NY Times Opinion Section Gets CDA 230 Wrong AGAIN!

from the hey,-guys... dept

What the fuck is up with the NY Times when it comes to reporting on important laws about the internet? While they did, thankfully, publish Sarah Jeong's piece mocking everyone for failing to read Section 230 and totally misrepresenting it, they have since published three separate stories that completely get Section 230 wrong -- often in embarrassing ways. First there was the laughable piece by Daisuke Wakabayashi that claimed that Section 230 is what made hate speech legal online -- leading to the NY Times having to run a hilarious correction saying "oops, we actually meant the 1st Amendment." Then the NY Times opinion section let internet-hater Jonathan Taplin publish an anti-internet screed. Taplin has a history of misguided histrionics about copyright law, and it appears that he must have had an anti-DMCA safe harbor screed ready to go... but since everyone was hating on Section 230 (which is very different than DMCA 512) they just tried to swap it in... in a way that made no sense at all.

So you might think that the NY Times and especially its Opinion section editors would be a bit more careful any time Section 230 came up, but... nope. Instead, the NY Times has a ridiculously dumb new article by Andrew Marantz who (coincidentally, I'm sure) has a brand new internet-hating book coming out. The title of the piece is Free Speech Is Killing Us, so you just know it's going to be good (and by good I mean, really, really, really, bad). It delivers.

There has never been a bright line between word and deed.

Actually. There has. But, hey, you do you.

Yet for years, the founders of Facebook and Twitter and 4chan and Reddit — along with the consumers obsessed with these products, and the investors who stood to profit from them — tried to pretend that the noxious speech prevalent on those platforms wouldn’t metastasize into physical violence.

It's interesting that Marantz seems to know what was in the mind of the founders of all those companies. Impressive. Especially if you talk to some of them and find out that... this is not actually what they thought.

Having spent the past few years embedding as a reporter with the trolls and bigots and propagandists who are experts at converting fanatical memes into national policy, I no longer have any doubt that the brutality that germinates on the internet can leap into the world of flesh and blood.

Yeah, see, no one doubted this. Indeed, lots of qualified people have researched this in the past, including Susan Benesch who studied this issue in detail, but didn't conclude that free speech is the problem, but rather recognized that the ability of speech to lead to violence compels us to pay attention and then figure out ways to counter that speech. Marantz, on the other hand, leaps straight to censorship. First, of course, he mocks those who dares suggest that maybe censorship would be a problem.

The question is where this leaves us. Noxious speech is causing tangible harm. Yet this fact implies a question so uncomfortable that many of us go to great lengths to avoid asking it. Namely, what should we — the government, private companies or individual citizens — be doing about it?

Nothing. Or at least that’s the answer one often hears from liberals and conservatives alike. Some speech might be bad, this line of thinking goes, but censorship is always worse. The First Amendment is first for a reason.

After one of the 8chan-inspired massacres — I can’t even remember which one, if I’m being honest — I struck up a conversation with a stranger at a coffee shop. We talked about how bewildering it was to be alive at a time when viral ideas can slide so precipitously into terror. Then I wondered what steps should be taken. Immediately, our conversation ran aground. “No steps,” he said. “What exactly do you have in mind? Thought police?” He told me that he was a leftist, but he considered his opinion about free speech to be a matter of settled bipartisan consensus.

I imagined the same conversation, remixed slightly. What if, instead of talking about memes, we’d been talking about guns? What if I’d invoked the ubiquity of combat weapons in civilian life and the absence of background checks, and he’d responded with a shrug? Nothing to be done. Ever heard of the Second Amendment?

Using “free speech” as a cop-out is just as intellectually dishonest and just as morally bankrupt.

Yeah, but the thing is, people who actually have spent more time studying this than Marantz have long pointed out that they're not just using "free speech" as a cop out, but pointing out, in great detail, the actual harms that are done by chipping away at free speech.

From there, Marantz dips into some of the common ridiculous free speech tropes that people who have first discovered the subject jump to if they've never had to actually confront the reasons why we have a 1st Amendment.

For one thing, the First Amendment doesn’t apply to private companies. Even the most creative reader of the Constitution will not find a provision guaranteeing Richard Spencer a Twitter account. But even if you see social media platforms as something more akin to a public utility, not all speech is protected under the First Amendment anyway. Libel, incitement of violence and child pornography are all forms of speech. Yet we censor all of them, and no one calls it the death knell of the Enlightenment.

That's the "not all speech is protected" trope. As Ken White has noted, while this is true, it's not at all helpful in looking at if this particular speech is protected, and it assumes (incorrectly) that courts are adding new exceptions to the 1st Amendment all the time. They are not.

Free speech is a bedrock value in this country. But it isn’t the only one. Like all values, it must be held in tension with others, such as equality, safety and robust democratic participation. Speech should be protected, all things being equal. But what about speech that’s designed to drive a woman out of her workplace or to bully a teenager into suicide or to drive a democracy toward totalitarianism? Navigating these trade-offs is thorny, as trade-offs among core principles always are. But that doesn’t mean we can avoid navigating them at all.

This is more or less the “We must balance free speech with [social good].” / “There is a line between free speech and [social evil]." trope that White describes. Yes, free speech creates tension with other things, but the courts don't run a "balancing" test. And, yes, there are trade-offs. And, as a society we've long looked (mostly successfully) at ways of lessening the negative consequences of speech not by censoring, but by coming up with other ways to deal with that fallout. But Marantz, apparently, either doesn't know this or doesn't care.

In 1993 and 1994, talk-radio hosts in Rwanda calling for bloodshed helped create the atmosphere that led to genocide. The Clinton administration could have jammed the radio signals and taken those broadcasts off the air, but Pentagon lawyers decided against it, citing free speech. It’s true that the propagandists’ speech would have been curtailed. It’s also possible that a genocide would have been averted.

Yeah, this is exactly the kind of thing that Benesch studied, and what she found was that merely trying to censor the speakers, who are often getting out what many people are feeling, you have to figure out more constructive ways to change views to prevent violence. Censoring them doesn't tend to work.

I am not calling for repealing the First Amendment, or even for banning speech I find offensive on private platforms.

Oh sure you're not. You just have a whole NY Times article criticizing the 1st Amendment and an entire book coming out suggesting the same.

We can protect unpopular speech from government interference while also admitting that unchecked speech can expose us to real risks. And we can take steps to mitigate those risks.

Yeah. That's what lots of people have already been doing. Welcome to the party, Andrew. Nice of you to pretend you started it.

Congress could fund, for example, a national campaign to promote news literacy, or it could invest heavily in library programming.

I mean. Sure. But do you really think that the people who want to hate on this or that politician are doing so because they weren't taught "news literacy"?

It could build a robust public media in the mold of the BBC.

Why?

It could rethink Section 230 of the Digital Millennium Copyright Act — the rule that essentially allows Facebook and YouTube to get away with (glorification of) murder.

Well, Andrew, I think I see your problem. There is no Section 230 of the Digital Millennium Copyright Act, which makes me think that your research ability may not be up to snuff. It also makes me wonder why you're weighing in on this issue when you clearly haven't read the law since you don't even know what it is. You're actually talking about Section 230 of the Communications Decency Act, which also is the law that allows Facebook and YouTube to moderate their platforms in exactly the way you're asking them to.

If Congress wanted to get really ambitious, it could fund a rival to compete with Facebook or Google, the way the Postal Service competes with FedEx and U.P.S.

How is this nonsense in the NY Times? This is such a dumb idea it's barely worth responding to.

Or the private sector could pitch in on its own. Tomorrow, by fiat, Mark Zuckerberg could make Facebook slightly less profitable and enormously less immoral: He could hire thousands more content moderators and pay them fairly.

Dude. Have you not been paying attention? The company already has over 10,000 content moderators and has said it's hiring at least another 10,000 and I'm betting that number would go up.

Or he could replace Sheryl Sandberg with Susan Benesch, a human rights lawyer and an expert on how speech can lead to violence.

So, you do know Susan! Then... don't you also know that she's against censorship and for more creative approaches to countering such dangerous speech online? And I think it would be great if Facebook hired her, but not in Sheryl's role. Susan is one of the smartest people in the world on these issues, but Sheryl is the company's Chief Operating Officer, and I'm unclear on Susan's experience in running one of the largest companies in the world.

Either way, this article is garbage. The NY Times is, of course, free to print such garbage, just as we're free to criticize it. And wonder who the hell is editing and fact checking stuff when it can't get basic facts like which law you're talking about correct.

Filed Under: 1st amendment, andrew marantz, cda 230, censorship, free speech, free speech tropes, ny times opinion, section 230
Companies: ny times

Finding And Responding To The Media's Favorite Ridiculous And Misleading Free Speech Tropes

from the join-the-fun dept

A few years ago, Ken "Popehat" White put together a very important and useful post that completely dismantled the old trope that "free speech doesn't mean you can shout fire in a crowded theater." That line, of course, is so frequently used by those who seek to eliminate freedom of expression, and it's problematic beyond just for that reason: it's also wrong. The Popehat post is a really useful way to respond to anyone who makes that argument. A few months ago, the free speech group FIRE (yes the name is important in this context) put up a similarly useful post. And, as we mentioned last week, just recently Andy Sellars put together a great list of all the many times you actually can shout fire in a crowded theater (it's a long list).

Either way, while the "fire in a crowded theater" may be the most overused anti-free speech trope, it is hardly the only one. Thus, Ken White is back with another important post detailing that and many other such tropes, especially as they're used in the media. And, importantly, he presents examples of them each being used, explains why they're wrong, and suggests how to counter the arguments. You should read the whole thing, but here are just a couple of the tropes listed:

Trope One: "Hate Speech"

Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.

In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.

"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"

[.....]

Trope Five: "Balancing free speech and [social value]"

Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.

The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.

"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).

Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.

White tells me he hopes to keep this post updated with new tropes, new examples and new explanations, so help out by heading over to his site and submitting more examples of tropes, and let's help Popehat create the definitive list of such tropes that can then be used to shame the media away from continuing to use these tropes every time they feel like chopping away at the First Amendment.

Filed Under: fire in a crowded theater, first amendment, free speech, free speech tropes, journalism