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Comment by aristophenes | Hacker News Reader

You’re allowed to say whatever you want and I’m allowed to sue you if you tell lies about me. Twitter and other social media platforms are made exempt from this because they are hosting other people’s content and they’d be sued into oblivion if they could be held responsible for what everyone posts on their service. But as soon as they start censoring whatever they want, they aren’t a true public platform anymore, the content you see is what they want you to see. So they should also be liable to civil suits if the information they allow to disseminate is not true. This isn’t about the second amendment, IMO.

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They were NEVER a public platform they were always a private company. Its a commonly repeated untruth that as soon as they start moderating they cease to be protected. Nothing could be further from the truth 230 specifically protects their right to moderate.

People advocating that position usually have a very specific idea about how they want sites to be moderated, but section 230 is about not treating platforms as if they're the speaker when one of their users posts illegal speech, regardless of moderation. Of course, politically biased speech is not illegal, so it's really about punishing platforms for moderation somebody doesn't like.

A more reasonable target for a 230 carve-out would be recommendation algorithms. Those aren't merely passively hosting user-generated content, but actively selecting what they think you should see to keep you engaged with the platform. Featuring content rather than showing it ordered by some simple criterion like time should be treated as editorializing rather than moderation. If a human editor decides to feature lies I tweet about you on their "best tweets of the week" page, you may be able to sue them for libel. If twitter's algorithm shows lies I tweet about you to a large audience, you currently can't.

Arguing that the recommendation algorithm is editorializing is an argument for the choice of algorithm being an instance of free speech which would be protected from such meddling.

I don't think current law and understanding of same allows any major changes to how we treat platforms. I tend to think that any major changes in the law are liable to be for the worse because even well meaning law makers seem to possess a mostly incompetent perspective on tech.

The algorithm would have free speech protections under such a scheme, and it's likely courts in the US would conclude that it does under current law. Those do not necessarily extend to repeating lies that I have published about you, which are not protected as free speech.

The company has a free speech interest in choosing the algorithm to make it clear. Lies might be protected speech but 230 makes it very clear whom you are allowed to sue regarding those lies. Wishing the law was different doesn't change the law.

What twitter is accused of is of applying its rules unfairly and with bias.

Section 230 protect the right to moderate within bounds.

To use the actual text, it indemnifies them from lawsuits arising from:

> 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;

So long as their actions are in good faith, and the content can be lumped into "otherwise objectionable" (as I'm sure most anything could), they are well within Section 230 protection. Even if they have an implicit bias in their moderation. Even if they have an explicit bias in their moderation that they put in their ToS. It specifically says "that the provider or user considers obscene...", which explicitly states the bias of the provider is considered.

The only way Twitters moderation could remove their Section 230 protections is if they did it in bad faith. If they were doing it specifically to try to lose Trump the election, that might count as bad faith because it has nothing to do with limiting access. They are, however, free to remove everything he posts because they find him to be objectionable. Or to remove things they think they are objectionable. Or to only remove violations of their ToS when Trump does it, because they find him or his past patterns objectionable. Or because they find it more likely to lead to flamewars, etc on the site when he does it. Etc, etc, it's mostly a hypothetical because you have to prove bad faith, which is hard unless someone is dumb enough to write it in an email.

The following is my uninformed opinion, you can probably skip it; I recommend https://www.youtube.com/watch?v=O1OhE4w0TAU for a competent commentary.

Anyway:

Twitter violating its own ToS and/or promises to the users sounds like an example of bad faith. (This would not apply if Twitter's marketing was 'Fuck you! we do whatever we want', instead they promote themselves as a fair platform)

Moreover the entire exemption does not apply when the `provider` is not a provider but is actually a publisher using editorial discretion. (for example if twitter decided to ban false statements in tweets this would clearly put them outside of section 230 immunity)

I would recommend citing legal scholars instead of YouTube personalities. The person you are quoting its a Canadian lawyer of no meaningful repute who gave up his legal career of a paltry decade to become a YouTube influencer. He has never even been licensed to practice law in the United States.

His opinion is out of sync with what legal scholars and indeed an what an author of the law says the law means.

Just on a laymans reading of the text good faith isn't given in some universal context of fairness or fair play it is given in the sentence.

Good faith herein means actually because they found it objectionable not for some ulterior motive.

In order to assert that the removal wasn't protected under 230 you would be asked to prove the contents of the minds of the decision makers that the removal was NOT because they found it objectionable. They could literally argue that they found the effort to influence the election itself objectionable and suppressed it therefore and be safe within the boundaries of the law.

In fact good faith .... otherwise objectionable is so broad as to encompass virtually any removal for any reason

Furthermore finding that one removal wasn't protected under 230 wouldn't magically dispel all legal protection it would mean for the purpose of THAT removal someone could sue them if they had just legal grounds.

I don't believe your source provided one.

Personally* I have doubts[1] about this reasoning, in that it doesn't cover how this would not apply to the New York Times.

I can agree with your interpretation that where the protection of section 230 applies companies would be allowed to remove basically whatever they want.

But there need to be a criterion distinguishing why Twitter can claim this immunity while newspapers cannot. The rights granted need to have some kind of obligation.

From what I understand the people that are trying to attack this immunity have mostly given up with the argument "Twitter monopolized a space for discussions so it should be held to constitutional standards like telephone companies" or "social media platforms are clearly acting as publishers of their content" and are rather trying to push "social media companies falsely promised open forums to users and content creators only to hit them with draconian rules once a monopoly was established" (had facebook (or youtube) had the same ToS since its inception it would have never become a monopoly).

With this last argument the entire question of section 230 is sidestepped.

As far as I understand it will not actually accomplish anything soon; a lawsuit on these premises was successful against Patreon, but those were very special circumstances.

[1] https://slatestarcodex.com/2013/04/13/proving-too-much/

* I am even more remote from the US than a Canadian lawyer, but I do not see my role as telling the courts what they should do, but rather as someone that is trying to understand what is happening and trying to develop informed opinions.

You say you doubt my reasoning but substitute none of your own save for a stale youtube link to the diatribe of a non entity and a link introduced but then neither explained nor contexualized.

I honestly don't know entirely what it is trying to express. "Proving Too Much" seems to be a complete non sequitur I have no idea what you fallacy you are suggesting is expressed by the prior or any other post on this subject.

>But there need to be a criterion distinguishing why Twitter can claim this immunity while newspapers cannot. The rights granted need to have some kind of obligation.

You can institute new obligations as soon as you buy your own congress critter and get them to write new laws. If you believe such obligations are already expressed in law kindly cite the statute and section.

The distinction between the print copy published by the New York Times and say reddit/twitter/facebook is literally that this is the distinction the law makes. It doesn't have to make sense to you to be the law of the land. Particularly the short comprehensible section already the primary topic of discussion.

If you want to dig into why it seems relatively obvious. The finite first party content is dear and expensive and the act of curation is already inherently an expectation. Asking a publication to take legal responsibility for what they publish is a tolerable and reasonable burden.

Reddit/Twitter/Facebook solicit users to produce a veritable ocean of content for which they offer users a chance to communicate to their fellows and a small amount of server time which per unit is paid for by a slightly larger income from ads provided with that content.

Legal responsibility for content shared between you and I would be a herculean task, impractical, intractable, and expensive that would leave them with little choice but to cease operations.

Indeed few people actually want this what they want is 230 to be used like a club to keep people like twitter from shaping the conversation despite owning the property on which you expect discussion to take place and no law providing such a right to someone else's megaphone.

If you don't like it start your own website.

What I was trying to say is that there is a continuum between the New York Times kind of editorial control and Reddit/Twitter/Facebook moderation of content.

I am not saying that section 230 should not apply, I am saying that, to my knowledge, under current laws if a social media company decide to apply excessive editorial control (let's say twitter decides to only allow factually true tweets) they would lose the protections granted by section 230.

> The rights granted need to have some kind of obligation.

By "need" I meant that I believe these obligations already exist in laws.

> Proving too much

By proving too much I meant to say that since section 230 does not apply to newspapers the law must make a difference between them. To my understanding this difference is editorial control.

Finally I am not trying to have a debate over this, I am only trying to understand better the issue; I clearly have a side/bias, and I am trying to learn more about the many other facets of the issue.

>, I am saying that, to my knowledge, under current laws if a social media company decide to apply excessive editorial control (let's say twitter decides to only allow factually true tweets) they would lose the protections granted by section 230.

It's a short law read it.

https://www.law.cornell.edu/uscode/text/47/230

There is no clause that specifies that a company even can in a blanket fashion "lose protection" in such a fashion.

First relevant section.

        (c) Protection for “Good Samaritan” blocking and screening of offensive material
        (1) Treatment of publisher or speaker

        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 is completely without qualification.

Second relevant section

        (2) Civil liability

        No provider or user of an interactive computer service shall be held liable on account of—

        (A) 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;

        or

        (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

It says you can't be held liable for blocking something in "good faith" Nowhere on earth does it suggest that any action will cause you as an actor can lose protection under this act. It just says that no action taken in good faith can result in you being held liable for that particular act.

This means that in order for a party to sue they would have to prove both that they were blocked in bad faith AND completely aside from this title they possessed a legitimate cause to sue.

To be completely clear someone could post on reddit the libelous allegation that you ate babies causing you to lose your job at the day care a clearly obvious cause of action and then the ceo of reddit could personally block your profile to keep you from running against him for mayor of your little town. A judge could agree that your content was blocked in bad faith and you STILL wouldn't be able to sue reddit for the baby story.

If you don't like that reddit or facebook or twitter blocked your story your problem becomes finding a legal right to exercise your legitimate freedom of speech VIA their platform.

The DMCA has existed for 24 years longer than some readers here have been out of diapers and I can no platform has been censured yet for removing deplorables in a nation full of both deplorables and lawyers. It seems likely none ever will without a new law not a new interpretation.

Interesting :) in this context I still do not understand how this would not apply to the New York Times.

If I had to guess I might point at employer liability or contract laws, but it might be a discovery for another day

It applies to the New York Times comment page or indeed places where they offer people who don't work for the times a place to communicate. When someone who is paid by the times writes an article for publication they are responsible for that work.

> By proving too much I meant to say that since section 230 does not apply to newspapers the law must make a difference between them. To my understanding this difference is editorial control.

Instead of guessing what the difference is why not read the very short section 230? The difference is that 230 specifically deals with the web. The difference isn't editorial control its literally that the law directly speaks to the web. I would suggest in half the time required to watch the video one could read 230 twice over. This misunderstanding directly stems from concerning oneself with bad secondary sources.

It's DEFINITELY not about the second amendment.

I don't know, maybe content recommendations systems could be considered weapons...

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