Connecticut Court Orders Blogger To Turn Over Electronic Devices To Cop Suing Over Alleged Defamation By Blog's Commenters

from the all-the-wrong-that's-fit-to-issue-as-an-order dept

Things are getting dumber and way less constitutional in a defamation lawsuit filed by a Connecticut law enforcement officer. Lt. Vincent Benvenuto -- despite being the beneficiary of all the official and codified protection and forgiveness government workers only seem willing to give to other government employees -- sued a blogger, demanding the blogger hand over identifying information on commenters who offended the Lieutenant.

Commenters at the We the People Hartford blog -- run by Hartford resident Kevin Brookman -- made allegations that Benvenuto was a bad cop. The cop sued, and targeted the site's owner as if he was personally responsible for users' comments. The comments Benvenuto sued over said -- basically -- that Benvenuto was a cop.

While an officer with the New York Police Department, the comment read, Benvenuto “was racist so they kept him out of queens and Bronx.” Other comments accused the 12-year Hartford police veteran of sleeping on the job, leaking information and making racist and threatening comments.

Any cop accused of racism who decides to take litigious offense to that sort of heated rhetoric hasn't been paying attention. Or if they have been paying attention, they're too thin-skinned to be entrusted with the powers they've been granted. To be a cop is to hold an occupation long associated with bigotry and racism. Most law enforcement agencies can trace their origins back to being tasked with ensuring slave owners maintained control of their slaves. The years have passed, but most police activity still disproportionately targets minorities and provides support for the white status quo. So, to be accused of racism is pretty much inseparable from being accused of being a cop.

That summary of accusations by the Hartford Courant is the short version. The long version can be read in Benvenuto's lawsuit, which lists a whole bunch of presumed causes of action, but none that directly implicate the blog owner. All he did was run a blog. If commenters defamed Benvenuto, the cop is free to sue them directly. But he hasn't done that. He has brought the blog owner to court in hopes of forcing him to turn over information on commenters.

That lawsuit is a mess. Some of its runtime involves accusing commenters of violating Hartford PD policies, suggesting Benvenuto thinks coworkers who don't like him are complaining about him in the comment section of the blog. If so, this is something to be handled by the PD, not by litigation. And, also if so, this suggests Benvenuto is the racist jerkwad commenters allege him to be, because who would know better than the people who work with him?

Some really good questions have been raised by this litigation, but only by people who have covered the lawsuit, rather than the plaintiff or the judge. Unfuckingfortunately, the judge handling the case is apparently easily swayed by the pleadings of an unhappy cop who can't be bothered to direct his energy at the people who allegedly defamed him.

A Connecticut judge has ordered blogger Kevin Brookman — a frequent critic of the Hartford Police Department — to turn over his laptop and cellphone as part of a police lieutenant’s quest to identify and sue anonymous commenters who disparaged him on Brookman’s site.

No doubt this ridiculous and harmful order will be challenged. Almost undoubtedly, the next level in the state court system will return a What The Actual Fuck ruling that forbids the officer from taking possession of the blogger's electronic devices. But, for the time being, the order stands. And it stands as a blatant assault on First Amendment rights, as well as a complete rejection of longstanding Section 230 case law.

No shelter says the judge… because reasons.

“The accusation of racism is particularly offensive in the context of the Hartford Police department which must not only remain free from bias against its own members but also the public at large,” Superior Court Judge Cesar Noble wrote in his decision.

The accusation may be offensive but it's up to the PD to dissuade people that it's racist. Allowing an easily offended cop to commandeer the electronics of a person who did not actually make accusations of racism is a complete perversion of the judicial process. The court is not there to shield the police department for accusations of racism. It is there to determine whether there's any truth to these accusations -- and only when it actually has the accusers in court. All it has right now is the plaintiff and someone the plaintiff has decided to take legal action against, even though this person did not make these claims.

This is nothing more than the court giving someone with an immense amount of power even more power. And for what? To shield the officer and the department he works for from accusations from still-anonymous commenters that racism exists within the PD. This is a terrible ruling and it will only encourage other offended cops in the region to file baseless lawsuits targeting people who should be non-parties. And that's why it's unlikely to survive even the most cursory challenge.

Undoubtedly, it will be difficult for the officer to identify the people behind the supposedly defamatory contents. But that is the way it should be. Anonymous commenting should be protected and, indeed it is, especially in the context of criticizing government employees. Section 230 should make the blog owner immune from bullshit like this, but this has been all too conveniently ignored by the presiding judge -- one who apparently believes the only immunity worth awarding here is one shielding a cop shop from its critics.

Filed Under: 1st amendment, anonymity, anonymous comments, cesar noble, comments, connecticut, defamation, hartford, hartford pd, hartford police department, kevin brookman, section 230, vincent benvenuto

Backpage Founders Trial Finally Begins

from the where-will-it-end? dept

It's been over three years since Backpage.com was seized (the week before FOSTA was signed into law -- which is notable since every conversation about the need for FOSTA claimed it was because existing laws were useless to stop Backpage). However, in the intervening years we've seen that the loss of Backpage, rather than "protecting" women, seems to have put women at much greater risk. The recent Government Accountability Office (GAO) report highlighted how the loss of Backpage, combined with FOSTA, has made it difficult for law enforcement to track down actual sex traffickers.

As more of the backstory behind the war on Backpage came out, the more ridiculous it looked. The company actually was incredibly helpful in working with law enforcement to track down and stop sex trafficking. The problem came when law enforcement wanted to stop more than actual sex trafficking, and started going after consensual sex work. Backpage pushed back, suggesting that was too far, and that's when the government turned Backpage into being a villain.

With the trial beginning, the Daily Beast has as pretty comprehensive and pretty fair article detailing the whole thing, including raising serious questions about what exactly Backpage's founders actually did to deserve this criminal trial.

According to documents published by Reason, federal prosecutors in the Western District of Washington reviewed more than 100,000 documents and interviewed more than a dozen witnesses in 2012 in an attempt to bring a case against Backpage, but failed to find a smoking gun. In fact, according to a memo written by two assistant U.S. attorneys at the time, local FBI agents found the company “remarkably responsive to law enforcement requests” and said the site “often takes proactive steps to assist in investigations.”

“At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct," the attorneys wrote in a 2013 update to the memo. "It was also anticipated that we would find numerous instances where Backpage learned that a site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither.”

The article also notes how damaging FOSTA and (relatedly) the loss of Backpage has been:

In the weeks after its passage, FOSTA/SESTA felled not only Backpage, but other adult advertising sites like Massage Republic and Cityvibe, and even the Craigslist personal ads section. The impact was tangible: A survey from the sex worker advocacy group Hacking/Hustling found 33.8 percent of respondents reported an increase in violence from clients after the law was signed, and 72.5 percent reported they were facing increased financial insecurity. Advocates related stories of sex workers who were thrust into the arms of pimps in order to find work, or back into abusive relationships for want of somewhere to stay.

The article does note that the founders on trial, Jim Larkin and Michael Lacey, could be highlighting the harm to sex workers that came from taking down Backpage, but instead they've focused specifically on the "free speech" arguments.

Whether Larkin and Lacey want this status is less clear. Their pre-trial statement paints them as free-speech warriors valiantly defending “offensive” and unpopular speech.” Conspicuously missing from the statement, as journalist Melissa Gira Grant pointed out on Twitter, are the words “prostitution” or “sex work;” there is only a glancing reference to “adult advertising.”

Kaytlin Bailey, a former sex worker and host of The Oldest Profession Podcast, says the longtime newspapermen are now telling the wrong story.

“I were in their shoes, the story I would be telling is the story of the survival of their users,” she said, referring to the sex workers who lost their source of income when the site was taken offline.

“They think of themselves as free speech warriors, and I think sex workers think of themselves as in a fight for survival.”

The article also quotes Prof. Alexandra Yelderman, who has been one of the top scholars on the dangers of things like FOSTA and removing sites that facilitated speech, highlighting just how questionable this lawsuit actually is:

Alexandra Yelderman, a visiting assistant professor at the University of Notre Dame Law School, argues that the trial still holds serious significance—more so than the criminal prosecutions of RentBoy, myRedBook, and other adult websites. While those sites only advertised sex work, Yelderman said, Backpage advertised other services, such as housing, cars, and temporary jobs. And everyone should be concerned that the government would jeopardize that kind of speech to get at the other stuff.

“What the Backpage takedown and prosecution is an example of is the government's willingness to throw all sorts of speech under the bus here, in order to get at speech that—according to the indictment—facilities the crime of prostitution,” she said.

“This is not a trafficking prosecution,” she added. “This is a case where allegations that [the founders] facilitated prostitution were an impetus for the government to take aim at this entire swath of speech.”

Whether you liked Backpage or not -- and it's fair to criticize some of the company's business practices -- this trial is incredibly important. And given the nature of the subject matter (not to mention some serious concerns about the judge's conflicts--she's married to the state Attorney General who campaigned against the website), there's a decent chance of a ruling here that will set a terrible precedent both for free speech online and for sex workers.

Filed Under: 1st amendment, fosta, free speech, james larkin, michael lacey, section 230, sex trafficking, sex work, user generated content
Companies: backpage

Where Texas' Social Media Law & Abortion Law Collide: Facebook Must Keep Up AND Take Down Info On Abortion

from the fucking-idiots dept

It's always astounding to me how little most policymakers consider how many of the policies they push for contradict one another. On Wednesday, the Texas Senate easily approved its version of HB20, the blatantly unconstitutional bill that tries to prevent social media websites from moderating content that Texas Republicans want kept up -- explicitly saying that Facebook must leave up vaccine misinformation, terrorist content, and Holocaust denialism. While the bill does include some language to suggest that some content can be moderated, it puts a ton of hurdles up to block that process. Indeed, as the bill makes clear, it does not want Facebook to moderate anything.

The legislature finds that:

(1) each person in this state has a fundamental interest in the free exchange of ideas and information, including the freedom of others to share and receive ideas and information;

(2) this state has a fundamental interest in protecting the free exchange of ideas and information in this state;

Of course, you may have also heard the other big of news out of Texas this week, which is that after the Supreme Court refused to block it, Texas' extreme anti-choice law has gone into effect, more or less banning all abortions. But the law goes even further than that. It also says you cannot "aid and abet" someone getting an abortion, and "aiding and abetting" is defined quite broadly under the law:

Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter

This is bizarre on multiple levels. First, it's allowing anyone to sue anyone else, claiming that they "aided and abetted" an illegal abortion if they merely "induced" someone to get an abortion.

So... let's say that someone posted to a Facebook group, telling people how to get an abortion. Under Texas's social media law -- remember "each person in this state has a fundamental interest in the free exchange of ideas and information" -- Facebook is expected to keep that information up. However, under Texas' anti-choice law -- remember, anyone can sue anyone for "inducing" an abortion -- Facebook theoretically faces liability for leaving that information up.

So who wins out? Well, it should be that both bills are found to be unconstitutional, so it doesn't matter. But we'll see whether or not the courts recognize that. Section 230 should also protect Facebook here, since it pre-empts any state law that tries to make the company liable for user posts, which in theory the abortion law does. The 1st Amendment should also backstop both of these, noting that (1) Texas' social media law clearly violates Facebook's 1st Amendment rights, and (2) the broad language saying anyone can file civil suit against anyone for somehow convincing someone to get an abortion also pretty clearly violates the 1st Amendment. Update: As has been pointed out, the abortion law does say, explicitly, that the aiding and abetting rule should not apply to 1st Amendment protected speech, so there is something of an escape hatch here, and the state can say that it never intended the law to target speech as "aiding and abetting." I don't see that as making much of a difference in the long run because (1) the 1st Amendment already protects such speech so you don't need a law to say that and (2) it's unlikely to stop people from suing over speech that they claim is aiding and abetting...

But, until the courts actually rule on this, we don't just have a mess, we have a contradictory mess thanks to a Texas legislature (and governor) that is so focused on waging a pointless culture war against "the libs" that they don't even realize how their own bills conflict with one another.

Filed Under: 1st amendment, abortion, aiding and abetting, content moderation, free speech, section 230, texas
Companies: facebook

eBay's FOSTA-Inspired Ban On 'Adult Content' Is Erasing LGBTQ History

from the it's-not-just-onlyfans dept

There was plenty of attention paid OnlyFans decision recently to ban "sexually explicit" content -- a policy the company suspended following an outcry. However, more and more people are noticing that the same kind of thing is happening across the internet due to FOSTA.

The New Yorker has a very interesting article describing how eBay recently banned almost all adult content on its website, and one of the consequences is that important historical LGBTQ content is disappearing. Yet again, this appears to be one of the very much intended consequences of FOSTA. You may recall that one of the major backers of FOSTA were pretty explicit that they saw it as part of their plan to stop all pornography from existing.

And, it's working:

Recently, eBay has shifted company policy in ways that will make further acquisitions of erotica difficult. In May, the platform banned the sale of “sexually oriented materials”—including magazines, movies, and video games—and closed its “Adults Only” category to new listings in the United States. There are a few explicit exemptions, including Playboy; Penthouse; the gay art zine Butt; the satirical, women-run erotica magazine On Our Backs; and something called Fantastic Men, which appears to be a misspelling of the PG-rated men’s style magazine Fantastic Man. “Nude art listings that do not contain sexually suggestive poses or sexual acts are allowed,” the policy states. Materials falling afoul of such distinctions—which could presumably include anything from reproductions of Michelangelo’s horned-up “The Expulsion from Paradise” to back copies of Black Inches—are, apparently, now beyond the pale.

The ban appears to be related to the House’s Fight Online Sex Trafficking Act and the Senate’s Stop Enabling Sex Trafficking Act, known together as FOSTA-SESTA, an effort by victim’s-rights advocates and right-wing activists to crack down on sex work. One feature of the legislative package was to make Web sites liable for hosted content that might “promote or facilitate the prostitution of another person.” After Donald Trump signed FOSTA-SESTA into law, in 2018, Craigslist shut down its personals listings, Tumblr banned sexual content, Facebook prohibited the formation of groups organized around sexual encounters, and Instagram ramped up its policing of user content, especially that which includes any hint of human nudity. Also of possible relevance: eBay recently began using the Dutch fintech company Adyen for electronic payment services. Like many payment-processing companies, Adyen refuses to participate in the sale of adult materials. Similar concerns by payout providers were reportedly at the center of the recent decision by OnlyFans, the content subscription platform, to ban sexual content—a move they reversed after considerable outcry led by the sex workers who, in large part, helped the company build a valuation of some one billion dollars. In a written statement to me about the change in policy at eBay, a spokesperson said, “eBay is committed to maintaining a safe, trusted and inclusive marketplace for our community of buyers and sellers and we are continually reevaluating product categories allowed on the platform.”

Congrats to Amy Schumer, Tony Shalhoub, Seth Meyers and Josh Charles for the success in your "advocacy" for FOSTA.

As the New Yorker notes, the impact here is pretty significant. Researchers, archivists, historians, and museums are now all missing out.

Drew Sawyer, a curator at the Brooklyn Museum, said that he has “often turned to eBay for printed matter, magazines, zines, and photographical reproductions” when preparing exhibitions. “Even if—if—they’re archived in libraries, they’re often easier to buy on eBay from logistical and registrarial perspectives. And also cost.” For an upcoming retrospective, Sawyer won a copy of the photographer Jimmy DeSana’s self-published 1979 monograph, “Submission: Selected Photographs.” It’s one of only a hundred or so copies ever made, and a crucial document of a moment when queer sexuality and conceptual art intermingled. “DeSana is an artist whose work would fall under this new policy,” Sawyer said.

And it's especially important regarding important LGBTQ historical materials, since institutions, like libraries, didn't much care about that content in the past, meaning they don't have much of it.

In researching his book “Bound Together: Leather, Sex, Archives, and Contemporary Art,” Andy Campbell, an associate professor of critical studies at the Roski School of Art and Design, used both eBay and the Johnson/Carter Library, in addition to other archives around the country. “Bound Together” argues that queer archives are particularly precarious, as they often lack institutional support structures and their content is at odds with community guidelines. Yet, by making queer culture accessible, they also increase the likelihood of that more positive erasure: assimilation. The same kind of harness that once strained across a hairy chest in Tony DeBlase’s DungeonMaster magazine ends up, some four decades later, on Taylor Swift in a paparazzi shot or Timothée Chalamet on the red carpet. Campbell can still trace those historical lines of sex, style, and commerce without eBay, but it’s more difficult. “When looking at an issue of the leather magazine Drummer, I think about all the coordinated efforts of so many writers, artists, readers, and editors to represent, month after month, their experiences in this community,” he told me, over e-mail. “With DungeonMaster, which was a near-solo labor of love for DeBlase, I think about the radical abilities of one extremely-driven person to educate and titillate his community. That either exists is a miracle.” When it comes to finding them, “It’s a bummer that eBay won’t be that platform any longer.”

There's a lot more in that New Yorker piece, but the summary is that this important bit of history is being stamped out thanks to a bunch of prudes and "well meaning" supporters of FOSTA who were sold a bill of goods that Section 230 was evil.

Filed Under: 1st amendment, adult content, archives, culture, fosta, free speech, history, lgbtq, section 230, sex
Companies: ebay, onlyfans

Academic: Problems Created By Undermining Section 230 Can Be Solved... By Undermining Section 230?

from the say-that-again? dept

I remain confused at why so many people endorse Macarthur Genius award winner, Prof. Danielle Citron's views on Section 230. Over and over again people say that her ideas for reforming Section 230 are sensible. Except that they are not. She has falsely insisted that companies have no incentives to moderate and that their incentives are to push the most extreme content. This has been debunked over and over again. If it were true, then every website would turn into 8kun. But that doesn't happen, because most websites realize that when your website is full of garbage people, it drives away other users (including those more likely to support you or your advertisers) and it drives away advertisers.

Citron's big idea is to put in place a duty of care or "reasonableness" standard, but we've explained at length why that's the kind of idea only an academic with no experience running a website could love. It would lead to a ton of costly litigation in which companies would have to repeatedly defend their moderation practices in court. At best this would lead to companies all adopting nearly identical moderation practices to whichever company survived the litigation gauntlet first -- effectively crushing any ability to experiment and innovate in the moderation market, and likely locking in Facebook as one of the few companies that can afford to handle moderation's liability risks.

All that said, I'm even more flabbergasted by Citron's initial response to the (now walked back) news that OnlyFans was planning to phase out sexually explicit content. Many, many people have made the connection between OnlyFans' decision and FOSTA, the last time Section 230 was amended to add more liability to platforms. Of course, as we've now seen, FOSTA has had a massive human cost, is leading to some wacky vexatious civil lawsuits, and according to the GAO's own study, has failed to live up to any of its promises.

In an article at CNN about the OnlyFans decision, Citron makes an absolutely bizarre claim, that the answer to OnlyFans deplatforming sex workers... is to put more liability on OnlyFans so that those sex workers can sue. I only wish I were kidding.

Just like social media companies, payment processors are protected by Section 230 of the Communications Act of 1934, Citron said. That's the signature law that grants broad legal immunity to Facebook and Twitter for many of the content-moderation decisions they make — and the law that SESTA-FOSTA amended to create an exception for sex ads.

Citron wants to see changes made to Section 230 that could expose platforms to more liability under certain circumstances. Perhaps, she said, those changes might even allow sex workers who feel their businesses have been harmed by payment processors to sue them for tortious interference.

"We're talking about OnlyFans, where we're seeing sex workers doing safe work. It's from their own homes, they're making content on their own terms," Citron said.

So... the answer to sex workers being kicked off platforms that fear that they might face liability under FOSTA hole in Section 230, is to open up another hole in Section 230 so that those sex workers can then sue OnlyFans for tortious interference?!? Um, what?

Even just bringing up tortious interference as a cause of action is bizarre. That's the same sort of argument that people like Laura Loomer have used to say people reporting her to Twitter engaged in "tortious interference" when Twitter kicked her off the platform. Tortious interference in the context discussed here seems like a plan for vexatious nuisance litigation and SLAPP suits, not any kind of legitimate cause of action.

But, even more to the point, how is it a solution to the consequences of adding more liability to say "let's just pile on more liability to deal with those consequences"? It's liability all the way down. But it's completely disconnected from how all of this works in the real world.

Filed Under: danielle citron, duty of care, intermediary liability, liability, reasonableness, section 230
Companies: onlyfans

Texas Legislature Has Another Ridiculous And Unconstitutional Content Moderation Bill; Say Goodbye To Email Filters

from the it-does-what-now? dept

You may recall last month we wrote about how the Texas legislature -- even after seeing a similar Florida bill go down in the flames of Constitutional fire -- decided to launch a special legislative session solely to focus on passing culture war legislation that plays well with ignorant voters. The bill we saw last month was in the Senate and was SB5. Now there's another bill in the House called HB20, and it's really, really dumb.

First, it tries to just outright declare social media websites common carriers, despite them possessing basically none of the characteristics of a traditional common carrier. As a side note, I find it funny how Republicans these days are obsessed with this idea of randomly declaring companies "common carriers," as they spent decades fighting against any attempt to call broadband companies common carriers, and insisting that common carrier concepts were the root of socialism or something. But, apparently, when it comes to culture wars, things like principles, consistency, and just basic common logic go out the window in favor of nonsense.

Incredibly, this bill doesn't just talk about social media -- but sweeps up email services as well. Hope you enjoyed having email filters, because Texans, you can kiss those goodbye. The legislature thinks that not forcing junk you don't want into your account violates the spammer's rights apparently. I only wish I were joking, but an actual person in a legislature put this nonsense in a bill:

IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED. An electronic mail service provider may not intentionally impede the transmission of another person ’s electronic mail message unless:

(1) the provider is authorized to block the transmission under Section 321.114; or

(2) the message contains a computer virus, as defined by Section 33.01, Penal Code, obscene material, material depicting sexual conduct, or material that violates other law.

Now, 321.114 is Texas's anti-spam law, so there's a weird contradiction here. You can't block messages... except if you think it's spam. That'll be fun to sort out in court. Of course, there are all sorts of reasons for filters that have nothing to do with spam. I get a ton of email, so I use a special filtering service that routes my mail to different boxes -- including sending certain PR emails straight into the trash. As I read this bill, that would no longer be allowed in Texas.

And this includes monetary fines. So the PR folks who are mad that I never read their emails could sue for $10 for each message "unlawfully impeded" and $25,000 for each day that their emails are so impeded as well.

I mean, seriously, what the fuck does the Texas legislature think its doing here, trying to effectively ban email filtering?

Anyway, the rest of the bill is the usual garbage -- demanding a bunch of busywork about clearer explanations of terms of service and transparency reports, while making it possible for the Texas Attorney General to sue a website if it moderates in a way the Attorney General believes is unfair (hey, that's unconstitutional!).

The whole thing is garbage that is better off used for kindling in the next Texas ice storm, not as an actual bill. It would be an absolute nightmare for social media and email providers. And for what? Because some ignorant fools think they're being targeted for their edgy ideas, when the reality is that some websites just don't want to deal with assholes? Texans, stop being babies, and grow up.

Filed Under: 1st amendment, content moderation, email, section 230, social media, texas

Now It's Harvard Business Review Getting Section 230 Very, Very Wrong

from the c'mon-guys dept

It would be nice if we could have just a single week where some major "respected" publication could do the slightest bit of fact checking on their wacky articles on Section 230. It turns out that's not happening this week. Harvard Business Review has now posted an article saying It's Time to Update Section 230 written by two professors -- Michael Smith of Carnegie Mellon and Marshall Van Alstyne at Boston University. For what it's worth, I've actually been impressed with the work and research of both of these professors in the past -- even though Smith runs a program funded by the MPAA, that publishes studies about the internet and piracy, his work has usually been careful and thorough. Van Alstyne, on the other hand, has published some great work on problems with intellectual property, and kindly came and spoke at an event we helped to run.

Unfortunately, this piece for HBR does not do either Smith or Von Alstyne any favors -- mainly because it just gets so much wrong. It starts out, like so many of these pieces, with some mythmaking, that Section 230 was passed due to "naive" techno-optimism. This is just simply wrong, even if it sounds like a good story. It then (at least) does highlight some of the good that social media has created (Arab Spring, #MeToo, #BlackLivesMatter, and the ice bucket challenge). But then, of course, it pivots to all the "bad" stuff on the internet, and says that "Section 230 didn't anticipate" how to deal with that.

So, let's cut in and point out this is wrong. Section 230's authors have made it abundantly clear over and over again that they absolutely did anticipate this very question. Indeed, the very history of Section 230 is the history of web platforms trying to figure out how to deal with the ever-changing, ever-evolving challenge of "bad" stuff online. And the way that 230 does that is by allowing websites to constantly experiment, innovate, and adapt without fear of liability. Without that, you create a much worse situation -- one in which any "false" move by the website could lead to liability and ridiculously costly litigation. Section 230 has enabled a wide variety of experiments and innovations in content moderation to figure out how to keep platforms functioning for users, advertisers, and more. But, this article ignores all that and pretends otherwise. That's doing a total disservice to readers, and presenting a false narrative.

The article goes through a basic recap of how Section 230 works -- and concludes:

These provisions are good — except for the parts that are bad.

Amusingly, that argument applies to lots of content moderation questions as well. Keep all the stuff that's good, except for the parts that are bad. And it's that very point that highlights why Section 230 is actually so important. Figuring out what's "good" and what's "bad" is inherently subjective, and that's part of the genius of Section 230, is that it allows companies to experiment with different alternatives in figuring out how best to deal with things for their own community, rather than trying to comply with some impossible standard.

They then admit that there are other, non-legal, incentives that have helped keep websites moderating in a reasonable way, though they imply that this doesn't work any more (they don't explain why or how):

When you grant platforms complete legal immunity for the content that their users post, you also reduce their incentives to proactively remove content causing social harm. Back in 1996, that didn’t seem to matter much: Even if social media platforms had minimal legal incentives to police their platform from harmful content, it seemed logical that they would do so out of economic self-interest, to protect their valuable brands.

Either way, from there, there article goes completely off the rails in ways that are kind of embarrassing for two widely known professors. For example, the following statement is entirely unsupported. It is disconnected from reality. Hilariously, it is the very "misinformation" that these two professors seem so upset about.

We’ve also learned that platforms don’t have strong enough incentives to protect their brands by policing their platforms. Indeed, we’ve discovered that providing socially harmful content can be economically valuable to platform owners while posing relatively little economic harm to their public image or brand name.

I know that this is out there in the air as part of the common narrative, but it's bullshit. Pretty much every company of any size lives in fear of stories of "bad" content getting through on their platform, and causing some real world harm. It's why companies have invested so much in hiring thousands of moderators, and trying to find any kind of technological solution that will help in combination with the ever growing ranks of human moderators (many of whom end up being traumatized by having to view so much "bad" content). The idea that Facebook's business isn't harmed by its failures on this front or that the "socially harmful content" is "valuable" to Facebook is simply not supported by reality. There are huge teams of people within Facebook pushing back against that entire narrative. Facebook also didn't set up the massive (and massively expensive) Oversight Board out of the goodness of its heart.

What Smith and Van Alstyne apparently fail to consider is that this is not a problem of Facebook not having the right incentives. It's a problem of it being impossible to do this well at scale, no matter what incentives are in place, combined with the fact that many of the "problems" they're upset about actually being societal problems that governments are blaming on social media to hide their own failings in fixing education, social safety nets, criminal justice reform, healthcare, and more.

This paragraph just kills me:

Today there is a growing consensus that we need to update Section 230. Facebook’s Mark Zuckerberg even told Congress that it “may make sense for there to be liability for some of the content,” and that Facebook “would benefit from clearer guidance from elected officials.” Elected officials, on both sides of the aisle, seem to agree: As a candidate, Joe Biden told the New York Times that Section 230 should be “revoked, immediately,” and Senator Lindsey Graham (R-SC) has said, “Section 230 as it exists today has got to give.” In an interview with NPR, the former Congressmen Christopher Cox (R-CA), a co-author of Section 230, has called for rewriting Section 230, because “the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things.”

First off, Facebook is embracing reforms to Section 230 because it can deal with them and it knows the upstart competitors it faces cannot. This is not a reason to support 230 reform. It's a reason to be very, very worried about it. And yes, there is bipartisan anger at 230, but they leave out that it's for the exact opposite reasons. Democrats are mad that social media doesn't take down more constitutionally protected speech. Republicans are mad that websites are removing constitutionally protected conspiracy theories and nonsense. The paragraph in HBR implies, incorrectly, that there's some agreement.

As for the Cox quote, incredibly, this was taken from a few years ago, in which Cox appeared to have a single reform suggestion: clarifying that the definition of an Information Content Provider covers companies that are actively involved in unlawful activity done by users. And, notably (again, skipped over by Smith and Van Alstyne) that interview occurred just after FOSTA was passed by Congress -- and now it's widely recognized how FOSTA has a complete disaster for the internet, and has put tons of people in harm's way. That seems kinda relevant if we're talking about how to update the law again.

But Smith and Van Alstyne don't even mention it!

Instead, the fall back on tired, wrong, or debunked arguments.

Legal scholars have put forward a variety of proposals, almost all of which adopt a carrot-and-stick approach, by tying a platform’s safe-harbor protections to its use of reasonable content-moderation policies. A representative example appeared in 2017, in a Fordham Law Review article by Danielle Citron and Benjamin Wittes, who argued that Section 230 should be revised with the following (highlighted) changes: “No provider or user of an interactive computer service

that takes reasonable steps to address known unlawful uses of its services that create serious harm to others shall be treated as the publisher or speaker of any information provided by another information content provider in any action arising out of the publication of content provided by that information content provider.”

Of course, as we've explained, this is a solution that only a law professor who has never had to run an actual website could love. The problems with the "takes reasonable steps" argument are myriad. For one, it would mean that websites would constantly need to go to court to defend their content moderation practices -- a costly and ridiculous experience, especially when you have to defend it to people who don't understand the intricacies and trade-offs of content moderation. I saw this first hand just a couple months ago, in watching a print-on-demand website lose a court fight, because the plaintiff insisted that any mistake in its content moderation practices proved its efforts weren't "reasonable."

At best such a setup would mean that all content moderation would become standardized, following exactly whatever plan was chosen by the first few companies to win such lawsuits. You'd wipe out pretty much any attempt at creating new, better, more innovative content moderation solutions, because the only way you could do that is if you were willing to spend a million dollars defending it in court. And that would mean that the biggest companies (once again) would control everything. Facebook could likely win such a case, screwing over tons of competitors, and then everyone else would have to adopt Facebook's model (hell, I wouldn't put it past Facebook to offer to "rent" its content moderation system out to others) in such a world. The rich get richer. The powerful get more powerful. And everyone else gets screwed.

The duty-of-care standard is a good one, and the courts are moving toward it by holding social media platforms responsible for how their sites are designed and implemented. Following any reasonable duty-of-care standard, Facebook should have known it needed to take stronger steps against user-generated content advocating the violent overthrow of the government.

This is also garbage and taken entirely out of context. It doesn't mention just how much content there is to moderate. Facebook has billions of users, posting tons of stuff every day online. This supposes that Facebook can automatically determine "content advocating the violent overthrow of the government." But it does nothing whatsoever to help define what that content actually looks like, or how to find it, or how to explain those rules to every content moderator around the globe in a manner in which they'll treat content in a fair and equitable way. It doesn't take into account context. Is it "advocating the violent overthrow of the government" when someone tells a joke hoping President Trump dies? Is it failing a duty of care standard for someone to suggest that... an authoritarian dictatorship should be overthrown? There are so many variables, and so many issues here that to just toss out the idea that it's obvious a duty of care was not taken to allow for "content advocating the violent overthrow of a government" that is just shows how ridiculously naive and ignorant both Smith and Van Alstyne are about the actual issues, trade-offs, and challenges of content moderation.

They then try to address these kinds of arguments by setting up a very misleading strawman to knock down:

Not everybody believes in the need for reform. Some defenders of Section 230 argue that as currently written it enables innovation, because startups and other small businesses might not have sufficient resources to protect their sites with the same level of care that, say, Google can. But the duty-of-care standard would address this concern, because what is considered “reasonable” protection for a billion-dollar corporation will naturally be very different from what is considered reasonable for a small startup.

Yeah, but you only find that out after you're dead, spending a million dollars defending it in court.

And then... things go from just bad and informed, to actively spreading misinformation:

Another critique of Section 230 reform is that it will stifle free speech. But that’s simply not true: All of the duty-of-care proposals on the table today address content that is not protected by the First Amendment. There are no First Amendment protections for speech that induces harm (yelling “fire” in a crowded theater), encourages illegal activity (advocating for the violent overthrow of the government), or that propagates certain types of obscenity (child sex-abuse material).

Yes, that's right. They trotted out the fire in a crowded theater trope, which already is wrong, and then they apply it incorrectly. It's flat out wrong to say that there is no 1st Amendment protection in speech that induce harm. Much such content is absolutely protected under the 1st Amendment. The actual exceptions to the 1st Amendment (which, you know, maybe someone at HBR should have looked up) in this area are for "incitement to imminent violence" or "fighting words," both of which are very, very, very narrowly defined.

As for child sex-abuse material, that's got nothing to do with Section 230. CSAM content already violates federal criminal law and Section 230 has always exempted federal criminal law.

In other words, this paragraph is straight up misinformation. The very kind of misinformation that Smith and Van Alstyne seem to think websites should be liable for hosting.

Technology firms should embrace this change. As social and commercial interaction increasingly move online, social-media platforms’ low incentives to curb harm are reducing public trust, making it harder for society to benefit from these services, and harder for legitimate online businesses to profit from providing them.

This is, again, totally ignorant. They have embraced this change, because the incentives already exist. It's why every major website has a "trust & safety" department that hires tons of people and does everything they can to properly moderate their websites. Because getting it wrong leads to tons of criticism from users, from the media, and from politicians -- not to mention advertisers and customers.

Most legitimate platforms have little to fear from a restoration of the duty of care.

So long as you can afford the time, resources, and attention required to handle a massive trial to determine if you met the "duty of care." So long as you can do that. And, I mean, it's not like we don't have examples of how this plays out in other arenas. I already talked about what I saw in court this summer in the trademark field (not covered by Section 230). And we have similar examples of what happens in the copyright space as well (not covered by Section 230). Perhaps Smith and Van Alstyne should go talk to the CEO of Veoh... oh wait, they can't, because the company is dead, even though it won its lawsuit on this very issue a decade ago.

A duty of care standard only makes sense if you have no clue how any of this works in practice. It's an academic solution that has no connection to reality.

Most online businesses also act responsibly, and so long as they exercise a reasonable duty of care, they are unlikely to face a risk of litigation.

I mean, this is just completely disconnected from reality as we've seen. That trial I witnessed in June is one of multiple cases brought by the same law firm against online marketplace providers, more or less trying to set up a business suing companies for failing to moderate trademark-related content to some arbitrary standard.

What good actors have to gain is a clearer delineation between their services and those of bad actors.

They already have that.

A duty of care standard will only hold accountable those who fail to meet the duty.

Except for all the companies it kills in litigation.

This article is embarrassingly bad. HBR, at the very least, should never have allowed the blatantly false information about how the 1st Amendment works, though all that really serves to do is discredit both Smith and Van Alstyne.

I don't understand what makes otherwise reasonable people who clearly have zero experience with the complexities of social media content moderation to assume they've found the magic solution. There isn't a magic solution. And your solution will make things worse. Pretty much all of them do.

Filed Under: 1st amendment, content moderation, duty of care, fire in a crowded theater, incentives, marshall van alstyne, michael smith, section 230

Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

from the [leela-voice]-ohhhh...-stupidER dept

Batshit litigant and armchair legislator Chris Sevier is back! The man who once sued Apple because he could access porn from his laptop (entendre intended) is still vexing courthouses with his attempts to sue his way back into the good graces of social media platforms after being asked to leave because [taps "batshit" in opening sentence].

The man who believes the only way through his addiction to porn is to sue or legislate it into the ground has filed a lawsuit [PDF] in a Florida federal court that's full of the insanity we've come to know and (well, probably not love) expect from a Sevier lawsuit.

It opens with this presumptuous language:

This is an action for declaratory and injunctive relief that challenges the sole surviving provisions of the "Communications Decency Act of 1996", 47 U.S.C. § 230 et. seq.,1 (hereinafter referred to as "Section 230") for namely violating the Petition and Access Clause of the First Amendment of the United States Constitution, as well as the Free Speech, Free Exercise and Establishment Clauses.

Section 230 violates the First Amendment. What an absolutely tired allegation. I mean, even the former president is making that claim, and we all know how incredibly skilled DJT was at sussing out the facts. But this allegation is different! That's the angle Sevier is taking, hoping the courts will find his assertion credible, rather than just more of the same ridiculousness.

The Plaintiffs attack this issue from a different angle than the Trump Plaintiffs. Congress, not Twitter, Facebook, or Youtube, made Section 230. If a litigant wants to have a court strike down one of Congress's laws, the proper party to sue in most cases is the chief enforcer of Congress's laws, the United States Attorney General. That is what the ACLU did in getting all of the other sections of the Communications Decency Act struck down in Reno American Civil Liberties Union, 521 U.S. 844 (1997). That is what the Plaintiffs have done here.

Well, I guess Sevier should know. After all, he lists himself as a "de facto attorney general" in his lawsuit, placing his name alongside such luminaries as John Gunter (Special Forces of Liberty) and Richard Penosky (Warriors for Christ).

But let's scroll back a single page and enjoy this part of Sevier's first footnote:

Section 230 is vague and not the least restrictive means to fulfill any interests asserted by the government.

I've got some news for you, Chris. Section 230 isn't an imposition. It's an immunity. So, it's not about "fulfilling" the "interests" of the government. It's about protecting online entities from vexatious lawsuits targeting them for the speech of others. I'm no lawyer, but I assume getting everything ass-backwards in the first footnote is generally a bad idea.

As Sevier sees it, there are only two options facing the court he's chosen to sue in: strike down Section 230 of the CDA for "abridging the right to petition the government for redress of grievances" or allow Florida's new, blatantly unconstitutional anti-social media law to bypass any and all legal challenges for its First Amendment violations. Once again, IANAL but I can't tell how being unable to sue Twitter over account moderation is "petitioning the government."

While still not a lawyer, I can't help but wonder if using superheated language is the best approach when you have neither facts nor the law on your side. I know the general tactic is to "bang the table" when you lack facts/law but

(╯°□°)╯︵ ┻━┻

I mean…

Social media websites injured the Plaintiffs by falsely marketing themselves as a place where the Plaintiffs were free to exchange their political and religious views. After inducing the Plaintiffs to create and invest heavily in their user profiles on social media webistes that marketed themselves as glorified digital bulletin boards that were neutral on religious and political expression, the social media websites arbitrarily shifted their standards and were no longer neutral towards religious and political speech, engaging in self-help reprisal actions. The social media websites changed the deal terms in bad faith after having reached critical mass and having successfully created a monopoly on the digital public square to the shock and awe of users like the Plaintiffs. The bad faith censorship in the wake of arbitrary shifting standards that were designed to elevate the religion of Secular Humanism over non-religion and other religions has economically and emotionally injured the Plaintiffs. Social media websites have been permitted to get away with these consumer protection violations because of a Congressional action in making Section 230.

Lot of swipes at the internet in this paragraph. Almost makes it seem as though Sevier doesn't enjoy being on it. But his lawsuit is all about being allowed to be back on it, which is some supreme sour-graping: the equivalent of "the food was terrible and such small portions."

According to Sevier (who should never be relied on for legal advice, free or otherwise), the Thing To Do would be to say the new Florida law is cool and legal and unassailable.

In determining the trajectory of the First Amendment of the United States Constitution, the public's interest would likely best be served if the Court goes with the second option presented.

Or, if not, there's always the compelled speech option Sevier touts in footnote 4.

In this case, the Plaintiffs seek a legal path so that social media websites that were never affiliated with a religious institution or political party from their inception will be forced to keep their promises to consumers to remain neutral on political and religious speech.

From there, the lawsuit moves on to discuss Sevier's various bootings (along with those of his co-complainants) as well as the shitload of stupid anti-Section 230/anti-First Amendment laws that have been introduced around the nation -- some of which are straight-up reposts of Sevier's bespoke legislation, the "Stop Social Media Censorship Act." That takes up about five pages and concludes with this:

The Plaintiff, along with hundreds of legislatures, have spent an enormous amount of time, money, and resources working on this issue because it is vital to the strength of our democracy and the welfare of our citizens. The Court could hold that the "cure-all" to the problems presented by this case is the state legislature must be responsive in enacting the Stop Social Media Censorship Act, if they want their constituents to be protected from the deceptive trade practices perpetrated by social media websites.

Dude, you misspelled "wasted." And I doubt Sevier is really out any real amount of money for the anti-First Amendment fanfic he banged out on his presumably non-Apple computer and thrust into the hands of idiot legislators who couldn't be bothered to run a perfunctory Google search on their interloping patron.

Since we know this lawsuit is doomed (DOOMED!), let's just do some WTF-ing at the stuff Sevier has inserted into his litigation for no discernible reason.

After engaging in operations in Iraq and Afghanistan, some of the members of De Facto Attorneys General and Special Forces Of Liberty joined groups of former Special Forces and FBI to do extractions in the area of sex trafficking overseas.

I'm sorry, but what? Were they just "in the area" of sex trafficking or did they extract sex trafficked people? I mean, this sounds like they parachuted into "an area" to hang out with Gary Glitter before returning home to file baseless litigation.

"...the concerted efforts of manufacturers and retailers of Internet-enabled devices to distribute prostitution websites and pornographic websites in flagrant disregard of obscenity codes and products liability statutes."

Yes, the major tech companies are very definitely trying to flood everyone with porn and prostititution, especially now that FOSTA is in effect.

Sevier may have given up the porn, but that won't stop him from masturbating.

In 2021, Rep. Sabatini introduced the Stop Social Media Censorship Act (HB33), and subsequently, for unknown reasons, Rep. Sabatini got into some kind of squabble with Speaker Sprowls, as passions do tend to run high in the legislative branch and there are a lot of opportunities for conflict in the legislative branch. This dust-up caused the members of the Florida House to oppose Rep. Sabatini's bills simply because of "who he was" and not because of "the meritorious substance of his bills." In the wake of the Sabatini/Sprowls spat, Governor De Santis got his staff to use the Stop Social Media Censorship Act as a preliminary foundation to draft the monstrosity that became SB7072.

At the risk of sounding snarky, SB7072 - although well-intended - was distorted by ambitions and legal ignorance. Upon information and belief, personal glory might have been prioritized over substance and the rule of law. The judicial branch can help the legislative branch get things right.

To sum up, just completely fucking wrong about everything.

The Plaintiffs challenge every section and every subsection of Section 230, collectively and individually, for having been misconstrued or written to prevent citizens from acquiring relief from the government for the bad faith act of social media websites in violation of the petition and access clause of the First Amendment of the United States Constitution.

Once again, getting booted from a platform is not government action. Suing social media companies isn't seeking redress for government-caused harms. If Sevier wants to sue the government over its legislation, he can do so. What he can't do is sue to stop platforms from exercising this immunity in cases where it's appropriate. And that includes this case, where Sevier wants Section 230 and the First Amendment ignored because he and his moronic co-conspirators are unhappy about being booted from social media platforms for being their unhinged, bigoted, stupid selves.

Dozens of pages follow this assertion. None of them are worth reading for anything more than comic relief. There's an inexplicable font change on page 132 of the 145-page filing -- one padded by a duplication of the original complaint. And there's reference to "amici," suggesting parties other than the plaintiffs wish to express their views on this litigation, but the "amici" appear to be nothing more than Sevier dumping in some arguments from another lawsuit where he's hoping to be allowed to file an amicus brief.

For no discernible reason, there's this:

WHAT IS THEIR INTEREST

LEGISLATION

ARGUMENT

And this (quoted verbatim):

Our rights come from God. Our rights

Just like on the dollar bill. [Patriotic music swells.]

There are other moments of pure insanity, like this suggestion that preventing people from suing social media companies over moderation decisions violates both the First Amendment and consumer protection laws.

Section 230(b)(l) asserts that "it is the policy of the United States to promote the continued development of the Internet and other interactive computer services and other interactive media" but that policy must fail if completely blocks aggrieved parties, like the Plaintiffs and the Trump plaintiffs, from having the opportunity to petition the government for redress against social media websites that have engaged in harmful consumer protection violations in view of the FirstAmendment.

And I apologize for quoting this much of a very long footnote, but I don't even know what to make of the first paragraph's take on Section 230. And the second paragraph must be read in its entirety to truly comprehend the extent of Sevier's (and his co-plaintiffs') delusions.

The social media websites shifted their standards in bad faith and censored the Plaintiffs because their Constitutionally protected religious and political speech offended the delicate sensibilities of the employees who happened to work for the social media websites at the time. At the time of each censorship, the Plaintiffs had previously invested a ton of time and money in their user profile accounts. Every time the Plaintiffs have threatened Facebook, Twitter, and Youtube with legal action, the social media websites promise to immunize their deceptive and destructive trade practices by invoking Section 230 of the Communications Decency Act. This assumption based on the public record that social media websites might have total immunity under Section 230 has given rise to the Plaintiffs cause of action here in which the Constitutional or the parameters of Section 230 are in question.

The Plaintiffs collectively consists primarily of Christ-followers, who served in the United States Military in foreign theaters of war, namely on the rule oflaw mission, which is purposed to better ensure a government's compliance with their highest Constitutional authority. The Plaintiffs have continued that mission state-side in America even though they no longer officially operating under Title 10 jurisdiction on behalf of the Armed Forces. The Plaintiffs routinely file comprehensive lawsuits across the United States on different controversial and complex issues that typically concern the "culture wars" and First Amendment issues that are too "politically hot" for the government-funded Attorneys General to pursue. In bringing such lawsuits, the Plaintiffs - without apology - often end up converting Article III Courts into their own private legislative research commission. Out of the overflow of the litigation pursued by the Plaintiffs, the Plaintiffs subsequently draft legislation for all 50 states and for the federal government, which is then routinely introduced by a bi-partisan network of sponsors that stretches across the Country before the Article I branch. The legislation authored by the Plaintiffs that gets presented to the members of legislative branch is legally vetted ad nausem and is calculated to survive judicial review, if subsequently challenged once enacted.

Sevier will be laughed out of court again. The clerk won't be expected to transcribe the judge's LOLing. This is stupid stuff done by a stupid man who is apparently incapable of learning from his multitudinous mistakes. Twitter is not the government. THE END. Expecting the First Amendment to be abridged and Section 230 to be struck down just because no platform is willing to host your shitty content is the epitome of entitlement. No one owes you anything, Chris (and cohorts). No one owes you a platform. And, given your general output, it's completely unsurprising no one's willing to give you one.

Filed Under: 1st amendment, chris sevier, content moderation, free speech, section 230

Man Sues Multiple Social Media Services, Claims Banning His Accounts Violates The Civil Rights Act

from the new-twist,-but-not-a-smarter-twise dept

Everybody wants to sue social media platforms for (allegedly) violating the First Amendment by removing content that most platforms don't feel compelled to host. Most of what's sued over is a mixture of abusive trolling, misinformation, bigoted rhetoric, and harassment. Plaintiffs ignore the fact that private companies can't violate the First Amendment. The First Amendment does not guarantee anyone the right to an audience or the continued use of someone's services.

Then there's Section 230 immunity, which shields platforms from lawsuits filed over content posted by users as well as their own moderation decisions. This immunity has angered everyone from the lowliest troll to the lowliest President of the United States of America. No number of complete losses appears capable of deterring the next hopeful plaintiff from lobbing a sueball into court with the hope that the presiding judge will be as batshit crazy as the allegations and arguments contained in the lawsuit.

Some litigants (and some of our stupider legislators) continue to insist platforms like Twitter are indistinguishable from phone companies. Ignoring the transitive nature of "carrying" fleeting communications, these hopefuls insist Big Tech is just Ma Bell and must be compelled to "carry" their content… forever. No court has agreed with this argument, the occasional word dump by the usually silent Justice Clarence Thomas notwithstanding.

Maybe the solution is to short-circuit this determination by presumptively declaring social media companies to be common carriers, like the plaintiff in this lawsuit, who's angry a number of online services deleted his Zionist conspiracy theory content. This suit [PDF], filed in Massachusetts, kicks things off by declaring platforms to be common carriers, using boldface type to drive the point home.

The defendants in this case are Twitter (drink!), Facebook (drink!)... um… LinkedIn (drink?), Medium (you have reached your limit of free drinks for this month), The Stanford Daily Publishing Corp. (please create an account to drink), and The Harvard Crimson, Inc. (I graduated drunk, he casually dropped into the unrelated conversation). Plaintiff Joachim Martillo insists at least the first three are common carriers. His legal arguments for this theory are mostly the subheads.

Defendant Twitter Inc (A Common Carrier, Defendant 1)

Twitter Inc (Twitter) operates as a platform for public self-expression and conversation in real time. The company offers various products and services, including the Twitter platform that allows users to consume, create, distribute, and discover content. Twitter provides common carriage for a fee and in exchange for work.

And so it goes for both Facebook and LinkedIn. The remaining defendants are not declared to be common carriers. Martillo also notes he has filed similar lawsuits (one for each defendant in this lawsuit) in [checks filing] Dorchester Municipal Court.

After quoting Justice Clarence Thomas' recent ramblings about how much "power" he feels these private companies have over public discourse, Martillo moves on to claim Section 230 of the CDA allows platforms to avoid their obligations under other federal anti-discrimination laws like the Civil Rights Act of 1964, the Americans with Disabilities Act, and… the Fair Housing Act (go home lawsuit, you're drunk).

Martillo actually makes the argument that a social media platform is a physical entity that should be accessible to everyone, using verbiage apparently cribbed from the Time Cube website.

It is not necessary to consider the public accommodation that Facebook provides to be virtual. Computer scientists use virtualization to describe complex electronic structures including transient gate state structures created by a logic device like a microprocessor. These structures are completely material…

Achievement unlocked: red pill consumed.

How does this all connect?

The plain text of the CDA (Communications Decency Act) provides no indication that the CDA is meant to override civil rights law.

Martillo is correct, but not in the way he thinks. The CDA does not allow platforms to engage in discriminatory hiring practices or discriminate against certain users because of their race or other immutable characteristics. (It also does not protect them from being prosecuted or sued for federal law violations.) This does not mean they cannot moderate content, even if some users might perceive their moderation efforts to be discriminatory. And that's the crux of Martillo's arguments. He feels he's been discriminated against because he is, shall we say, "anti-Zionist."

The Title II violation by Facebook seems to be directed primarily at Palestinians, Arabs, Muslims, and Diaspora Jews that reject Zionism. No other groups protected under the CRA seems to be subject to harassment by organized persecutors attempting to establish or to maintain a cultural hegemony.

[...]

The response [of Facebook] is more akin to the behavior of a restaurateur that bans blacks from his restaurant because the KKK has threatened him or his restaurant.

What follows from this is Martillo attempting to make the case that his pro-Palestinian content was taken down by the Zionist collectives that handle Big Tech social media moderation. That includes non-Big Tech defendants like sites run by Stanford and Harvard, which removed comments of his suggesting (in a circular fashion) that Zionists are evil, resulting in the removal of comments by alleged Zionists staffing those student sites.

Martillo also apparently startled LinkedIn by sharing content on its platform, forcing it to wake up its on-call moderators to do some moderating.

According to Martillo, these moderation efforts violate the Civil Rights Act, although he is unable to explain how he's being discriminated against. Nor does he specify which protected group he's a member of. There's a "denial of common carriage" claim in there (because of course there is) that Martillo feels is worth at least $3.65 million at the time of this filing.

Needless to say, this lawsuit won't go anywhere, even if the plaintiff feels Clarence Thomas's off-hand remarks on the power of social media companies mean something. Social media services aren't common carriers. Section 230 will immunize all of the defendants. And the First Amendment ensures they can't be forced to carry Martillo's content, no matter how fervently believes he's being discriminated against by a Zionist cabal.

Filed Under: 1st amendment, common carriers, content moderation, discrimination, joachim martillo, section 230, zionism
Companies: facebook, harvard, linkedin, medium, stanford, twitter

Yes, Actually, The 1st Amendment Does Mean That Twitter Can Kick You Off Its Platform, Wall Street Journal

from the columbia-law-students-should-get-a-refund dept

Back in February, we did a thorough debunking of Columbia Law Professor Philip Hamburger arguing (bizarrely, and blatantly incorrectly) that Section 230 violates the Constitution in the pages of the Wall Street Journal. It was a nearly fact free opinion piece that got so much wrong I was vicariously embarrassed for anyone who ever got a law degree from Columbia University. In the intervening months, it does not appear that Prof. Hamburger has done anything to educate himself. Instead, he appears to be digging in, with the help of the Wall Street Journal again. Leaving aside the fact that the Wall Street Journal's parent company has been lobbying against Section 230, and its various news properties have been among the most vocal in spreading blatantly false information about the law, I guess this is no surprise. But if the Wall Street Journal really believes this nonsense, then why won't it let me publish my op-ed in their pages about how the WSJ is the worst newspaper ever, and regularly prints lies and nonsense to please its scheming owner in his hatred of the internet?

Anyway, Hamburger's latest is, I guess, in some ways a response to everyone pointing out that he was wrong in his first op-ed. A key argument actual experts made was that what Hamburger was really mad at regarding content moderation was not Section 230 (as he claimed), but the 1st Amendment, which gave websites all the leeway they wanted to moderate content. So Hamburger's new response, written with former Trump DOJ official Clare Morell, tries to argue that the 1st Amendment doesn't actually protect website content moderation choices. It's almost difficult to believe, but it's even more wrong than his February article.

Does the Constitution require Americans to accept Big Tech censorship? The claim is counterintuitive but the logic is clear: If you submit a letter to this newspaper, the editors have no legal obligation to publish it, and a statute requiring them to do so would be struck down as a violation of the Journal’s First Amendment rights. Facebook and Twitter, the argument goes, have the same right not to provide a platform to views they find objectionable.

The claim is not counterintuitive. It's one of those basic "property rights" things that most of us believe in. And the logic is clear, because... uh... that's how the 1st Amendment works. But Hamburger has just discovered the other hammer that a bunch of clueless Twitter-pretend-lawyers discover when someone points this out. He thinks that "antidiscrimination" laws are the answer. Again, this is mildly embarrassing when @JoeBob2354192081 on Twitter comes up with it. It's horribly embarrassing when a law professor at one of the top law schools in America comes up with it.

Another reason to doubt the First Amendment claim: Antidiscrimination laws are familiar limits on speech. The U.S. has a range of local, state and federal antidiscrimination laws with significant speech consequences, and courts haven’t held that they violate the First Amendment. One has a First Amendment right to bigoted speech, but not, according to the courts, in circumstances that, for example, amount to discrimination in employment or public accommodations.

Antidiscrimination laws apply to protected classes, and they are designed in response to long histories of systematic oppression. Your political party is not a protected class. And being an elitist fool is not a systematically oppressed class.

From there, Hamburger pulls out another debunked tool from the Twitter lawyers' playbook: "common carrier."

Yet another reason is that large tech platforms and services function as common carriers. The states and the federal government have the power to regulate common carriers, and this certainly includes the authority to ban discrimination. The common-carrier tradition can be traced to the common law, which viewed persons serving as common carriers as privileged by government. At the same time, it barred them from discriminating.

We've been through this before. Common carrier designations are extremely limited and they serve a particular purpose: specifically for natural monopoly interchangeable commodity services that serve in transporting things (that's the carrier part) whether it's people, goods, or communications. But social media isn't just about transporting information from here to there. It's about hosting it -- forever. And that's why common carriage laws make no sense at all. They're also not interchangeable commodity services.

Also, it appears that Professor Hamburger does not actually understand the relevant caselaw, especially rulings from the Supreme Court on this topic. Again, this is embarrassing. If someone handed in Prof. Hamburger's article to a good law professor, it would easily get a failing grade.

The large tech companies meet both definitions. They serve a public function, providing the public square or conduit for the information age. We meet and communicate on their services or platforms much more than on the grass of the village green.

Just two years ago, in the Halleck case, Justice Brett Kavanaugh made it abundantly clear that this argument is nonsense. Social media websites are not the public square and are not subject to the 1st Amendment. From Kavanaugh's ruling that maybe Prof. Hamburger should look up:

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”

Notably, this ruling was not controversial, because it is so obviously supported by tons of earlier precedent. The kinds of precedent one would hope a law professor at Columbia University Law School would know about.

The entire piece is so amateurish, and so devoid of any connection to reality, it makes you wonder if the former DOJ official who co-authored it (who is now a "policy analyst" at a DC think tank), did pretty much all of the writing and somehow got this well known law professor to sign his name to it without realizing how embarrassingly bad it is. I mean, this nonsense is basically unforgivable:

That Big Tech is subject to common-carrier regulation is especially clear because Section 230 already recognizes the tech companies as akin to common carriers. Along these lines, Section 230(c)(1) protects Big Tech from being treated as “the publisher or speaker of any information provided by another information content provider.”

That, um, is not Section 230 "recognizing tech companies as akin to common carriers." Yes, common carriership also restricts liability from the carrier for the speech it carries, but it's not a transitive thing where having that immunity automatically also means you're a common carrier. This is not why 230 was put in place. This wouldn't be difficult to look up. Hell, the two authors of Section 230 still speak about what they intended regularly. Just last year they debunked this nonsense idea that 230 made websites into common carriers. As they pointed out, the intent of the law was to do the exact opposite -- to encourage websites to moderate their own communities as they saw fit:

The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment....

And then, the article gets even worse. I honestly have no clue what Hamburger is trying to say when he suddenly starts talking about fair use, as if fair use is a "public privilege."

The public privileging of these companies is extraordinary. Consider the fair-use doctrine in copyright law. A teacher can copy a small number of pages to show to a class. Google can copy whole books, and even when it shows only a snippet to the public, it can use the entire volumes to develop its algorithms and offer the public an online index. This appears to have been important for Google’s early enticement of the public into its services.

Wut? Fair use is a public's right. Not a public privilege. And we all get it. What Google did anyone can do. It seems like Hamburger is arguing that Google somehow gets different fair use rights than anyone else? But that's... just not true. Everyone gets the same fair use rights. And I don't understand what any of that has to do with the rest of his argument.

Section 230 privileges tech communication over print and in-person communication by excusing tech companies from liability in the courts. In contrast, paper and in-person communication is still fully subject to liability. The result has been to accelerate and accentuate tech dominance over other modes of speech.

This is just wrong. Again, embarrassingly so. Everyone -- including tech companies -- are still fully liable for speech they create. They are not liable for speech someone else creates. It's that simple. Though it appears that an actual law professor from a top law school doesn't understand this simple fact.

So it isn’t true that the large tech services and platforms reached their dominance merely by private effort. Their dominance is partly the product of public privileging, and this reinforces the conclusion that tech dominance over speech is not only private enterprise. It is also the result of enterprising capture of government.

I honestly don't understand how we get from the pervious sentence to this one. Suddenly he seems to be dropping a "you didn't build that" kind of argument into the middle of this. And, that makes no sense at all. I mean, sure, every business relies on some elements of public infrastructure -- roads, plumbing, etc. -- but that doesn't make them all state actors. And, again, Hamburger seems totally oblivious that Section 230 applies equally to everyone online (including the Wall Street Journal, which hosts user comments).

Section 230 relieves the large tech services and platforms of liability for restricting a congressionally specified list of materials, even when the materials are “constitutionally protected.” As one of us has explained in these pages, this is privatized censorship—a license to censor, free of concerns about ordinary legal duties that would apply to anyone else, including newspapers and individuals.

No, it is not a "congressionally specified list of materials." Section 230 makes it clear that websites can moderate however they see fit. And they can do that because it's their website. Just as Professor Hamburger will not let me come into his classroom at Columbia to spend a lecture explaining to his students (in great detail, with annotated charts and graphics!) why they will come out of any such class dumber than they started, and should ask Columbia University for their tuition back, any website can tell any user that they are violating its policies, and cannot post there any more.

Meanwhile, WHY IS PHILIP HAMBURGER CENSORING ME IN NOT LETTING ME TEACH HIS CLASS? I mean, Philip Hamburger clearly relies on public privileges to get to Columbia University, so it's not like he's a private individual. His censorship must violate the 1st Amendment, according to the logic of (oh look) Philip Hamburger.

The large tech companies are private, and the point isn’t that they violate the First Amendment when they censor users’ speech. But they have participated in the censorship secured by Section 230’s privileges. It therefore is not unreasonable for states to protect Americans from the tech company’s government-sponsored censorship.

I've read this paragraph four times. It makes less sense every time you read it again.

Columbia Law School: this is embarrassing. I understand why the Wall Street Journal would publish this cynically dishonest nonsense because of Rupert Murdoch's crusade against the internet. But, it's still embarrassing.

Filed Under: 1st amendment, clare morell, common carrier, content moderation, discrimination, fair use, philip hamburger, section 230, state action
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