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Comment by timdev2 | Hacker News Reader

These companies, and the systems and platforms they own, have not become "the public square" any more than a widely read newspaper, or the only Kinkos in town have. Nor are they utilities.

You're using words and phrases with significant legal implications to characterize things that don't meet the well-understood legal definitions.

I don't think you're being dishonest, but I fear you've been bamboozled by the dishonest arguments of others, and are now parroting them.

I may not like the decisions made by private companies, but private companies doing things I don't like w/r/t hosting speech is preferable to getting state power involved.

I don't like Nazi's marching in Skokie. And I don't like what the right insists of calling "cancel culture". But both of those things are constitutionally protected for good reason, and those rights are worth defending.

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Section 230 is woefully naive and written for a bygone era. Censorship of speech by a small group of kleptocrat mega corporations on the greatest communication medium ever known to mankind is antithetical to everything America stands for.

Have you considered that your problem is not with Section 230, but with the First Amendment?

Yes, I have considered that. But, no, that’s not my “problem”; I understand that this is not covered by the constitution. I believe that Section 230 should be updated and the clearly vague “otherwise objectionable” language should be removed in favor of specific language regarding where, when, and why content can be taken down, i.e., only when that content is unlawful.

I understand that some are still basking in electoral victories that were without question aided by the ambiguity in Section 230; this euphoria shouldn’t be confused with righteousness.

Imagine a world where Section 230 doesn't exist. A mean corporation takes down your post, or bans you.

What cause of action do you imagine you'd have that wouldn't be barred by 1A?

By and large, 230 acts merely as a procedural fast-last to dismiss suits earlier than they'd otherwise be. But they'd ultimately be decided the same way on first amendment grounds.

You’re presenting a false dichotomy...

230 needs to be updated, not thrown out; 230 clearly has important aspects that must remain, and other aspects that are clearly being abused by big tech.

Okay, let's just strike the "otherwise objectionable" at the end of (c)(2)(A):

What cause of action do you imagine you'd have that wouldn't be barred by 1A?

That depends. Are these organizations acting in “good faith”?

I'm asking you for a hypothetical - they can be acting with as much or as little "good faith" as you like.

Oakmont, Inc. v. Prodigy Services Co. was in my mind and many others greatly preferred to the current mess we see caused by 230.

Please tell me how your 1A hypothetical works out. Genuinely interested in hearing how you think 1A and SCOTUS will support your side of this argument.

Stratton Oakmont v Prodigy Services is only tenuously related to your gripe about websites removing content. Stratton didn't sue Prodigy for taking down posts by Stratton. They sued Prodigy for not taking down allegedly defamatory posts by users.

I asked you to provide a cause of action for "censorship" by a web site. SOvP isn't that. A more recent, federal, and better-fitting case would be PragerU vs. YouTube. There, PragerU sued over their content being remove/restricted. They lost on 230 grounds. But even without 230, they almost certainly would have lost on 1A grounds, because YouTube's exercise of editorial discretion about what content they host is clearly 1A protected activity.

Going back to Stratton Oakmont for a moment: I understand the argument that, absent the liability shield in 230, content moderation of less-than-clearly-illegal content would be vanishingly rare. Web sites would seek to avoid potential liability by getting out of the content-moderation business, which would fix your issue. I'm not convinced that would actually be the outcome. Even if it were, I wouldn't enjoy every web site devolving into 4chan-but-covered-in-spam.

...and there we have it. If you want to selectively censor lawful content, you should be treated as a publisher.

Okay. But when Twitter or whoever takes your post down, how does treating them "as a publisher" help you? It doesn't. They have a 1st Amendment right to do that.

Why wasn’t Stratton Oakmont v Prodigy Services overturned on 1A grounds?

“... if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They can’t claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.”

https://www.city-journal.org/html/platform-or-publisher-1588...

The practical reason it wasn't overturned is that it wasn't appealed (IIRC, they reached a settlement). Had there been an appeal, it's possible the court would have recognized that exercising some editorial control over third-party content doesn't make you into a newspaper-like publisher. They might have set the bar some place like "actual knowledge of the content, pre-publication". That might have created a precedent where there was something resembling distributor liability - where a platform wouldn't be liable unless they were put on notice and failed to take down defamatory speech.

That would still be a problem (because it would allow companies to censor critics, even if the criticism wasn't actually defamatory), but at least we wouldn't have incoherent arguments about a non-existent publisher/platform dichotomy.

That city-journal piece is pretty awful. For instance, regarding the bit you quoted, they absolutely can claim that 230 protects free speech. Private censorship on private property is free speech.

Congress almost certainly can't pass a law that outlaws viewpoint discrimination for web sites that would survive 1A scrutiny. Fiddling with defamation liability to get around the constitution might work, but just because you can doesn't mean you should.

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