The Bipartisan Attacks On The Internet Are Easily Understood If You Realize They Just Want To Control Speech Online

from the that's-all-it-is dept

Understanding the "bipartisan" approach to internet regulations over the last couple of years really boils down to "both parties want to control the internet" and twist it to their own advantage. Almost everything you hear about "harms" from the internet are disingenuous nonsense from grandstanding politicians. That's not to say there aren't real problems with things on the internet or how it's structured -- but there is almost no realistic exploration of those issues by those in various legislatures. It's all about grabbing control over the internet. Two recent articles highlight pretty clearly how both Republicans and Democrats are clearly salivating to control speech online for their own benefit -- and not for the actual good of society or the internet.

First up, we have The Spectator. To be honest, this publication has been a garbage publication recently, pushing out all sorts of nonsense, but apparently there are still a few people there who can publish something good. Taylor Millard has written a short and to the point article noting, accurately, that so much of the bipartisan attacks on the internet lately are really about one thing: how both parties want to control your speech online. We've discussed how the policy plans of Republicans and Democrats often feel at odds, with Republicans complaining about too much moderation, and Democrats complaining about too little, but the truth is slightly more nuanced, and both are really just looking to have control over speech online -- control that is simply not allowed under the 1st Amendment.

The Democrats' attacks on free speech are pretty straightforward:

Congressional Democrats are hoping to enact rules due to their concerns over so-called misinformation and “harmful content.” Their anger over the 2016 election of Donald Trump and the bogeyman of Russian interference fueled the original push for new regulations. The coronavirus pandemic and 2020 presidential election fallout poured rocket fuel on the ideological pyre, as did the QAnon conspiracy and discussions around alternate Covid treatments, masks and vaccine efficacy.

Vermont congressman Peter Welch promoted a new five-member commission with civil penalty power making sure Big Tech is “unbiased” and doesn’t promote harmful content. The Democrat used the infamous “for the children” crusade as reasoning. Minnesota senator Amy Klobuchar desires Health and Human Services control over the internet where public health is involved. She believes more lives would be saved if Section 230 protections for Big Tech were removed. New Mexico senator Ben Ray Lujan took it a step further, saying that the spread of misinformation ended up “fueling distrust in public health officials, promoting conspiracy theories and putting lives at risk.” To paraphrase Frank Herbert: he who controls the information, controls the world.

The Republican side is just slightly more nefarious in that they falsely claim that their efforts are in support of free speech, though as rulings in Texas and Florida have shown, they're equally as problematic under the 1st Amendment.

Republicans are just as censorious — but they shroud their urge to regulate Big Tech under the guise of protecting free speech. The Florida and Texas legislatures passed rules requiring large social media companies not to remove users from their platforms if they express dissident viewpoints.

We see this elsewhere too -- not just in the states. Nearly all of Josh Hawley's policy proposals regarding the internet are about controlling how internet companies present speech. And Republicans are just as prone as Democrats to roll out "for the children!" legislation that is designed to simply give government more control over speech.

The second article is by Adam Thierer, and published over at The Hill and makes a very similar point:

The only thing unifying both sides is a desire for greater regulatory control of media. In today’s hyper-partisan world, tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day – like property rights, free speech and editorial independence – become disposable. These are things we take for granted until they’ve been chipped away at and lost.

Is there any way to make both sides happy without undermining the digital economy, which has been dominated globally by American firms for over a quarter century? 

That’s unlikely, but it hasn’t stopped lawmakers from introducing a flurry of bills to weaken or eliminate protections afforded by Section 230, which limits liability for platforms that host user-generated content. Implemented in 1996, it has served as the cornerstone of America’s ascendancy in the digital world and helped spur an avalanche of innovation. Gutting it would put all that at risk. 

As Thierer rightly notes, this is entirely about attacking free speech and the 1st Amendment, by both parties, in order to control a medium they haven't been able to control for the past few decades:

Without admitting it, both sides are really at war against the First Amendment, which protects the editorial decisions made by private companies. To be sure, there is problematic content to be found on digital media platforms, and there are some legitimate complaints about overzealous takedown policies and lack of transparent standards. That does not mean there is an easy policy fix to those problems, however. But courts have held repeatedly that the First Amendment protects efforts by private media firms to devise their own approaches. Just last week, a Texas judge blocked a law that sought to limit social media platforms’ editorial freedoms. That followed a court in Florida enjoining a similar law this summer. 

Critics like to paint large tech companies as nefarious overlords out to destroy civilization. In reality, the problems we see and hear on modern platforms reflect deeper problems in our society. If these companies are to be blamed for anything, it’s making human communication so frictionless that every person now has a soapbox to speak to the world. That’s both a blessing and a curse. With unbounded speech comes many wonders but also many problems.

The battles here are not about making a better internet. Or "protecting children." It's very much about each of the political parties wanting control over the key tool that has enabled people to communicate with each other, without having that speech first filtered through an "official" source.

Filed Under: controlling speech, democrats, free speech, republicans, section 230, social media, speech

Federal Court Dismisses Another Negligence Suit Against Online Gun Marketplace Armslist But Says Section 230 Doesn't Protect It

from the it's-a-win...-but-what-is-it-worth? dept

Two years ago, the Wisconsin Supreme Court handed down a pretty important decision, only somewhat tempered by its limited jurisdiction. It decided Section 230 immunity applied to the buying and selling of guns via a third-party platform, Armslist.

Survivors of a mass shooting in Wisconsin tried to hold Armslist directly responsible for the criminal act, arguing that the site's facilitation of sales that bypassed local regulations on gun sales (mainly background checks) allowed the shooter to arm himself illegally. The shooting may have been on the mass shooter, but Armslist was apparently an accomplice because its marketplace allowed someone who shouldn't have had access to guns to acquire one.

The plaintiffs hoped to bypass Section 230 immunity with arguments that centered on negligence. The Copia Institute (a Mike Masnick joint) filed an amicus brief on behalf of Armslist, asking the court to reject arguments that would carve some very damaging holes in Section 230 protections.

The court found in favor of Armslist, specifically citing Section 230.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint.

Another court has found in favor of Armslist. And again, the case involves a tragedy: the killing of someone using a weapon purchased through Armslist. Unfortunately, the federal court handling this case says Section 230 has nothing to do with Armslist securing a dismissal. While it doesn't weaken any Section 230 protections, it certainly doesn't add anything either, ensuring lawsuits brought against third-party platforms will still have to pay to defend themselves from accusations that they're culpable for the criminal actions of their users. (h/t Volokh Conspiracy)

The plaintiff, Richard Webber, sued Armslist after a gun purchased on the site was used to murder his daughter. The underlying incident is horrific. This is from the Wisconsin federal court decision [PDF]:

As a result of Armslist’s design decisions and business practices, Plaintiff alleges, Schmidt’s estranged husband, who was prohibited from owning a firearm under Wis. Stat. §§ 941.29(1m)(g), 813.25 and 18 U.S.C. § 922(g)(8), was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Shortly thereafter, Schmidt’s estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother’s house to drop off her three children. Schmidt’s estranged husband then committed suicide in the backyard of the house. Plaintiff alleges that, but for Armslist’s failure to enact adequate safeguards, and but for Armslist’s conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt’s estranged husband would not have been able to purchase the firearm that he used to kill her.

From that tragedy arose a list of alleged violations and harms, including common law negligence, civil conspiracy, and wrongful death -- all pursued under Wisconsin state law but handled by a federal court.

After deciding it has jurisdiction to preside over state law claims, the court details why it thinks Section 230 does not apply to this case -- one that involves a buyer and a seller utilizing the marketplace created by Armslist, but does not involve any direct action by Armslist.

In dismissing Armslist's Section 230 immunity defense, the court cites not only Justice Clarence Thomas (who holds some… questionable… views on Section 230) but also quotes the Seventh Circuit's misreading on how the "Good Samaritan" clause of the law has been applied by platforms.

But even setting aside the tricky task of discerning legislative intent, it is the text of the statute from which a court should draw its true meaning. Subsection (c) is entitled “protection for ‘good samaritan’ blocking and screening of offensive material.” As the Seventh Circuit has noted, this title is “hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services.” Doe, 347 F.3d at 660. Furthermore, nothing in the text of § 230(c)(1) indicates an intent to provide sweeping immunity for providers or users of interactive computer services who face claims based on their own misconduct.

The "Good Samaritan" clause does not encourage a hands-off approach. It actually encourages vigorous moderation efforts by ensuring platforms cannot be sued for removing content platform owners find objectionable, rather than limiting themselves to clearly illegal content.

From these, it gets worse. The court decides this lawsuit isn't about the action of two third parties who utilized a platform to perform an illegal gun sale. It says this is about Armslist being less than cautious about who it allows to utilize the service, shifting the culpability from the murderer and the party closest to the act of murder (the person who sold him the gun) one more step up the chain to the platform that merely allowed people to sell and buy guns.

Even if § 230 applies to this type of case, Plaintiff’s claims do not seek to treat Defendants as the “publisher or speaker” of the post in question. Here, Plaintiff seeks to hold Defendants liable for their “role in developing or co-developing [their] own content.” Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users’ identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. In essence, the complaint “focuses primarily on Armslist’s own conduct in creating the high-risk gun market and its dangerous features,” not on the post in question. This type of claim, then, does not seek to treat Defendants as the “publisher or speaker” of the post that led to Schmidt’s killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. 47 U.S.C. § 230(c)(1). For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case.

But having successfully dodged Section 230 immunity isn't enough to find Armslist culpable for the actions of a person who purchased a gun through the site. There's nothing that connects the violent act to Armslist other than the weapon used to commit it. And, as the court points out, if it wasn't a gun purchased on Armslist, it might have been a gun purchased elsewhere… or any weapon at all, given the facts of this case.

It is clear from the complaint that Schmidt was shot and killed by her estranged husband, not Defendants, with a handgun he purchased from another party, again not Defendants. Based on the facts alleged, there is no reason to believe that even if Schmidt’s estranged husband had not purchased a gun from a person who posted an advertisement on the Armslist website, Schmidt would still be alive. Armslist is hardly the only source of guns in this country, and one does not even need a gun to take another person’s life. Schmidt was killed by a person so determined to take her life, so consumed by hatred, that he was even willing to take his own. The likelihood that such a person would have found another source from which to obtain a firearm or another way to take Schmidt’s life is more plausible than Plaintiff’s claim that she would still be alive. Absent cause, Plaintiff’s negligence claim against Defendants fails.

Armslist escapes. But not by much. And the decision doesn't bolster Section 230 protections. Instead, it encourages litigants to pursue esoteric claims in hopes of bypassing immunity, rather than be forced to confront the fact they're seeking to hold a platform responsible for the violent acts of its users. That fact alone should have given Section 230 immunity better consideration than it received here. And it's pretty disheartening to hear federal courts quoting Justice Clarence Thomas' unhinged (but published) dissenting rants about a law he clearly doesn't respect, much less understand.

Filed Under: guns, liability, secondary liability, section 230, wisconsin
Companies: armslist

Even As Grifters Insist Otherwise, Courts Know That Social Media Are Not State Actors Because Of Section 230

from the stop-it dept

Over the last few years we've heard a lot of nonsense claiming that Section 230 somehow magically turns social media into state actors. This idea, pushed heavily by disgraced law professor Jed Rubenfeld has not fared well in court. As law professor Eric Goldman highlights, multiple courts have been easily rejecting these claims. Notably, they're mostly citing the failed lawsuit from PragerU that insisted that a very light touch moderation (filtering out a very small percentage of their videos from the even smaller percentage of users who turn on "restricted mode") was a form of censorship. The 9th Circuit pointed out that the 1st Amendment says otherwise (which is amusing since Prager himself pretends to be a big supporter of the 1st Amendment).

Either way, three recent cases claiming that social media were state actors all clearly and easily rejected those claims. The first two of these were pro se lawsuits that were mad about social media sites in semi-coherent complaints that the courts construed as liberally as possible to try to find any sort of legitimate claim, and the courts (rightly) found that those claims were barred because the social media sites (YouTube and LinkedIn) were clearly not state actors.

First up, a district court in the Eastern District of Pennsylvania, which made short work of a lawsuit against YouTube filed by a pro-se plaintiff with a variety of different claims about harassment and hacking (that were somehow YouTube's fault?) leading to the suggestion (the complaint is not particularly clear) of a civil rights violation. The court points out that YouTube is not a state actor and thus there's no possible claim here:

Based on the Complaint’s allegations, it appears the named Defendants – a private social media company and its legal department – are not subject to liability under Section 1983. Cf. Prager Univ. v. Google LLC, 951 F.3d 991, 999 (9th Cir. 2020) (affirming the dismissal of a First Amendment claim because YouTube was a private entity and not a state actor); see also Rutenburg v. Twitter, Inc., No. 21-0548, 2021 WL 1338958, at *2 (N.D. Cal. Apr. 9, 2021) (“Federal courts have uniformly rejected attempts to treat similar social media companies [such as Twitter, Facebook, YouTube, and Google] as state actors under Section 1983.”) (collecting cases). Sescey does not allege Defendants are state actors or that they had any connection to a state, county, or local governmental entity. Her Complaint does not allege any facts to show a “close nexus” between the private behavior of YouTube and its legal department and the state itself such that the challenged action here can fairly be treated as an action of the state. Leshko, 423 F.3d at 339. None of Sescey’s allegations support an inference that Defendants are anything other than a privately-run social media company and its internal legal department.

The next one, filed against LinkedIn, requires barely more than a page to dismiss:

The district court properly dismissed Perez’s action because Perez failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to state a plausible claim); see also Prager U. v. Google LLC, 951 F.3d 991, 996-97 (9th Cir. 2020) (internet media websites are not government actors under the First Amendment);

The other case, also highlighted by Eric Goldman, isn't a pro-se filing like the other two, but at least marginally (in the most marginal of senses) more serious. It was filed on behalf of Cameron Atkinson against Facebook (though the caption is now updated to Meta!) who claims that Facebook broke the law in "censoring" him. The details of the complaint are... really something.

Like many of his fellow citizens and students of the law, the Plaintiff, Cameron L. Atkinson is a thinker who, regardless of whether he is right or wrong, loves to share his thoughts and hear the thoughts of others. He regularly posts on Facebook about political and legal developments with the same civility that he would use in the courtroom or the classroom, seeking to engage in debate with the community of fellow law students and other friends whose respect he has gained.

The Plaintiff, Cameron L. Atkinson, is also an inquiring man who rarely rushes to judgment, often choosing to find out for himself before condemning someone.

Consequently, when Cameron L. Atkinson learned from friends that Facebook was censoring conservatives' posts that mentioned the name of Eric Ciaramella, the alleged Ukranian whistleblower who has provided the impetus for the pending impeachment proceedings against President Donald Trump, he decided to test the scope of Facebook's censorship himself.

Cameron L. Atkinson's first post occurred on the morning of November 11, 2019. He published a post on Facebook that read "Test post: Eric Ciaramella is a hero for blowing the whistle on the Trump administration's treason with Ukraine." See Exhibit 1

Approximately four minutes later, Cameron L. Atkinson published a second test post on Facebook that read "Test post 2: Eric Ciaramella is a dirty lying rat for trying to take down the Trump administration." See Exhibit 1.

Cameron L. Atkinson's object in publishing these posts was to see if Facebook would censor one post, but not the other.

Within 5 hours, Facebook removed both of Cameron L. Atkinson's posts with no warning or notification.

After learning of Facebook's censorship, Cameron L. Atkinson published a third post that read as follows:

I have conflicting thoughts about the naming of Eric Ciaramella, the alleged Ukraine whistleblower. Tattling in the dark shadows destroys public confidence in a matter of serious public interest. On the other hand, the vitriolic nature of our society may very well raise concerns for his safety. However, it may also end up protecting his well-being. Regardless, I think that people should be open to debating the merits of this serious public question.

See Exhibit 2.

Again, less than 5 hours later, Facebook removed Cameron L. Atkinson's third post without notifying him or warning him

The complaint alleged a bunch of violations of things that do not exist:

The Plaintiff claims a violation of his rights under the First Amendment to the United States Constitution, violations of the Communications Decency Act, statutory fraud, theft, a breach of the implied warranty of fair dealing, and violations of the Connecticut Unfair Trade Practices Act (CUPTA)

The case was transferred from Connecticut to California under Facebook's Meta's terms of service, and then tossed out easily by the district court. The appeals court upholds the lower court ruling, but as Goldman notes, the ruling is a bit sloppy (and also they did it as non-precedential for unclear reasons).

But, as the court points out, the 1st Amendment claims are ridiculous because Facebook (shut up, it's not "Meta") is not a state actor:

The district court properly dismissed Atkinson’s First Amendment claim because he did not allege sufficient facts to infer that Meta Platforms is a government actor. Unless certain exceptions apply, the First Amendment only restricts government action. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (enumerating exceptions). Dismissal is proper when a complaint lacks “a cognizable legal theory” or “sufficient well-pleaded, nonconclusory factual allegations” to state a plausible claim for relief....

Atkinson does not allege plausibly that the federal government “compel[led] [Meta Platforms] to take a particular action,” Halleck, 139 S. Ct. at 1928, or “exercised coercive power,” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Allegations of federal coercion do not support the deprivation under color of state law that Atkinson pleaded. See 42 U.S.C. § 1983; Heineke v. Santa Clara Univ., 965 F.3d 1009, 1013 n.3 (9th Cir. 2020) (finding that private actors are only subject to § 1983 liability under a state action theory). Even if such facts could support his claim, Atkinson does not allege federal coercion sufficiently. Instead, his allegations cast Meta Platforms’ decision to adopt community standards as a self-interested business decision.

Atkinson also does not plead sufficient facts to infer that Meta Platforms acted jointly with state governments. Halleck, 139 S. Ct. at 1928. We need not accept as true factual allegations that Atkinson’s submitted exhibit contradicts. Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014). To the extent that Atkinson’s allegations are not contradicted, they still do not reflect joint action. Absent more, the fact that state officials responded to Meta Platforms’ unsolicited inquiries does not plausibly allege such a degree of “interdependence . . . that [the state] must be recognized as a joint participant” in Meta Platforms’ editorial decisions. Tsao v. Desert Place, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (citation omitted). Atkinson does not offer other facts that would make a joint action claim plausible, such as an agreement between state governments and Meta Platforms; state participation in Meta Platforms’ corporate governance; financial ties between state governments and Meta Platforms; or Meta Platforms’ regulation of state activities. Cf. Brentwood v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298–302 (2001) (explaining state action existed under such circumstances). We cannot infer that state officials “dominate[d]” Meta Platforms’ decision making from Atkinson’s allegations.

Then there's the question, pushed by Rubenfeld and other very foolish people, that Section 230 magically turns websites into state actors. The court says "nuh uh" without much elaboration:

Finally, Section 230 of the Communications Decency Act does not independently transform Meta Platforms into a government actor for First Amendment purposes

Basically, that line of argument is so dumb it doesn't even require any analysis other than saying "no, that's not true."

As for "violating Section 230," well, that's not a thing.

Section 230 does not explicitly create a private right to sue, see 47 U.S.C. § 230, nor do its “language, structure, context, [or] legislative history” implicitly reflect any congressional intent to establish one. Lil’ Man in the Boat, Inc. v. City and County of San Francisco, 5 F.4th 952, 958 (9th Cir. 2021). Section 230 is not “phrased in terms of [individual] persons benefited.” ...

It's somewhat telling how easily and quickly courts are dumping these claims, at the same time that the usual grifters and nonsense-peddlers continue to insist that there's a reasonable legal argument that social media are somehow state actors. They are not and no one should take seriously anyone who claims otherwise.

Filed Under: 1st amendment, section 230, social media, state actors
Companies: facebook, linkedin, youtube

Washington Post Forgets It Fought (And Won) Legal Battle Against Mandatory Transparency; Now Demands Internet Co's Face The Same

from the psst,-editorial-board,-speak-to-your-lawyers dept

A few years ago the Washington Post (and a bunch of other newspapers) fought and won a fairly important 1st Amendment lawsuit to strike down as unconstitutional a Maryland law that required news organizations to publicly post information about the political ads they chose to carry. The district court and then the appeals court found that the law was pretty clearly unconstitutional:

As the district court noted in a lengthy and thoughtful opinion, Washington Post, 355 F. Supp.3d at 272-306, the Act is a content-based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland's law is a compendium of traditional First Amendment infirmities.

Specifically, the court found that the compelled speech aspect of the law was particularly problematic:

Taken together, the Act's publication and inspection requirements ultimately present compelled speech problems twice over. For one, they force elements of civil society to speak when they otherwise would have refrained. Time and again, the Supreme Court has made clear that it makes little difference for First Amendment 515*515 purposes whether the government acts as censor or conductor. Indeed, the "freedom of speech `includes both the right to speak freely and the right to refrain from speaking at all.'" Janus v. Am. Fed'n of State, Cty. & Mun. Emps. Council 31, ___ U.S. ___, 138 S. Ct. 2448, 2463, 201 L.Ed.2d 924 (2018) (quoting Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (internal quotation omitted)). It is the presence of compulsion from the state itself that compromises the First Amendment. The Amendment extends "not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).

What's more, the fact that the Act compels third parties to disclose certain identifying information regarding political speakers implicates protections for anonymous speech. Requiring the press itself to disclose the identity or characteristics of political speakers is a problematic step. See Branzburg v. Hayes, 408 U.S. 665, 709, 92 S.Ct. 2646, 33 L.Ed.2d 626 (Powell, J., concurring) (noting that newsmen faced with a grand jury subpoena are not "without constitutional rights with respect to the gathering of news or in safeguarding their sources"); id. at 725, 92 S.Ct. 2646 (Stewart, J., dissenting) (requiring the press to disclose its sources risks "annex[ing] the journalistic profession as an investigative arm of government"). This country, moreover, has "a respected tradition of anonymity in the advocacy of political causes." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Much as our forebears elected to hash out the architecture of this nation under the pseudonyms of "Publius" and "Agrippa," many political advocates today also opt for anonymity in hopes their arguments will be debated on their merits rather than their makers. See id. at 343, 343 n.6, 115 S.Ct. 1511. To be sure, this tradition of anonymity is anything but absolute. But revelations of executive misconduct throughout our history have often been anonymously sourced. And when the government enlists the press to disclose the sources of political speech, thus potentially exposing those speakers to identification and harassment, First Amendment protections and values come into play. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 14-15, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion).

Apparently, the editorial board of the Washington Post is wholly unfamiliar with this lawsuit and the fact that its own publication won this lawsuit just two years ago. Because in a new opinion piece, the Editorial Board of the Washington Post calls for nearly identical requirements for internet companies. Really.

Specifically, the Washington Post endorses the extremely problematic recommendations from the Aspen Institute's Commission on Information Disorder:

The report starts, as any study aimed at restoring trust and truth ought to, by acknowledging reality: “In a free society, a certain amount of misinformation will always exist.” The hope isn’t to punish every exaggeration, piece of propaganda or flat-out lie but to home in on the most egregious damage caused by specific types of mis- and disinformation — by discouraging people from spreading falsehoods and minimizing the fallout when they do. This is easiest in “empirically grounded” areas, in which facts can most clearly be found: public health and election integrity foremost among them.

How do we do it? Some steps are obvious, such as mandating more transparency from technology companies. Platforms should be required, for instance, to publish data about the content, source, targeting and reach of posts seen by large audiences, as well as produce standardized archives of the material they remove or otherwise moderate.

That "obvious" step is exactly what the Washington Post fought in court against and won just two years ago. And, it should be noted that in fighting that Maryland law, the Washington Post trotted out Section 230 as a reason that the law should be pre-empted, but the court went past that and didn't even bother with the 230 issues, noting that the 1st Amendment was the issue, and it didn't even need to bother with Section 230.

In some ways, this isn't surprising. For reasons I don't fully understand, newspapers seem to have a weird blindspot for the very laws and constitutional rights that protect themselves when there are attacks on those rights on internet companies. The more conspiratorial will insist that this is because news organizations are jealous of the success of internet companies -- with whom they often compete for ad dollars. But I think it's likely to be somewhat more fundamental than that. Institutionally, too many news organizations take such a dismissive view of the internet and the communities created on it, and look at themselves as the "defenders of truth" (hell, the Washington Post's own bizarre slogan, "Democracy Dies in Darkness" is trumpeted on every damn page). To them, the internet and social media are riff raff -- enabling the people who are too stupid for their own good to wallow in disinformation.

And, thus, the only answer must be to mandate these kinds of rules that could and should never apply to the pure giant news orgs. It's disappointing and hypocritical, but hardly surprising.

Filed Under: 1st amendment, compelled speech, disinformation, editorial independence, section 230, transparency
Companies: aspen institute, washington post

Biden Administration Intervenes In Donald Trump's Silly Lawsuit Against Twitter To Defend Section 230

from the good-for-them dept

As you'll recall, a few months ago, former President Donald Trump sued Facebook, Twitter, and YouTube claiming that his own government violated the 1st Amendment... because those three private companies kicked him off their services for violating their policies. Yes, the premise of the lawsuit is that while he was president, the actions of three private companies somehow proved that the government (which he ran) was violating his rights. The lawsuits are nonsense and they have not gone well for Trump at all. Part of the (very) ridiculous argument is that Section 230 is unconstitutional.

The lawsuit against Twitter was recently transferred from Florida (where Trump filed it) to the Northern District of California (where Twitter wanted it), and now the Justice Department has said it will be entering the case specifically to defend the constitutionality of Section 230.

The United States is entitled to intervene in this action under the Federal Rules of Civil Procedure and by statute. Rule 5.1(c) permits the Attorney General to intervene in an action where, as here, the constitutionality of a federal statute is challenged. See Fed. R. Civ. P. 5.1(c). Rule 24 further permits a non-party to intervene when the non-party “is given an unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). The United States has an unconditional statutory right to intervene “[i]n any action . . . wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question[.]” 28 U.S.C. § 2403(a). In such an action, “the court . . . shall permit the United States to intervene . . . for argument on the question of constitutionality.” Id. Here, Plaintiffs have “drawn in question” the constitutionality of 47 U.S.C. § 230(c), and the United States has an unconditional right to intervene to defend the statute.

This is, of course, slightly interesting, because President Biden himself has called for "revoking" Section 230 and the DOJ has an unfortunate recent history of terrible ideas around Section 230. So, there was at least some fear that perhaps they wouldn't bother to defend the law.

Still, the DOJ likely realizes what a horrible precedent such a case could present, even if it doesn't fully agree with the law, so it's good to see them step in and defend the law. That said, it's hard to believe that any judge would actually take the ridiculous claims in the lawsuit seriously.

Filed Under: content moderation, doj, donald trump, section 230
Companies: twitter

High Profile Commission On Disinformation Unable To Solve Disinformation Despite Having Prince Harry On Board

from the i-mean,-you-tried dept

Dealing with disinformation is not an easy problem to solve. Part of the problem is that very few people even agree how to define disinformation, or how subjective it is. Indeed, as we've noted, most of the reporting on disinformation itself is misinformation (or, at the very least misleading). That said, I still had decently high hopes for the Aspen Institute's "Commission on Information Disorder." The Aspen Institute tends to do more credible and serious work on tech policy issues than many other groups. And the project was supported by Craig Newmark, who has been funding a bunch of important research over the past few years. And, while some of the choices for who was on the Commission struck me as odd (Prince Harry?!? Katie Couric?!?), there were some very serious and very thoughtful participants on the Commission itself, acting as "advisors" to the group, and who participated in the various discussions they held.

But, perhaps the wide range of perspectives of people involved was more of a hindrance than a help. The final report that was just released is a kind of punt -- in which the Commission effectively tries to "split the baby" -- by offering a kind of middle of the road perspective, without realizing that splitting the baby was never the real goal of the anecdotal judgment.

That is, the report more or less acknowledges that the real problems are much more fundamental than disinformation (indeed, it quotes me on this very point -- even giving me a pull quote treatment -- though at no point did anyone involved in this project reach out to me or ask me for any input), but then still puts in place recommendations that don't seem to acknowledge this reality. So upfront it admits that there is a fundamental issue in that a society with arbiters of truth is not a free society:

The Commission recognizes that in a free society there are no “arbiters of truth.” As we each then evaluate which sources news consumers, citizens, and tech platforms may rely upon to inform their own decision-making—whether they are professionals, academics, nonpartisan organizations, or government institutions— we must acknowledge that this is part of a much bigger process. The news media have a responsibility to seek out the facts, and report them with relevant context for their audience. In empirically-grounded realms, we can reduce information disorder by enabling and supporting efforts based on transparent, reproducible, proven methods (e.g., scientific method for health, certification methods for elections) implemented by non-partisan, qualified professional organizations, and accountable public oversight (e.g., medical/health organizations, election process orgs).

It also highlights that perhaps "disinformation is a symptom" of a larger problem, rather than the problem itself:

Mis- and disinformation are not the root causes of society’s ills but, rather, expose society’s failures to overcome systemic problems, such as income inequality, racism, and corruption, which can be exploited to promote false information online. As Mike Masnick has written, “Saying that the disinformation is the problem—rather than a way in which the underlying problem shows itself—misses the point entirely.”

Mis- and disinformation do not exist in a vacuum. The spread of false and misleading narratives, the incitement of division and hate, and the erosion of trust have a long history, with corporate, state actor, and political persuasion techniques employed to maintain power and profit, create harm, and/or advance political or ideological goals. Malicious actors use cheap and accessible methods to deliberately spread and amplify harmful information.

It also admits that our belief in free speech means "doing something" about disinformation will likely conflict with the 1st Amendment.

First Amendment scholars and advocates have raised legitimate concerns about undermining free speech as society tries to address the most harmful content in the digital public sphere. Commissioners concluded that introducing new constraints on harmful speech would likely lead to unintentionally censoring “socially valuable speech,” like dissenting views and advocacy for minoritized, underrepresented, or vulnerable people and groups, or protected classes.

Given all of that, you would hope that the report would then focus on looking at ways to alleviate some of those underlying societal issues. But when you get to the recommendations section, it's almost as if it was divorced entirely from the first part of the report, and took very little of that into account. Admittedly, there are a lot of recommendations, and some of them seem perfectly reasonable. But the perfectly reasonable ones are unlikely to have much impact. And the ones that might have an impact seem unlikely to have the impact the authors seem to expect.

Since there are so many recommendations, I'm not going to go through them all, but I will start out with the most concerning one: changing Section 230. To be fair, the changes they suggest are somewhat limited, but still would be hugely problematic (and almost certainly unconstitutional). But, without even getting into why the suggestions are problematic, the media is already taking the "change 230" suggestion and running with it. It's buried in the back of the report, yet this is how Fast Company titled their article on this report:

That says:

Katie Couric, Rashad Robinson, and Chris Krebs say it’s time to pull immunity for social media platforms

And the subhed says:

In a new report on disinformation from the Aspen Institute, experts propose revising Section 230 and forcing social media companies to submit to data audits.

So the takeaway, is "take away 230." Even though that's not actually what the report says -- but it demonstrates how giving an inch on Section 230 means that some will seek to take a mile.

As for the actual "reforms" the report presents for Section 230, there are two separate ones. First, remove Section 230 for "paid content" which is not well defined beyond "advertising" (even though "paid content" can mean a lot more than advertising):

The Commission recommends that paid advertising content should no longer be protected under Section 230. Similar proposals have been advanced by legislators, academics, and advocates, including a bill before the House of Representatives, co-sponsored by Members of Congress Malinowski and Eshoo. Tech platforms should have the same liability for ad content as television networks or newspapers, which would require them to take appropriate steps to ensure that they meet the established standards for paid advertising in other industries. This amendment to Section 230 is tied to paid promotion to amplify or promote content, not all paid content services or subscriptions (e.g., Patreon, Netflix, OnlyFans). It is not intended to impact Section 230 (c)(2), which protects platforms from civil liability when they decide to remove objectionable content.

This part seems entirely at odds with the cautions earlier in the report about messing with 230 and the 1st Amendment implications there. It seems to assume (incorrectly) that those can be ignored when it comes to advertising or paid promotion. While it may be true that commercial speech historically is given less protection than non-commercial speech, that does not mean it has no 1st Amendment protections at all. But, a bigger point is that this kind of bill would be hugely problematic.

The ability to promote things is a key part of how small businesses succeed today. Tons of businesses rely on the ability to advertise through platforms like Google and Facebook, and increasing liability on such things will make that much more difficult. Google revolutionized the ad market by making it easy for any business to reach a very targeted audience, and to do so more or less automatically. That's not to say the system is perfect, but it has created tremendous benefits for many, especially small businesses, and adding liability to the process would greatly limit it for small businesses.

Even worse, at a time when lots of folks are worried about the power and control that Google and Facebook have over this market, a change like this to 230 would lock in those two providers as more or less the only ones that could take on the liability. Thus it would do damage to competition.

Also, it simply remains unsubstantiated that this would fix anything. Most of the content that people are concerned about regarding disinformation isn't being spread through paid advertisements. Sure there are a few odd cases here and there, but there's little evidence to suggest that the spread of disinformation is really driven by paid promotion.

Perhaps even more odd is that in the "rationale" section for why they want this change, the report's authors... never actually explain the rationale. It's quite odd. They just talk about how old Section 230 is and how it hasn't been updated in a while. But what does that have to do with advertisements and paid promotion? It just briefly mentions that paid promotions are "used by bad actors to promote questionable health cures, and by political campaigns to smear opponents."

But... that leaves out an awful lot. (1) Political campaigns have always smeared opponents. That's not new to social media or the internet. It's also (whether you like it or not) protected under the 1st Amendment with only a few extremely limited exceptions (out and out defamation, which has an extremely high bar for a public figure running for office). (2) The report makes no effort to provide any evidence as to how big (or not!) a problem this actually is. Social media sites have actually been quite aggressive in looking to take down "questionable health cures" because they know those are problematic. Indeed, it's Section 230's broad protections that allow the companies to feel confident that they can moderate this way without fear of legal liability.

So there's no clear evidence that paid promotion is the problem. There's no clear evidence that changing 230 over this issue would "fix" any of the so-called problem, considering that most of it is protected under the 1st Amendment anyway, and thus any lawsuits would fail. So how is this possibly a thoughtful and considered recommendation?

The second change to Section 230 would be to remove it for recommendation systems:

A Section 230 exclusion for product design features would clearly delineate between the speech of platform users and the platforms themselves. This would include explicitly designating the output of recommendation algorithms (group recommendations, friend recommendations, “watch next” recommendations) as not being user speech and therefore not covered by Section 230 (to the extent that the recommendations themselves might cause harm).

Again, this has been suggested by others, and would have massive 1st Amendment implications. A recommendation is speech. A recommendation is an opinion. And that's protected under the 1st Amendment. Removing it would discourage sites from offering their recommendations and thus would be a move by the government to suppress speech. That's a pretty big 1st Amendment problem. Clearly some of the people this Commission spoke to pointed this out -- as explained in the first part of the report -- but when the authors got here, they appeared to have forgotten this pretty key point.

The rationale section here is even worse -- as it takes a misunderstanding of what happened in two cases and extrapolates out in very dangerous ways:

One clear need is to carve out actions by the platform that lead to real-world harm, but that would fall outside of speech from Section 230. For example, in Herrick v. Grindr, the product tools allowed a malicious user to wage a campaign of impersonation and harassment against their ex-partner. Grindr first ignored requests for intervention, then claimed Section 230 immunity.

In the decision for Force v. Facebook, a case where Facebook’s algorithms were implicated in the promotion of terrorist groups, but ultimately were shielded by Section 230 immunity, Judge Katzman wrote, “As today’s decision also illustrates the extensive immunity that the current formulation of the CDA already extends to social media companies for activities that were undreamt of in 1996. It therefore may be time for Congress to reconsider the scope of Section 230.”

Here's the thing, both cases were clearly decided correctly, even as some push a propaganda campaign (largely driven out of animosity towards Section 230) to argue otherwise. In Grindr, the plaintiffs were mad at the wrong party. Grindr wasn't the one doing the bad stuff. It was the user. And what is always left out of these discussions (in fact, sometimes completely mischaracterized) is that the police arrested the ex-partner and he was sentenced to jail for his actions.

In other words, the criminal system worked. It did what it was supposed to do.

The fact that the guy couldn't blame the platform for what one of its users did wasn't a bug. It's exactly what the law is supposed to do.

As for Force v. Facebook, that was a ridiculous case in which the families of some Americans who were killed by Hamas in Israel wanted to sue Facebook because some Hamas members had, at times, used Facebook. What did the attacks have to do with Facebook? Absolutely nothing. The plaintiffs put forth a totally unsubstantiated theory that Hamas used Facebook to encourage attacks, and therefore the attacks could be blamed on Facebook. That would (maybe?) be more convincing if Hamas didn't have a long history of similar attacks dating back long before Facebook even existed.

There was simply no connection between the attacks and Facebook, and all Section 230 did here was to help get a bad case dismissed with less hassle. The same thing that happened in the Grindr case.

This is the point of Section 230: to stop bogus, costly cases that are mere money grabs, blaming not the party who did anything wrong, but a random 3rd party with a bigger bank account. It's ridiculous that this report would cite those two cases as evidence that 230 needs reform. Those two cases are evidence of why Section 230 is so necessary.

Incredibly, the report claims that this feature -- getting rid of obviously bogus cases at an earlier stage -- is somehow a bug of Section 230, and that it should be changed to allow plaintiffs to go on fishing expeditions for some sort of evidence to prove their claims. That's a recipe for a dangerous level of nuisance lawsuits, encouraging anyone to sue and sift through tons of records looking for anything they can try to pin liability on. This will be stunningly costly for lots of small companies who rely on Section 230. It's a stunning misunderstanding of how Section 230 works, and really discredits this entire report.

Given how much effort and resources went into researching and creating this report, that this is the conclusion they come to is not just upsetting, it raises serious questions about the entire process.

Filed Under: disinformation, katie couric, prince harry, section 230, societal problems

Jury Correctly Recognizes That Print-On-Demand Website Isn't A 'Counterfeiting' Business Engaged In Infringement

from the good-to-see dept

Phew. Earlier this year, I wrote about a case I witnessed down in LA, in which the print-on-demand website RedBubble was deemed by a jury to have infringed on the trademark rights of the clothing store Brandy Melville, despite not actually selling any items that matched Brandy Melville's trademarks on clothing that Brandy Melville sells -- and being extraordinarily proactive in taking down things once alerted to the fact that certain designs might be infringing. Again, as noted, I served as an expert witness in that case and filed a report, but did not need to testify. The very same law firm, representing a few different plaintiffs, has been busy suing RedBubble and other print-on-demand businesses, apparently trying to carve out a niche. Since that ruling, there has been a lot of back and forth between the parties (some of it quite... emotional), but as it stands now, the ruling has been appealed to the 9th Circuit, where it should be an interesting one to watch.

Another case, from the same law firm, against RedBubble was filed on behalf of Atari. Again, I was an expert, and filed a report. As the trial approached, the lawyers for Atari sought to exclude me from testifying, which was (at the very least) amusing, as it claimed that I "cannot offer an opinion as to the difficulty of content moderation generally" (despite highlighting how much academic work I've done doing research, reports, and other projects regarding content moderation). For a variety of reasons (unrelated to that filing), I didn't get to testify this time either, but thankfully the end result of this case was different than the one in LA: the jury found no infringement at all by RedBubble.

I wasn't able to attend this case in person like the last one, so I didn't get to witness the full trial, but RedBubble's Motion for Judgment as a Matter of Law filed at the conclusion of the trial lays out a pretty clear picture of what happened. At the trial, it was made clear that RedBubble, as a print-on-demand service, is simply an intermediary, not the actual seller of any of the products.

Here, the evidence introduced at trial shows as a matter of law that Redbubble is merely a transactional intermediary. First, it is undisputed that Redbubble does not control essential terms of the transaction. As Redbubble’s witnesses Mr. Deshais, Mr. Toy, and Mr. Hosking testified, Redbubble does not select the art that is offered for sale, the particular products (such as t-shirts or mugs) on which a piece of art may be printed, the title and tags for a product listing, or the price of product—the artist controls those details. Mr. Hosking also testified that Redbubble exists to allow artists to sell their art to a global audience. See Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App’x 879, 886–87 (Fed. Cir. 2017) (holding that Amazon was not a “seller” for direct copyright infringement, in part because Amazon “did not control what information or pictures were put on the product-detail page, nor did it control the price for which the product was sold”; rather, “third-party sellers as applicable to their products, controlled these details at all times”); see also Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 103 (2d Cir. 2010) (eBay not directly liable for sale of counterfeit Tiffany jewelry on its website). Indeed, in Y.Y.G.M. SA v. Redbubble, Inc., the court granted summary judgment for Redbubble on the question of direct trademark liability, reasoning that because Redbubble’s service fee is the same regardless of the price charged by the artist, Redbubble’s “fee-based business model indicates the role of a service provider rather than a seller, as a seller almost invariably adjusts its price in relation to the value of the goods in question.”

Also, a key in both cases is that the law firm for the plaintiffs wanted to show counterfeiting (which has significant statutory damages). But to counterfeit, you have to show that they're selling an actual copy of a product being sold and that the seller knew it was counterfeit. That didn't happen:

Atari has not shown that Redbubble intentionally used a counterfeit mark or knew that the mark was counterfeit. The Ninth Circuit has held that to receive statutory damages for counterfeiting, the plaintiff must show that “(1) [The defendant] intentionally used a counterfeit mark in commerce; (2) knowing the mark was counterfeit; (3) in connection with the sale, offering for sale, or distribution of goods; and (4) its use was likely to confuse or deceive.” State of Idaho Potato Comm’n v. G&T Terminal Packaging, Inc., 425 F.3d 708, 721 (9th Cir. 2005); McCarthy 25:10 (“Counterfeiting is the act of producing or selling a product with a sham trademark that is an intentional and calculated reproduction of the genuine trademark.” (emphasis added)).

Even assuming Atari can prove that a counterfeit mark was used on Redbubble, Atari did not provide any evidence that Redbubble acted with intent or knowledge that any design was a counterfeit mark. Indeed, the Court already resolved the issue of Redbubble’s knowledge at summary judgment, holding that “Atari fails to establish either knowledge or willful blindness to infringement of Atari’s copyrights,” Dkt. No. 97 at 31, and that it “reaches the same result as to Atari’s trademark claims,” Dkt. No. 127 at 2. This is because “Atari provides no evidence that Redbubble knew of specific infringing material.” Dkt. No. 97 at 28-29 (cleaned up). To know that a mark was counterfeit and intentionally use a counterfeit mark in commerce, Redbubble would have to know of the specific material in question, which the Court has already ruled Redbubble does not. Even had the Court not already decided that issue, Atari did not provide any evidence at trial suggesting Redbubble had knowledge of specific material on its website, much less that any specific material constituting a counterfeit mark. Thus, the Court should grant judgment for Redbubble on Atari’s counterfeiting claim.

I am assuming that Atari will appeal to the 9th Circuit, and these two cases are going to be fairly important in determining whether or not print-on-demand can even exist as a business.

In my post on the Brandy Melville case, I noted that it was a sneak peek into a world without intermediary liability protections like Section 230 (since courts have determined that trademark is outside of the protections of 230). Even this "victory" highlights how important protections like Section 230 are. The key benefit of Section 230 is that it helps get cases like this one dismissed early and inexpensively. Even with RedBubble's win here, this case had to go through many expensive stages, including all the way through a jury trial (which is insanely expensive).

I've seen some people say that without 230 things will be fine because companies can still win down the road, but the expense of reaching "down the road" may be way too much for many companies, especially smaller ones, to survive. It's good that RedBubble won here, though I expect the real battle over all this is only just about to start on the appeal.

Filed Under: copyright, counterfeiting, intermediary liability, jury, print on demand, section 230, trademark
Companies: atari, redbubble