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Comment by dragonwriter | Hacker News Reader

> As I've pointed out elsewhere, this argument implies ownership and content control beyond what we've traditionally held forum owners/operators responsible for.

This is false, and appears based on both narrowing consideration of accountability mechanisms to legal mechanisms and a faulty understanding of the reason for certain online exceptions to the general traditional legal liability of publishers, which is not lack of responsibility (otherwise they would apply to publishers more generally) but balancing of social costs/benefits of imposing legal liability.

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>a faulty understanding of the reason for certain online exceptions to the general traditional legal liability of publishers, which is not lack of responsibility (otherwise they would apply to publishers more generally)

Are you saying that they aren't exempted from responsibility because they are not responsible, but because it's better that they not be held responsible?

Why would they apply to publishers more generally if it was about lack of responsibility? If you recall the decisions about the Communications Decency Act, it states that - "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This means that people that own or operate forums are not treated as publishers of the content on forums, and removes the responsibilities of being such a publisher. The act was passed in part because providers said it was injurious to force them to regulate all content - they shouldn't be responsible because they couldn't regulate content without massive cost.

Now you're saying that they should regulate all content - ok, but if that's the case then they should be treated as publishers of said content, since they can decide on a case-by-case basis what is and is not published on their platform.

> Are you saying that they aren't exempted from responsibility because they are not responsible, but because it's better that they not be held responsible?

No.

I'm saying:

(1) They aren't exempted from responsibility, full stop. Site owners and operators manifestly are held accountable for content by a variety of social mechanisms independent of legal liability; you are incorrect to equate responsibility or accountability with legal liability, which is a very small subset of accountability, and that alone, without any other errors, would be a fatal flaw in your argument.

(2) Also, yes, they aren't given the exemptions that apply to similarly situated parties in other media because the internet is fundamentally different mechanically or in ethical situation in a way which changes the ethical responsibilities of people actively deploying resources to selectively relay content, but because (in the somewhat idealistic view) because the perceived benefits of imposing the usual legal liability were viewed as less than the perceived collateral costs in economic development of freeing site operators from legal liability for user-supplied content with certain limitations, or (in the view more in tune with the realities of lawmaking) because the cost of buying off the objections of a set of big money internet interests with a liability exemption was viewed as outweighed by the benefits of imposing the sweeping obscenity and indecency controls they were packaged with.

> Now you're saying that they should regulate all content

No, I'm saying that operating a site inherently involves that, and that they have the right to choose how to do so, even when that excludes certain views from their site, and that that right is enshrined in the First Amendment.

I'm not saying anything about what they should do.

>No, I'm saying that operating a site inherently involves that, and that they have the right to choose how to do so, even when that excludes certain views from their site, and that that right is enshrined in the First Amendment.

And I'm saying that no, it is not enshrined in the First Amendment. There is significant legislative regulation that applies to publishers and not to web hosts because they could not possibly regulate content on an individual basis.

That's why your second point is incorrect - if you read the legal decisions that have upheld the Communications Decency Act's Safe Harbor provisions, they aren't based on the collateral economic development cost or big money interests - they are based on the idea that it is an impossible task to regulate obscene speech online and that in order to do so, sites would have to chill speech. This chilling of speech (which is kinda what we're talking about here) is the reason sites are not treated as publishers, with again, the underpinning being that it would be impossible for them to regulate content.

If you are correct that they can do so and inherently do so, then the protections they are provided by not being held responsible, legally, as publishers, for the content they publish, should be stripped from them and websites and host should be treated as publishers, with all the regulations that apply therein.

> And I'm saying that no, it is not enshrined in the First Amendment

Then you absolutely fail to understand the freedom of the press.

> if you read the legal decisions that have upheld the Communications Decency Act's Safe Harbor provisions, they aren't based on the collateral economic development cost or big money interests - they are based on the idea that it is an impossible task to regulate obscene speech online and that in order to do so, sites would have to chill speech.

I am unable to find cases meeting this description; I can find cases, OTOH, that have upheld the broad application of Section 230 because narrowing it would defeat it's intent by discouraging self-regulation and editorial control, which the court found to be a central part of Congress’ intent, most notably Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir., 1997), which noted:

---[quote]--

Congress enacted § 230 to remove the disincentives to self regulation created by the Stratton Oakmont decision. Under that court's holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230's broad immunity "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." 47 U.S.C. § 230(b)(4). In line with this purpose, § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.

---[end quote]---

I don't believe I fail to understand the freedom of the press. Websites are not treated as publishers - if they were, they would have the responsibility to regulate their content; freedom from such responsibility is not enshrined in the first amendment.

Interesting that you quote Zeran because this is the most used portion:

[[The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.]]

Blumenthal v Drudge, where they didn't hold AOL liable for paying to re-post a libelous Drudge column:

In recognition of the speed with which information may be disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive computer service like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.

US v. Backpage: http://www.dmlp.org/sites/dmlp.org/files/gov.uscourts.tnmd.5...

"On one hand, Backpage.com has painted a clear picture of the hazards of self-censorship if this is the case: websites such as Backpage.com will bear an impossible burden to review all of their millions of postings..."

They later quote that same bit about Tort in Zeran

There are about a half dozen others that reference the same bit about it being impossible and using the following chilling effect argument to uphold the application of section 230.

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