Utah Prematurely Tries To Dance On Section 230's Grave And Shows What Unconstitutional Garbage Will Follow If We Kill It

from the not-dead-yet dept

As Mike has explained, just about every provision of the social media moderation bill being proposed in the Utah legislature violates the First Amendment by conditioning platforms' editorial discretion over what appears on its services—discretion that the First Amendment protects—on meeting a bunch of extra requirements Utah has decided to impose. This post is about how everything Utah proposes is also barred by Section 230, and why it matters.

It may seem like a fool's errand to talk about how Section 230 prohibits state efforts to regulate Internet platforms while the statute currently finds itself on life support, with fading vital signs as legislators on both sides of the aisle keep taking aim at it. After all, if it goes away, then it won't matter how it blocks this sort of state legislation. But that it currently does preclude what we're seeing out of Utah it is why it would be bad if Section 230 went away and we lost it as a defense against this sort of speech-chilling, Internet-killing regulatory nonsense from state governments. To see why, let's talk about how and why Section 230 currently forbids what Utah is trying to do.

We often point out in our advocacy that Congress wanted to accomplish two things with Section 230: encourage the most good content online, and the least bad. We don't even need to speak to the law's authors to know that's what the law was intended to do; we can see that's what it was for with the preamble text in subsections (a) and (b), as well as the operative language of subsection (c) providing platforms protection for the steps they take to vindicate these goals, making it safe for them to leave content up as well as safe for them to take content down.

It all boils down to Congress basically saying to platforms, "When it comes to moderation, go ahead and do what you need to do; we've got you covered, because giving you the statutory protection to make these Constitutionally-protected choices is what will best lead to the Internet we want." The Utah bill, however, tries to directly mess with that arrangement. While Congress wanted to leave platforms free to do the best they could on the moderation front by making it legally possible, as a practical matter, for them to do it however they chose, Utah does not want platforms to have that freedom. It wants to force platforms to moderate the way Utah has decided they should moderate. None of what the Utah bill demands is incidental nor benign; even the requirements for transparency and notice impinge on platforms' ability to exercise editorial and associative discretion over what user expression they facilitate by imposing significant burdens on the exercise of that discretion. Doing so however runs headlong into the main substance of Section 230, which specifically sought to alleviate platforms of burdens that would affect their ability to moderate content.

It also contravenes the part of the statute that expressly prevented states from interfering with what Congress was trying to accomplish with this law. The pre-emption provision can be found at subsection (e)(3): "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Even where Utah's law does not literally countermand Section 230's statutory language, what Utah proposes to do is nevertheless entirely inconsistent with it. While Congress essentially said with Section 230, "You are free to moderate however you see fit," Utah is trying to say, "No, you're not; you have to do it our way, and we'll punish you if you don't." Utah's demand is incompatible with Congress's policy and thus, per this pre-emption provision, not Constitutionally enforceable on this basis either.

And for good reason. As a practical matter, both Congress and Utah can't speak on this issue and have it yield coherent policy that doesn't subordinate Congress's mission to get the best online ecosystem possible by letting platforms feel safe to do what they can to maximize the most good content and minimize the least bad. Every new threat of liability is a new pressure diverting platforms' efforts away from being good partners in meeting Congress's goal and instead towards doing only what is needed to avoid the trouble for themselves these new forms of liability threaten. There is no way to satisfy both regulators; Congress's plan to regulate platform moderation via carrots rather than sticks is inherently undermined once sticks start to be introduced. Which is part of the reason why Congress wrote in the pre-emption provision: to make sure that states couldn't introduce any.

Section 230's drafters knew that if states could impose their own policy choices on Internet platforms there would be no limit to what sort of obligations they might try to dream up. They also knew that if states could each try to regulate Internet platforms it would lead to messy, if not completely irreconcilable, conflicts among states. That resulting confusion would smother the Internet Congress was trying to foster with Section 230 by making it impossible for Internet platforms to lawfully exist. Because even if Utah were right, and its policy happened to be Constitutional and not a terrible idea, if any state were free to impose a good policy on content moderation it would still leave any other state free to impose a bad one. Such a situation is untenable for a technology service that inherently crosses state boundaries because it means that any service provider would somehow have to obey both the good state laws and also the bad ones at the same time, even when they might be in opposition. Just think about the impossibility of trying to simultaneously satisfy, in today's political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.

The only solution to the regulatory paralysis Congress rightly feared is what it originally devised: writing pre-emption into Section 230 to get the states out of the platform regulation business and leave it all instead to Congress. Thanks to that provision, the Internet should be safe from Utah's attack on platform moderation and any other such state proposals. But only so long as Section 230 remains in effect as-is. What Utah is trying to do should therefore stand as a warning to Congress to think very carefully before doing anything to reverse course and alter Section 230 in any way that would invite the policy gridlock it had the foresight to foreclose these twenty years ago with this prescient statute.

Filed Under: 1st amendment, free speech, pre-emption, section 230, utah

Utah's Horrible, No Good, Very Bad, Terrible, Censorial 'Free Speech' Bill Is A Disaster In The Making

from the that's-not-how-any-of-this-works dept

A month ago, we noted that a bunch of state legislatures were pushing blatantly unconstitutional bills to try to argue that social media websites can't moderate "conservative" views any more. All of these bills are unconstitutional, and most are just silly. The latest one comes from Utah -- and stunningly seems to have legs as it's been moving through the Utah legislative process with some amount of speed over the last week or so.

The bill, SB0228 from state Senator Michael McKell, is so bizarrely wrong on just about everything that it makes Utah look really bad. It's called the "Freedom from Biased Moderation Act" and already that's a pretty clear 1st Amendment problem. Leaving aside the question of whether or not there's any evidence about "anti-conservative bias" in social media moderation (and, just so we're clear: there is no such evidence), if there were moderation decisions that were biased against political viewpoints that would be protected by the 1st Amendment. For good reason.

Courts have made it clear, repeatedly, that the 1st Amendment bars the government from compelling anyone to associate with speech they disagree with. Yet, that's exactly what this bill, and others like it, are seeking to do. Any law that bars the ability to moderate would violate this key part of the 1st Amendment.

But this bill is even more nefarious, in that it couches many of its proposals in ideas that sound reasonable, but they only sound reasonable to people who are totally ignorant of how content moderation works. A key part of the bill is that it requires social media companies to "clearly communicate" the "moderation practices" including "a complete list of potential moderation practices." That's ridiculous, since many cases are unique, and any company doing this stuff has to constantly be responding to changing context, different circumstances, new types of attacks and abuse, and a lot more. This bill seems to presume that every content moderation decision is an obvious paint-by-numbers affair. But that's not how it works at all. Senator McKell should be forced to listen to Radiolab's Post No Evil episode, which details how every time you think there's an easy content moderation rule, you discover a dozen exceptions to it, and you have to keep adjusting the rules. Every damn day.

Then the bill says that a social media company can not "employ inequitable moderation practices." But what does that even mean? Again, every moderation decision is subjective in some way. When we ran 100 content moderation professionals through a simulator with 8 different content moderation decisions, we couldn't get any level of agreement. Because so many of these are judgment calls, and when you have thousands or tens of thousands of moderators making thousands to hundreds of thousands to millions of these judgment calls every day, you're always going to be able to find some "inequitable" results. Not because of "bias" but because of reality.

And how would you even define "inequitable" in this situation anyway? Because context matters a lot. All sorts of factors come into play. Someone in a position of power saying something can be very different from someone not in power saying the exact same thing. Something said after an attack on the Capitol might look very different than something said before an attack on the Capitol. Every situation is different. Demanding the same treatment ignores that the situations will always be different.

Indeed, just recently in discussing Facebook bending over to keep Trumpists happy on the platform we noted that the company was confusing equitable results with equitable policies. Part of the issue is that, right now, you have more utter nonsense and misinformation on the Republican side of the aisle, and if you use "equitable policies" you will get inequitable results. But this bill seems to think that inequitable results must mean inequitable policies. But that's... just wrong.

Next, the bill requires a "notice" from a social media company for any moderation, that includes an explanation of exactly why that content was moderated. Again, I understand why people often think this is a good idea (and there are times when it would be nice for companies to do this, because it is often frustrating when you are moderated and it's not clear why). However, this only works if you're dealing with non-abusive, honest actors. But a significant amount of moderation is to deal with dishonest, abusive actors. And having to explain to each one of them exactly why they're being moderated is not a recipe for better moderation, it's a system for (1) having to litigate every damn moderation decision as the person will complain back "but I didn't do that" even when they very clearly did, and (2) it's training abusive, dishonest trolls how to game the system.

Then, the bill has this odd section where it basically would attempt to force social media companies to hire Facebook's Oversight Board (or some other brand new entity that does the same basic thing) as an independent review board:

A social media corporation shall engage the services of an independent review board to review the social media corporation's content moderation decisions.

While this might be a good idea for some companies to explore, for the government to mandate it is absolutely ridiculous. I thought the Republican Party was about keeping government out of business, not telling them how they have to run their business. It gets even sillier, because the Utah legislature thinks that it gets to dictate what types of people can be on such independent review boards:

The independent review board shall consist of at least 11 members who represent a diverse cross-section of political, religious, racial, generational, and social perspectives.

The social media corporation shall provide on the social media corporation's platform biographies of all of the members of the independent review board.

If this law actually passed, and wasn't thrown out as obviously unconstitutional, I'd love to see the Utah legislature determining if the mandated review board for... let's say OnlyFans, had the proper "religious, generational, and social" diversity...

As an enforcement mechanism, the bill would give the Utah Attorney General the ability to take action against companies deemed violating this law (which, again, would be every company because it sets up a nonsensical standard not based in reality).

This bill is an unconstitutional garbage fire of nonsense, completely disconnected from anything even remotely recognizable as to how content moderation works at social media companies. Utah should reject it, and maybe should get someone to teach Senator McKell some basics about the 1st Amendment and how social media actually works.

Filed Under: 1st amendment, bias, content moderation, inequity, michael mckell, utah
Companies: facebook, twitter

Court Tosses Devin Nunes' Silly SLAPP Lawsuit Against CNN

from the finally dept

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.

The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

I don't think Hannity "took" the bet, but he would have won. CNN went to court and has now won the case. Easily. Let's just say Judge Laura Taylor Swain is not impressed by Nunes and whatever nonsense his lawyer, Steven Biss, presented to the court. Much of the opinion focuses on "choice of law" issues -- i.e., which state's defamation laws are at play here. There are four choices: Virginia, Washington DC, New York, or California. Nunes, basically wanted to apply any law except California's. You might think that's odd, because he (theoretically, at least) "lives" in California. He represents a district in California, and if any "damage" were actually done to his political chances, that damage would be done in California. But Nunes does not like the defamation laws of his own state -- in part because California requires that before you sue someone for defamation you first ask them to retract what they've written.

The judge notes that Nunes made the choice to file this case in Virginia, and it appears that his lawyer, Steven Biss, is so bad at this that he didn't even understand how Virginia's choice of law principles work -- because they make it pretty damn clear, that the proper state's laws to use are... California's.

Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia’s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that the information would be of most interest to third parties in that state and would be opened and read by a substantial number of persons there. Accordingly, the governing choice of law rule does not contemplate the application of New York state law based on the location of the reporters and the news organization.

In response to the argument that the laws that should be used are where the plaintiff suffered "the most harm" Nunes tried to argue that the real harm was in Virginia (?!?) or DC, not his "home" state of California. That's kinda telling:

Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community.

But the judge basically says "lol, no."

Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens.

Having considered persuasive authority and the legal and practical considerations underpinning Virginia’s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff’s claims.

And, so, California defamation laws apply, and California's laws require you to first ask for a retraction. Nunes tries to argue around that... but not very successfully.

Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”.... Given that CNN publishes multiple times a day and published the article in question in electronic form, this argument against the statute’s application is without merit.

Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se.... In support of his argument against the application of the statute to Plaintiff’s claims, Plaintiff cites inapposite cases that do not involve the retraction statute. See Todd v. Lovecruft, No. 19-CV-01751-DMR, 2020 WL 60199, at *20 (N.D. Cal. Jan. 6, 2020) (holding, in case involving application of anti-SLAPP statute to allegations of sexual misconduct, that common law elements of defamation cause of action did not require plaintiff to plead special damages for claim of defamation per se); Clark v. Hidden Valley Lake Ass’n, No. 16-CV-02009-SI, 2018 WL 3069285 (N.D. Cal. Apr. 18, 2018) (upholding damages verdict despite lack of proof of actual damages, where plaintiff had prevailed on claims of defamation per se). Neither of these cases involved news media publication of the allegedly defamatory material, nor did any of the authority Plaintiff cited in this connection construe the retraction statute.

The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se....

[....]

Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.”

And thus, the court finds that Nunes failed to follow California defamation law and first demand a retraction. That means he can only plead special damages. "Special damages" are, basically "actual" damages -- a direct monetary loss that the plaintiff can attribute to the defendant's actions. And, guess what? Steven Biss's lawsuits didn't quite have that (because there were no actual damages):

Plaintiff’s AC fails to meet the minimum pleading requirements for special damages established by Rule 9(g). Plaintiff’s original Complaint, filed on December 3, 2019, made no mention of special damages at all.... CNN moved to dismiss the Complaint on substantially the same grounds as those presented in this Motion, thus alerting Plaintiff to CNN’s arguments and to a potentially critical deficiency in the Complaint. (See docket entry no. 15.) Thereafter, Plaintiff amended his Complaint to claim he has “suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $435,000,000, or such greater amount as is determined by the Jury.”

While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).

Oops.

And, then, of course, there was the utter nonsense of the "conspiracy" claim. Nunes' complaint basically tried to argue that CNN was out to get him, and that's not how any of this works.

Finally, the Defendant argues that Plaintiff’s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [ ] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff’s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.

I'm not entirely sure why CNN didn't also move to make use of California's anti-SLAPP law, since they were able to get California's defamation law applied to the case -- because that might have put Nunes in the position of having to pay for CNN's legal fees. But, either way, it's another big (but totally expected) loss for Nunes in his SLAPP crusade.

And... we still don't know who's paying for all of these lawsuits.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, free speech, new york, slapp, steven biss, virginia
Companies: cnn

North Dakota's New Anti-230 Bill Would Let Nazis Sue You For Reporting Their Content To Twitter

from the i-just-can't-even dept

Earlier this month, we wrote about how various Republicans in state legislatures were introducing blatantly unconstitutional bills that tried to do away with Section 230 and which all attempted to block the ability of websites to do any content moderation. Many of the bills were nearly identical (and may have come from Chris Sevier, the profoundly troubled individual, who somehow keeps convincing state legislators to introduce blatantly unconstitutional bills that attack speech online). One of the bills we mentioned was from North Dakota. Lawyer Akiva Cohen points out that the North Dakota bill has been updated... and (incredibly) made even more blatantly unconstitutional.

Most notably, the new amendment from Rep. Tom Kading, would not only gut Section 230, but would stop any website from doing any moderation of any user for their viewpoints. Any viewpoints. Anywhere (even off platform). And then... it adds in a private cause of action, saying that would allow a user to sue any website for moderation:

That says:

A user residing in, doing business in, sharing expression in, or receiving expression in this state may bring a civil action in any court of this state against a social media platform or interactive computer service for violation of this chapter against the user, and upon finding the defendant has violated or is violating the user's rights under this chapter, the court shall award:

1. Declaratory relief;
2. Injunctive relief;
3. Treble damages or, at the plaintiff's option, statutory damages of up to fifty thousand dollars; and
4. Costs and reasonable attorney's fees.

That's already bad, but it gets worse, because it also creates a private cause of action against anyone "aiding and abetting" the moderation:

That one says:

A user residing in, doing business in, sharing expression in, or receiving expression in this state may bring a civil action in any court of this state against any person who aids or abets a violation of this chapter against the user, and upon finding the defendant has violated or is violating the user's rights under this chapter, the court shall award:

1. Declaratory relief;
2. Injunctive relief;
3. Treble damages or, at the plaintiff's option, statutory damages of up to fifty thousand dollars; and
4. Costs and reasonable attorney's fees.

In other words, if you report a Nazi to Twitter, the Nazi can sue you for $50,000. Plus attorney's fees. What the actual fuck are they doing up there in North Dakota? And has it eaten their brains?

The only saving grace of this disastrously unconstitutional bill is that it moots itself. That's because it also has a clause that says that it "does not subject a social media platform or interactive computer service to any remedy or cause of action from which the social media platform or interactive computer service is protected by federal law."

So, um... Section 230 is federal law and it protects against literally everything in this bill. In other words, the only thing this bill serves as is a weird poison pill that if Section 230 is repealed or otherwise modified, then it might allow anyone in North Dakota to sue users for reporting their content to a social media platform.

Jerry Lambe, over at Law & Crime, reached out to Rep. Kading to ask about this bill and Kading's response is so ridiculous that it calls into question how this guy got elected.

“Social media may still censor within the constraints of Section 230. For example censorship of obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable content is completely appropriate under the bill,” he said in an email to Law&Crime. “If the neo-Nazi was censored for such, then the bill would not apply. Though section 230 gives broad protection, it does not protect against censorship outside the scope noted or prohibit regulation if consistent with the section. The bill does not affect any reporting actions.”

As Ari Cohn points out, this is both incoherent and suggests that Kading has no clue about how Section 230 or the 1st Amendment actually work. The 1st Amendment is what gives websites the right to remove whatever content they want. Section 230 just helps them get out of lawsuits over those removals faster. On top of that, the list that Kading mentions from "obscene" to "otherwise objectionable" is only in Section (c)(2) of the law, which almost never shows up in court cases. Courts have made it clear that Section (c)(1), which has no such limitations, is what enables cases to be dismissed regarding moderation choices.

You'd think that maybe someone like Kading would have bothered to learn some of this before (1) introducing a bill or (2) responding to a reporter's question about the bill. But apparently, that's not the kind of state elected official Tom Kading is.

North Dakota citizens: stop electing censorial, ignorant legislators who want to attack the 1st Amendment.

Filed Under: 1st amendment, aiding and abetting, content moderation, free speech, nazis, north dakota, reporting, section 230, tom kading

Orrin Hatch, Who Once Wanted To Destroy The Computers Of Anyone Who Infringed On Copyrights, Now Lies About Section 230

from the sit,-fido,-sit dept

Former Senator Orrin Hatch was so anti-technology, and supportive of the anti-technology recording industry, that former music tech startup entrepreneur and sci-fi author Rob Reid referred to him as "Senator Fido" in his comic novel about the music industry, because Senator "Fido" Hatch was such a lapdog of the recording industry that he would be willing to slip whatever anti-tech language they wanted into any new regulation. Even outside of the world of fiction, Hatch was way out there in his anti-technology ideas. In 2003, when he was Chair of the powerful Judiciary Committee, he floated the idea that copyright holders should invest in malware that would literally destroy the computers of anyone who opened an unauthorized file. The suggestion was so crazy that when an exec for an anti-piracy company at the hearing where Hatch raised this idea pushed back saying "no one is interested in destroying anyone's computer," Hatch immediately corrected him and said that, yes, indeed, Hatch himself was very interested in that idea:

"I'm interested," Hatch interrupted. He said damaging someone's computer "may be the only way you can teach somebody about copyrights."

So, I always tend to take it with a grain of salt whenever Hatch, who thankfully retired a few years ago, decides to weigh in on issues regarding technology and the internet. His latest is a piece in Newsweek in which he attacks Section 230 by flat out lying about what it's about. Hatch either knows he's lying or is losing touch with reality. Berin Szoka posted a long thread on Twitter detailing basically all of the court rulings that Hatch -- again, the former head of the Senate Judiciary Committee -- would have had to forget or ignore to make the arguments he makes (and notes that at the time of most of those rulings, they were cheered on by conservatives like Hatch).

The crux of the argument is not the argument of the old Republican Party, but rather the new one. The one that argues that the government can force websites to host speech they don't want to be associated with. Instead, Hatch ignores the long history of state action doctrine, and pretends that we can magically declare internet companies part of the state, bound by the 1st Amendment:

History has proven the First Amendment to be the most effective standard for setting the boundaries of protected speech. The First Amendment fosters robust discussion and a diversity of viewpoints while permitting restrictions on a handful of limited, carefully defined categories of harmful speech, such as fraud, defamation, child pornography and incitement to violence. What it doesn't permit are prohibitions on conservative viewpoints, negative news stories about President Biden's family or opinions that tech oligarchs might not like. And that's exactly why it should be the standard for social media companies providing a forum for public discourse and the companies owning the servers that host such forums.

If these companies want to base their business models on providing digital access to the public square, then they should have to abide by the well-established standards regulating free speech in the public square. Insofar as they conform to First Amendment standards in their terms of service, these companies should continue to enjoy immunity from civil liability under a revised section 230. But if they want to go beyond the First Amendment and prohibit forms of speech protected by the First Amendment, they should be liable just like any publisher who engages in content moderation (which is really content discrimination).

Of course, nearly everything Hatch says here is wrong -- and would actually violate the 1st Amendment rights of those companies by compelling them to host speech they disagree with. As has been stated repeatedly, it's also bullshit that any social media site has "prohibitions on conservative viewpoints". The blocks on the Hunter Biden story were not because they were "conservative viewpoints," but because of very real initial concerns that the reports were from an untrusted source and may have been hacked.

But, really, it strikes me as fairly stunning that a Senator who regularly, vehemently pushed for censorship on the internet for any site that even slightly might have possibly infringed on someone's copyright is now advocating that no website can do any content moderation ever.

Even more insane? Seeing a Republican Senator basically calling for the nationalization of Google and Amazon:

To guard against economic censorship, policymakers might also consider classifying firms like Google or Amazon as "public accommodations." These sorts of enterprises, which include hotels and restaurants, are required by law to provide their services to people of all backgrounds, with limited exceptions. Or the Big Tech companies could be treated as "common carriers" akin to phone companies or railroads, which are required to provide their services to all customers willing to pay a fee. It would be unthinkable today to turn off someone's water or electricity, or deny someone passage on a boat or airplane, because of that person's political beliefs. It should be just as unthinkable to turn off that person's access to basic web services—but sadly, our laws don't yet provide this kind of protection. Congress must put in place such protections now to prevent the establishment of a new digital hierarchy that places conservative viewpoints at the bottom of the social pyramid.

The thing is, you don't get to just declare something a common carrier. And the comparison to water or electricity is inapt. Those are commodities where there is only one service provider in a particular area. That is not true of Google or Amazon or Facebook. They are all differentiated services.

And, of course, this entire piece is based on a flat out myth that conservative voices are somehow being silenced. Unless Hatch is saying that "conservative viewpoints" are the equivalent of Nazi viewpoints, then this argument makes no sense.

Hatch was one of the worst Senators on these issues when he was in the Senate, and it's no surprise that he's just as bad out of the Senate. But at least Fido has no more power to do any damage.

Filed Under: 1st amendment, copyright, fido, orrin hatch, section 230

Various States All Pile On To Push Blatantly Unconstitutional Laws That Say Social Media Can't Moderate

from the that's-not-going-to-go-well dept

A bunch of Republican state legislators across the country are apparently unconcerned with either the 1st Amendment (or reality) have decided that they need to stop social media companies from engaging in any sort of content moderation. Earlier this week, Florida Man Governor Ron DeSantis proposed just such a law, which would be struck down as unconstitutional with amazing speed. The bill, dubbed the "Transparency in Technology Act" would do a bunch of things laid out in this infographic the Florida GOP sent around, almost all of which the state has no authority to do. On the content moderation front, it would require set standards for content moderation that can't easily be changed and require the company apply those standards consistently.

That's what lots of people ask for without realizing that's an impossible ask. "Consistency" is not nearly as clear as people seem to think it is. Every scenario is different, and context plays a huge role in determining these things -- but people who complain about inconsistent enforcement never seem to recognize the wider context, and always focus in on some superficial similarity about the content, and insist that different outcomes mean inconsistency. It also ignores the scale of the problem. It also fails to take into account that policies have to keep being updated, because the issues that trust and safety teams face constantly are changing.

This bill would be like passing a law saying that the state of Florida must clearly define all its laws, can't pass new laws, and must apply the law consistently. That's not possible.

Even more ridiculous (and more unconstitutional) is that the bill would bar any moderation (or removal) of any political candidate. Of course, this would just mean that any troll who wants to be a total asshole online would register to run for office. Remember, it was rumored that well known online troll Laura Loomer supposedly ran for Congress in part because of she believed that it would force Twitter to give her her account back (which did not happen).

Of course, it's easy to just point at Florida and say "there goes Florida again..." but it's actually Republican legislators in a whole bunch of states. And this wasn't even the first such bill in Florida. A week or so earlier, Republican state Senator Joe Gruters introduced a bill called the "Stop Social Media Censorship Act" which bars any moderation of "religious or political speech."

Gruters may have introduced the bill, but it doesn't look like he wrote it. Because in Kentucky, Republican Senators Robby Mills and Phillip Wheeler introduced a nearly identical bill. Oh, and over in Oklahoma, Republican Senator Rob Standridge also introduced an identical bill. In Arizona, it's Senator Sonny Borrelli who has introduced very similar legislation, though his looks a little different, and (insanely) would try to put into law that a social media website is "deemed to be a publisher" and "deemed not to be a platform" which is, you know, not a thing that actually matters. In North Dakota, there's Republican State Rep. Tom Kading who's similar bill also includes the nonsense publisher/platform distinction.

All of these bills are (1) nonsense, (2) pre-empted by federal law, and (3) blatantly unconstitutional under the 1st Amendment. A quick lesson for state legislators: the 1st Amendment means that the government (that's you!) cannot compel private parties (that includes social media companies!) that they have to host speech with which they disagree with. There's plenty of case law on this, but I'll point you to West Virginia State Board of Education v. Barnette which establishes quite clearly that the government cannot compel speech under the 1st Amendment. On top of that, I'll point people to the relatively recent ruling, written by Brett Kavanaugh (remember, Republicans, you supported this guy) and signed by all of the Conservative Justices, in the Manhattan Community Access Corp. v. Halleck case, in which it was made clear that social media websites are not state actors, and cannot be compelled to host speech. As Kavanaugh wrote in that ruling:

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” ... The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

Remember how, as Republicans, you guys used to always support private property rights and the right to exclude those you disagree with? It's that all over again, except now you're suddenly trying to argue the exact opposite.

It wouldn't surprise me if there were a bunch more of these unconstitutional bills floating around, or that more will be introduced soon. Most of them are performative nonsense that no state legislature will actually pass. But if they do, just recognize that any legislature that does so is throwing away taxpayer money on a series of expensive lawsuits that will inevitably end with the law being tossed out as unconstitutional.

Filed Under: 1st amendment, arizona, content moderation, florida, joe gruters, kentucky, north dakota, phillip wheeler, rob standridge, robby mills, ron desantis, section 230, sonny borrelli, states, tom kading

Columbia Law Professor Spews Blatantly False Information About Section 230 In The Wall Street Journal

from the make-it-stop-for-reals dept

Another day, another completely ridiculous, wrong, and painful op-ed in a major newspaper that gets all of the details about Section 230 wrong. And this one is particularly ridiculous because it's coming from a law professor. Professor Philip Hamburger wrote an op-ed for the WSJ that is so bad, so wrong, so clueless, that if I handed it in in one of his classes, I'd deserve a failing grade. The only thing that this piece gets is that, while I'd thought I'd seen every style of bad Section 230 takes, this one is creatively bad in new and more ridiculous ways than I'd seen before. It's titled: The Constitution Can Crack Section 230, which already seems like a weird way to kick off. Cracks... what?

Section numbers of federal statutes rarely stir the soul, but one of them, 230, stirs up much fear, for it has seemed to justify censorship. Relying on it, tech companies including Google and Twitter increasingly pull the plug on disfavored posts, websites and even people. Online moderation can be valuable, but this censorship is different. It harms Americans’ livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves.

So, first of all, how is this moderation (the bad kind) different from that moderation (the good kind that you say is valuable)? Hamburger makes no effort, and seems to think that, like obscenity, he knows it when he sees it. But, even if we go by what little information he provides here, you might already notice the problem. He claims that this moderation "distorts political and cultural conversations" and "influences elections" but... that's also the exact same argument that people who are mad about too little moderation make.

And, of course, you could easily say that Fox News. Or CNN. Or... the Wall Street Journal has been known to "distort political and cultural conversations" and "influence elections." But I don't see Prof. Hamburger flipping out about that.

But does the 1996 Communications Decency Act really justify Big Tech censorship? The key language, Section 230(c)(2), provides: “No provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The companies take this as a license to censor with impunity.

That understanding is questionable. Law is rarely as clear-cut as a binary switch. To be sure, courts emphasize the breadth of Section 230’s immunity for website operators. But there is little if any federal appellate precedent upholding censorship by the big tech companies. The question therefore comes down to the statute itself. The answers should give pause to the companies and courage to those they’ve censored.

If I were grading this as a paper, I would circle this line in red ink: "But there is little if any federal appellate precedent upholding censorship by the big tech companies." Professor, just because you failed to some fairly basic research, doesn't mean it doesn't exist. There are dozens of cases regarding content removal out there, and every one of them has been tossed out frequently on Section 230 grounds. While not many of them actually go up on appeal, the ones that have, have also been rejected. And here's the thing, many of them have been rejected on 1st Amendment grounds, meaning that Section 230 isn't even the issue here.

There was the PragerU case that made it clear that YouTube can restrict videos however it sees fit on 1st Amendment grounds, not even getting to the 230 issue:

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.

Seems kind of important, but Prof. Hamburger has some fantasyland ideas about how the Commerce Clause means... that Section 230 cannot be used to take down content. It... makes no sense.

Originally, the Constitution’s broadest protection for free expression lay in Congress’s limited power. James Wilson reassured Americans in 1787—four years before the First Amendment’s ratification—that “a power similar to that which has been granted for the regulation of commerce” was not “granted to regulate literary publications,” and thus “the proposed system possesses no influence whatever upon the press.”

The expansion of the commerce power to include regulation of speech is therefore worrisome. This is not to dispute whether communication and information are “commerce,” but rather to recognize the constitutional reality of lost freedom. The expansion of the commerce power endangers Americans’ liberty to speak and publish.

This is embarrassing. Nothing in Section 230 is "regulating commerce." Nor is it "regulating speech." It's doing the opposite. It's making sure that companies know that they and not the government get to decide what speech they host and associate with. And, no, nothing in 230 "endangers Americans' liberty to speak and publish." They can still express themselves, but they don't have a right to demand that any private company host or promote that speech. Just like I can't demand that the Wall Street Journal publish my op-ed about how Columbia Law students deserve a refund if they had to take classes from Prof. Hamburger. That's not censorship. That's the Wall Street Journal's 1st Amendment editorial rights to reject my editorial (frankly, mine would have been better than Hamburger's, so maybe they should have published mine instead).

That doesn’t necessarily mean Section 230 is unconstitutional. But when a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly.

IT DOESN'T REGULATE SPEECH. How hard is that to understand?

A second constitutional question arises from the First Amendment. The companies brush this aside because they are private and the amendment prohibits only government censorship. Yet one must worry that the government has privatized censorship. If that sounds too dramatic, read Section 230(c)(2) again. It protects tech companies from liability for restricting various material “whether or not such material is constitutionally protected.” Congress makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them.

This is an embarrassingly amateurish reading of Section 230. It's the type of analysis we normally see on Twitter from people who have just discovered the law and know nothing about how it actually works or what it actually says. In court, content takedowns have almost never relied on (c)(2). They rely on the 1st Amendment or (c)(1). Section (c)(2) is only used in very rare cases and the reason it says "whether or not such material is constitutionally protected" is not because of some sort of state action attempt to censor constitutionally protected speech, but because the law is properly recognizing that companies are not bound by the 1st Amendment and therefore, the companies, being private entities, are not bound by the 1st Amendment and get to decide for themselves which content to associate with.

Any lawyer who actually spent any amount of time understanding Section 230 would know this. I'd expect that a law professor publishing in the Wall Street Journal could take the time to figure it out himself.

Seventeenth-century censorship, which the First Amendment clearly prohibited, was also imposed largely through private entities, such as universities and the Stationers’ Company, England’s printers trade guild. Whereas privatized censorship then was often mandatory, the contemporary version is voluntary. But the tech companies are protected for restricting Congress’s list of disfavored materials, and this means that the government still sets the censorship agenda.

No. It's not. If the law required them to take down certain content -- or even if it limited what the sites could take down -- that would be setting the censorship agenda. But here, the whole point of 230 is to make it clear that websites, as private entities, have the freedom to decide for themselves.

Some of the material that can be restricted under Section 230 is clearly protected speech. Consider its enumeration of “objectionable” material. The vagueness of this term would be enough to make the restriction unconstitutional if Congress directly imposed it. That doesn’t mean the companies are violating the First Amendment, but it does suggest that the government, in working through private companies, is abridging the freedom of speech.

Again, this is misreading and misunderstanding 230. It's focusing on (c)(2) which is the part of the law that is almost never used. (c)(1) and the 1st Amendment have been more than enough to protect against liability for content moderation decisions. More importantly, the list in (c)(2) is not a definitive list. It is not ordering the companies to do anything. It's just making it clear that they have the freedom to moderate however they see fit. That is not, as Hamburger seems to imply, the government "abridging freedom of speech" because no one's free speech is "abridged."

And then... he finally realizes that the 1st Amendment protects the "good" kind of moderation he wants, and tries to twist things around to explain why it doesn't protect the kind of moderation he dislikes.

This constitutional concern doesn’t extend to ordinary websites that moderate commentary and comments; such controls are their right not only under Section 230 but also probably under the First Amendment. Instead, the danger lies in the statutory protection for massive companies that are akin to common carriers and that function as public forums. The First Amendment protects Americans even in privately owned public forums, such as company towns, and the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. Here, however, it is the reverse. Being unable to impose the full breadth of Section 230’s censorship, Congress protects the companies so they can do it.

But... they're not common carriers. They're not public forums. And, as was cited in the PragerU ruling above, which in turn cites the Supreme Court in 2019 in a ruling made by Brett Kavanaugh, social media websites do not even come close to meeting the criteria to be declared public forums. You'd think a law professor would be up on little things like that.

Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. Under the Constitution, government cannot immunize powerful private parties in the hope that they will voluntarily carry out unconstitutional policy.

If you think this is an apt analogy, you are not qualified to discuss this seriously. This is, in no way, analogous. I mean, holy shit, is this a messed up line of thinking. To compare social media companies applying their terms of service in a way to stop the spread of disinformation to... southern sheriffs urging the Klan to attack civil rights marchers? WHO WOULD EVER THINK THAT'S ANALOGOUS?

Perhaps judges can avoid the constitutional problem, but this will be more difficult if they read Section 230(c)(2) broadly. The tech companies can’t have it both ways. If the statute is constitutional, it can’t be as broad as they claim, and if it is that broad, it can’t be constitutional.

What? Again, (c)(2) barely even matters. (c)(1) and the 1st Amendment matter. And it is both constitutional and as broad as they claim. The problem you have, Professor, is that you've read into the law things that are not there.

And then, believe it or not, the op-ed shifts from just wrong, to crazy.

The statute itself also poses problems for Big Tech. The first question is what Section 230(c) means when it protects tech companies from being “held liable” for restricting various sorts of speech. This is widely assumed to mean they can’t be sued. But the word “liable” has two meanings.

What is this, I don't even...

In a civil suit, a court must first consider whether the defendant has violated a legal duty or someone else’s right and is therefore legally responsible. If the answer is yes, the court must decide on a remedy, which can include damages, injunctive relief and so forth. The term “held liable” as used in Section 230(c) can fall into either category. Thus, the protection of tech companies from being “held liable” may merely mean they can’t be made to pay damages, not that they can’t be held responsible and subjected to other remedies. The former interpretation seems more plausible, if only because a mere ambiguity seems a weak basis for barring a vast class of plaintiffs from recourse to the courts on a matter as central as their speech.

After protecting tech companies from being held liable, the statute recites: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” This clause, Section 230(e), may seem to vindicate the companies, but it distinguishes between a “cause of action” and “liability” and thereby clarifies the ambiguity. Evidently, when Section 230(c) protects tech companies from being held liable, it does not generally immunize them from causes of action. It merely protects them from “liability” in the sense of damages.

There are jokes about law professors who think up crazy wacky ideas with no basis in the reality. Those jokes are meant to be about paragraphs like the two above. Held liable means any liability. You can't just say that other remedies don't count as being held liable. That's not how any of this works. And courts have ruled on this very thing, in cases like Hassell v. Bird, where no one was trying to force Yelp into monetary damages, but was about an injunction that would have forced Yelp into removing some content -- and the court held that 230 barred such an injunction. Prof. Hamburger seems to have made up, whole cloth, the idea that "held liable" might only apply to monetary damages.

Honestly, those two paragraphs read like typical Sovereign Citizen rantings, in which they've found a loophole regarding whether or not a flag has a fringe. The arguments presented here are completely disconnected from the way any court has ever looked at these issues.

Another question concerns the “material” that the companies can restrict without fear of being sued for damages. Section 230(c) protects them for “any action voluntarily taken in good faith to restrict access to or availability of material” of various sorts. Even before getting to the enumerated categories of material, it is important to recognize that the statute refers only to “material.” It says nothing about restricting persons or websites.

To be sure, the statute protects the companies for “any action” restricting the relevant material, and if taken literally “any action” could include various nuclear options, such as barring persons and demonetizing or shutting down websites. But the term “any action” can’t be taken to include actions that restrict not only the pertinent material but also other things. ”Any action” has to be focused on such material.

Dude. Come on. Is this a joke?

The statute, moreover, requires that such action be taken “in good faith.” At common law, that can mean not acting with the effect of destroying or injuring the rights of others and, more specifically, not acting disproportionately to terminate relations. The statute thus doesn’t protect the companies when they take disproportionate action against material, let alone when they unnecessarily restrict other things, such as websites and persons.

Again, the good faith part only matters for (c)(2) which doesn't matter. (c)(1) and the 1st Amendment have been deemed to protect content moderation takedowns. Many times. Don't you have law school student helpers who can look this stuff up for you?

What is in good faith for a website may be different from what is in good faith for a tech company that operates like a common carrier or public forum. But at least for such tech companies, the statute’s focus on “material”—combined with the requirement of “good faith”—stands in the way of any categorical protection for suppressing websites, let alone demonetizing them or barring persons.

What does this mean in practice? Even if a company technically can’t bar some material without taking down the entire website, it at least must give the operators an opportunity to remove the objectionable material before suppressing the website altogether. As for demonetizing sites or barring persons, such actions will rarely if ever be necessary for restricting material.

Again, the "good faith" part is meaningless. It's in (c)(2). Almost no one uses (c)(2) but even if they somehow did rely on it, this interpretation that good faith requires giving a user another chance has no basis in reality. It also has no basis in how content moderation works. It is disconnected from reality.

Such is the statute’s text. If you nonetheless want large common-carrier-like companies to go beyond “good faith” actions against “material,” pause to consider a little history, if only as a reality check about the proportionality of your desires. Even the Inquisition gave heretics formal opportunities to recant. And even the Star Chamber required its private censors to bar offensive material, not authors.

Again... what? You're quoting the wrong part of the statute, misunderstanding what it says, ignoring the key parts of the 1st Amendment's role here, saying that they're common carriers when they're not, misstating what the word "material" means in context... and then talking about Star Chambers?

They let you teach? Like... actual students? Ones hoping to become lawyers? Those poor, poor students.

The next question is viewpoint discrimination. Section 230(c) specifies protection for restricting “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The companies understand this to include nearly anything to which they object.

But Section 230(c) enumerates only categories of content, not viewpoints. The distinction between content and viewpoint is crucial in free-speech law: Government can’t discriminate against disfavored viewpoints even when regulating unprotected speech such as “fighting words.” It is therefore telling that the list focuses on content. One may protest that “otherwise objectionable” could include objectionable viewpoints. But it is obviously a catchall, and following a list of types of content, it would seem to refer only to additional objectionable content.

Yes. The government cannot discriminate. But these platforms are not "the government." Again, this has been covered. By the Supreme Court. Just recently.

The tech companies could argue that the catchall is still ambiguous. But at stake is viewpoint discrimination by vast companies that are akin to common carriers, whose operations function as public forums, and that are carrying out government speech policy. Are we really to believe that a mere ambiguity should be interpreted to mean something so extraordinary?

And, if my fairy godmother spun around on her toes three times quickly while sprinkling magic fairy dust in the air, maybe I could fly.

Section 230’s text offers the tech companies less shelter than they think. It protects them only from damage claims and not at all when they go beyond a constitutional reading of the statute.

Yes. If they relied on misreading (c)(2) and totally ignored (c)(1) as you did. But they don't. So I don't think they're afraid.

The implications are far-reaching. As litigation comes before the courts, they will have to decide the limits of Section 230 and the lawfulness of privatized censorship. In the meantime, some state legislatures will probably adopt civil-rights statutes protecting freedom of speech from the tech companies. Recognizing that such legislation isn’t barred by Section 230, lawmakers in several states are already contemplating it. One way or another, Section 230 does not, and will not, bar remedies for government privatization of censorship.

The implications are not far reaching. Litigation has already come before the courts. And those state laws that are being proposed, should they ever become law will be tossed out as unconstitutional under the 1st Amendment.

Columbia Law students, I feel sorry for you.

Filed Under: 1st amendment, content moderation, philip hamburger, section 230