NY Times Continues Its Inability To Report Accurately On Section 230 And Content Moderation

from the i-mean,-come-on dept

Daisuke Wakabayashi is a NY Times business reporter who seems to have a weird blind spot regarding Section 230 and online content moderation. Actually, perhaps "blind spot" isn't the right term for it. Two years ago, he was responsible for the massive full page, front page of the Business Section article falsely claiming that Section 230 was responsible for hate speech online. That's the one* where, infamously, the NY Times had to write a correction that completely undermined the headline of the article:

An earlier version of this article incorrectly described the law that protects hate speech on the internet. The First Amendment, not Section 230 of the Communications Decency Act, protects it.

* I say "the one" but, the NY Times has had to run that exact correction multiple times. The entire organization seems to have a weird blind spot about 230.

However, at least then, Wakabayashi knew that Section 230 existed. In a new article, it appears he's forgotten all about it. Which is weird. He's writing about a lawsuit against YouTube, filed by a non-profit, claiming that the company failed to remove animal abuse videos. So, just to get this out of the way: obviously animal abuse videos are horrible and it's awful that they exist. And it's reasonable to hope that YouTube would take down such videos (or, better yet, let authorities know when those videos present evidence that might be useful in tracking down those actually abusing animals!) And, of course, YouTube has long had policies against "animal abuse content."

But... content moderation at scale is impossible to do well, and mistakes are going to be made. Videos that violate policies will be left up, because it's impossible to find them all. And videos that should be left up are going to be taken down, because everything is a judgment call, and while some people assume that all of these calls are easy, most of them are much more nuanced.

Either way, this nonprofit, "Lady Freethinker" and its founder, Nina Jackel, are quite upset about how YouTube handles animal abuse videos. Last year, the organization put out a report highlighting animal abuse videos on the site (though it defines "animal abuse" quite broadly, to the point that many might disagree). According to the NY Times article, Lady Freethinker asked YouTube to be added as a "trusted flagger," but YouTube rejected that request (which could be for many, many reasons, including, perhaps, how broadly Lady Freethinker defines animal abuse).

And, thus, Lady Freethinker has sued YouTube. It will lose and lose easily, but we'll get there. Unfortunately, I can't post the complaint, because even though it's clear that Wakabayashi has a copy of it, the NY Times did not post a copy of the complaint, which (to me) is just pure journalistic malpractice. Similarly, Lady Freethinker put out a press release about the lawsuit, but also does not include the complaint. Kinda makes you wonder why not. The complaint is not in federal court (which would make it easy to access), but in California Superior Court in Santa Clara. And searches of the dockets there don't show the case at all (it's possible that the court updates its online case files much more slowly).

But the lack of the complaint is only the beginning of the journalistic malpractice here. The article never, not once, mentions Section 230, which clearly protects YouTube from this lawsuit, and is why the lawsuit will be thrown out quite quickly. That seems like a huge gap in the reporting -- especially from a reporter who wrote a huge (if highly criticized) article on Section 230!

The problems with the article get even worse. It does mention that the case is centered around claiming that YouTube is violating the federal "animal crushing" law, 18 USC 48, but leaves out the rather important history of that law. As Ken White discussed on his podcast a few years ago, the law was originally created out of a nonsense moral panic, and then was struck down by the Supreme Court (by an 8 - 1 opinion) for violating the 1st Amendment. Specifically, the majority opinion noted that the law outlawed a wide range of videos (including some at issue in the case, which are exactly like some of the videos Lady Freethinker complains about in its report) that are, in fact, protected by the 1st Amendment.

A few months later, Congress passed a revised version of the law, seeking to respond to the Supreme Court ruling by narrowing the focus of the law. Two years ago, Congress passed another update to the law, expanding the law a bit, but still not as far as the original law. So far, the new and updated laws have not been tested in court as the original one was -- however, it's not clear that the all of the current law would survive 1st Amendment scrutiny either.

But, even if the law did, the fact that YouTube is merely hosting the videos and not always finding them as quickly as Lady Freethinker thinks they should or not pulling down all the videos that such a non-profit has decided are bad, does not suddenly make YouTube liable. Both Section 230 and the 1st Amendment itself protect YouTube's content moderation decision making here, and this case is almost certainly going nowhere fast.

And you would think that the NY Times and its star reporters would, maybe, just maybe, mention some of that, rather than running an article that reads kinda like the press release from Lady Freethinker? I guess that's too much to ask.

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Filed Under: 1st amendment, animal crush, content moderation, liability, nina jackel, section 230
Companies: lady freethinker, ny times, youtube