> But content moderation, as an exercise of editorial discretion, is protected by the First Amendment. And that Congress can’t repeal.
[1] https://caselaw.findlaw.com/us-supreme-court/418/241.html
If Twitter doesn’t have liability for the speech, then it belongs to the speaker and Twitter should have no obligation to censor it. They can’t have it both ways.
Likewise Twitter and Facebook should be paying their users for providing content that they profit off of, like newspapers pay reporters. Then they can have standing to choose what they want to publish.
Unless the government is taking over paying for hosting the user content, the server owners will be able to not host it
What? This sounds like you're arguing that Twitter and Facebook are legally obligated to publish everything a user posts because they don't pay their users?
230 is about that, it lets intermediaries create policies, without having to choose between being publishers or carriers.
Disclaimer: I don’t like this side effect too
I hate the framing of the practical issues stemming from this in a matter of bipartisan policy.
I’d suggests people are realizing giant Internet companies are chokepoints on the flow of information, and don’t like how this is being handled.
Some people who don't like the moderation policies have created a fictional world where such policies are wrong instead of merely disagreeable like someone who hates pineapple imagining that putting them on pizza violates some moral principal instead of merely their own tastes.
If you examine such a request the user nearly always desires not broader liability for websites but for the government to use such liability as a cudgle to force websites to accept speech they would otherwise object to and host it on their platform. Effectively they want to take away others freedom and compell their speech. This is so obviously immoral that one wonders what moral principles could possibly justify this.
Without those few enormous platforms shaping the public discourse, 230 is largely good and unproblematic.
Which is why I’d love to have more platforms, while retaining 230.
But I also need to acknowledge that’s not where we are heading to.
With too few platforms some are arguing they feel censored, banned from participating in public discourse.
The people making these arguments aren't doing so in good faith. They're playing the victim for extra attention. They claim they're banned from platforms because of their "conservative" politics when in fact it was them directly advocating for direct and explicit violence against political opponents that got them banned.
There's nothing "conservative" about advocating murder for your political opposition. That's not a necessary part of a conservative ethos. It's also not any sort of political discussion. If someone openly advocates for your murder you can't meet them half way.
When platforms get in trouble they make the same bad faith arguments. Parler whined claiming AWS dropped them for being a "conservative" platform while it was clear Amazon dropped them for not taking any meaningful steps to shut down open and explicit calls for violence.
The biggest flaw in thinking here is that carriers are forbidden from curating the content that they carry.
Maybe you should be able to sue the NYT reporter. I think you can, in fact!
I just don't understand what we're trying to accomplish with the changes to how things are currently. Maybe it would help if you described the world you'd rather live in, and how it differs from this world.
Well it’s what we have now. Mass misinformation and lies constantly being spread around. The trade-off we made was that it was supposed to be an unfiltered cesspool because it wasn’t feasible to censor views to match the editorial decisions of the company.
However, AI has made if feasible to censor at scale and the companies want it both ways. They want editorial control and they still don’t want any responsibility for defamation.
> Maybe you should be able to sue the NYT reporter. I think you can, in fact!
That’s worse than being able to sue the NYT. It allows the NYT to hide behind pawns they would love to sacrifice in the name of spreading convenient lies.
And as the article makes clear, the idea that Facebook is not responsible for the content its users create has nothing to do with the problem of misinformation. To solve one would not even touch the other.
The suggestions I replied to seem focused on holding Twitter and Facebook accountable for what is displayed on their own website, regardless of provenance. It's not clear to me how that would enable anyone to safely create content that Facebook doesn't believe should be published on its platform.
Without the separation of the creator of the content and the organization displaying that content, Facebook would grow more strict, not less.
Fundamentally, you're trying to involve the government in deciding what "truth" is. That seems much worse than misinformation, yes?
We already have the courts involved in deciding what "truth" is. Has worked out pretty well in general, and certainly better than having private companies do it.
Honestly, it feels like a moot point anyway. The 1st Amendment makes all of this pointless to discuss. It will never happen, short of a literal collapse of the US Government and a reformation under a new Constitution that doesn't include the 1st Amendment.
The government will never be involved in deciding what people can and can't say to the extent that this would require. It's antithetical to our current legal system (not to mention our cultural mores).
Of course Twitter gets to decide what to publish on Twitter. There's literally no other way to operate, regardless of Section 230.
People will debate more or less police funding, but massively more judicial funding is on nobody’s radar.
What the modern age calls for is the ability to easily enjoin a class of defendants and sue them all for $5, with adjudication taking 1 minute. Now your mom just lost $5 because she retweeted a MLM health scare scam 2 minutes ago.
Any actual solution would have to target the creators of the disinformation, and maybe those who knowingly spread it. Even that is hard in a freedom of speech context though. Even lies are free speech.
When we're talking about Section 230, we're talking about torts, and when we're talking lawsuits, we're also talking torts.
But I still maintain the idea is bass-ackwards morally and legally problematic.
If mum believes the false Facebook meme she's a victim. Yes passing it on passes on the harm, but honestly I also think that doing detailed research into every meme before passing it on is an unrealistic expectation. Almost a decade ago I passed on the meme about Mr. Rogers being a sniper with x number of confirmed kills and always wearing sweaters to cover his sleeve tats. Exactly how much money should that cost me? In many way these memes are the natural evolution of "old wives tales" that have existed for centuries. Probably all of human existence.
And from a tort perspective I'm still not sure this applies. Part of the harm from tort comes from the fact it's repeated. If I tell people X bank is financially insolvent, it catches on and there's a run on the bank I'm certainly guilty of something, but I don't think the people who passed it on in good faith are. Rather the fact people were passing it around is evidence of the tort, not additional torts themselves (but IANAL of course).
And even if passing on a meme is a valid micro-tort in this scenario, now my mom has been materially harmed by whoever shared it with her. Does she now sue them in her own micro-tort lawsuit and the whole thing bubbles up like some kind of legal reverse ponzi scheme? It seems like all of these micro-suits floating around and sure to create the exact problem the original comment is trying to avoid.
Your “mom” in this context is actively spreading fear about topics and not knowing something is true for certain is all the more reason she shouldn’t be doing it.
We have the Internet now, we don’t need rumor mills and information spreading second hand.
Are you sure you never spread information that isn't true? Really, really sure? I'd say with high confidence you have false beliefs you unknowingly pass on. I know I have in the past and assume I still do.
People continue to pass on the whole "frog in a slowly boiling pot" anecdote over and over again even though there is no truth to it. It's simple common knowledge no one has thought to question. Should every person who does so from here on now be fined $5? How is this different than someone who is taken in by a meme shared by someone they trust?
And when it comes to Twitter or other sites, how do you sue one of its users who posts libel and defamation about your character, when said user is hiding behind a VPN anyway?
Twitter is hosting the content, and chooses not to take it down, so if that content breaks actual laws (libel, cyberstalking, etc), they should be held responsible for it.
Whereas if it falls within the purview of free speech, then they should have nothing to worry about.
I realize it's not a popular sentiment here because we want to build platforms and not worry about the legality, but giving websites blanket immunity to host law-breaking content because "it was posted by someone else" means that all of our laws become unenforcable on the internet.
Is that really practical, though? To spend thousands of dollars on legal fees to take down a single tweet from an anonymous account that will just repost it again and again? Meanwhile every time Twitter is completely immune to any consequences for hosting and distributing said content?
It's a sucky situation. A service like Twitter can't really function if they're responsible for the content on the site, but all our existing laws are effectively unenforceable on the web otherwise.
I think the hope people have for the removal of section 230 shielding is that Twitter and other content hosting providers will take existing laws more seriously. For instance, Cloudflare today says "there should be laws to handle this stuff, we don't want to enforce anything", and to date the CEO has only ever made two exceptions to that.
The contrarian side to that is going too far and Twitter et al becoming too censorious and taking down legitimate free speech content. None of these service providers can afford to have a legal team on standby to determine what constitutes fair use and free speech or not.
I don't have an answer, I'm just saying this isn't a one-sided issue. Right now the internet has a real problem with libel and cyberstalking. It's one of those things that one tends to not realize or think/care about until it happens to them.
There's nothing special about Twitter or any other Internet site. If someone libels you then you have recourse through the civil courts. And if you file pro se then it's very cheap.
In fact, we’d start talking about AI courts to scale with the flood of low severity cases.
Repealing 230 would not have any measurable benefit when it comes to controlling fake news or conspiracy theories.
Most people don't seem to see the problem because so far the power has only been used for things they agree with, but consider if it weren't.
Suppose Facebook was run by anti-vaxxers. They manipulate their algorithm so that posts that question the safety of vaccines are promoted and posts that say vaccines are safe and helpful get buried. If someone takes a strong pro-vaccine stance, Facebook bans them for spreading "dangerous misinformation".
Under the current system, this would be perfectly fine for Facebook to do, despite the fact that this could completely warp public perception because Facebook is where a lot of people get most of their information. After all, they are a private company, right? They have no obligation to host information they disagree with. Yet, Facebook could, if it decided to, dramatically shift public opinion in any way it wants to, just by manipulating how information is presented.
The world I would rather live in is one where social media companies are limited to removing information only if it is clearly illegal, by explicitly defined terms (such as child pornography) or spam. The rest should be left up to individuals to decide for themselves.
Bigots, anti vaxxers, anti science (the process not a particular theory), people who support violence as a means to political change it n functional societies.
Deplorable aptly wraps this up in a bow whereas the converse charges of "Marxist" "Communist" "Anarchist" are entirely detached from reality.
Source? It’s not clear to me how an intelligent person could think this about 40 million people without some severe brainwashing. Rather than “this group appears to have different priorities than I”, it has become, “these people clearly have no ethics”.
How would you feel about right-wingers saying the entire Democratic Party has no ethics and bad intentions because it continually supports baby murder? If you don’t think that’s a fare assessment of the party’s ethics, perhaps you should reconsider how you arrived at your conclusion.
As far as why they disagree, I'd suspect it is something more or less in the same ballpark as the below.
Excerpt from https://www.techdirt.com/articles/20200531/23325444617/hello...
> If you said "Once a company like that starts moderating content, it's no longer a platform, but a publisher"
> I regret to inform you that you are wrong. I know that you've likely heard this from someone else -- perhaps even someone respected -- but it's just not true. The law says no such thing. Again, I encourage you to read it. The law does distinguish between "interactive computer services" and "information content providers," but that is not, as some imply, a fancy legalistic ways of saying "platform" or "publisher." There is no "certification" or "decision" that a website needs to make to get 230 protections. It protects all websites and all users of websites when there is content posted on the sites by someone else.
> To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a "platform" or a "publisher." What matters is solely the content in question. If that content is created by someone else, the website hosting it cannot be sued over it.
Thank you for your answer - It's helped me in multiple dimensions. The sentiment that important discussion need be entertaining makes me sad, but it is what it is. Be well.
Which part of this is problematic?
Now they are no different than the NYT with a crowdsourced author pool except they aren’t liable for libel.
Hell even this sites moderation team can't read all content in a reasonable time frame.
They clearly have the capacity to quickly speech recognize audio and match on keywords. They could drop all videos that even mention Taiwan tomorrow.
If 17 people per video report election disinfo over the majority of the content an account posts maybe they post election disinfo.
It's still impractical to remove enough to avoid being financially destroyed by even a minority of bad content if they were personally responsible for their users content given a single case could incur a 6 figure cost to win an unreasonable case.
S230 says that a company won't be held responsible for some (but not all) user generated speech on their website. But it also says they do not lose those protections if they moderate that speech. The people who made the bill realised that companies need the ability to moderate content, and so they built it into the law.
The vast majority of Internet users do not want dumb pipes and unmoderated content.
I understand that point of view but honestly it won't work for the simple reason that no one - not the providers and not the users - wants it to work that way. I firmly believe that if you try and setup the legal framework to get that configuration people will create technical work around after technical workaround until they get back to the status quo.
It will be like nothing so much as the way SPAC's are used today. Whatever else they are they're a way to do an IPO as it was done before SOX. It's a technical end run of a law no one likes.
Let’s say I run a BBS for stamp collectors, and a crowd of new members join and start talking about their upcoming white supremacist rally on the site. Can I delete their posts and ban them while still having safe harbor under 230? Or should I instead lose my 230 immunity and be forced to face liability over that post where Fred calls Jenny a nitwit loser because she got the date of the Amelia Aerhart first-day cover wrong?
What if they’re just talking about knitting, on my stamp collecting forum? Then can I take it down?
What if my forum is for young Democrats? Can I take down posts supporting Republican candidates?
> Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), was a United States Supreme Court case that overturned a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content.
For good or ill, §230 bypasses court hearings and due process and so I wonder if it is
a) itself an unconstitutional denial of rights to the users, or
b) actually just fine legally, however an overturning of it would not necessarily be an assault on the First Amendment, only on this congressional shortcut
My "reform" of §230 would be to add on to this congressionally mandated shortcut with some form of due process to the users whose court rights have been bypassed -- if a site wants to use §230 protections, then they have to provide some form of due process to users, perhaps a timely takedown/suspension/banning appeals process, held in the open
If a site doesn't want to provide that, then they can avail themselves of the First Amendment and their §230 immunities are stripped and they are open to lawsuits.
The first amendment protects US citizens right to speak freely in public and private venues from being retaliated against by the government.
It specifically means you cannot be denied government services, support our rights because of any opinions you express publicly or privately.
It does not and never has obligated any private persons or business to listen, rebroadcast, or not *react" to what you say. You have never been protected from the consequences of your speech within your community, nor has anyone been required to enable it. It has never been a protection against the speech of anyone else, for example rallying their community to speak against you or for other private services to deny you patronage.
I don't think I'm asking for freedom from consequences for anyone, just the reverse of anything, I think sites should be granted 230 immunities but only if they provide some form of due process to users, and if they don't, users should be able to take sites to court just like they could if there was no 230.
Is that not what Tim Wu is saying?
> But content moderation, as an exercise of editorial discretion, is protected by the First Amendment. And that Congress can’t repeal.
And so my understanding is that
1. Site content moderation actions are protected by the First Amendment.
2. Gov't can't tell a site what to moderate or not.
3. But without 230, a user can potentially sue a site for defamation or other reasons.
4. 230 provides a site a bypass to those suits, it gives sites publisher immunity.
My suggestion is that publisher immunity from user lawsuits should come with some guarantee of due process. Congress took away the ability of users to sue. My suggestion is that seemed reasonable in 1996, but today Congress should return to the user some ability to negotiate/talk/appeal to sites regarding their takedowns/suspensions/bans. I refer to that as a form of due process. But if you wish, call that a consumer protection law.
I've mentioned this twice now, and people tell me I need to read the Constitution or that I am confusing free speech and the First Amendment.
I definitely have no idea what you folks are seeing, and wish you could more clearly express your ideas and help with that.
When you say due process regarding being banned what would that look like? Why should anyone have to justify to you why you can't use someone else's website?
Under what terms and situations would they have to reinstate you? Why?
So there might be an example of the supreme court requiring just that: in a case called Marsh vs. Alabama, a private community (a company town) was forced to allow some mormons to keep door-knocking on private property because of First Amendment rights.
Something to the effect of 'if you have enough control over private space, you start to take on an increasing blend of public square obligations'. At least, that is the conclusion I drew from the below article. Unfamiliar domain name but I got it from memeorandum so it's not afaik some completely off the rails screed.
https://lpeproject.org/blog/after-the-great-deplatforming-re...
Cyber Promotions v AOL is a subsequent case which is much closer to today's question: Cyber Promotions wanted to spam AOL, and AOL wanted to filter out spam because it threatened to ruin the internet. Thankfully, AOL won that case, and spam filtering is constitutional.
but prior to 230, I could sue a site for distributing defamatory material.
Congress removes my right or my ability to do so. It gives my rights away to the site who it provides 230 immunity to.
Sites and society may have benefited from this trade, but individual have lost fundamental abilities to seek their day in court and have gained nothing.
I think Congress should temper 230 by saying that if a company accepts 230 immunity from lawsuits, it needs to provide basic due process rights to appeals processes to users.
If it doesn't want to provide reasonable appeals processes, it forfeits its 230 immunities and can seek redress in court.
How would a "due process" proposal even work? Do we have the US government step in and set global rules determining what is and isn't legitimate speech and who should have posting rights on your website? And if so, how is this making the Internet more free?
I.e. if user A makes a post that defames you, you complain, it gets taken down, user A makes an appeal according to the new "230+ process" and gets it restored - then you'd have no redress in court because the provider followed the due process. (in any case, due process would be about the process of evaluating whether the post meets some editorial criteria, but the criteria themselves can be absolutely arbitrarily set by the platform; if they decide to ban the posts which contain the letter "a", that's compatible with due process, as long as they look in the appeal and point out that yup, there was an "a" in it so the ban was appropriate; and if they decide to ban only posts which they're absolutely required by other laws and leave everything else, that still fits due process).
In the opposite scenario, user A makes a post that might defame you but it gets immediately taken down by an automated algorithm; user A complains but gets auto-rejected without due process - so then you'd have a right to redress in court, but for what? The post got taken down.
And if you had in mind right to redress in court for the person making the post, they don't have any valid claim pre-230, during 230 and in your proposed scenario either way.
You never had a due process right to be heard on facebook in the first place so 230 didn't abridge this completely fictional right.
It wouldn't abridge site owners rights to remove 230 it would just break the internet as we know it in the US. Your suggestion isn't a lot better. It would create pointless process that would likely be abused by vexatious litigants so you combine doing nothing for average joe's with giving special interests lisence to ruin the internet.
If you have not the slightest idea what the law us how can you hope to anmend it.
How about we leave everything as is and if you don't like how facebook runs their show you make your own site...with blackjack and hookers if desired.
I did the only thing I could do, stopped using that site. Just like with Facebook :)
Anyway, I think you’re losing the bead a little here. Speech isn’t liable because it’s speech. It’s liable because it’s slanderous or defamatory. So calling moderation “speech” doesn’t suddenly invite liability, unless we’re claiming that the very act of exclusion is prima facie defamation, which is a more dangerous idea than the problem you’re trying to solve in the first place. If moderation as such were to be actionable, then my shitty band could sue you for not including us in your shared Spotify playlist. It would open the door for any sort of public curation whatsoever to carry legal risks.
Losing the tool of moderation would kill off this very forum, which would become overrun by crackpots, trolls, and V1Agra spam in short order. By pruning the weeds of bad-faith discourse, moderation allows good-faith open discussion to thrive.