This will restore the situation pre-230, which was really, really bad. And it will do it for the speech that is the most important to handle correctly.
Before 230 was passed, there was (nearly) no liability if you didn't filter the content in any way. But if you did try to filter the speech, say to filter out things that were harmful to children, suddenly you became liable for the contents. This was called the "moderator's dilemma" and Congress feared that it would result in platforms not moderating at all.
This will restore that horrible situation for advertisements. Platforms that don't look at their advertisements or filter them in any way will have much less liability that platforms that try to filter out harmful advertisements. So platforms will be perversely incentivized not to police their ads.
And this is very important for ads. Ads are speech that people pay amplify. People who want to spread misinformation like ads because all they need is money and they can reach as many people as they want, precisely targeted to be the ones they can affect the most.
Why create a perverse incentive for platforms not to police their ads at all?
If the thinking is that the law will somehow force the opposite -- that it will create liability for platforms that do not look at their ads at all -- I think that's a non-starter because of the First Amendment. Pre-230 law makes it clear that you can't impose liability on a platform for speech it does not analyze or filter but merely forwards. Ads include things like core political speech and aren't just commercial speech.
I have to respond specifically to one claim in the article:
"This proposal would burden some forms of speech more than others, too, so it’s worth considering First Amendment issues. One benefit of this proposal over subject matter-based proposals is that it is content neutral, applying to a business model. Commercial speech is already subject to greater regulation than other forms of speech, and this is hardly a regulation, just the failure to extend a benefit universally."
This is nonsense. The proposal is about ads, not commercial speech. Lots of commercial speech is not in the form of ads and lots of ads are not commercial speech. This will burden all paid speech, whether commercial or not.
Either this burdens lots of non-commercial speech and violates the First Amendment, or it doesn't burden non-commercial speech and re-creates the moderator's dilemma as platforms are strongly encouraged not to figure out which ads are commercial and which aren't.
Techdirt has not posted any stories submitted by David Schwartz.
This is a really bad idea
This will restore the situation pre-230, which was really, really bad. And it will do it for the speech that is the most important to handle correctly.
Before 230 was passed, there was (nearly) no liability if you didn't filter the content in any way. But if you did try to filter the speech, say to filter out things that were harmful to children, suddenly you became liable for the contents. This was called the "moderator's dilemma" and Congress feared that it would result in platforms not moderating at all.
This will restore that horrible situation for advertisements. Platforms that don't look at their advertisements or filter them in any way will have much less liability that platforms that try to filter out harmful advertisements. So platforms will be perversely incentivized not to police their ads.
And this is very important for ads. Ads are speech that people pay amplify. People who want to spread misinformation like ads because all they need is money and they can reach as many people as they want, precisely targeted to be the ones they can affect the most.
Why create a perverse incentive for platforms not to police their ads at all?
If the thinking is that the law will somehow force the opposite -- that it will create liability for platforms that do not look at their ads at all -- I think that's a non-starter because of the First Amendment. Pre-230 law makes it clear that you can't impose liability on a platform for speech it does not analyze or filter but merely forwards. Ads include things like core political speech and aren't just commercial speech.
I have to respond specifically to one claim in the article:
"This proposal would burden some forms of speech more than others, too, so it’s worth considering First Amendment issues. One benefit of this proposal over subject matter-based proposals is that it is content neutral, applying to a business model. Commercial speech is already subject to greater regulation than other forms of speech, and this is hardly a regulation, just the failure to extend a benefit universally."
This is nonsense. The proposal is about ads, not commercial speech. Lots of commercial speech is not in the form of ads and lots of ads are not commercial speech. This will burden all paid speech, whether commercial or not.
Either this burdens lots of non-commercial speech and violates the First Amendment, or it doesn't burden non-commercial speech and re-creates the moderator's dilemma as platforms are strongly encouraged not to figure out which ads are commercial and which aren't.
Techdirt has not posted any stories submitted by David Schwartz.
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