California Anti-SLAPP Law Gives Rachel Maddow An Early Exit From Conservative News Network's Bogus Libel Lawsuit

from the and-now-OAN-will-have-to-pay-her-legal-bills dept

The only news network further to the right than Fox News has just seen its baseless libel lawsuit against MSNBC host Rachel Maddow dismissed under California's anti-SLAPP law. While Fox occasionally has to acknowledge the real world and employs a few newscasters critical of the President and his policies, One American News Network (OAN/OANN) apparently feels no compunction to address any issues honestly, preferring to curl up in the lap of the leader of the free world.

OAN sued after Maddow offered her commentary on a Daily Beast article that said the news network employed a "Kremlin-paid journalist." The journalist, Kristian Rouz, had been working for both OAN and the Kremlin-owned Sputnik, the latter of which was determined to be a participant in Russia's 2016 election interference effort.

Maddow's commentary was somewhat hyperbolic, and very critical of OAN and its double-agent journalist. But OAN took particular issue with a single phrase Maddow said during her broadcast. From the decision [PDF]:

Maddow states, “there is a lot of news today, but among the giblets the news gods dropped off their plates for us to eat off the floor today, is the actual news that this super right-wing news outlet that the President has repeatedly endorsed . . . we literally learned today that that outlet the President is promoting shares staff with the Kremlin. I mean, what?” She laughs and soon after says, “in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda. Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” (emphasis added). The underlined portion of the sentence highlights where Plaintiff takes issue.

MSNBC filed an anti-SLAPP motion to strike the suit, pointing out OAN's effort was just an attempt to stifle Constitutionally protected speech. Anti-SLAPP laws allow for fee-shifting, which makes it riskier for plaintiffs to pursue bogus lawsuits. But it also shifts some of the burden of proof to the defendants, who must show the targeted speech is actually protected.

First, the court points out that Maddow's MSNBC segment isn't the straightforward readings of newsworthy happenings. It is very much slanted towards opinion, which Maddow offers liberally (in both senses of the word). Since viewers know what to expect from Maddow, it's unlikely they would take all of her commentary to be factual assertions.

Maddow does not keep her political views a secret, and therefore, audiences could expect her to use subjective language that comports with her political opinions. Thus, Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news. Therefore, the Court finds that the medium of the alleged defamatory statement makes it more likely that a reasonable viewer would not conclude that the contested statement implies an assertion of objective fact.

There's also the context in which her statements were delivered, which includes her demeanor during the broadcast.

The “general tenor” of Maddow’s segment is a report on the Daily Beast article, and Maddow’s tone could be described as surprise and glee at the unexpectedness of the story. She begins by calling the story the “single most like sparkly story” in what had been “a more ridiculous than most day in the news.” She calls the news one among “the giblets the news gods dropped off their plates for us to eat off the floor today.” Maddow reports that OAN shares staff with the Kremlin and discusses the allegedly defamatory Russia connection, then follows this by saying (while laughing), “I mean, what?” She concludes the segment by saying, with a shake of the head, “I mean, this is the kind of news we are supposed to take in stride these days. And we do our best.”

As the court sees it, Maddow's piece accurately described the contents of the Daily Beast article, interspersed with her colorful interjections. Most of her coverage of OAN's Sputnik-employed journalist was "opinion and exaggeration." This includes the single sentence OAN sued over.

The court also points out the word "literally" no longer holds a single meaning, so relying on this word doesn't move OAN any closer to establishing its defamation claim.

Although Maddow used the word “literally,” this does not necessarily mean the phrase should be taken to be factual. Nowadays, as evidenced by the two conflicting definitions of the word “literally,” use of the word can be hyperbolic.

Even if "literally" were to be taken literally, it still wouldn't help OAN. The facts relayed by Maddow in her piece are indisputable. By that I mean OAN doesn't even dispute them. And as for Maddow's connection of OAN to Russian propaganda efforts, this was supported by her clarification and evidence from an outside source.

There is no dispute that Maddow discussed this article on her segment and accurately presented the article’s information. Indeed, the facts in the title of her segment are not alleged to be defamatory: “Staffer on Trump-favored network is on propaganda Kremlin payroll.” Plaintiff agrees that President Trump has praised OAN, and Rouz, a staffer for OAN, writes articles for Sputnik News which is affiliated with the Russian government. (See Compl. ¶ 24.) Rouz is paid for his work by Sputnik News. (Id. ¶ 26.) Maddow provided these facts in her segment before making the allegedly defamatory statement.

[...]

Further, in the sentence immediately following the contested sentence that OAN is “literally paid Russia propaganda,” Maddow said, almost as a clarification, that OAN’s “on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” And, at the time Maddow made the allegedly defamatory statement, the screen was showing the Daily Beast article accompanied by the text: “One of the on-air reporters at the 24-hour network is a Russian national on the payroll of the Kremlin’s official propaganda outlet, Sputnik.” Thus, Maddow immediately qualified the allegedly defamatory statement with a factual clarification and viewers were seeing accurate information regarding OAN on the screen while listening to Maddow.

That ends OAN's lawsuit. And the court will not give OAN another chance to engage in this dumbassery again.

Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.

With that, OAN is now on the hook for Maddow's legal fees, thanks to California's anti-SLAPP law. It's that simple. And it should be that way everywhere, which would head off the libel tourism we see on display in a handful of states. Giving defendants an early exit keeps them from being bled to death, and plaintiffs, who've had to pay their opponents' legal fees, will be less likely to use the federal court system vindictively to silence critics.

Filed Under: 1st amendment, anti-slapp, california, defamation, free speech, kristian rouz, rachel maddow
Companies: msnbc, oann

No, Twitter Fact Checking The President Is Not Evidence Of Anti-Conservative Bias

from the get-a-fucking-grip dept

I know we've gone through this a bunch already, but there remains no evidence to support the claims of "anti-conservative bias" at major social media platforms. Some people (usually self-claiming conservatives, though they rarely seem to represent actual conservative principles) get really angry about this. But, oddly, none ever seem to present any actual evidence.

Of course, the very underpinnings of the White House's silly and nonsensical executive order regarding social media is that of course there's is anti-conservative bias in the moderation, and it even points to the action that kicked off this entire temper tantrum from the thin-skinned President: they provided a link under his debunked conspiracy theory tweet about mail-in ballots. Many Trump supporters and the executive order itself argue that this kind of fact checking is only done to conservatives:

Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.

This is a sample size of one. And, indeed, while it's not a "politician's tweet," Twitter has used the same fact check labeling system to defend this administration. Indeed, the first time I ever saw such a fact check was a few weeks ago when it was used to defend Mike Pence from misleading claims in a Jimmy Kimmel bit:

It turned out that Kimmel's portrayal of Pence was totally inaccurate, and he took what was an obvious joke by Pence and pretended it was serious. And Twitter's fact checkers debunked the viral tweet. Even though it was a story going viral in the anti-Trump world, and the fact check aided the administration.

Now, these are both just anecdotes, but, at the very least, they suggest that the idea that Twitter is applying these fact checks in a politically biased manner is not obviously supported by the evidence. So far I've seen this feature show up on two viral tweets. One that debunked Trump and one that debunked people making fun of Pence.

Meanwhile, perhaps the funniest thing I've seen in a while is a bunch of famous people, who claim to be conservatives, gloating over how this executive order is so necessary because Twitter censors conservatives... and all of their gloating is on Twitter itself.

If Twitter is stifling free speech, and censoring conservative voices, it's doing a shit job of it.

Filed Under: anti-conservative bias, bias, donald trump, evidence, fact checking, intermediary liability, president trump, section 230
Companies: twitter

Trump's Final Executive Order On Social Media Deliberately Removed Reference To Importance Of Newspapers To Democracy

from the because-of-course dept

We wrote a detailed breakdown of the President's silly, nonsensical, legally wrong Executive Order regarding social media yesterday. A few hours later the official version came out, and it was somewhat different than the draft (though, in no ways better). If you want to see the differences between the draft and the final version, here's a handy dandy redline version put together by Professor Eric Goldman.

The new version inserted a bunch more nutty ramblings that have no legal meaning, but should the executive order ever need to be challenged in court, more or less made it clear that this was done vindictively. It honestly reads like Trump read the draft and whined that there wasn't enough about how unfair everyone is to him and what a meanie Rep. Adam Schiff has been in investigating the President. Separately, the very fact that the draft changed so drastically from the night before to the moment of release shows that it was drafted hastily, which provides even more evidence that it was done directly in retaliation for Twitter fact checking his false claims.

The biggest change in the final version is that beyond setting up a "working group," the final version instructs the Attorney General to "develop model legislation for consideration in States where existing statutes do not protect Americans from such unfair and deceptive practices." Theoretically, this might become a nuisance, but (1) Barr already put together such a working group last year, and (2) had already been working on various legislative proposals to undermine Section 230, including the EARN IT Act that we've discussed at great length.

One other notable change is in the instructions given to the FCC, which (despite having literally no legal authority over websites) is to come up with an interpretation of Section 230 (also, the FCC has no reason or basis to interpret Section 230, as that's a job for the courts). The difference from the draft is that it instructs this analysis to look at "the interaction" between the two clauses of the Good Samaritan clause:

... requesting that the FCC expeditiously propose regulations to clarify:

(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

If you don't recall, we've discussed at great lengths the two parts of 230. (c)(1) is the sites are not liable for content posted by users part and (c)(2) is sites are not liable for moderation choices. These are two separate things. There is no "interaction" between them. There's never been any interaction between them. No court has said there's any interaction between them. As far as I know, no party in a case has competently argued that there's an interaction between them.

Yet, to try to make this EO have teeth, the Trump administration seems to want to invent an interaction between the two. Specifically, (c)(2)(A) says that:

No provider or user of an interactive computer service shall be held liable on account of.... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

The Executive Order is hinting that "good faith" and the "objectionable" content part should somehow restrict the part that makes a website liable for what it's users do. There is no credible lawyer who thinks this makes any sense. It's just a weird move by someone looking for any scrap of a way to increase the liability of websites.

But to me, the craziest part of the "changes" between the draft and the final version is that someone apparently flipped out that during the patriotic nonsense part, the original draft mentioned that open and free debate in businesses and newspapers is "essential to sustaining our democracy." And the final version crossed out both businesses and newspapers, and replaced them with "town halls."

It's almost as if someone saw that and said "shit, we can't admit that open debate in newspapers is good for democracy when we keep attacking them and calling them fake news."

Once again, this whole thing is nonsense, and is designed to distract from the President's own failings.

Filed Under: 1st amendment, cda 230, doj, donald trump, executive order, fcc, free speech, ftc, section 230, social media

New Zealand Government Seeking To Expand Its Internet Censorship Powers

from the move-fast-and-break-things-I-guess dept

New Zealand has been in the censorship business for years, but the government appears to believe it's still not doing enough censoring. Legislation stemming from the government's reaction to the live-streamed Christchurch shooting seeks to expand its ability to block content it deems to be objectionable. In most cases, this means content related to terrorism or violent extremism. But the livestreaming of a mass shooting has created an open-ended definition for the government to work with in conjunction with its criminalization of this act.

Newsroom has written up a very thorough examination of the proposed law, with this chilling bit found all the way at the end of its article.

Lastly, the legislation makes it an offence to livestream objectionable content. [...] The new offence would be punishable by up to 14 years in prison if carried out by an individual or a $200,000 fine for corporations.

Define "objectionable." Certainly livestreaming a mass murder would be objectionable, but not if you're a witness to the horror, rather than the perpetrator. But who knows how the law will be read? The threat of a long prison sentence is likely to deter people from streaming horrific events, even if such streaming is newsworthy. This seems to leave everything up to prosecutorial discretion -- something that often isn't deployed reasonably or equitably.

There's a lot more to this bill, though. The government wants ISPs and platforms to do more policing of content it doesn't like. But even with more time and effort being put towards the proposal, legislators still seem hazy on the implementation details. And this uncertainty can be inflicted on the rest of the world.

For the purposes of this measure, "online content hosts" refers to companies "both in New Zealand and overseas that provide services to the public".

Companies issued a takedown notice must remove the content "as soon as is reasonably practicable", although they may be asked to securely and privately retain a copy for later investigation.

Non-compliant hosts can be taken to court and made to pay a fine of up to $200,000.

Legislators appear to believe website filtering will limit the amount of "objectionable" content available to New Zealand residents. Again, this proposal appears to build on the government's past failures under the assumption that a renewed effort will make things work right this time. But if the past is any indication of future success, this is going to cause far more problems than it solves. ISPs are being asked to do something, but no one has made it explicitly clear what they should be doing.

Since the March 15 terror attack, ISPs have repeatedly asked the Government to create a framework for ordering the blocking or filtering of websites. In the immediate aftermath of the attack, ISPs butted heads with DIA officials who wanted content blocked but didn't have the statutory authority to demand that.

The government is going to build a new filter list once it has the legal authority to do it. Hopefully, this effort will be less of a debacle. The previous effort was an ad hoc disaster.

The list of URLs to be blocked was hosted on a Google spreadsheet and on at least one occasion, an email full of website addresses for censoring was deleted by an email spam filter.

The legislation will attempt to bang this all together into a usable whole, but about the only thing that seems clear at this point is the government feels more and faster censorship of the web is necessary. The bill gives the country's Chief Censor the power to make "interim" rulings on content, allowing this entity to expedite deletions, blocklist additions, and takedown demands. And this would cover whatever the government decides is "objectionable." If it restrains itself to targeting extremist content, it still runs the risk of censoring newsworthy content that may contain information investigators and security agencies might have found useful. It will certainly end up accidentally censoring stuff it never meant to censor while allowing the content it's trying to target to slip past its patchwork blockade.

Filed Under: censorship, free speech, internet, new zealand, objectionable content, online harms

SmileDirectClub Sues NBC For $2.85 Billion, Claims Factual Statements And Quotes From Customers Are Defamatory

from the litigating-market-cap-losses-as-a-service dept

SmileDirectClub -- maker of in-home dental appliances -- is back in the lawsuit business. A couple of years ago, the company sued Lifehacker over an article originally titled "You Could Fuck Up Your Mouth With SmileDirectClub." The company claimed any criticism of its products and techniques was defamatory. Despite the original inflammatory headline, the Lifehacker piece was even-handed, warning potential customers that semi-DIY dental work has some downsides. SmileDirect voluntarily dismissed the lawsuit a week later, perhaps sensing a judge -- even one in bogus lawsuit-friendly Tennessee -- might not agree that critical opinions, however harsh, were libelous.

Apparently hoping to undermine the "defamation" market, SmileDirectClub began tying refunds to gag orders, refusing to give unhappy customers back their money unless they signed a non-disparagement agreement. Now, SmileDirect is headed back to court to take on NBC for its critical news report. This time, SmileDirect has to talk its way past a revamped state anti-SLAPP law to get the $2.85 billion it's seeking in this lawsuit. (h/t Daniel Horwitz)

The lawsuit [PDF] appears to have been filed by lawyers being paid by the word. It's over 200 pages long and comes with a comprehensive table of contents. Longer does not mean better-developed. And it also doesn't mean the legal arguments are stronger than those found in more sensibly-sized filings.

SmileDirect says NBC's report did an incredible amount of damage to its business.

SDC’s stock price, which had been trending upward prior to the Reports, plummeted 15% the day after the Reports were published. Prospective patients cancelled their treatment. SDC’s revenue fell. And, SDC’s market capitalization dropped by over $950 million.

The company believes NBC's report (which was sensibly titled "SmileDirectClub Promises Easy Teeth Straightening. Some Patients Report Problems.") did all of this and more. The lawsuit accuses NBC of deliberately deploying lies because the reporters chose to ignore the documents and interviews SmileDirect offered when it found out this report was going to be aired. "For the clicks" is the argument SDC makes.

SDC’s employees and officers across the country, as well as SDC-affiliated doctors, witnessed their hard work being undermined by a news organization and reporter who cared more about ratings and making a splash than the truth.

However, the arguments made by the company while establishing jurisdiction seem to undercut SDC's narrative about NBC reporters deliberately avoiding contact with the company.

[N]BC knowingly and intentionally contacted SDC in Davidson County in connection with the Reports. NBC initiated, received, and responded to, communications (electronic and telephonic) with SDC employees located in Davidson County. And, NBC repeatedly solicited information from SDC employees located in Davidson County over the course of three months prior to the publication of the Reports.

[...]

NBC knowingly and intentionally traveled to Davidson County in connection with the Reports where it, among other things, interviewed an SDC officer. NBC requested an interview with an SDC officer. NBC voluntarily decided to travel to Davidson County to conduct the interview.

Here's as concise a summary of SDC's allegations as can be found in the sprawling lawsuit:

As discussed below, NBC’s online report was defamatory and disparaging because it: (a) falsely stated that treatment using SDC’s platform caused health and physical problems; (b) falsely stated that treatment using SDC’s platform can cause permanent injuries and omitted material facts to falsely imply that treatment using SDC’s platform can cause permanent injuries; (c) omitted material facts about the thoroughness and extensiveness of treatment received by patients from SDC-affiliated doctors using SDC’s platform; (d) falsely stated that treatment using SDC’s platform injured Female Patient; (e) falsely stated that treatment using SDC’s platform injured Male Patient; (f) falsely stated that patients must be protected from treatment using SDC’s platform; (g) omitted material facts to falsely imply that treatment using SDC’s platform violates government regulations; (h) falsely stated that treatment using SDC’s platform is “do it yourself” dentistry and omitted material facts to falsely imply that treatment using SDC’s platform is “do it yourself” dentistry; (i) falsely stated that SDC-affiliated doctors are not involved in treating patients and omitted material facts to falsely imply that SDC-affiliated doctors are not involved in treating patients; (j) falsely implied that treatment using SDC’s platform is not safe; (k) falsely implied that treatment using SDC’s platform is “do it yourself” dentistry; (l) falsely implied that treatment using SDC’s platform is not effective for patients; and (m) falsely implied that SDC is a dishonest company.

But SDC's allegations all seem to lead to statements that appear to be factual. The company complains about statements like "nine Congressmen also asked the FDA and FTC to investigate [Smile Direct]..." (which is factual) and "More than 1,800 complaints have been filed with the Better Business Bureau…" (also factual).

The other commentary SDC complains about comes from patients who discussed their experiences with the company's products. The lawsuit lists direct quotes from unhappy customers as defamatory statements made by NBC, conveniently ignoring the source of those quotes in favor of trying to hit a bigger target.

The other stuff listed falls into the category of protected opinion. NBC's assertion that "some" patients experienced problems is not only accurate, but it's the sort of conclusion anyone would have reached by speaking to unhappy customers or reading its BBB page. SmileDirect claims its Better Business Bureau rating makes NBC's conclusions and assertions maliciously false, but it's the sort of conclusion only a company filing a 200-page complaint could reach.

SDC’s overall score by the Better Business Bureau (“BBB”) is A+, the highest available rating. At the time of the Reports, the number of issues raised with the BBB by patients treated using SDC’s platform, including non-clinical issues, was less than 0.2%. The number of issues raised with the BBB—by patients or non-patients (i.e., people pretending to be patients)—regarding clinical issues was a small percentage of that infinitesimally small percentage, less than 0.001%.

Be that as it may, there are still more than 2,000 complaints listed on the BBB site and the site has noted the company is trying to get people to speak to a customer service rep before filing a complaint. Also, as was reported earlier this year, the company has been tying people to restrictive non-disparagement agreements before issuing refunds.

Making the lawsuit longer doesn't make it any better. The same points are rehashed repeatedly in an apparent effort to bludgeon the presiding judge into arriving at the conclusion that something this lengthy must contain viable legal arguments. But it doesn't. What's called defamation in this lawsuit is a collection of factual statements, supported opinions, and direct quotes from unhappy customers.

Tennessee's anti-SLAPP law may keep SDC from bleeding NBC for too long, but there's a good chance that law will never be tested. SDC may have wanted to keep this case at home, but suing a New York-based company for $2.85 billion means the lawsuit will have to be handled in a federal court. Tying in some state claims about alleged violations of Tennessee's Consumer Protection Act won't be enough to keep it local. Unfortunately, that may work out better for SmileDirect, which will be able to force NBC to defend itself from this lawsuit. Federal courts have been very hesitant to apply state anti-SLAPP laws to federal lawsuits, highlighting (once again) the need for a federal anti-SLAPP law.

Filed Under: criticism, defamation, gag order, slapp, slapps
Companies: nbc, smiledirectclub

Moderation v. Discretion v. Censorship: They're Not The Same

from the some-'splaining dept

Moderation is a platform operator saying "we don't do that here". Discretion is you saying "I won't do that there". Censorship is someone saying "you can't do that anywhere" before or after threats of either violence or government intervention.

Regular Techdirt commenters have seen that paragraph show up often in recent months. But what does it really mean? Well, as the person who crafted that bit (and who uses it on a regular basis), I'mma do you an explain.

Moderation

Moderation is a platform operator saying "we don't do that here". When I use that phrase, I may cite a column from a blog called Thagomizer. (That column helped me start crafting my bit in the first place.) In the column, writer Aja Hammerly refers to it as a "magic" phrase:

["We don't do that here"] is a conversation ender. If you are the newcomer and someone who has been around a long time says "we don't do that here", it is hard to argue. This sentence doesn't push my morality on anyone. If they want to do whatever it is elsewhere, I'm not telling them not to. I'm just cluing them into the local culture and values. If I deliver this sentence well it carries no more emotional weight than saying, "in Japan, people drive on the left." "We don't do that here" should be a statement of fact and nothing more. It clearly and concisely sets a boundary, and also makes it easy to disengage with any possible rebuttals.

All moderation decisions on an interactive Web service boil down to "we don't do that here". When Twitter punishes a user over a tweet that breaks the rules, the admins have all but said that phrase. Twitter doesn't care if you do "that" elsewhere. But it doesn't want you doing "that" on Twitter.

What makes this different from censorship? Moderation lacks the force of law. Twitter can ban a user for breaking the rules, of course. But it can't stop that user from posting their speech elsewhere. Someone banned from Twitter for saying racial slurs can go to 4chan and still post those slurs. Moderation is a social consequence: A moderator thought someone was acting like an ignorant jerk, and they showed that jerk the door.

Discretion

Discretion is you saying "I won't do that there". Some people might think of discretion as self-censorship. But that phrasing focuses on the negative idea of chilled speech. I prefer to think of discretion as an act of personal restraint.

As an example, consider the hypothetical case of Joe Straightdude. Joe doesn't believe he hates gay people (though he doesn't "agree with" homosexuality). One night, he sees a pro-LGBT post on a Facebook group that rubs him the wrong way. He writes an angry reply to the post that includes a well-known anti-LGBT slur. But before Joe posts it, he stops himself. He thinks about whether his reply needs that slur. Then he thinks through the possible fallout of posting the whole reply. After a few minutes of thinking, he deletes what he typed without posting it.

What makes discretion different from censorship? In the example above, Joe wouldn't have faced any legal fallout for his reply if he had posted it. And no one forced him to not post the reply. He made his choice based on whether he wanted to face negative social consequences. Joe took responsibility for his actions and showed restraint all on his own.

Censorship

Censorship is someone saying "you can't do that anywhere" before or after threats of either violence or government intervention. Lawsuits. Arrests. Fines. Jail time. Threats involving any of those four. Any one of those things suck more than an industrial-strength vacuum cleaner. When they're attached to speech, they become the tools of censors.

I could come up with hypothetical examples of censorship, sure. But why do that when so many real examples exist?

• the existence of laws that criminalize blasphemy
• Shiva Ayyadurai's attempt to sue Techdirt over the assertion that he didn't invent modern email
• the DMCA notice sent to Twitter by a gun rights activist to take down a video of her
• the Chinese government's attempts to memory-hole the Tiananmen Square Massacre
• Hungarian police arresting a man for posts critical of the Hungarian government
• American Media Inc. using legal threats to stop Australian booksellers from carrying Catch and Kill by Ronan Farrow

What sets censorship apart from moderation and discretion? Simply put, censorship has the rule of law behind it. Twitter can't stop banned users from using the speech that got them banned on another service. But a court that rules to suppress speech puts the weight of the law behind that ruling. It says, "Publish that speech anywhere and we'll fine you or toss you in jail." The same goes for police officers who punish people for legal speech that offends others. And people who threaten lawsuits and arrests qualify as wannabe censors at "best". Such actions can, and often do, result in chilled speech.

And chilled speech, unlike discretion, carries an air of legal consequences. The lawsuits filed by Devin Nunes to identify Twitter user @DevinCow have one real purpose ("unmask that user"). That user feels emboldened to mock Nunes because they remain anonymous. But if Nunes succeeds in his goal, that user would have less reason to keep posting. Nunes would take the choice of discretion out of that user's hands. ("I don't want him to sue me again, so why risk it?") To put it another way: Discretion is when you show restraint; censorship is when the government restrains you.

Censorship can also happen without any actual legal threats. American movie studios will often censor their own films to appease foreign governments, even if those governments don't threaten legal action. But countries like China can make or break the profitability of a film. The threat is thus implicit: "Censor your movies or they won't play here." Studios have a financial incentive, then, to censor their films and "play nice".

Moderation As "Censorship"

Some people refer to moderation decisions that affect them as "censorship" because they feel they've been censored. Maybe they think a platform punished them for holding certain political views. Maybe they think a platform punished them for bigoted reasons. Whatever the reason, those people feel that losing their spot on the platform is censorship. But they're not angry about losing their right to speak. (Twitter, Facebook, etc. can't take that away from them, anyway.)

A platform the size of Twitter or Facebook comes with a built-in potential audience of millions. Anyone banned from Twitter loses the ability to reach that audience. For some people, such a loss can feel like censorship — even though it isn't. No one has the right to an audience. No one has the right to make someone listen. But entitled people think they do have those rights, and any "violation" of those "rights" is "censorship".

On the other hand, marginalized creators who lose that platform may be dealt a huge blow to the reach of their content. And if they feel like they were punished in some way for bullshit reasons, their feeling "censored" holds far more validity. Just ask LGBTQ YouTubers whose videos were demonetized because the videos contained pro-LGBTQ content.

In the strictest of legal senses, what Facebook, Twitter, YouTube, etc. do when they moderate speech on their platforms isn't censorship. But when it comes to morals and ethics…well, everyone has an opinion.

The Last Word...That Isn't

And in fairness, most of what you read above is an opinion — my own, and nobody else's. I don't consider what I've said to be the "last word" on the matter. If anything, those three sentences only summarize my opinions on these issues. They don't get into the morality or ethics of moderation, such as Blizzard's decision to punish Blitzchung for his support for Hong Kong. They don't say "people can't use 'censorship' in a colloquial sense" (although I do think that cheapens the concept). And besides all that, opinions should be discussed, debated, and even changed.

Think of this, then, as an opening for that debate. Use this as a springboard to form your own opinions, and share them in the comments. Agree with me? Great. Disagree with me? Even better — because through disagreement and reasoned discussion, we can improve and refine our opinions.

But don't get mad if one of your comments gets flagged. That isn't censorship — it's moderation, working as intended.

[To the extent possible under law, I waive all copyright and related or neighboring rights to this article.]

Filed Under: censorship, content moderation, discretion, free speech, moderation, platform moderation

Mark Zuckerberg's Ridiculously Wrong, Misleading, And Self-Serving Statements Regarding Twitter Fact-Checking The President

from the oh-shut-the-fuck-up dept

As we continue to deal with the fallout of our thin-skinned President throwing a hissy fit over Twitter daring to provide more context to conspiracy theory nonsense that Trump himself tweeted, Facebook founder and CEO, Mark Zuckerberg, has apparently decided that it's more important to stomp on Twitter while it's down, rather than protect the wider internet. In a shameful display of opportunistic nonsense, Zuckerberg went on Fox News and pretended that Facebook was somehow not interested in moderating content the way Twitter did:

"We have a different policy, I think, than Twitter on this," Zuckerberg told Dana Perino, host of the Fox News show The Daily Briefing, in an interview clip. The full interview is expected to air on Thursday.

"I just believe strongly that Facebook shouldn't be the arbiter of truth of everything that people say online. In general, private companies probably shouldn't be, especially these platform companies, shouldn't be in the position of doing that," Zuckerberg added.

Perino said that Zuckerberg told her that Facebook refuses to intervene in censoring public posts unless there's a threat of imminent harm. She added that Facebook is "hands off" when it comes to political speech.

Sure, they have a different policy, because almost all sites have different policies, but if you compared Facebook's policies on content moderation to Twitter's you'd find that Facebook does vastly more moderation than Twitter has ever done and Facebook introduced similar "fact checking" efforts years ago. To pretend that Facebook doesn't do the exact same thing that Twitter is accused of doing here is just ridiculous. And, we all agree that no platform should be "the arbiter of truth" but that's not the same as saying "do no moderation" (and again, Facebook does a ton of moderation). As for the final claim that Facebook is "hands off" when it comes to political speech, that's also false. Facebook is hands off on political ads, but not all political speech. And so is Twitter, in that it bars all political ads in the first place.

This is disappointing, but all too common from Facebook, the company that stabbed the open internet in the back by supporting FOSTA a few years ago. The company has clearly made the decision that it can sell out the open internet in favor of more political clout.

Filed Under: arbiters of truth, cda 230, fact checking, free speech, jack dorsey, mark zuckerberg, section 230
Companies: facebook, twitter

The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless

from the the-season-of-dumb dept

We've officially reached pure silly season when it comes to internet regulations. For the past two years now, every so often, reports have come out that the White House was exploring issuing an executive order trying to attack Section 230 and punish companies for the administration's belief in the myth that content moderation practices at large social media firms are "biased" against conservatives.

However, it apparently took Twitter literally doing nothing more than linking to people arguing that Trump's tweets were misleading, to cause our President to throw a total shit fit and finally break out the executive order. This one is somewhat different than drafts that have been floated in the past, though it has the same origins (and, according to a few people I spoke to, this new executive order was "hastily drafted" to appease an angry President who can't stand the idea that someone might correct his nonsense). You can read the draft that get sent around to everyone last night. The final version is expected to be at least somewhat close to this.

To be clear: the executive order is nonsense. You can't overrule the law by executive order, nor can you ignore the Constitution. This executive order attempts to do both. It's also blatantly anti-free speech, anti-private property, pro-big government -- which is only mildly amusing, given that Trump and his sycophantic followers like to insist they're the opposite of all of those things. But also, because the executive order only has limited power, there's a lot of huffing and puffing in there for very little actual things that the administration can do. It's very much written in a way to make Trump's fans think he's done something to attack social media companies, but the deeper you dig, the more nothingness you find.

Let's dig into this clusterfuck of nonsense. It starts out with what might sounds like a sensible argument, if you don't understand the ins-and-outs of Section 230, by saying that because Section 230's "good samaritan" clause requires good faith, that "pretextual actions restricting online content or actions inconsistent with an online platform's terms of service" are somehow not covered by 230:

Section 230(c) was designed to address court decisions from the early days of the Internet holding that an online platform that engaged in any editing or restriction of content posted by others thereby became itself a “publisher” of the content and could be liable for torts like defamation. As the title of section 230(c) makes clear, the provision is intended to provide liability “protection” to a provider of an interactive computer service (such as an online platform like Twitter) that engages in “‘Good Samaritan’ blocking” of content when the provider deems the content (in the terms of subsection 230(c)(2)(A)) obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. Subsection 230(c)(1) broadly states that no provider of an interactive computer service shall be treated as a publisher or speaker of content provided by another person. But subsection 230(c)(2) qualifies that principle when the provider edits the content provided by others. Subparagraph (c)(2) specifically addresses protections from “civil liability” and clarifies that a provider is protected from liability when it acts in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” The provision does not extend to deceptive or pretextual actions restricting online content or actions inconsistent with an online platform’s terms of service. When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a “publisher or speaker” under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United States that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.

This, like so much misinformation, has a tiny nugget of truth, buried in a mound of pure bullshit. The nugget of truth: content created by a platform has never been covered by Section 230. That means that the text of the line notifying people that there was more information about mail-in ballots, was a Twitter creation and of course it's liable for that content alone. That's always been the case though. This executive order does nothing to change that.

But nearly everything else here is ridiculous nonsense. Courts have ruled over and over and over again that "otherwise objectionable" covers a lot of ground and the President doesn't get to just change that. Besides, it's beyond evident that Twitter had a good faith belief that its users were better served by providing additional context (additional speech!) to Trump's conspiracy theory. That's a basic editorial function well protected by the 1st Amendment.

Also, importantly, the order that "all departments and agencies should apply" this nonsense interpretation of 230 is... meaningless. Federal agencies don't interpret or enforce Section 230. The courts do that. So what will this actually do or change? Literally nothing.

From there, the President tries to get agencies to "do something," that they cannot do and which would be meaningless even if they wanted to do something anyway.

To further advance the policy described in subsection (a) of this section, within 30 days of the date of this order, the Secretary of Commerce (Secretary), through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:

(i) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly the conditions under which such actions will be considered to be:

(1) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(2) the result of inadequate notice, the product of unreasoned explanation, or having been undertaking without a meaningful opportunity to be heard; and

(ii) Any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.

So much nonsense to unpack here. First of all, the FCC has no authority to issue such regulations. None, zip, zilch. Part of the ruling in Reno v. ACLU that tossed out all the other parts of the CDA as unconstitutional made it clear that the FCC has no authority to regulate websites. And it's even more ridiculous when you realize that this is being handed to the very same FCC that has sworn up and down, left, right, center, backwards, and forwards, Monday through Sunday and back again, that it has no authority to regulate "neutrality" and doesn't want to have any authority to regulate "neutrality," and even thinking that the FCC might want to enforce neutrality over the parts of the telecom system that it does have authority over is crazy talk and nonsense. So, you have an FCC saying it can't enforce neutrality for infrastructure players (again, over which the courts have made clear it has authority), being told that it needs to enforce neutrality for edge providers (which no sensible person believes it has authority).

Second, courts have long determined that the only reasonable interpretation of "taken in good faith" is to mean that the platforms have a very wide berth in choosing what to moderate. A court cannot second guess that without running into significant 1st Amendment issues regarding compelled speech and anyone's ability to make their own editorial judgments. Third, "deceptive, pretextual, or inconsistent with a provider's terms of service" is again outside the FCC's authority. It might be covered by the FTC, but in a very, very limited way. Making editorial decisions that an immature crybaby with too much power doesn't like is not deceptive nor inconsistent with a website's terms of service.

Third, note the specifics of the order. The NTIA, which the President can command, is told to petition the FCC (which the President cannot command). The FCC need not do anything with that petition. Fluff and nonsense designed to make people think something was done.

Perhaps recognizing how silly the FCC part is, the EO also ropes in the FTC. But this won't get very far either:

The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to 15 U.S.C. 45. Such unfair or deceptive acts or practice shall include practices by entities regulated by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

First off, the FTC already has the power to prohibit unfair and deceptive acts. So telling the FTC that it should do what it already does is... once again... meaningless. As for telling the FTC to go after platforms for restricting speech... well, that's just blatantly unconstitutional, and the FTC knows it would lose any such case. It would lose badly and embarrassingly. I'd be very surprised if the FTC chose to go through that just for the hell of it.

The entire framing of this section is like a fever dream from all of the failed lawsuits trying to challenge Section 230 by misreading three very important Supreme Court decisions, two of which don't say what many whining people think they say, and one of which they ignore. You'll see the two they misread here:

(a) It is the policy of the United States that large social media platforms, such as Twitter and Facebook, as the functional equivalent of a traditional public forum, should not infringe on protected speech. The Supreme Court has described that social media sites, as the modern public square, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing a public forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).

Packingham and Pruneyard are regularly cited by people who don't understand either, to argue that Twitter is a public forum. Courts have shot this down repeatedly. As they should, because neither case says what people claim they say. Packingham was a very important case, in which the Supreme Court said, quite clearly, that governments cannot pass a law that kicks people off the internet. That's it. Note that it applies to governments. It does not apply to private companies.

Pruneyard is a case about whether or not a particular shopping mall had become a public square, limiting the ability of the owners to kick people out. Anyone citing that case to argue that its ruling applies to social media has to ignore (1) the very specific fact pattern in Pruneyard, and (2) multiple cases since Pruneyard that have narrowed that decision down to the point that it appears to apply to just the shopping center in question. And this is made clear in the Manhattan Neighborhood Network case from just last summer, in which the 5 "conservative" justices made it clear that Pruneyard was a special case, and social media would not even come remotely close to meeting the "public forum" standard. For what it's worth, the 4 "liberal" judges dissented on the overall decision, but even their dissent makes it clear that they agreed with the fact that private companies do not turn into public forum bound by the 1st Amendment just by hosting conversations.

This is the case that the executive order totally ignores, despite being written by the most recent Trump appointee, Brett Kavanaugh, and which lays out in painstaking detail, that in order to meet the Pruneyard standard, a website would need to perform a function that had "traditionally and exclusively been performed by government." That's not Twitter. Indeed, Kavanaugh's opinion in the MNN case was a robust support for private property rights, and makes it clear why Trump's executive order is the exact opposite of that:

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

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

In other words, the executive order's reliance on the the completely unrelated Packingham, and completely irrelevant Pruneyard cases, is just more nonsense.

Then the executive order tasks the Attorney General with hassling companies the President doesn't like:

(a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.

Of course, this is already happening with antitrust, and I doubt it will be any different here. Just more bad faith harassment over supposed political viewpoints.

The only thing in the executive order that is something that can be handled by an executive order is a petty and silly decision to maybe, kinda have the federal government stop buying ads on platforms the President dislikes. Except it doesn't even say that. The title says that it's a "prohibition on spending federal taxpayer dollars on advertising with online platforms that violate free speech principles" but that's only the title. The actual details beneath that heading do not say that anyone has to stop buying ads. It just asks federal agencies to waste their time to account for how much they're spending on advertising on these platforms and "assess." That might lead to reduced advertising in practice, but it is not ordered here.

The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms supported, the viewpoint-based speech restrictions imposed by each online platform, an assessment of whether the online platform is appropriate for such agency’s speech, and the statutory authorities available to restrict advertising dollars to online platforms not appropriate for such agency’s speech.

This, of course, seems kind of pointless and petty. It's unlikely to do very much, but if it does lead to less advertising, it just harms the ability of the federal government to get out the messaging it wants to get out, so if the President wants to shoot himself in the foot that way, well, that's his call. Of course, you can pretty much bet that as this is happening, the President's re-election campaign is spending gobs and gobs of money on these very same platforms.

Anyway -- this is all a distraction. The polls currently don't look great for Trump and over 100,000 people are dead in large part due to Trump's own mismanagement of the COVID-19 pandemic. He doesn't want people talking about this, so he does something performative like this instead. It does get people talking about it, and he knows full well that his ignorant base of sycophantic followers will eat this up in the false belief that it actually means something and will somehow "take away" Section 230. It doesn't. It can't. It's nonsense.

Still, it's already working. I've already seen major media claiming that this is Trump "limiting" Section 230 or paring it back, and his fans are jumping up and down, even though the end result of this is not at all what they think it is. Don't be one of those foolish people.

Filed Under: 1st amendment, bias, cda 230, donald trump, executive order, free speech, private property, section 230
Companies: twitter

When The Problem Isn't Twitter But President Trump

from the solving-the-right-problem dept

President Trump is not happy with Twitter. But a lot of other people were already unhappy with Twitter. As his tweets have grown more abusive by the day, and the non-insane public has naturally grown more outraged by them, there has been an increase in calls for Twitter to delete his tweets, if not his account outright. But what's worse is the increase in calls that sound just like what Trump now demands: that Section 230 must be changed if Twitter is unwilling to take those steps. Both are bad ideas, however, for separate, although related, reasons.

The basic problem is that there is no easy answer for what to do with Trump's tweets, also for many reasons. One fundamental reason is that content moderation is essentially an impossible task. As we've discussed many, many times before, it is extremely difficult for any platform to establish an editorial policy that will accurately catch 100% of the posts that everyone agrees are awful and no posts that are fine. And part of the reason for that difficulty is that there is no editorial policy that everyone will ever be able to agree on. It's unlikely that one could be drawn up that even most people would agree on, yet platforms regularly attempt to give it their best shot anyway. But even then, with some sort of policy in place, it is still extremely difficult, if not impossible, to quickly and accurately ascertain whether any particular social media post amidst the enormous deluge of social media posts being made every minute, truly runs afoul of it. As we have said umpteen times, content moderation at scale is hard. Plenty is likely to go wrong for even the most well-intentioned and well-resourced platform.

Furthermore, Trump is no ordinary tweeter whose tweets may run afoul of Twitter's moderation policies. Trump happens to be the President of the United States, which is a fact that is going to strain any content moderation policy primarily set up to deal with the tweets by people who are not the President of the United States. It is possible, of course, to decide to treat him like any other tweeter, and many have called for Twitter to do exactly that. But it's not clear that doing so would be a good idea. For better or for worse, his tweets are the tweets of the American Head of State and inherently newsworthy. While one could argue that they should be suppressed because their impact is so prone to being so destructive, it would not be a costless decision. While having the President of the United States tweeting awful things does cause harm, not knowing that the President of the United States is trying to tweet awful things presents its own harm. This is the person we have occupying the highest political office in the land. It would not do the voting public much good if they could not know who he is and what he is trying to do.

The arguments for suppressing his tweets largely are based on the idea that taking away his power to tweet would take away his power to do harm. But the problem is that his power comes from his office, not from Twitter. Taking Twitter away from him doesn't ultimately defang him. It just defangs the public's ability to know what is being done by him in their name.

Twitter's recent decision to add contextualization to his tweets might present a middle ground, although it is unlikely to be a panacea. It puts Twitter in the position of having to make more explicit editorial decisions, which, as discussed above, is an exercise that is difficult to do in a way that will satisfy everyone. It also may not be sustainable: how many tweets will need this treatment? And how many public officials will similarly require it? Still, it certainly seems like a reasonable tack for Twitter to try – one that tries to mitigate the costs of Trump's unfettered tweeting without inflicting the costs that would result from their suppression.

Which leads to why Section 230 is so important, and why it is a bad idea to call for changing it in response to Trump. Because Section 230 is what gives Twitter the freedom to try to figure out the best way to handle the situation. There are no easy answers, just best guesses, but were it not for Section 230 Twitter would not be able to give it the best shot it can to get it right. Instead it would be pressured to take certain actions, regardless of whether those actions were remotely in the public interest. Without Section 230 platforms like Twitter will only be able to make decisions in their own interest, and that won't help them try to meet the public call to do more.

Changing Section 230 also won't solve anything, because the problem isn't with Twitter at all. The problem is that the President of the United States is of such poisoned character that he uses his time in office to spread corrosive garbage. The problem is that the President of the United States is using his power to menace citizens. The problem is that the President of the United States is using his role as the chief executive of the country to dissolve confidence in our laws and democratic norms.

The problem is that the President of the United States is doing all these things, and would be doing all these things, regardless of whether he was on Twitter. But what would change if there were no Twitter is our ability to know that this is what he is doing. It is no idle slogan to say that democracy dies in the darkness; it is an essential truth. And it's why we need to hold fast to our laws that enable the transparency we need to be able to know when our leaders are up to no good if we are to have any hope of keeping them in check.

Because that's the problem we're having right now. Not that Twitter isn't keeping Trump in check, but that nothing else is. That's the problem that we need to fix. And killing Twitter, or the laws that enable it to exist, will not help us get there. It will only make it much, much harder to bring about that needed change.

Filed Under: censorship, donald trump, free speech, moderation, section 230, social media
Companies: twitter

Trump, Twitter, And Free Speech

from the trump-impossibility-theorem dept

Content moderation at scale is impossible to do well. But, also content moderation of a world leader spewing blatant conspiracy theories may be just as difficult, and that's not even at scale.

We're only partway through this week, and Donald Trump has already created a textbook's worth of content moderation questions to explore. It started with Trump going nuts with a bunch of tweets about a blatantly disproved conspiracy theory regarding a young staffer of TV host Joe Scarborough from back when he was in Congress. That staffer, Lori Klausutis, died from an undiagnosed heart condition years ago. The police and coroner found no evidence of foul play. And suddenly Trump, who used to appear on Scarborough's show back in the day, decided to spew a bunch of utter nonsense hinting strongly at the blatantly false idea that Scarborough had something to do with Klausutis' death.

This is straight out of the Trump playbook. It is blatant false news (the accusation he likes to make about anyone who reports accurately on his activities). It is insane conspiracy mongering. It is hurtful. It is hateful. It is potentially dangerous. And it serves Trump in two distinct ways: as a distraction from his ongoing cataclysmic handling of the COVID-19 pandemic, and as part of his never-ending intimidation campaign against anyone in the media who dares to point out that the emperor has no clothes. As the Atlantic noted, this is malignant cruelty. It is disgusting.

Many people have been arguing that Twitter should shut down Trump's account or, at the very least, delete the tweets in question. Indeed, Klausutis' husband sent a deeply moving letter to Jack Dorsey begging him to remove the President's tweets:

I have mourned my wife every day since her passing. I have tried to honor her memory and our marriage. As her husband, I feel that one of my marital obligations is to protect her memory as I would have protected her in life. There has been a constant barrage of falsehoods, half-truths, innuendo and conspiracy theories since the day she died. I realize that may sound like an exaggeration, unfortunately it is the verifiable truth. Because of this, I have struggled to move forward with my life.

The frequency, intensity, ugliness, and promulgation of these horrifying lies ever increases on the internet. These conspiracy theorists, including most recently the President of the United States, continue to spread their bile and misinformation on your platform disparaging the memory of my wife and our marriage. President Trump on Tuesday tweeted to his nearly 80 million followers alluding to the repeatedly debunked falsehood that my wife was murdered by her boss, former U.S. Rep. Joe Scarborough. The son of the president followed and more directly attacked my wife by tweeting to his followers as the means of spreading this vicious lie.

I’m sure you are aware of this situation because media around the world have covered it, but just in case, here it is:

My request is simple: Please delete these tweets.

I’m a research engineer and not a lawyer, but I’ve reviewed all of Twitter’s rules and terms of service. The President’s tweet that suggests that Lori was murdered — without evidence (and contrary to the official autopsy) — is a violation of Twitter’s community rules and terms of service. An ordinary user like me would be banished from the platform for such a tweet but I am only asking that these tweets be removed.

I am now angry as well as frustrated and grieved. I understand that Twitter’s policies about content are designed to maintain the appearance that your hands are clean you provide the platform and the rest is up to users. However, in certain past cases, Twitter has removed content and accounts that are inconsistent with your terms of service.

I’m asking you to intervene in this instance because the President of the United States has taken something that does not belong to him — the memory of my dead wife — and perverted it for perceived political gain. I would also ask that you consider Lori’s niece and two nephews who will eventually come across this filth in the future. They have never met their Aunt and it pains me to think they would ever have to “learn” about her this way.

My wife deserves better.

The letter was first published in a NY Times article by Kara Swisher in which she, too, backs the idea that the tweets should be deleted. Swisher's article is carefully argued -- and she notes that Twitter is facing a Gordian knot (though, not quite sure that's the right metaphor) with no good solution. She points out that kicking Trump off Twitter is a non-starter. As she says, it "would be pointless and too drastic," and (perhaps more importantly), "the firestorm it would set off would alone be disastrous for Twitter to manage." She also feels that labeling the tweets as false wouldn't do very much at all (more on that in a moment...) and concludes that the best of a bunch of not-good options is to delete the specific tweets. As she notes, it would be different if this was just about two public figures, like Scarborough and Trump. But the inclusion of a non-public figure makes it much trickier.

I am supportive of the suggestion Mr. Klausutis makes in his letter to simply remove the offending tweets.

While the always thoughtful Mr. Dorsey has said previously that he has to hew to Twitter’s principles and rules, and that the company cannot spend all of its time reacting, its approach up until now results only in Twitter’s governance getting gamed by players like Mr. Trump, in ways that are both shameless and totally expected.

So why not be unexpected with those who continue to abuse the system? Taking really valuable one-off actions can be laudable since they make an example of someone’s horrid behavior as a warning to others. While it is impossible to stop the endless distribution of a screenshot of the tweets, taking the original ones down would send a strong message that this behavior is not tolerated.

I think that Swisher's analysis is thoughtful, but I come to a different conclusion. I think that deleting those tweets would set off a shit storm almost as big as closing Trump's account.

And to make that case, let's look no further than the second big content moderation case study that Trump has kicked off this week. Trump spewed some more of his usual nonsense, claiming that mail-in ballots would result in widespread voter fraud -- a laughable claim not supported by any of the data out there, including among states that already do universal mail-in ballots. Given Twitter's policies regarding misinformation directly around elections, as well as its recently launched tools to label certain tweets as misleading, Twitter (for the first time with a Trump tweet, but not the first time using this feature) put an additional note on Trump's tweet that simply said "Get the facts about mail-in ballots" and linked to a Twitter Moments page detailing the facts regarding mail-in ballots.

This is a pro-free speech approach to handling these matters. It's a "respond to bad speech with more speech" approach. Hell, even the notes on Trump's tweets were incredibly tame. I've seen other ones that directly claim that certain tweets are "misleading." The note on Trump's tweet didn't even say that -- it just said "get the facts" (indeed, I saw some people who thought the wording of the notification almost looked like it was in support of Trump's tweet.

And yet the crybaby in chief still threw a ridiculously stupid temper tantrum:

This is ridiculous on many, many different levels. First off, and most importantly, adding more speech is literally the opposite of "stifling free speech." Second, all they're doing is providing an opinion and more information to a statement by the President -- which is itself quintessential protected free speech under the 1st Amendment. Third, because of that, there's nothing that the President can do about this, no matter how big a temper tantrum he throws. Fourth, the idea that providing factual information is "interfering with the election" seems to be an "I know you are but what am I" kind of childish taunt from the President.

And yet, the President's usual lapdogs immediately went to work in support of the Emperor and his missing clothes. Spineless Marco Rubio jumped up with some nonsense about "forums" and "publishers" that suggests that he is either ignorant of the law, or simply playing dumb to get a pat on the head:

Twitter is already held legally liable from content that they themselves publish. So if they added something to a tweet, they would be liable if that content violated any law. But they are not liable for moderation decisions and it would be totally counterproductive if they were.

Hell, if Rubio or others removed Twitter's Section 230 protections, it seems quite likely that Trump's tweets about Klausutis would be among the first removed, because without that protection, the site might face legal liability.

But all this brings us back around to the question of what Twitter should do in this situation. If merely adding a link to more information causes Trump and his cadre of yes-men to freak out to this level, imagine the insanity that would rain down on us if Twitter actually did delete one of his tweets. It seems highly unlikely that it would create a good outcome. Everyone who already thinks Trump is a giant man-baby who shouldn't be anywhere near the halls of power wouldn't be any better off. But Trump and his fans would be able to play the victim, which is about the only role he seems able to play. There's no need to give him that martyrdom. It would just entrench the false belief that Twitter is targeting a particular political viewpoint, and do little to help anyone.

Again: there are no good answers here. Trump is spewing utter nonsense that is deliberately malicious and harmful to people. But he does remain the President. His comments won't disappear even if his tweets do. And the utter shit storm that would be unleashed by deleting those tweets would drown out whatever flicker of excitement it would create among Trump haters. It's a short-term feel-good move with massive long-term consequences. Twitter should stand its ground here, even while recognizing that Trump is going to continue to work the refs to make sure more of his nonsense is left unimpeded. But taking down one of his tweets seems only likely to make things worse, not better.

Filed Under: 1st amendment, content moderation, content moderation at scale, donald trump, fact checking, joe scarborough, lori klausutis, marco rubio, section 230, tweets
Companies: twitter