Lessons Learned From Creating Good Faith Debate In A Sea Of Garbage Disinformation

from the it's-possible dept

A few weeks ago, Elizabeth Dwoskin, Will Oremus and Gerrit De Vynck from the Washington Post published one of the most fascinating -- and in some ways, most important -- discussions of social media and dealing with "disinformation" that I've seen in a while. It touches on two things I've written about recently -- how the way we talk about disinformation is not helpful and the difficulty in determining how to deal with bad faith actors.

The WaPo article talks about a group on Facebook -- set up by concerned mothers -- that focuses on having thoughtful debate about vaccines -- an area that is fraught with misinformation, disinformation, utter nonsense, and propaganda. But where there may be legitimate causes for debate and concern. But the problem is that the space is so flooded with nonsense that it feels like any attempt to discuss stuff seriously quickly slides into the nonsense zone and everyone backs into their usual corners. But what this article notes is that it is possible to have a good faith debate on such topics, even with people who believe strongly in debunked nonsense. The real trick? Having strict rules and following them:

“The most important rule was ‘civility,’ ” Bilowitz said. “There are some groups online where people just yell at each other. We wanted to just be able to talk to one another without it getting that way.”

Vaccine Talk now has nearly 70,000 members, each of whom must gain administrators’ approval to join and commit to a code of conduct. Strict rules prohibit users from misrepresenting themselves, offering medical advice and harassing or bullying people. Another key rule: Be ready to provide citations within 24 hours for any claim you make. Twenty-five moderators and administrators in six countries monitor the posts, and those who flout the rules are kicked out.

So, there is heavy moderation going on in the group, but they're not just banning people who spout nonsense. They ask that they cite the evidence for such nonsense, and those who don't live up to the rules face consequences. It's not surprising that bad faith actors have trouble following the rules:

“Usually, the hardcore anti-vaxxers cannot follow the rules,” Bilowitz said. “They are usually spamming people with their commentary. I think it’s hard for them: They are basically coming out of an echo chamber.”

And the interesting bit is that this community seems to be working in actually convincing some skeptics:

Monica Buescher, a 32-year-old teacher in Vacaville, Calif., said she went “deep down the rabbit hole” of anti-vaccine misinformation when she had her second child in 2019. Convinced that shots were dangerous, she nonetheless wanted to hear the pro-vaccine side. She found her way to Vaccine Talk, which she said had a reputation among anti-vaccine groups as being “mean” for banning those who made claims without scientific evidence.

On Vaccine Talk, Buescher credits a handful of people with walking her through the scientific evidence and persuading her that routine childhood vaccines are safe and effective. Now, Buescher is helping her friends and family navigate conflicting information about coronavirus vaccines.

There are other examples as well.

Of course, the story also reinforces the idea that expecting the big companies to do all the moderation and enforcement themselves leads to questionable outcomes as well:

Vaccine Talk represents exactly the type of conversations Facebook says it wants to cultivate. But Bilowitz said the social network’s often clumsy and heavy-handed enforcement of covid misinformation policies has made their work more difficult. In June, Facebook temporarily shut down the group because someone posted an article deemed to be misinformation. But the poster had been seeking advice on how to rebut the article.

“We were just caught up in the algorithm,” Bilowitz said, “and felt there wasn’t a human in charge of the process.”

The article highlights how the constant drumbeat of people (including the White House) demanding that Facebook "do more" is often counterproductive.

“Facebook is attempting to shut down misinformation by shutting down all conversation entirely,” she said. “I strongly believe that civil, evidence-based discussion works, and Facebook’s policies make it extremely difficult for that to happen.”

There's a lot more in the article that is worth thinking about with regards to these debates about mis- and disinformation and how to deal with it. And it is notable that this is a successful, decently large community, that doesn't just shut down dissent, but rather simply requires those spreading it to back it up, and makes it clear that if you cannot, you face consequences. And it's also useful in highlighting how the general demands to put all the responsibility on big companies like Facebook can backfire.

I honestly think this article is one of the most important ones we've seen on various content moderation debates regarding misinformation, and I expect to cite back to it often.

Filed Under: anti-vax, content moderation, covid-19, evidence, rules, vaccines
Companies: facebook

Anti-Vaxxers Countermeasures Show Why It's Not So Simple To Just 'Delete' Anti-Vax Misinfo On Social Media

from the countermeasures-happen dept

It's not a new thing that those without any experience in content moderation assume that it's somehow "easy" to just find and delete misinformation and disinformation online -- but it's often stunning how little they've thought through how all of this plays out. As the White House has stupidly been using its bully pulpit to pressure Facebook into deleting anti-vax misinformation, and elected officials are threatening legislation they must know is unconstitutional, none of them seem to recognize that it's not that easy.

Anyone who has done any work related to content moderation knows this. They know that the vast majority of misinformation is not that easy to spot. First of all, it's not clear what is misinformation. You could have someone who gets something inadvertently wrong. Or, perhaps they just misread something or misunderstand something. Is that misinformation that needs to be deleted? Also, there are things like sarcasm or criticism that frequently repeat the misinformation in order to respond to it. Then there are plenty of things that may seem like misinformation but tend to just be people posting stuff that is technically true, but without the necessary context. Does that need to also be deleted? There are tons of degrees involved in misinformation, and figuring out what should stay up and what should be taken down is not nearly as easy as many commentators make it out to be.

But, on top of that, there's the simple fact that those spreading misinformation know that they may face consequences for it, and thus they adapt their techniques. Ben Collins & Brandy Zadrozny, NBC News' two excellent reporters who focus on misinformation, are noting that anti-vax groups on Facebook are effectively trying to cover their tracks in advance of any possible crackdown on the nonsense and propaganda they spew:

Some anti-vaccination groups on Facebook are changing their names to euphemisms like “Dance Party” or “Dinner Party,” and using code words to fit those themes in order to skirt bans from Facebook, as the company attempts to crack down on misinformation about Covid-19 vaccines.

The groups, which are largely private and unsearchable but retain large user bases accrued during the years Facebook permitted anti-vaccination content, also swap out language to fit the new themes and provide code legends, according to screenshots provided to NBC News by multiple members of the groups.

They also note that the groups have already set up secret "backup groups" in case their primary groups get shut down, they can immediately just switch over to the other group. And if you think that now that NBC News has reported on this, well, then it'll be easy for Facebook to find, that's silly as well. It assumes that no further countermeasures will be taken.

Beating Facebook’s moderation system “feels like a badge of honor,” the administrator wrote, followed by a crying-laughing emoji. At the end of the post, the administrator reminded users to stay away from “unapproved words,” and pointed them to a code legend on the side of the page.

Using code words to evade bans is not new among the anti-vaccine community, and it borrows from a playbook used for years by extremists on Facebook and elsewhere. The practice leans heavily on “leetspeak,” or modified language used by coders and gamers that frequently replaced letters in words for numbers or symbols during online discussions.

And, the groups seem effective at finding words that will make it more difficult to search them out:

Group members have incorporated a range of coded language to mask their discussions, many of which perpetuate debunked theories about the vaccines. “Danced” or “drank beer” mean “got the vaccine.” References to “Pfizer” generally use the terms “pizza” or “Pizza King,” and Moderna is referred to as “Moana.” Users generally play around with unofficial language about dancing to create more coded language.

For example, one group member said her husband had become sick after going on a “cross country trip where we spent 2 nights with dancers,” referring to two people who had just been vaccinated.

None of this is to say that Facebook should just throw up its hands and do nothing. But it remains stunning to me how people who just don't understand the challenges of content moderation always seem to think that (1) these things are easy to find and (2) if Facebook just took down a few accounts, these people would magically go away and the disinformation would stop spreading.

It's not that simple!

There are important questions to ask about how Facebook should handle this stuff, but anyone coming up with simple solutions that don't take into account reality -- both in the difficulty in identifying what is truly problematic and the kinds of countermeasures people will take -- isn't helping at all.

Filed Under: anti-vax, code words, content moderation, countermeasures, disinformation, misinformation, vaccines
Companies: facebook

Disgraced Yale Law Professor Now Defending Anti-Vaxxers In Court With His Nonsense Section 230 Ideas

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

Back in January, we wrote about a bizarrely bad Wall Street Journal op-ed co-written by disgraced and suspended Yale Law professor Jed Rubenfeld, arguing that Section 230 somehow magically makes social media companies state actors, controlled by the 1st Amendment. This is, to put it mildly, wrong. His argument is convoluted and not at all convincing. He takes the correct idea that government officials threatening private companies with government retaliation if they do not remove speech creates 1st Amendment issues, and then tries to extend it by saying that because 230 gives companies more freedom to remove content, that magically makes them state actors.

As we noted at the time, that's not how any of this works. Companies' ability to moderate content is itself protected by the 1st Amendment. Section 230 gives them procedural benefits in court to get dumb cases kicked out earlier, but it most certainly does not magically make them an arm of the government. This wacky idea that social media is magically a state actor was rightly shut down by Supreme Court Justice Brett Kavanaugh (who, ironically, is part of another scandal involving Rubenfeld) in the Halleck case, in which the Court stated clearly that you don't just magically make companies state actors. There are rules, man. From the ruling written by Kavanaugh:

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.”

However, it appears that not only is Rubenfeld making these arguments in laughably wrong WSJ pieces, but he's now trying to do so in court as well, as he's now representing some anti-vaxxers, who are trying to insist that Facebook's decision to put warning labels on the bogus information the anti-vaxxers were posting somehow violated their 1st Amendment rights.

We had written about this case last summer, noting that it was so stupid and so wrong that I had difficulty writing it up. And that was before Rubenfeld joined the defense team. At issue was that Robert F. Kennedy's blatant misinformation anti-vax propaganda shop, "Children's Health Defense" sued Facebook, claiming that it had "teamed up" with the US government to censor their speech. The reasoning was that Rep. Adam Schiff had (stupidly) threatened to remove Facebook's 230 protections if the company didn't do a better job dealing with misinformation.

As we noted at the time, there is perhaps a weak case they might have against Schiff, but not against Facebook.

Yet, the case goes on. Facebook has rightly moved to have the case dismissed, and that motion is worth a read if only because the exasperation of Facebook's lawyers at Wilmer Hale can be heard quite clearly. There's a lot in there, but the summary covers it pretty thoroughly:

CHD claims that Facebook’s fact-checking program violated its First Amendment rights, restrained it from competing in the marketplace of vaccine “messages,” ... and constituted a RICO enterprise. Those claims turn the First Amendment on its head. The First Amendment is a shield from government action—not a sword to be used in private litigation. It is therefore unsurprising that the SAC contains numerous independent and incurable defects.

First, the SAC does not state a Bivens claim because it does not allege federal action. Facebook and Mr. Zuckerberg are private actors. Facebook exercised its own editorial discretion to reduce the visibility of posts identified by independent fact-checkers as containing false or partially false information. None of the challenged conduct is attributable to the federal government.

Second, far from violating the First Amendment, Facebook’s decisions to label and limit the visibility of CHD’s content are themselves protected by the First Amendment. This Court may not hold Facebook or Mr. Zuckerberg liable for exercising editorial discretion with respect to matters of public concern. And even if the First Amendment did not fully bar CHD’s claims, it requires that CHD, at minimum, plausibly allege that Facebook acted with actual malice. The SAC fails to do so, even though Defendants’ motions to dismiss unquestionably put CHD on notice of this defect.

Third, Section 230 of the Communications Decency Act (“CDA”) shields Facebook from liability for publishing third-party fact checks or restricting access to CHD’s content. None of the SAC’s allegations concerning the relationship between Facebook and third-party fact-checkers strip Facebook or Mr. Zuckerberg of that protection.

Fourth, the Lanham Act claim fails because CHD has not identified a commercial injury that gives it standing under the Act. The Lanham Act protects those engaged in commerce against unfair competition. Because CHD’s alleged injuries are to its interests as a consumer of Facebook’s free service, not as a competitor, they are not cognizable under the Act. And CHD’s allegations do not establish that the purportedly false statements are “promotional statements” covered by the Act.

Fifth, CHD has not stated a civil RICO claim because it has failed, even on its third bite at the pleading apple, to identify any predicate acts of wire fraud. And CHD has alleged neither a sufficiently “direct” injury to confer statutory standing nor a cognizable civil RICO “pattern.”

Sixth, the SAC additionally does not state a claim against Mr. Zuckerberg because it does not allege that he was personally involved in any of the allegedly unlawful conduct. Nor has CHD pleaded the necessary prerequisites for any theory of agency liability.

Seventh, though the SAC contains many paragraphs describing CHD’s views on 5G, CHD nowhere connects those views to an actionable theory of liability

Apparently, Rubenfeld has joined forces with RFK Jr. and showed up in court to defend this idiocy to what would appear to be an appropriately skeptical judge, alongside lawyer Roger Teich (who originally filed the complaint with RFK Jr.).

In a virtual hearing on Facebook’s motion to dismiss the lawsuit Wednesday, Judge Illston asked if the government can ever take steps to counter misinformation without running afoul of the First Amendment.

“Let’s say there was something on the internet that says, ‘If you take a Covid vaccine, you’re going to grow a third head.’ That’s clearly not true. Is it OK to not let that be published?” Illston asked.

CHD attorney Roger Teich replied, “I don’t think it’s OK if the government is calling the shot.”

Illston pressed: “You think it’s inappropriate for the government to say generally, ‘We’d really like it if all these private social media outlets didn’t publish lies about the Covid vaccine?’ That’s not alright to say that?”

Teich answered that it was the CDC’s “underhandedness” in using Facebook to restrict speech that violates the Constitution.

That, of course, is not how any of this works. And someone with Rubenfeld's pedigree should know that. But, instead, he's out there defending this utter and complete nonsense:

“State action must be found whenever government officials are coercing, inducing or encouraging private parties to do what they themselves cannot constitutionally do,” CHD attorney Jed Rubenfeld said.

Sure, if there's actual coercion, then a discussion can be had. But CHD has no evidence of any of that. And it seems to ignore Facebook's own 1st Amendment rights. And when the judge pointed all this out to Rubenfeld, he tries to cook up a wacky theory that because members of Congress or the CDC said something, and then Facebook took action, that magically makes Facebook a state actor.

CHD argued that U.S. Magistrate Judge Virginia DeMarchi in San Jose got it wrong when she dismissed Daniels v. Alphabet Inc. on March 31. The plaintiff in that suit argued Schiff and House Speaker Nancy Pelosi had coerced YouTube, owned by Google’s parent Alphabet, into removing objectionable content. DeMarchi dismissed the suit with leave to amend, finding the plaintiff did “not plead any facts suggesting that Speaker Pelosi or Rep. Schiff were personally involved in or directed the removal” of videos.

CHD attorney Jed Rubenfeld said DeMarchi “was not informed of the precedent” when she issued that ruling.

“What matters is if they gave the private party the standard of decision,” Rubenfeld said. “The CDC gives Facebook the standard of decision.”

“And does it matter if what the CDC said is true,” Illston asked.

Rubenfeld replied by insisting the information his client has posted about vaccines is true, but even if the speech was false, “it would still be constitutionally protected.”

Um. Again, even if this were true (and it's making a lot out of an incredibly weak chain of events), wouldn't CHD's actual cause of action be against the government officials and not Facebook, which retains its own 1st Amendment rights to label nonsense nonsense, or to take down content?

Everything about this case is dumb, and the fact that the disgraced and suspended Rubenfeld is using it to further his nutty legal theories is just the icing on the nonsense cake. Hopefully the judge does the expected thing and dismisses the case with a thorough benchslap for wasting the court's time.

Filed Under: 1st amendment, anti-vax, content moderation, jed rubenfeld, rfk jr, robert f. kennedy jr., section 230, state action doctrine, state actor
Companies: children's health defense, facebook

Anti-Vaxxer Sues Facebook, In The Middle Of A Pandemic, For 'In Excess' Of $5 Billion For Shutting Down His Account

from the that's-now-how-any-of-this-works dept

When I write about this new lawsuit, filed on behalf of "retired MMA fighter" Nick Catone, against Facebook for removing his account over his anti-vaccine posts, you may expect that it was filed pro se. However, somewhat shockingly, there's an actual lawyer, James Mermigis, who filed this dumpster fire of an awful complaint. Mermigis does not appear to have any experience in internet law, and boy does it show. His various profiles online list his experience in divorce law, real estate law, and personal injury law. His own Twitter feed is basically all just wacky anti-vax nonsense, and, late last year, he was quoted as representing people trying to block a NY law removing a religious exemption for vaccines. We've gone over this many times before, but spewing junk science and angry rants that are literally putting tons of people in danger is no way to go through life, and it's certainly no way to file a lawsuit. Especially not in the midst of a pandemic where a vaccine sure would be nice.

But, alas.

The filing is bad, and Catone and Mermigis should feel bad about it. It will be quickly dismissed under CDA 230, even though (hilariously) it claims that Facebook's moderation of Catone's account "violates" CDA 230 (which is not a thing, as you cannot "violate" CDA 230). This lawsuit is like a collection of misunderstood tropes about internet law. It starts with this:

As the United States Supreme Court noted in Packingham v. North Carolina.... Facebook is part of the "vast democratic forum of the Internet." Packingham extended the concept of a quintessential public forum from parks and physical spaces to cyberspace.

Packingham is kind of the go to citation from bad lawyers trying to argue that having your content moderated on Facebook violates the 1st Amendment. It's been tried many, many times, and it has always failed because Packingham does not say what these people want it to say. Packingham said that the state cannot pass a law that kicks people off of the internet. It says nothing about private social media companies removing idiots spewing misinformation from their own sites.

Indeed, an even more recent Supreme Court ruling, in Manhattan Community Access v. Halleck, not only shoots down the idea that content moderation on private social media websites is subject to the 1st Amendment, it spells it out in big flashing letters that it's a bad idea to even try to make that argument because private companies are not the state. Packingham only applies to the state.

But that's not going to stop Mermigis. He goes on for a while about how big Facebook is, then rewrites history to suggest Facebook really only started doing content moderation after people were upset about... Cambridge Analytica and the 2016 election? Of course, the Cambridge Analytica issue wasn't a content moderation issue, so much as a privacy and data sharing issue, but hey, someone's trying to make a case out of very, very little. I'll just include this paragraph and point out that Facebook's community standards and content policy team dates back many, many, many years before 2016:

To assuage an angry public and ultimately to protect its own financial interests, Facebook announced plans to create and enforce so-called "community standards" for content published on its site. These standards are directed toward speech that Facebook regards as inimical to a "safe environment."

So, again, that's not when or why Facebook put in place community standards. Also, the final sentence of this paragraph basically admits that Facebook's moderation efforts are in good faith, which makes this an even easier CDA 230 dismissal than most.

Even more hilarious, the complaint whines that Facebook's community standards are too vague. But, uh, yeah. That's the point. When you have multiple billions of people posting content on your site, the rules need to be vague, because every day there are millions of "edge" cases that need to be looked at and have decisions made on whether or not the content is appropriate. That's why CDA 230 lets sites decide for themselves how to moderate. The complaint is literally making the case for why it should be thrown out on 230 grounds.

Among the content that Facebook finds "objectionable" is bullying and harassment. Facebook does not provide a definition for what bullying or harassment is. However it does provide a broad definition that may cover almost anything: "Bullying and harassment happen in many places and come in many different forms, from making threats to releasing personally identifiable information, to sending threatening messages, and making unwanted malicious contact."
[....]

The standards is hopelessly vague. As Facebook itself notes "[c]ontext and intent matter, and we allow people to share and reshare posts if its clear that something was shared in order to condemn or draw attention to bullying and harassment."

Facebook reserves the right to remove the "offensive" posts without notifying the user or giving the user an opportunity to clarify or edit his post. Moreover, Facebook reserves the right either temporarily or permanently to disable an account for violation of its "community standards" policy.

Uh, yeah. It reserves that right. And it has every right to, and if you don't like it, don't use Facebook. But not only did Catone use Facebook, it appears that he tried to build a local gym business based entirely on Facebook. There is a bit of a tragic backstory here, in that Catone lost an infant son, and seems to believe that vaccines had something to do with it, and thus sometimes posts typical anti-vax content. That's what appears to have lead to the suspension of his account -- especially since Facebook has ramped up its removals of anti-vax nonsense in the last few months.

The problem here is that Catone (1) seemed to rely solely on Facebook for building up business for his new gym, and (2) mixed that account with posting his anti-vax screeds. So now he's blaming the fact that he was (reasonably, and well within Facebook's rights) banned from the site for trouble getting business going to his gym.

Plaintiff, Nick Catone MMA & Fitness, has used Facebook as the main way to grow and advertise the fitness center. In 2019, Plaintiff spent $15,564.17 in advertising. Plaintiff is currently spending $1800-2000 per month advertising with Facebook.

Plaintiff purchased a 32,000 square foot building for his fitness center in 2018 and Facebook has been a huge part of his financial growth. Plaintiff needs Facebook to showcase his fitness center.

Uh, yeah, that's not how any of this works. I need Facebook to give me a pony, but the pony just ain't showing up. Unless Catone signed some sort of contract with Facebook in which Facebook promised to "showcase" his fitness center, he has no rights to speak of here. Catone, it appears, made the poor business decision to exclusively focus on using Facebook to build his business. Incredibly, it appears that Catone failed to set up an alternative means of running his business, relying entirely on Facebook, according to the lawsuit:

As a direct and proximate result of the acts and omissions of the Defendants, Plaintiff can no longer operate his business. Plaintiff cannot check messages, reply to posts or access his business page. The censorship threatens his livelihood as he invests $30,000 per month to run his business and has no access to run his business as he runs it through Facebook....

If Facebook does not immediately reinstate Plaintiff's account and access to this account, Plaintiff stands to lose an unconscionable amount of money and may lose his business that he has invested millions of dollars in.

Nick, I think I see the root of your problem, and it ain't Facebook. If you set up your entire business there, didn't set up your own website or email or alternative way to get in touch with you... that seems to be indicative of your own bad business decisions. And you don't get to sue others over those. That's not how any of this works.

Also fun is the way in which Catone's posts that got his account in trouble are described:

Like many of his fellow citizens, the Plaintiff, Nick Catone 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 his deceased infant son and the vaccines that contributed to the death of his son, seeking to engage in debate the community of friends whose respect he has gained.

The Plaintiff, Nick Catone, used Facebook for open discussion regarding the safety and effectiveness of vaccines. Plaintiff felt that should be and [sic] open discussion to debating the merits of this serious public question.

Nick may think that, but that doesn't mean Facebook needs to host it.

Also, Nick, Mark Zuckerberg didn't personally decide to censor your to "deflect attention" from Facebook scandals, even if your lawsuit claims that's what's going on:

Upon information and belief, Mr. Zuckerberg harbors political ambitions beyond his role as principal of Facebook. His decision to categorically censor the speech of concerned citizens including that of Nick Catone is intentional and is inspired by ill-will, malice, and a desire to deflect attention from himself and Facebook's practice of surreptitiously mining data for profit from consumers who believe they are receiving a free service devoted primarily to their welfare.

I'm sitting here trying to figure out the galaxy brain explanation for how "censoring" "thinkers" as part of an apparently malicious campaign, deflects attention from totally unrelated Facebook scandals or somehow helps his apparent political ambitions. I guess I'm not a "thinker" because I just don't see it.

Anyway, claims. We've got 'em. They're not good, but they exist. According to the lawsuit it violates Section 230 of the CDA if you moderate:

The Communications Decency Act provides immunity from civil liability for materials published on interactive computer service sites. The provision of immunity was intended to avoid "content-based" chilling of freedom of speech in the "new and burgeoning Internet medium." Section 230 was enacted, in part, to preserve the robust nature of speech on the Internet. These principles were clear articulated in Zeran v. America Online....

Yeah, Mermigis, you gotta keep reading beyond that, because the way in which CDA 230 protects free speech online is by not allowing you to sue them for their moderation choices, because such dumb lawsuits would chill the ability to host any content online. I mean, dammit, you're a lawyer, at least read part (c)(2) of CDA 230 where it outright explains that you can't sue an internet company over its moderation choices -- which you admitted earlier were clearly in good faith.

The next bit is just nonsense. I know there are other lawsuits out there (mostly those stupidly claiming "bias" in takedowns) but they all fail and this one will too, because this is not the law. It's the opposite of what the law says and no court has ever come close to this interpretation in dozens upon dozens of cases involving CDA 230.

Facebook enjoys immunity from suit under Section 230 of the CDA as a Congressionally mandated means of ensuring free and robust speech on the Internet. The privileged status necessary entails a corresponding responsibility to achieve the very goal for which Congress granted immunity: to wit, the preservation of free speech on a quintessential public forum.

No. That's not what the law says, not what it intended, not what it means, and no court has ever interpreted it that way because the law actually explicitly states the reverse -- that in order to support family friendly spaces on the internet, platforms face no liability for the moderation choices they make -- including booting off people spewing pseudo-science hogwash that puts people in harms way.

Facebook's enjoyment of immunity from civil liability for the material it transmits on the Internet transforms its editorial decision-making process into management of a constructive public trust.

The manner and means by which the defendants have banned the Plaintiff from engaging in free speech on Facebook are a violation of the CDA and constitute a willful and wanton violation of the terms of the constructive public trust.

That's gibberish. It is not what the law says. And, again, dude, CDA 230 is an immunity provision. You can't "violate" it.

From there, we get into more gibberish: claiming that Facebook moderation violates the 1st Amendment. Again, this argument has been rejected numerous times, and many of those times the argument was made more competently than it was made here (and it's never been made competently, since it's legally nonsense). Facebook is a private company. It's not the government. Its actions around moderation literally cannot violate the 1st Amendment. To try to get around this, the complaint actually tries to argue that the CDA turns Facebook into a state actor. I only wish I were kidding.

The CDA's grant of immunity is integral to the government's purpose of promoting freedom of speech on the Internet. As such, the symbiosis between Facebook and the United States government transforms Facebook's action into state action under the doctrine enunciated in Burton v. Wilmington Parking Authority....

Uh, no. The Buron case is not even remotely analogous (that involved a government parking lot and a strip of retail stores that the government leased out to a coffee shop to help generate revenue to pay for the parking garage). That, uh, is nothing like a private company moderating its own space. And, honestly, we've got the Manhattan Cable case from literally last year that seems a hell of a lot more on point. Let's quote from the Supreme Court ruling from last summer:

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.”

To argue against that -- that the CDA by itself automatically turns any internet forum into a state actor -- is laughable beyond belief. It's not an argument a lawyer should be making.

From there we get some silly add-on claims about "fraud," "implied warranty," "intentional and malicious interference" etc. These are the kind of toss-in extra claims one adds to try to add heft to an already weak complaint. They are not well argued and are barely comprehensible.

And how can I leave out the damages request for in excess of $5 billion. Even that is argued in a weird, roundabout way. Rather than just asking for $5 billion like your average complaint, this one spends a bunch of paragraphs talking about totally unrelated things:

In April 2019, Facebook set aside a sum of $5 billion to use to pay an anticipated fine by the Federal Trade Commission involving systematic breaches of consumer privacy. Even so, the Defendants forecast significant profits.

Apparently Mermigis' research failed to find out that after setting aside that sum in April, the FTC went ahead and issued that fine against Facebook in July and Facebook paid up. Crack research there, buddy. Either way, what does that have to do with anything? Apparently, that now sets the floor for any damages for one Mr. Nick Catone:

Punitive damages in a sum sufficient to punish and deter Facebook for violating the First Amendment, the Communications Decency Act, for engaging in fraud, unfair or deceptive trade practices, intentional and malicious interference with prospective economic advantage and breaching the implied warranty of fair dealing. Because a sum of $5 billion appears to be insufficient to deter Facebook, the plaintiffs ask the jury for a sum significantly in excess of that amount.

Good luck, champ. Oh, and for what it's worth, I see that the punitive damages statement includes some for "unfair and deceptive trade practices" but as far as I can tell, they never actually claim that in the lawsuit -- which is a bold strategy. Anyway, this complaint should be a case study in how not to internet law. I assume the courts may be a bit slow to act, seeing as we're dealing with a pandemic, and not have time for a guy who wants to demand that private internet sites host his speech regarding evil vaccines, but this case will be dismissed in time. Perhaps by then we'll have a vaccine for COVID-19. That would be nice.

Filed Under: 1st amendment, anti-vax, cda 230, content moderation, james mermigis, nick catone, section 230, vaccines
Companies: facebook

Group Promoting 'Religious Freedom' Around Vaccines Appears To Want To Stifle Free Expression Of Critics

from the not-a-good-look dept

As should be evident by the fact that our post from last fall about content moderation dealing with ignorant anti-vaxxers has amassed over 1700 comments (and more keep coming in), the anti-vax community seems to really like to flood the zone with bullshit, and keep talking until people debunking their nonsense are just completely worn out (and, yes, all of their nonsense has been debunked countless times). However, it appears that for all their talk of individual "freedom" sometimes they seek to silence others.

The latest example comes via a letter sent by lawyer Jay Wolman, in response to a cease-and-desist letter sent by the group CT Freedom Alliance LLC, which is a Connecticut-based group that has been actively fighting against a plan in Connecticut to remove broad religious exemptions for vaccinations. Brian Festa, the lawyer for the group (who is quoted extensively in the linked article) sent a cease-and-desist to someone, accusing them of defamation regarding CT Freedom Alliance and one of its co-founders, Dawn Jolly.

The letter from Wolman is worth reading in full. It starts out by noting that the lawyer, Brian Festa, appears not to be too familiar with defamation/1st Amendment law:

As we see your primary occupation is with the CT CHRO, our presumption is that defamation law is outside your usual practice. Allow us, then, to explain why your letter is deficient and what the most likely judicial outcome would be.

And while I would normally go through the letter in order, for this one, I think it's worth first jumping to the conclusion of the letter, labeled as "Section 3":

3.0 Stop This Nonsense

Your client states, on its website "[w]e pledge to never engage in censorship, groupthink or controlled messaging." ... Similarly, on November 22, 2019, your client stated on Facebook that it is "the arch nemesis of censorship and deception." And on November 8, 2019, your client stated that it is an organization "where every voice is heard, and not one is louder than the others." Your threat directly contradicts these statements. It is an attempt, through bullying, to censor our clients. It is an attempt to control messaging, to thwart the ability of anyone who disagrees with your client to be heard. It promotes but a single ideology, which necessitates groupthink.

In the immortal words of Master Yoda, "Stop it Now". Bad Lip Reading, "SEAGULLS! (Stop It Now)" (Nov. 25, 2016) available at https://www.youtube.com/watch?v=U9t-slLl30E

Thank you for your attention to this matter.

More to the point, Wolman points out that Festa's clients have no valid claim of defamation. Jolly and her organization are upset that Wolman's (unnamed) client allegedly "disseminated false information." But as Wolman points out, that claim is substantially true -- and also suggests in the process that Jolly has since deleted the evidence:

Our clients' statements are substantially true. For example, Ms. Jolly shared on Facebook (and has since apparently spoliated) the article [URL Removed], claiming "More effective than your damn flu shot". We have a copy, even though it does not appear currently visible on her public Facebook page. The linked article makes no such claim. Instead it links to an article [URL Removed], where the author of the study at issue actually "insists that those at risk continue to take their flu jabs." Thus, Ms. Jolly has disseminated inaccurate information.

Similarly, in what appears to be another spoliated post, Ms. Jolly shared on Facebook a post purporting to assert that autism is not genetic due to an absence of autistic parents and grandparents. The purported connection between vaccines and autism arise from Andrew Wakefield's discredited 1998 publication in The Lancet, which has been retracted.... Thus, Ms. Jolly uses retracted studies to support her claims.

It goes on from there, calling out that the cease and desist letter did not make clear what statements were defamatory -- which, as Ken "Popehat" White frequently says, is "the hallmark of meritless thuggery."

We have been guessing as to what it is, exactly, that you are claiming is libelous, i.e. the supposedly false information you claim our clients disseminated. You cannot merely present lengthy statements and expect us to determine what it is that you are claiming is false.

And then, in explaining the basics of free speech and the 1st Amendment, Wolman gets to insert a Marc Randazza (whom he works with) favorite from The Big Lebowski.

In brief, there is no reasonable expectation that your claims will be met with any success. There will be no damages awarded. There will be no injunctive relief. And, your threat of a temporary restraining order plainly shows you are unfamiliar with the well-established rule that “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”. Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998)).

Separately, just a few years ago, Connecticut joined many other states in adopting an anti-SLAPP law that means that Jolly and the CT Freedom Alliance would likely end up paying the other side's legal fees should it go to court:

Second, your clients will be liable to ours under the Connecticut Anti-SLAPP statute, Conn. Gen. Stat. § 52-196a. Dismissal will be swift. Our clients’ statements were all communications in public fora on public health, a matter of public concern. And, you lack probable cause under law, as set forth above, to bring your threatened libel claim. With those elements met, the statute mandates that our clients will be awarded their costs and reasonable attorneys’ fees. We would be happy to provide you with a list of cases in which we have recovered large fee awards in SLAPP suits so that you may properly advise your clients as to your proposed ill-fated adventure in litigation.

And, hey, even I get a shout out in the letter:

Should you proceed down the path of litigation and actually file suit, you should also advise your clients of their liability. First, they will have the misfortune of incurring the Streisand Effect. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 95 (D.D.C. 2014) (describing “the dilemma faced by plaintiffs in defamation cases, who often end up publicizing defamatory statements much more than if they had not filed a lawsuit.”); see also, Masnick, Michael, “Since When is it Illegal to Just Mention a Trademark Online?” Techdirt (Jan. 5, 2005) available at https://www.techdirt.com/articles/20050105/0132239.shtml (coining the term). It is unlikely your clients have suffered any injury to their reputation on account of our clients’ statements. Your clients are apt to suffer far greater injury to their reputation, to the extent they might not already be libel proof, on account of their own statements and tactics should they turn to litigation and bring the frivolous suit you propose.

It's not often that I get mentioned in a letter alongside Master Yoda and Walter Sobchak. But, it all seems to be for a good purpose -- protecting the right to free speech.

Filed Under: 1st amendment, anti-slapp, anti-vax, brian festa, connecticut, dawn jolly, defamation, free speech, jay wolman, streisand effect, threats, vaccines
Companies: ct freedom alliance

Content Moderation At Scale Remains Impossible: Vaccines Edition

from the the-way-of-the-world dept

Last week a story started to blow up that was used, once again, by the media to beat up on Facebook. The headline, from the Daily Beast, says it all: Facebook Axed Pro-Vaccine Ads From Hospitals and Health Orgs, Let Anti-Vaxxer Ads Slip Through. As the story notes, Facebook has (smartly) decided to not allow anti-vax nonsense advertising. It will, of course, allow important pro-vaccination awareness advertising. It does this for a pretty good reason: anti-vax nonsense is killing people. Vaccinations save lives (and I know some anti-vaxxers reading this are foaming at the mouth to scream at us in the comments, and let's just be clear: you're wrong and you should stop it before you kill more people). Anyway, here's what went down:

This month, the Idaho Department of Health and Welfare, the state’s official health department, bought 14 ads to promote a statewide program providing free pediatric vaccinations. Facebook removed all of them.

During the same time period, Children’s Health Defense, an anti-vaccine nonprofit founded and chaired by the nation’s most prominent vaccine conspiracy theorist, Robert F. Kennedy Jr., successfully placed more than 10 ads stoking unfounded fear about vaccines and other medical conspiracy theories.

I saw some people on Twitter using this to attack Facebook, but actually it just highlights the same point we've been making for a few years now: content moderation at scale is impossible to do well and you will always, always make mistakes. And this is one of many kinds of mistakes that happen all the time. Unless someone is deeply, deeply engaged in these issues, distinguishing between anti-vax anti-science quackery can sometimes be difficult. And if moderators are taught to be wary of "vaccine" advertisements, they may just start to key in on anything that mentions vaccines -- including something from a government Department of Health. In some cases it appears that automated systems are to blame:

“It’s our understanding that auto-blocking software flagged these ads, since the text resembles when ads appear to be spreading vaccine misinformation,” said Emily Lowther, a spokeswoman for the Minnesota Hospital Association, who expressed frustration at the phenomenon.

Of course, perhaps what's more interesting is that part of the reason the Daily Beast was even able to write this story is because of Facebook's transparency on advertisements with its Ad Library.

You could say that Facebook must do a better job at this kind of thing, but that would require focusing even more attention on these ads, which inevitably means some other set of ads will end up getting messed up as well. Content moderation at scale is impossible to do well, and that's not a Facebook issue, it's a societal one. There are some people who are going to be pushing bad information, and they're always going to seek to make it look as legit as possible. That's a problem, but expecting that one company can magically fix it seems like a silly thing to do.

Filed Under: ads, anti-vax, content moderation, vaccines
Companies: facebook

Pinterest's Way Of Dealing With Anti-Vax Nonsense And Scams Is Only Possible Because Of Section 230

from the experimentation-wins dept

A key argument by many who are advocating for getting rid of Section 230 is that various internet platforms need to "take more responsibility" or have some sort of "duty of care," to rid their platforms of malicious content (however that's defined). I even heard one staunch anti-Section 230 advocate complain vocally that internet services "aren't experimenting enough" with policing their platforms. The argument that there's not enough experimentation struck me as quite odd -- because if you look around, there's actually a ton of experimentation going on in platform moderation methods and techniques. And, even more weird, is that most of this experimentation is only possible because of Section 230.

Take the case of Pinterest. While Facebook, Twitter, YouTube, and Amazon have all struggled with ways to deal with the influx of utter nonsense -- much of which is actively dangerous -- Pinterest earlier this year announced that it was taking a hardline stance against anti-vax nonsense, banning it from the site, as best it could.

Pinterest has responded by building a “blacklist” of “polluted” search terms.

“We are doing our best to remove bad content, but we know that there is bad content that we haven’t gotten to yet,” explained Ifeoma Ozoma, a public policy and social impact manager at Pinterest. “We don’t want to surface that with search terms like ‘cancer cure’ or ‘suicide’. We’re hoping that we can move from breaking the site to surfacing only good content. Until then, this is preferable.”

Pinterest also includes health misinformation images in its “hash bank”, preventing users from re-pinning anti-vaxx memes that have already been reported and taken down. (Hashing is a technology that applies a unique digital identifier to images and videos; it has been more widely used to prevent the spread of child abuse images and terrorist content.)

And the company has banned all pins from certain websites.

“If there’s a website that is dedicated in whole to spreading health misinformation, we don’t want that on our platform, so we can block on the URL level,” Ozoma said.

That was at the beginning of the year. And now, Pinterest is trying to fill the nonsense void with credible information instead. Rather than just blocking all of the nonsense, it has decided to replace it with credible information:

On Wednesday, Pinterest announced a new step in its efforts to combat health misinformation on its platform: users will be able to search for 200 terms related to vaccines, but the results displayed will come from major public health organizations, including the World Health Organization (WHO), Centers for Disease Control, American Academy of Pediatrics (AAP) and Vaccine Safety Net.

The platform will also bar advertisements, recommendations and comments on those pages.

“It was really important for us to make sure that this experience doesn’t allow any misinformation to seep in,” said Ifeoma Ozoma, public policy and social impact manager for Pinterest. “You’re not going to end up in a situation where you click on a trustworthy pin and the recommendations or comments are full of misinformation.”

This is certainly not a panacea. Indeed, it's not even that hard to still find vaccine misinformation on Pinterest if you look hard enough. And, there's certainly a risk of over-blocking in this area as well. For example if someone were countering disinformation about vaccines, it's possible that they could accidentally get swept up in the mess as well. Also, not all information is so obviously bullshit. I've seen anti-vaxxers misrepresent legitimate studies as supporting their position -- so how do you handle legitimate reports that are being misrepresented? It quickly becomes difficult (as we've discussed in many previous posts).

However, the key thing here is that this is how Pinterest has decided to deal with this problem. It's the way in which this one platform has decided to approach things on a problem that it sees with the spread of, often dangerous, myths about vaccinations (and, just a heads up: don't even think of spreading more anti-vax nonsense in the comments, because you're not just wrong and ignorant, but you're actively harming people).

But the key thing here is that Pinterest is able to experiment this way because Section 230 protects its choices. Section 230 allows platforms like Pinterest to experiment and try different approaches. And that's important for a variety of reasons. More experimentation means more ideas and more tests of what actually works. It also allows for a recognition that every platform is different. The content that is on Pinterest is different than the content on YouTube or Reddit or Amazon or Twitter, and Section 230 lets them craft a unique policy and implement it how they see fit to best deal with their own platform and their own community.

Nearly all of the proposals to chip away at Section 230 would limit or block entirely this kind of experimentation -- meaning we'd all end up significantly worse off in the long run. It's one thing for people to simply demand that platforms take more responsibility -- but when the people making those demands are simultaneously trying to take away the tools that allow the companies to actually experiment with how best to take more responsibility, that's when problems come in.

Filed Under: anti-vax, cda 230, content moderation, section 230, vaccines
Companies: pinterest