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Comment by zaroth | Hacker News Reader

The problem is not that Section 230 clearly requires platforms to be neutral. The problem is that it doesn’t.

Section 230 isn't in the Bill of Rights. It's a legislative gift that was given to internet companies to help them grow by granting them a special legal shield for all the highly problematic content that they host and monetize.

If they want to editorialize on the back of that content, then I don't see why they should have such special status.

We do not need to eliminate Section 230. But the definition of 'Good Samaritan' blocking and 'good faith efforts' should explicitly not include the editorial decisions of a publisher.

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> It's a legislative gift that was given to internet companies to help them grow by granting them a special legal shield for all the highly problematic content that they host and monetize.

No, it was given to them to encourage them to engage in "good-faith" censorship of things that the government doesn't like by not making such censorship move them from the relatively weak distributor-liability regime where they were only liable based on a responsibility to stop distributing content once they had notice of its unlawfulness to the any-oversight-is-on-you publisher liability regime.

It wasn't to "help them grow", which it was assumed they would do anyway, it was to encourage them to try to restrict "bad" content as they grew (it is the one surviving part of the internet censorship Communications Decency Act, and like the rest of that act was, in fact, directed at promoting internet censorship.)

Would you also advocate that we bring back the FCC's Fairness Doctrine, so that news sources would be required to present contrasting viewpoints? Arguments against that were based on the first amendment; that a free press should have complete editorial control over the content that they distribute.

I think that libel laws could be eased just a bit. As it stands, to sue a newspaper for libel you need to prove that they knew what they were reporting was false, or that they showed a "reckless disregard" for the truth. It's a very high standard, but occasionally you will see cases settle (e.g. Covington High student).

I do not think the government should be intervening on content decisions. I think;

(1) publishers & platforms should be legally responsible for content they host if they are going to editorialize on it

(2) from a 'net neutrality' standpoint, that utilities and platforms should be mostly blind and entirely blameless for the packets they carry, and

(3) we should allow some level of packet and/or content classification in the middle of #1 and #2 without making the utility/platform fully liable for the packets/content they are carrying, if that classification is based on fairly protecting the network/platform from "attack".

The only reason I can see for a fairness doctrine would be based on a theory of anti-trust. To the extent that Twitter, Facebook, Apple, Google, etc. are monopolies, their ability to censor non-obscene viewpoints on their platforms should be limited... and that's a spectrum not a binary switch.

> that news sources would be required to present contrasting viewpoints

Personally, I don't have a problem with publishers engaging in publishing. So I wouldn't support that.

But there is a large, philosophical difference, IMO, between a publisher and a platform.

And our laws need to be changed to further clarify this.

I'd love to see the Citizens United ruling overturned. It would be great for our society to not treat corporations as people. But as it stands, corporations are found to have free speech rights. Social media companies are both publishers and platforms. Many news sites now have comments sections, too -- they're both publishers and platforms. What is the large, philosophical difference that separates them?

> But as it stands, corporations are found to have free speech rights

Sure. They have those right, just like a newspaper has those rights.

But these companies and newspapers are also liable for their speech.

And the companies that are not liable for the speech, are companies like phone companies.

Phone companies are required to follow certain restrictions, and the courts have found them to be perfectly legal.

> What is the large, philosophical difference that separates them?

Take the phone network, as an example. The courts already treated the phone network, differently than they do a newspaper.

> should explicitly not include the editorial decisions of a publisher

what happens when I want to run CatTalk.com and, and its against the rules to talk about Dogs, and someone comes in talking about Dogs? Shouldnt you have the ability to run and moderate and host the content on your site that you decide?

Of course the have the ability and the right to host and moderate your own content! You just do it without Section 230 protection.

That means you have a responsibility for that content; the same legal liability that newspapers and magazines have when publishing articles and editorials.

Newspapers and magazines have a staff of editors (and sometimes lawyers!) review each issue before it's published. That's the standard you want to apply to anyone running any forum anywhere on the internet? That every comment has to be carefully prescreened for legal compliance? And even then you have to operate under a substantially increased risk of lawsuit.

Maybe you prescreen every comment but you make a bad call and something defamatory gets through. Or maybe someone sues you under bad faith and you have to pay to defend it or settle.

This is a very bad future for the internet. It's an internet where the powerful, who have the full support of publishers, will get to have their voices heard loudly. And the less powerful, who do not have teams of lawyers willing to fight on their behalf, will have a very hard time getting their voices heard.

> That every comment has to be carefully prescreened for legal compliance? And even then you have to operate under a substantially increased risk of lawsuit.

No, that’s only the standard I want to apply if they are editorializing the content that’s being posted.

So, to use the same CatTalk example from before: if you're running a site dedicated to cats, and you want to disallow user posts about dogs (or cars or pornography or...), you want that site to have to carefully prescreen every comment for legal compliance and operate under a substantially increased risk of lawsuit?

So HN moderates its content, quite strictly imho. Do you think they should be sued because of a comment you or I make on this site?

In practice this means that it would be extremely irrational to run a not-for-profit or nearly not-for-profit venue that accepted posts from anything but close friends.

Is that the world you want?

Newspapers and magazines run each article past editorial review before publishing it, and usually fact check anything that looks like it might be libelous or controversial. They don't just accept what the writer submitted and go to press.

It's hard to see how you could run a site that provided near real time broadcast communication to the general public if you had to do that level of vetting of each post to make sure nothing slipped through that might get you sued.

> You just do it without Section 230 protection.

But that's the thing. Section 230 doesnt really have anything to do with moderation. In fact, it allows websites that has user generated content to exist without moderation.

I think/hope we agree that its completely reasonable and normal for websites to moderate the content on their sites. For example, I want Twitter to take down child pornography posted. Literally hate speech - calls for genecides and violence against people - websites should have the legal ability to remove that from their sites. I do not think there should be any consequences towards the websites for wanting to remove this content.

If you remove 230 protections from websites, it forces the sites that are able to survivce to moderate more by making them legally liable for the content published.

So this might be an extreme example, but if the people running CatTalk become legally liable for the content, would they be held responsible for someone planning and carrying out a crime on their site? Because that seems like an easy law to abuse and destroy the lives of site-owners.

For example, one could post about drug deals or something in a thread that mods might not read, then hold them legally responsible for enabling drug deals on their site.

Neutral is very much in the eye of the beholder. To start considering this scenario, we'd have to ask "Who will be the arbiter of whether a site's content is 'neutral?'"

Follow the First Amendment.

The First Amendment is in conflict with the government regulating what viewpoints companies allow on their platforms.

Section 230 does that now. It gives platforms publisher immunity. They could change the law to require platforms to follow the first amendment in order to retain their publisher immunity.

They could. "Should they" is a very reasonable question.

I, for one, appreciate the current status quo where I generally don't have to deal with neo-Nazis spouting nonsense uncontested on my Facebook wall (and if that arrangement bothers me, I could go to some other site).

You can block that or contest it, as you wish. I've been called a Nazi for opposing critical race theory. Where do you draw the line? Social media companies lean left, the government should ensure they remain neutral by following the First Amendment.

> You can block that or contest it, as you wish.

I'm happy to do so. I'm also happy the platform has some base-level standards so I don't have to block and contest quite so much.

> Social media companies lean left, the government should ensure they remain neutral by following the First Amendment.

Is there anything in particular about social media, as a technology, that causes all companies engaging in it to "lean left?" If not, this is a problem the market can solve.

But the first amendment prevents the government from telling me or my company that I have to follow the first amendment like they do.

Precisely. Enforcing "neutrality" on private parties would be unconstitutional viewpoint discrimination.

Seems like a pretty easy call if the site in question blocks peoples' accounts for posting an article from the 4th largest print news publication in the USA.

It was an article that blatantly violated the posting medium's terms.

Doesn't matter if the government itself posted that article. Doxxing info is immoral and should be blocked.

It's only "a pretty easy call" when you cherry pick extremely easy, outlying examples.

What about more nuanced cases? Who will be arbiter of "neutral" then?

It's actually the 8th largest, not 4th largest.

If you tried to enforce a "neutrality" requirement, you'd slam face-first into the First Amendment. It would be government mandated viewpoint discrimination.

Not if you have a 6-3 majority on the court... 1A is whatever SCOTUS says it is.

> Not if you have a 6-3 majority on the court... 1A is whatever SCOTUS says it is.

That's true. Like much of the Constitution, the text is pithy and doesn't specify its definitions. The current legal interpretation of the First Amendment and free speech rest on a particular philosophical traditions that the court adopted in the last century, and especially after the 60s.

A lot of people have absolute faith in the functioning of a "marketplace of ideas," but it's not at all clear to me that a such a market can work well when it's flooded by disinformation, just like a market of goods can't work well when it's flooded by counterfeits.

https://www.nytimes.com/2020/10/13/magazine/free-speech.html

which is why the legal exemption should be tossed entirely, and new publishers like twitter and facebook who have demonstrated control of what gets seen on their platform, should be liable for the content on their platforms.

You're aware that this will result in _more_ content from being moderated off the sites, right?

Full devils advocate mode here.. I think it would likely result in a severe scaling back of the operations of Facebook and Twitter (and Reddit and [...]). There are simply not enough people to hire as moderators and coordinate at the scales they're running at right now to operate in a manner that won't get them sued on the regular.

I also think this would result in a mad dash for anonymous, distributed, decentralized communication methods, i.e. things that can't be the target of a subpoena.

Given the toxic influence of both social media on society, and the severe centralization we're operating under... both of those things look very tempting.

I think it would be a net negative for the internet, attacking the very thing that let it get to this place.

That would make Hacker News liable for any defamation posted in the comments section. Well done, you just killed HN.

> If they want to editorialize on the back of that content, then I don't see why they should have such special status.

They don't have special status for their editorializing. If Facebook or Twitter or any other interactive computer service produces editorial content that, say, libels someone, they could be sued over that and would not have a section 230 defense.

Would you consider "this is dangerous" or "this is misinformation" to be editorializing? What about "adding context"[1], as Jack Dorsey has promised to do at twitter?

Given that all are judgement calls, I'd say it's impossible for it to not be. There's a difference between merely removing something and giving your opinion on the contents.

[1]: https://twitter.com/jack/status/1317081843443912706

If they give their opinion on the content, they would be liable for that, because (1) it is not information provided by another information content provider, and so is out of scope for section 230, and (2) even if it were in scope they would be liable as the author--230 essentially says "go after the author, not the host" and in this case they would be sued as the author, not as the host.

Explicit deliberate bias is protected speech.

They don't even need to be "neutral", just to have written rules that apply to everyone. eg: no spam.

That rules could include biases like "no news that favor Trump reelection", but they should be in their terms of service explicitly.

I agree with this. From a libertarian stand point, the gov stepped in to help (rightfully, sometimes we need it) but it was originally written in a way that is now being abused. I don't see a problem changing it so that if you a companies gets to decide what they want to show and not show, they should be liable just like news sites.

I'm open to hearing the opposite side if anyone has any arguments on why it shouldn't change

Well they aren't news sites. They are private entities providing general platforms. Speech, per the US legal system, is more than just what one says, but also the actions one takes. These companies have not only a right, but a duty as publicly traded companies to protect their platforms as they see fit.

I fail to see how moderators on vBulletin boards in 2002 are any different then moderators/admins/algorithms on Twitter, Facebook, YouTube, etc in 2020. The scale is different, sure, but you are not entitled to the amplification of these platforms just because they are bigger the same way you weren't entitled to the amplification on those old vBulletin board systems.

So where do you stand on 230? Are private entities responsible for the content they host? If we repeal 230 and someone posts something falsely defaming me, who do I sue?

> So where do you stand on 230?

I generally support 230. There may be some tweaks that could be made that I would support, but the general concept behind 230 is correct.

> Are private entities responsible for the content they host?

Generally no. Private entities are responsible for the content that they publish, not for the content that they host. An example being the comment section on a news site versus the news article on a news site. The latter is content that they published, the former is content that they host.

> If we repeal 230 and someone posts something falsely defaming me, who do I sue?

IANAL but I would imagine if 230 is repealed and some one libels you, you sue the platform and the content creator.

If 230 isn't repealed you sue the content creator and ask for an injunction against the platform to remove the content.

So if the government is stepping in here and moving the liability from the platform to the content creator as a favor to the company, shouldn't the company be required to not be allowed to selectively allow posts (assuming it is legal content and related). I.e. why cant The New York Times call themselves a platform and just post whatever they want? Where would you draw the line?

> So if the government is stepping in here and moving the liability from the platform to the content creator as a favor to the company, shouldn't the company be required to not be allowed to selectively allow posts (assuming it is legal content and related).

That's what the law was before 230, except that it essentially applied to illegal content, as well, because of the company tried to actively moderate even for just illegal content then it became liable for all content (it had to be 100% right if it tried to moderate illegal content.)

Being liable for only known illegal content is distributor, not publisher, liability, which is what it superficially looks like 230 does on its face (courts have applied 230 to provide no liability, not even distributor liability; expressly imposing distributor-style liability would be a modest reform.)

> I.e. why cant The New York Times call themselves a platform and just post whatever they want?

Because the NYTimes pays staff to create it's content and exercises complete editorial control over said content, and thus is fully liable for the content published as news articles on its site. The NYTimes however is not liable for the content in the comments section on said news articles, though, they are allowed to remove comments that they do not wish to appear on their commenting platform.

Twitter is also liable for content that it publishes, eg: what the Twitter support account posts. But it is not liable for the content that I, dlp211, post to Twitter. Twitter still retains the right to moderate their platform as they see fit.

This applies to not just Twitter, but to every platform on the internet, from the Twitters and Facebooks and YouTubes to the MyNicheVBulletinBoard to Palor, 8Chan, and 4Chan.

Now I have mentioned previously that I am open to tweaks. While I haven't thought deeply about it, I would be open to considering a tweak along the lines that the platform becomes a publisher when it promotes content via human or computer decision making. This may or may not be a good idea after I think about it more deeply and discuss it with others, but the point is that I am not of the opinion that 230 is the end all be all but I am also of the opinion that I would rather live in a world with 230 than without it. I say that as someone that believes that their politics would be greatly benefitted by the repeal of 230.

> I.e. why cant The New York Times call themselves a platform and just post whatever they want? Where would you draw the line?

IANL even if they called themselves a platform they would still be acting as a publisher and the law would treat them as such. For example they would be editing and curating content, paying for content from writers, and making the material available under their own name.

Can you help me understand why selectively removing content from a privately owned website is considered "abuse"?

So if the company hosts false information against me (that a user posted), I can sue them?

I think you can sue the individual, based on my reading of Section 230, but I'm no lawyer.

I don't see how that explains why it's "abuse" for a company to selectively remove content from their website, however.

From a libertarian standpoint, the government regulating "neutrality" is a nightmare.

Should Hacker News be required to treat all links the same? If not, exactly how do you think a government "neutrality" mandate would work?

Because such a mandate means that if the HN moderators are a little biased, the whole shebang would become liable for any defamatory comments posted here. That's a government-mandated sword of Damocles hanging over every single moderation decision made here.

If you falsely slander me, doesn't 230 make it so that Hacker News can't get sued? If the government is protecting the company here, then the government should be able to also enforce rules that come with that benefit right?

Maybe, but they can't condition a benefit on "neutrality." Conditioning makes it viewpoint discrimination, which is unconstitutional.

From a libertarian standpoint forced "neutrality" (scare quotes intended) is an infringement on the property and free speech rights of the platforms. You are not entitled to use my property against my will to endorse viewpoints that I disagree with, and the government should not force me to comply.

So in that case are you against 230? If someone falsely defames me, who do I sue?

> If someone falsely defames me, who do I sue?

You would sue the person who defamed you today.

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