Could someone explain when/why Larry Tribe got classified as highly biased? All the references I've found to him on Techdirt are quite positive (e.g., "famed constitutional scholar, Laurence Tribe"). What did I miss?
I agree with almost everything in this article--just going to take issue with one niggling detail. The article says that you cannot argue "proximate cause" while also arguing "strict product liability." I think it's rare that one would have circumstances that allow for both causes of action but it is possible. If you have an inherently dangerous product (e.g., water heater with defective heat sensors or pressure release valves that make it prone to explode), there can be strict liability and there is no need for a plaintiff making that argument to also prove that the defendant's negligent conduct proximately caused the alleged injury. But you can imagine a situation where there was also proximate cause (e.g., imagine the water heater was sold with a label saying "Prone to explode--stay at least 100 feet away at all times" and the retailer had replaved that label with one saying "All reported defects have been repaired").
... on an article in today's NYTimes that alleges (plausibly to me but others may disagree) that a pair of yound men, one in Alabama and one in Uruguay, are running a series of websites that give people information about how to commit suicide. Anyone who is about to reply to my post--please have a look at the article first.
There are clearly a large group of voices in the metaverse who are not fond of, and would prefer to limit, the rights of free speech granted by the 1st Amendment. Some of those voices would say that they were fine with the 1st Amendment and just wanted to limit Section 230. Many of the writers/posters on this forum (e.g., Ms. Gellis) have explained, articulately and persuasively, the problem with that approach and why Section 230 is needed to buttress the rights granted by the 1st Amendment. I certainly agree with those defenses of Section 230 so please to nto take this post otherwise.
Another point often made on this forum by defenders of 1st Amendment rights is that people regularly miunderstand, misquote and misuse the "shouting fire" words from Holmes in the 1919 Schenck decision. As we all know, that is no longer good law, having been replaced by the "imminent lawless action" test articulated in Brnadenberg and clarified in Hess.
This latest study reported by Mike emphasizes afurther point that, in very many cases, what is said online is merely repeatig what has been said in conventional media and that, therefore, the response of those who attack the internet or attack Sec. 230 is misguided. I can see many instances where that is correct but today's NYTimes article is a challending counterexample.
The internet is allowing/facilitating some number of people--generally young people--suffering from mental health issues to kill themsleves. They are doing so using a suicidal technique I would not have know about before today and which most of these young people would not know about in the absence of the internet (as it would not otherwise be so widely broadcast as to reach this health-challenged audience). So, in this instance, this latest argument based on the internet just repeating what legacy media has already said does not work.
What does the Techdirt community think about that? One possible answer is to say, per the typical Sec. 230 debate, that anyone with a complaint should deal with the people publishing their advice about how to commit suicide. Another possible answer is to say that whether or not commit suicide is a personal choice that should not be subject to governmental or other regulation so everything is fine as is. A third possible answer is to say that there is no practcal way to sanction/regulate the suicide-facilitation speech of the speakers in question without doing major damage to the critically important rights granted by the 1st Amendment.
In the particular fact pattern of this article, the first of these choices fails. The second and third are possibilities and, I guess, I lean towards number 3 (which I am guessing will be the overwhelming preference of the Techdirt community).
I will be interested to hear what everyone else has to say about this.
My comment did not, as you rightly point out, address the point raised by Mike about mobile vs. desktop screen formatting. Some version of the ideas mentioned by Koby could address that or the initial screen could just make the user select "Mobile or Desktop?" and then "Opaque or XXX Ranking?" I haven't programmed for a long time and I'm sure someone could come up with something more elegant.
I'll pass on responding this poster's final paragraph as I am a fan of civil discourse.
If I am reading it right, the main legal obligations would arise from Section 3 which require the platform to give the use the option to not use the "opaque algorithm." Someone explain to me why that doesn't remediate most of the problems explained in Mike's post. Let users have a one-time option to select "transparent algorithm" ranking and, if they select that, show them something simple, e.g., time-stamp ranked. As has been explained here many times, any user trying that choice will quickly be buried in garbage and any user with a functioning brain will revert to choosing a more sane algorithm even if it is "opaque."
In fact, might one build on this concept, letting platforms offer users a choice of ranking algorithms? A user could select time-stamped, "don't show me anything from Josh Hawley," "don't show me anything from the category of _____," "PG13," etc. etc.
"Today, Governor Mike Parson announced that his administration will reject the Biden Administration's attempt to enforce an unconstitutional, federal vaccine mandate for Missourians and private businesses. The Office of the Governor has been in communication with leadership from the Missouri General Assembly and the Attorney General's Office to align resources for a pending legal fight.
"This assault on individual liberty and free enterprise is a poorly executed attempt by the Biden Administration to reset after its disastrous withdrawal from Afghanistan," Governor Parson said. "With our southern border in crisis and as we are experiencing out-of-control inflation, President Biden is desperate to divert attention from his failures. However, Missouri will not be a pawn in this publicity stunt that seeks to force Missourians to disclose private health care decisions and dictate private business operations.""
Comment slightly missing my point. If I had some brilliant idea for an improvement, I'd say what it was. In my earlier comment, I was just wondering whether this community might come up with some alternatives to "don't try to fix it; leave it alone." Repeating myself, in an ideal world, we could all have polite debate about what that might be. But, in the real world, as convincingly explained by Cathy, the winner is "don't try to fix it; leave it alone."
Severeal months ago, I posted a comment to a different article in which (here comes the mea culpa) I suggested that the community of people who read and post to Techdirt were extremely qualified to respond to Section 230 criticisms with possible improvements to Sec. 230. My post was more or less uniformly condemned by this community (sometimes not in the politest terms). Many of the comments on my post suggested that I must hate free speech and/or Sec. 230 and/or have a political agenda. That was not and is not the case--I may not be as much of a 1st Amendment "absolutist" as some of those who post here but I lean strongly in that direction.
(For example, I disagree with this assertion in the very first comment on Cathy's post: "everybody who wants to change or eliminate 230 does not support free speech, but is rather seeking the means to force the Internet to reflect their political views, and only their political views." More accurate if it changed "everybody" to "most.")
So, with that introduction, let me say that I REALLY like Cathy's explanation of the defects in a wide variety of proposals for amendments to Sec. 230. I agree 100% with the key point that Sec. 230 does not provide a new substantive right but is, rather, a critical civil procedure optimization of what the 1st Amendment would provide for defendants with deep enough pockets.
In an ideal universe, where everyone with a view on this domain, understood Cathy's point, and was operating in good faith, maybe we could agree on an improved Sec. 230. But, regrettably, it is clear that in the current real world, any proposed amendment to Sec. 230 will really be designed to further a political agenda and degrade a key constitutional right and, therefore, worthy of condemnation.
I like this text from the Court's opinion: "The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife. While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old
remove protected speech from her Instagram account is a First Amendment violation."
In answer to the question posed by Anonymous Coward, it doesn't look like the court has awarded money damages or injunctive relief--just a declaratory judgement.
"While rational people accept that there are people out there doing consensual sex work, there are still people who refuse to believe that is true. That all sex workers are abused children kidnapped & pimped out at the superb owl."
A possible implication of this assertion is that it is irrational to think that a large number of "sex workers" (maybe even a majority) do not do what they do for purely consensual reasons--that, even if not subject to abuse as children, physical coercion, etc., they are driven to their occupation by severe economic inequities in our society.
And who exactly would populate this commission? Cannot be anyone with a liberal/progressive/Democratic legacy as the other side will never trust them. Ditto if it's almost anyone with a conservative/Republican legacy. Is there a bunch of political science profs/law school profs who have managed to achieve "widely respected expert" status without ever advocating for one side or the other?
Doubtful. I found a draft version of the law from last year online (not the current version). It has major penalties for trying to circumvent the operation of the law. Guessing that part has not changed. If Facebook was willing to close down in-person operations in Australia, and access that market solely via the Internet, Australia might have a struggle to enforce the sanctions in the law but, if you are Facebook, that's playing with fire.
I get that answer in the wierd corner case where the arbitrator imposes a large one-time fee (or maybe a large fee covering the next N years). At that point, Anonymous Coward's analysis seems right--they'd have to pay or they'd have to 100% exit Australia. Whether or not the fee would still be enforceable via some internation agreement is beyond my expertise.
But, suppose the arbitrator imposes a pay-per-use fee, measured, somehow, based on the amount of conmtent to which they link. Unless that fee has some obnoxious minimum, even when they link to zero content, seems like the nuclear option would remain available.
I guess Facebook has some significant legal talent trying to game through these scenarios.
I haven't tried to read this pending Australian law and I have a question for anyone who has. Consider the scenario where Facebook tried to n egotiate a fee, the negotiation fails, and an arbitrator then determines the fee. Maybe the ultimate number is one that, as a business matter, Facebook decides it can live with. But suppose the number is one that Facebook finds intolerable. Wny cannot it, at that later point, return to the Nuclear option, e.g., refusing to post or allow posting of anything that would make it subject to the fee?
This is a legit concern. Figuring out how to balance the burden is challenging. I do not have the skills to propose a system for which I want to advocate but, neither, am I convinced that the current system si the best we can do.
Larry Tribe
Proximate Cause / Strict Liability
I agree with almost everything in this article--just going to take issue with one niggling detail. The article says that you cannot argue "proximate cause" while also arguing "strict product liability." I think it's rare that one would have circumstances that allow for both causes of action but it is possible. If you have an inherently dangerous product (e.g., water heater with defective heat sensors or pressure release valves that make it prone to explode), there can be strict liability and there is no need for a plaintiff making that argument to also prove that the defendant's negligent conduct proximately caused the alleged injury. But you can imagine a situation where there was also proximate cause (e.g., imagine the water heater was sold with a label saying "Prone to explode--stay at least 100 feet away at all times" and the retailer had replaved that label with one saying "All reported defects have been repaired").
Apolgies for my multiple typos ...
...but it is a serious post about an important issue and, as I said at the end, I welcome the reasoned feedback of the Techdirt community.
I have been looking for an excuse to comment ...
... on an article in today's NYTimes that alleges (plausibly to me but others may disagree) that a pair of yound men, one in Alabama and one in Uruguay, are running a series of websites that give people information about how to commit suicide. Anyone who is about to reply to my post--please have a look at the article first.
There are clearly a large group of voices in the metaverse who are not fond of, and would prefer to limit, the rights of free speech granted by the 1st Amendment. Some of those voices would say that they were fine with the 1st Amendment and just wanted to limit Section 230. Many of the writers/posters on this forum (e.g., Ms. Gellis) have explained, articulately and persuasively, the problem with that approach and why Section 230 is needed to buttress the rights granted by the 1st Amendment. I certainly agree with those defenses of Section 230 so please to nto take this post otherwise.
Another point often made on this forum by defenders of 1st Amendment rights is that people regularly miunderstand, misquote and misuse the "shouting fire" words from Holmes in the 1919 Schenck decision. As we all know, that is no longer good law, having been replaced by the "imminent lawless action" test articulated in Brnadenberg and clarified in Hess.
This latest study reported by Mike emphasizes afurther point that, in very many cases, what is said online is merely repeatig what has been said in conventional media and that, therefore, the response of those who attack the internet or attack Sec. 230 is misguided. I can see many instances where that is correct but today's NYTimes article is a challending counterexample.
The internet is allowing/facilitating some number of people--generally young people--suffering from mental health issues to kill themsleves. They are doing so using a suicidal technique I would not have know about before today and which most of these young people would not know about in the absence of the internet (as it would not otherwise be so widely broadcast as to reach this health-challenged audience). So, in this instance, this latest argument based on the internet just repeating what legacy media has already said does not work.
What does the Techdirt community think about that? One possible answer is to say, per the typical Sec. 230 debate, that anyone with a complaint should deal with the people publishing their advice about how to commit suicide. Another possible answer is to say that whether or not commit suicide is a personal choice that should not be subject to governmental or other regulation so everything is fine as is. A third possible answer is to say that there is no practcal way to sanction/regulate the suicide-facilitation speech of the speakers in question without doing major damage to the critically important rights granted by the 1st Amendment.
In the particular fact pattern of this article, the first of these choices fails. The second and third are possibilities and, I guess, I lean towards number 3 (which I am guessing will be the overwhelming preference of the Techdirt community).
I will be interested to hear what everyone else has to say about this.
Re: Re: What about Section 3?
My comment did not, as you rightly point out, address the point raised by Mike about mobile vs. desktop screen formatting. Some version of the ideas mentioned by Koby could address that or the initial screen could just make the user select "Mobile or Desktop?" and then "Opaque or XXX Ranking?" I haven't programmed for a long time and I'm sure someone could come up with something more elegant.
I'll pass on responding this poster's final paragraph as I am a fan of civil discourse.
What about Section 3?
If I am reading it right, the main legal obligations would arise from Section 3 which require the platform to give the use the option to not use the "opaque algorithm." Someone explain to me why that doesn't remediate most of the problems explained in Mike's post. Let users have a one-time option to select "transparent algorithm" ranking and, if they select that, show them something simple, e.g., time-stamp ranked. As has been explained here many times, any user trying that choice will quickly be buried in garbage and any user with a functioning brain will revert to choosing a more sane algorithm even if it is "opaque."
In fact, might one build on this concept, letting platforms offer users a choice of ranking algorithms? A user could select time-stamped, "don't show me anything from Josh Hawley," "don't show me anything from the category of _____," "PG13," etc. etc.
Governor is also an expert on vaccination!
From his press release last month:
"Today, Governor Mike Parson announced that his administration will reject the Biden Administration's attempt to enforce an unconstitutional, federal vaccine mandate for Missourians and private businesses. The Office of the Governor has been in communication with leadership from the Missouri General Assembly and the Attorney General's Office to align resources for a pending legal fight.
"This assault on individual liberty and free enterprise is a poorly executed attempt by the Biden Administration to reset after its disastrous withdrawal from Afghanistan," Governor Parson said. "With our southern border in crisis and as we are experiencing out-of-control inflation, President Biden is desperate to divert attention from his failures. However, Missouri will not be a pawn in this publicity stunt that seeks to force Missourians to disclose private health care decisions and dictate private business operations.""
https://governor.mo.gov/press-releases/archive/governor-parson-condemns-bide n-administrations-vaccine-mandate-vows-legal
Re: Re: Mea Culpa
Comment slightly missing my point. If I had some brilliant idea for an improvement, I'd say what it was. In my earlier comment, I was just wondering whether this community might come up with some alternatives to "don't try to fix it; leave it alone." Repeating myself, in an ideal world, we could all have polite debate about what that might be. But, in the real world, as convincingly explained by Cathy, the winner is "don't try to fix it; leave it alone."
Mea Culpa
Severeal months ago, I posted a comment to a different article in which (here comes the mea culpa) I suggested that the community of people who read and post to Techdirt were extremely qualified to respond to Section 230 criticisms with possible improvements to Sec. 230. My post was more or less uniformly condemned by this community (sometimes not in the politest terms). Many of the comments on my post suggested that I must hate free speech and/or Sec. 230 and/or have a political agenda. That was not and is not the case--I may not be as much of a 1st Amendment "absolutist" as some of those who post here but I lean strongly in that direction.
(For example, I disagree with this assertion in the very first comment on Cathy's post: "everybody who wants to change or eliminate 230 does not support free speech, but is rather seeking the means to force the Internet to reflect their political views, and only their political views." More accurate if it changed "everybody" to "most.")
So, with that introduction, let me say that I REALLY like Cathy's explanation of the defects in a wide variety of proposals for amendments to Sec. 230. I agree 100% with the key point that Sec. 230 does not provide a new substantive right but is, rather, a critical civil procedure optimization of what the 1st Amendment would provide for defendants with deep enough pockets.
In an ideal universe, where everyone with a view on this domain, understood Cathy's point, and was operating in good faith, maybe we could agree on an improved Sec. 230. But, regrettably, it is clear that in the current real world, any proposed amendment to Sec. 230 will really be designed to further a political agenda and degrade a key constitutional right and, therefore, worthy of condemnation.
Remedy
I like this text from the Court's opinion: "The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife. While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old
remove protected speech from her Instagram account is a First Amendment violation."
In answer to the question posed by Anonymous Coward, it doesn't look like the court has awarded money damages or injunctive relief--just a declaratory judgement.
Re:
My comment is on this excerpt from this comment:
"While rational people accept that there are people out there doing consensual sex work, there are still people who refuse to believe that is true. That all sex workers are abused children kidnapped & pimped out at the superb owl."
A possible implication of this assertion is that it is irrational to think that a large number of "sex workers" (maybe even a majority) do not do what they do for purely consensual reasons--that, even if not subject to abuse as children, physical coercion, etc., they are driven to their occupation by severe economic inequities in our society.
I disagree. For example, read this recent essay by Catharine MacKinnon: www.nytimes.com/2021/09/06/opinion/onlyfans-sex-work-safety.html. I do not fully agree with Professor MacKinnon but she is certainly rational and her views are worthy of respect.
The Commish
And who exactly would populate this commission? Cannot be anyone with a liberal/progressive/Democratic legacy as the other side will never trust them. Ditto if it's almost anyone with a conservative/Republican legacy. Is there a bunch of political science profs/law school profs who have managed to achieve "widely respected expert" status without ever advocating for one side or the other?
Big Candy Is Angry
I hope someone will offer their opinion about the case described in a recent NY Times article with the title "Big Candy is Angry."
3 Insurrections
Everyone is familiar with the various state "3 strikes" laws. How about a new "3 Insurrections and you're banned for life"?
Re: Re: Re: Re: Re: A Fair Question
The Golden Toilet of the former Prez (https://toilet-guru.com/trump.php) may be mega-flush capable. No-knock surely justified at that address.
Re: Nondiscrimination Aspect
Doubtful. I found a draft version of the law from last year online (not the current version). It has major penalties for trying to circumvent the operation of the law. Guessing that part has not changed. If Facebook was willing to close down in-person operations in Australia, and access that market solely via the Internet, Australia might have a struggle to enforce the sanctions in the law but, if you are Facebook, that's playing with fire.
Re: Re: Re: Question about Australian Law
I get that answer in the wierd corner case where the arbitrator imposes a large one-time fee (or maybe a large fee covering the next N years). At that point, Anonymous Coward's analysis seems right--they'd have to pay or they'd have to 100% exit Australia. Whether or not the fee would still be enforceable via some internation agreement is beyond my expertise.
But, suppose the arbitrator imposes a pay-per-use fee, measured, somehow, based on the amount of conmtent to which they link. Unless that fee has some obnoxious minimum, even when they link to zero content, seems like the nuclear option would remain available.
I guess Facebook has some significant legal talent trying to game through these scenarios.
Question about Australian Law
I haven't tried to read this pending Australian law and I have a question for anyone who has. Consider the scenario where Facebook tried to n egotiate a fee, the negotiation fails, and an arbitrator then determines the fee. Maybe the ultimate number is one that, as a business matter, Facebook decides it can live with. But suppose the number is one that Facebook finds intolerable. Wny cannot it, at that later point, return to the Nuclear option, e.g., refusing to post or allow posting of anything that would make it subject to the fee?
Re: Re: Re: Re: Re: Hoops
Yes, I agree.
Re: Re: Re: Hoops
This is a legit concern. Figuring out how to balance the burden is challenging. I do not have the skills to propose a system for which I want to advocate but, neither, am I convinced that the current system si the best we can do.
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