Comment by ikeboy | Hacker News Reader

Comment by ikeboy | Hacker News Reader

>A state consumer protection law that requires a reasonable person standard before deleting user-generated content.

This violates the 1st amendment by compelling speech. If you want to pass such a law, section 230 isn't your biggest obstacle.

>All state contract law that would enable legal action to enforce a contract or terms of service that a party felt were violated by the moderator.

Nothing in section 230 prevents contract enforcement. In fact, courts that threw out other counts because of section 230 have addressed contract breach counts separately. See e.g. https://blog.ericgoldman.org/archives/2019/12/breach-of-cont...

>Even just a state law that says "you must give users a window of 24 hours to export their data and leave."

Perfectly permitted. They wouldn't have to display the content publicly, which would mean they're not an interactive computer service for the purpose of that section. For someone making confident assertions about what's obvious, they fail to point to court cases that actually interpret the law that way.

I don't like attacking the author for not being a lawyer (mostly because I am not a lawyer either), but it's quite clear to me that their legal interpretation is completely wrong.

To fix the original title: the First Amendment is a censorship law, not Section 230. Or at least, the First Amendment constitutionally protects internet websites that censor their users. It's called freedom of association.

More people outside of the legal profession should have an understanding of that freedom. I feel like our educational system concentrates so much on specific freedoms we have that it ignores other limitations we place on our government's powers. The implicit, and well litigated, restriction against limiting freedom of association is an extremely important example of the "forgotten rights". So when lay people run up against it, they assume there must be some kind of corruption going on, when in fact, it's an obvious consequence of constitutional law that everyone probably should have been familiarized with in high school.

Of course, that's only the tip of the iceberg when it comes to people misunderstanding the law. As the article that birthed this thread illustrates. Which only reiterates the need for our nation's civics classes to do a better job.

What does “freedom of association” imply?

IANAL, but I think you're likely wrong on the first amendment issue. Contract law regularly supersedes first amendment concerns, e.g. even though courts are a part of the government, they are allowed to enforce NDAs. Even outright restrictions of speech are often allowed; there are broad exemptions. e.g. it's OK to regulate noise levels, even if you're shouting protected speech - as long as the regulations are content neutral (and likely a host of other tests courts apply - again, IANAL).

A state law regulating such contracts - which is in essence what this might be, as they concern EULAs - especially to the really limited extent that we're talking merely about not deleting content for a short period of time, in a content neutral fashion - that doesn't shout first amendment issue to me anyhow. Even if it required (or strongly promoted) keeping content up, I'm not sure there would be an issue (though there might be).

Here, e.g. a quick google finds a link (hopefully a reliable source, but I'm not vouching for it...) about the kind of things that can survive a first amendment challenge: https://www.mtsu.edu/first-amendment/article/1023/time-place... - sounds to me like requirements to keep content online temporarily to allow for dispute resolution would be no less impermissible that the converse which is already in the DMCA (effectively albeit indirectly requiring content to be taken down upon the mere accusation of copyright infringement). Also, the part about the takedown requests should give some idea as to technicalities that in effect regulate speech while technically not doing so, and those could be applied here too - DMCA after all does not require compliance with takedown requests, it merely makes it economically non-viable to fail to comply, even if the request is in bad faith.

While the first amendment may be spiritually related to laws like this, I'm not convinced it's a serious impediment either way, even if the outcome is a pretty serious chilling effect. The loopholes are too large, and the first amendment simply too narrowly focused on government impositions to reliably protect from indirect restrictions. To be transparent: I'm not saying it couldn't be a protection, just that I don't see it as obvious, and since IANAL, I'm not comfortable assuming it's a relevant factor here, although it certainly could be.

I explicitly pointed out that laws regulating contracts would be fine. That was the second example. The first example made no mention of contracts.

Re DMCA, as you note, there's no requirement to take down content after receiving a notice. You can't be held liable for ignoring a notice. You just lose the safe harbor granted by DMCA for those that choose to comply with such notices.

OP had three distinct laws that I analyzed separately. I feel like you're conflating it into one mega-law and saying that the first amendment doesn't cover everything.

Also, the "reasonable person" standard doesn't sound content neutral to me.

Right, but in effect the DMCA does require takedowns. In theory, it doesn't, but in practice the risks imposed are large enough that platforms can't viably choose to take them.

And exactly that could work in reverse too; a non-requirement strong incentive to leave content up, by tilting the liability scales the other way, or even by imposing additional civil liability by the platform to the poster (not the government!).

The point being not that that is likely to pass congress nor something to morally aim for, but rather that the first amendment won't prevent it either: i.e. if congress wants to intervene, it has the power to. I'm not saying the original article has it's details legally water-tight, but rather that it seems implausible that reasonable legislators couldn't come up with a sufficiently first-amendment proof construction.

And the point of that is that we shouldn't be distracted by first amendment issues. They're not going to matter for regulating platforms, as the DMCA kind of proves, if that's what congress wants. So what do we want? What should we as a society want? That's the hard question, and any (reasonable) answer to that is likely not going to impacted by the first amendment.

Plenty of companies reject a large portion of their DMCA complaints that they believe don't represent infringement. Look through some transparency reports.

In the absence of the safe harbor, companies would be taking down far more content, not less.

Same if section 230 was narrowed.

Can you propose an actual law that you believe would be constitutional and would have the effect you're claiming?

You're misreading what I'm saying; I'm not proposing an alternative law (and have no interest in doing so), merely stating that the criticism of the original article saying that DMCA reform would run into first-amendment issues is invalid. Competent legislators have enough freedom to go in fairly different directions, if they so choose.

The point being: if you want to propose an alternative to the DMCA, worrying about the first amendment at this stage is premature.

That wasn't my criticism. I critiqued a specific proposed law, which would indeed run afoul of the first amendment.

The original article did not propose any specifically formualated law, and additionally it's clear from the article that the author is concerned with the effects of the law, not the exact formulation. Criticizing the formulation isn't constructive, since he obviously doesn't care. And as I tried (and clearly failed) to convince you of, the issues you suggest exist if you were to read a blog-post as a literal law (which you shouldn't) are obviously not intrinsic to his proposal.

In essence your criticism boils down to: copy-pasting this blog post as law and thus disregarding its intent would result in a law that violates the first amendment. But it's (A) not clear the form of very limited compelled speech you point to would be struck down (again there clearly have been exceptions that have not been struck down - a quick google finds stuff like https://en.wikipedia.org/wiki/Turner_Broadcasting_System,_In..., but many other cases too - and you haven't explained why you believe this is any different), and more crucially (B) it's mostly irrelevant to the point of the article, which is about how the author views parts of the DMCA as ways to censor speech, and how he believes that's problematic. Applying https://en.wikipedia.org/wiki/Principle_of_charity - we should be trying to read the post in its "best, strongest possible interpretation" - i.e. not split hairs on a technicality that doesn't really affect the core argument.

Turner is about a content-neutral regulation. The proposal in OP doesn't appear to be content-neutral. It's also weaker than Turner in that no compelling government interest is identified. Being charitable doesn't mean I need to assume that every censorship proposal written by a non-lawyer somehow complies with the 1st Amendment if I add enough epicycles.

The author is critiquing Section 230, not the DMCA. They're making some extremely strong claims, and in particular saying certain things are obvious or extremely likely. It doesn't cite any cases and each of its examples appear wrong. The core argument is dead wrong. 230(c)(2) is barely even cited in court, most cases cite (c)(1) because the good faith standard is difficult to establish.

I'll note that you're mainly nitpicking one of my three critiques and haven't addressed the other two.

The proposal to delay deletion for 24 hours is content neutral, is it not? Additionally, since the "speaker" has already published whatever is being deleted, and merely has a delay, the free speech issues appear pretty small - or perhaps nonexistant. It's not clear to me that this would be struck down, and if it is clear to compentent legislators, they could rephrase the requirement instead as a liability limitation that's close to a requirement in economic practice.

> Being charitable doesn't mean I need to assume that every censorship proposal written by a non-lawyer somehow complies with the 1st Amendment if I add enough epicycles.

Of course not - I think your view on the matter is simply focused more on legal details, when the author seems to be focused on the outcomes of said laws. So, e.g. when you correctly point out he's not citing anything... I'm not sure it's relevant, because his interpretation of 230 as censorship doesn't rely on it violating the first amendment, but rather on indirect effects that allow censorship by platforms. I'm not sure this argument is very strong - but that's the interesting argument anyhow.

> I'll note that you're mainly nitpicking one of my three critiques and haven't addressed the other two.

That's because that's the one I object to, not the other two. And I'm not objecting because you're wrong, but because (I believe) it's missing the point. I don't think the article makes a strong case, but if you read the article, he's trying to make some case that s230 curtails free speech (irrespective of the the constitution - free speech in practical reality, not theory) - his proposed remedies are not central to the thesis. Yet by focusing on those, we've ignored the thesis, and that's my issue with criticisms like this.

I mean: it's fair to say I'm nitpicking one specific issue - but so are you with respect to the original article, and in a way that derails the discussion.

Sorry for derailing... your points; in retrospect it wasn't worth it (the original article isn't making very clear points). I guess I get triggered by people going off on legal tangents (I feel like that happens a lot). Then again, hard to criticize an argument you've made when my very criticism is open to the same objections.

Anyhow - thanks for clarifying the issues with his interpretation of 230 - there aren't a lot of places left you can still discuss stuff like this without devolving into deeply held partisan beliefs; I appreciate your level-headed response.

>The proposal to delay deletion for 24 hours is content neutral, is it not?

My response to that part was that it's consistent with Section 230 as well as long as it doesn't have to be displayed publicly.

If the requirement is to display it publicly, then I suspect platforms will respond by adding a delay before content is published in the first place, or restricting distribution while leaving the content up (so you'd need to go directly to that page to see it.)

Yeah, that requirement doesn't look like it'd be worth much; for sure. Also, 24 hours is really short; even if the requirement were maximally broad to the extent that would surely attract a challenge, there's a good chance many people wouldn't see that notice until right around the end of that period, or even later - so what's the point? They surely can't meaningfully respond in that time frame, and even if the odd person did, the receiving platform might not process that response in time...

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