteps of the lawmakers who immunized these platforms, it's not like that Section 230 will survive this, nor should it.
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Re:
[Jhon Smith asserts claims not in rationality]
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"Don't blame the platform for its users" is a tough sell when the platform almost caused government to topple by allowing a user to incite other users in an act wholly separate from what the user did (spreading versus publishing).
That the shining example of 230's fatal flaws landed literally on the doorsteps of those who passed the law is poetic irony.
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Re:
You might be surprised to learn that despite the presence of 230 every platform out there does not in fact contain pro-insurrection posts, almost as though the problem isn't 230 at all but the people on a given platform and those that run it.
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Re:
You were begging Trump to destroy Section 230, Jhon Smith.
Dont play coy. You're terrible at it, besides.
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Re:
"That the shining example of 230's fatal flaws landed literally on the doorsteps of those who passed the law is poetic irony."
I find your gaslighting skills to be wholly inadequate.
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Is Reputation A Constitutional Right?
In Paul v. Davis, 424 U.S. 693 (1976), the 5-4 majority ruled that it wasn't, while the minority said that it was. The case involved an officer warning merchants about a "potential burglar" who had been arrested, with the officer neglecting to mention the acquittal.
The majority also noted, however, that had this warning created a "secondary constitutional harm" like loss of employment, then 42 USC 1983 would have applied. However, since reputation was not a constitutional right (as it is in many countries), there was no constitutional harm.
Revisiting this case in the Google era would be interesting, since "ripoff" sites etc. are costing people jobs and clients. Harm to reputation via a search engine is much more profound. A law which enables this harm by preventing someone from suing to restore that reputation could easily be declared unconstitutional. This applies to section 230 and to the single-publication rule, as they both allow reputational harm without proper redress in the courts.
When (not if) Section 230 is struck down, this is likely to be the rationale. Even now people in America who are defamed could easily win lawsuits in England or Australia. More should explore this avenue, because I bet the search engines could turn around and sue the original publisher for creating liability through use of their services.
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Re: Is Reputation A Constitutional Right?
Incorrect assessment.
In the court case, a police officer was actively damaging the reputation of the "potential burglar." If there had been the secondary constitutional harm, then the police officer would have been culpable.
The owners of the building or street in which he made the warnings would not have been culpable in any sense, and were not even parties to the case.
Section 230 simply makes it clear that you cannot sue the owner of the place where the claim was made for the claim. Instead, the liability is on the person making the claim. In other words, the constitutional harm, if any, is not being done by Google, or Duck Duck Go. It is being done by the person who put the claim on the internet, and they are the ones who should answer for it.
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Re: Is Reputation A Constitutional Right?
You’re confusing §230 protections with defamation law and the 1A.
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Re: Is Reputation A Constitutional Right?
How's that Richard Liebowitz defense fund coming along Jhon Smith?
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