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Comment by solarmist | Hacker News Reader

Copied from a comment thread below. Because I feel this is the root of the issue/problem.

> I don't see how the heck my website is a public square but my home or café isn't, this argument sounds self-contradictory.

Yup. This is the exact problem that we’re (as a society/world) wrestling with.

The reason it is (not just seems) different is because of the scope. A message on a chalkboard cannot reach millions of people (without the internet, ignoring [mass] media because the way it amplified things like this was far more complicated and was intentional), but it can on a website.

That by itself distorts the public/private argument, but we as a society aren’t sure how or to what extent yet.

These lawsuits are the second step (the first step was arguing about it in public) of figuring that out.

(Going back to my side note on media, these arguments will affect media outlets directly/indirectly as well.)

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The decision[0] gives different logic (quoting from page 85):

If a firm’s core business is disseminating others’ speech, then that should weaken, not strengthen, the firm’s argument that it has a First Amendment right to censor that speech. In PruneYard, for example, the shopping mall was open to the public—but for the purpose of shopping, not sharing expression. So it was perhaps tenuous for the State to use the public nature of the mall to justify a speech-hosting requirement. Cf. PruneYard, 447 U.S. at 95 (White, J., concurring in part) (noting that California’s hosting requirement involved communication “about subjects having no connection with the shopping centers’ business”). But here, the Platforms are open to the public for the specific purpose of disseminating the public’s speech. It’s rather odd to say that a business has more rights to discriminate when it’s in the speech business than when it’s in some altogether non-speech business (like shopping or legal education).

A point a lot of commenters here seem to be missing is that it would be perfectly legal under the law to ban all discussion of politics, regardless of viewpoint. The law just says that if you're a site with more than 50 million users, you cannot dictate which political parties your users are allowed to write favorably about and ban users for having opposing viewpoints.

[0] https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd... (PDF)

This is an interesting precedent! The big social network companies could make the legal argument that they are advertising networks, not free speech networks, and should be able to censor people in order to better fulfil their primary purpose. They would be telling the truth.

That seems like a silly distinction. At a broad level, all discussion can be seen as political. And it is natural for events to be dominated by actions from a side for a time, such that it would be natural for more criticisms of a political party over others at any time.

This gets dangerously into the "whataboutisms" of toxic discourse. Especially when they are not presented in at all an even or good faith manner.

What? No they aren’t. A discussion about my week or grocery shopping isn’t political.

You can make any discussion political, but that’s not at all the same.

You'd be surprised. Folks will pick brands for political reasons, too. More, folks will band against brands for said reasons.

I mean, you are correct that there can be neutral discussions. Typically, neutral isn't as neutral as you'd think.

That would be an example of people making something political out of a non-political issue. Both people and companies can be guilty of this.

"Oh, I ran into Lucy at the supermarket today"

"Awesome, did they have that new brand of ice cream?"

"I didn't see it, but they did have a massive sale on strawberries."

"Darn, I guess I'll check Market Cart next time I go."

---

"Oh, I ran into Lucy at the supermarket today"

"Did you hear she voted for Tom?"

"Oh... uh, no?"

"I dont know how people can enable such evil. Did they have that new ice cream?"

"No, but they did have a massive sale on strawberries"

"Oh, I heard they donated to Tom, so I don't want it in my house anyways."

"I ran into Lucy at the supermarket, she told me everything is costing so much because of inflation. She said this is terrible for her family and wonders why the government won't fix it"

I agree, but you’re being pedantic. Most discussions people have not about political topics wouldn’t be viewed as such even if individual decisions, such as your brand example, were politically motivated.

"I had to get gas this week, the prices are so high because of Biden"

Current law doesn’t have machinery to represent this idea, so it makes sense their arguments won’t match.

But at the core of all the arguments this is the idea that’s trying to be settled.

And really it’s more complicated than all that because it boils down to the algorithm deciding who to show the posts too.

An unbiased algorithm is impossible.

Show all political messages to all people, now you’ve just incentivized politicians to have multiple people full time jobs be to produce more messages.

> An unbiased algorithm is impossible.

False. Twitter's original algorithm (everyone you followed in reverse insertion order) is trivially unbiased.

The bias creeps in when they analyze the content of the speech (or who specifically likes it or…). You can 100% do an unbiased algorithmic feed that re-orders (or omits) things.

Twitter and Facebook could do it today. They shadow ban and suppress all sorts of things (beyond kicking actual human users off the site).

What's most interesting about this is that, as far as I can tell, no current "big tech" company violates this law.

If you say "we are going to restrict ourselves [at the Government's insistence] to only moderating non-political speech" then someone will insist that some part of your non-political speech is actually political. And from some perspective they will be right.

Then you get to negotiate with the government and the courts about what they consider to be political speech or not. And suddenly you no longer live in a country that has a meaningful First Amendment.

> And suddenly you no longer live in a country that has a meaningful First Amendment.

The overarching issue is that I don't see what the first amendment has to do with this at all. Corporations have zero obligations to anyone under the first amendment, which only applies to the government.

The intent of the first amendment was to preserve free speech in the public square; "what the first amendment has to do with this at all" is a desire to preserve that underlying societal principle.

Section 230 was a give-away to corporations that allowed them to privatize and co-opt the public square; they reap the economic benefit of being shielded from liability for what people post, but none of the responsibility to carry everyone's speech.

If we want to preserve free speech in the public square, some form of balance has to be restored, either by:

1. Eliminating the section 230 liability shield that allowed them to privatize public discourse in the first place.

2. Requiring privatized "public squares" to operate more like common carriers.

Solution (1) — eliminating section 230 — would likely make it infeasible to run a private website carrying public speech.

Texas seems to have attempted a nuanced version of solution (2): in exchange for being granted the privilege of being shielded from liability for the speech they carry, platforms of a size large enough to justify treating them as a "public square" must meet common-carrier-like requirements that prevent them from discriminating based on viewpoint.

> Wyden, now a Senator, stated that he intended for Section 230 to be both "a sword and a shield" for Internet companies, the "sword" allowing them to remove content they deem inappropriate for their service, and the shield to help keep offensive content from their sites without liability. However, Wyden warned that because tech companies have not been willing to use the sword to remove content, they could be at risk of losing the shield.

https://en.wikipedia.org/wiki/Section_230#Platform_neutralit...

Given that hate speech (the context of that quote) is very often political and/or protected free speech, I don't think one of the two authors of the bill agrees with how you're interpreting it.

I’m claiming that section 230 is a fundamentally flawed construction that privatized the modern public square, while socializing the costs inherent in that privatization.

I’m not debating whether section 230 is functioning in accordance with its authors’ intentions; frankly, what they intended doesn’t matter.

Section 230 was a totally inappropriate give-away of unique privileges without requiring commiserate public value be returned in-kind, contrary to our long history of requiring that common carriers serve the public without discrimination in exchange for the unique privilege of being shielded from liability.

Ah.

I see where you're coming from, but I frankly believe that the internet as we know it is fundamentally unworkable without the ability for some platforms to restrict the voices of some users. It's also fundamentally unworkable if we make the platforms liable for the users words.

I'm up for solutions like breaking up the larger platforms so that users have more choice, but I consider 230 to be integral in mass user interaction.

To put it another way: I'm uninterested in an internet where websites are legally forced to either be sterile and userless or act like 4chan.

4chan is largely 4chan because :

- it's reputation is attracting trolls

(BTW, does 4chan even have the minimum 50M monthly users to qualify ?)

- it has that anonymous (rather than pseudonymous) social convention

I see a lot of "the sky is falling" reactions here, but even if large websites were prevented from banning content, nothing forbids them from allowing users themselves hide the (pseudonym-linked) content that they deem undesirable, a feature that is already widespread.

(Also, large platforms are not the Internet, and not even the Web, and I would be happy to see them gone.)

The intent of the first was specifically to keep the government from prohibiting your speech.

Social media sites are not the government -- they have their TOS like everybody else does. Love it or leave it.

It should also be noted that conservatives absolutely believe in banning speech they don't like. So it's not the principle of it, it's the power.

> platforms of a size large enough to justify treating them as a "public square" must meet common-carrier-like requirements that prevent them from discriminating based on viewpoint.

This sounds so reasonable and nuanced until you reach this final phrase: "prevent them from discriminating based on viewpoint." Doing that requires the state to determine what speech is "un-biased, politically neutral speech" and which speech has a political "viewpoint." And under this law a government will determine this at the point of a gun, not the people operating individual websites.

(Because obviously if you implemented this in a truly content-neutral way along the lines that you suggest for a common carrier, every platform would be overrun by spam. So there has to be a decision about what constitutes biased speech, and that means political figures will be making determinations.)

This isn't theoretical. Nobody in this country even agrees on what "political/biased" speech is. Things that used to be broadly accepted by our whole society no longer are. I'm not going to go into examples, but you know exactly what they are. And you probably disagree with half of them. This law means that you won't get to decide, the state and the courts will.

If your problem is the over-concentration of social networking companies, I'm happy to agree. I urge you to support laws that reduce the power and userbase of these firms in a content-neutral way -- without placing the government in charge of what speech is "ok".

> which only applies to the government

Which only applies to the Federal government. States have had rules about speech since forever.

Texas wants platforms with > 50M users to treat political speech equally. That's well within a State's right to acquire that protection for its citizens.

Other states can choose different rules, or to leave their citizens with less rights, it's up to them.

Contrary to what people often claim, the government making any decision at all about what is and is not speech, or political speech, does not cause immediate free speech violations.

Yes, the government decides all the time, in a long standing and well studied legal history, about what is or is not speech.

In fact, I would go so far as to say that the primary purpose of the court system, with regards to free speech cases, is deciding what does or does not count as speech.

Seems easily solved by twitter recalculating their number of users by subtracting the bots, leaving the total users around 49 million and change.

One other thing I'd like to point out.

This is a very classic "the good of society balanced against the rights of the private citizen/organization".

This isn't about private corporate rights, it's about the good of society against those private corporate rights.

You may disagree with where exactly this lands, but I doubt you disagree with the premise that personal rights must be balanced against the greater good (queue hotfuzz reference).

If you think you do, ask yourself if you feel the very idea of hate speech shouldn't exist. There are those who do, but more typically, people just disagree with where that idea lands rather than the idea itself.

> reach millions of people

I think this is the heart of the problem. These social media companies didn't merely build agoras, they built amphitheaters. They build amphitheaters so large that control over the amphitheater makes you a kingmaker. Now they can't let go of that control, because doing so would risk the wrong people using it.

They never should have built amphitheaters this large in the first place. Better if they had built thousands of smaller amphitheaters, or none at all. Stop giving anybody bullhorns that can reach millions of people. Let ideas reach millions of people the natural way. One person tells a few hundred people their ideas, using the un-amplified power of their own voice. If what they say has any sense, each of those hundreds can tell hundreds more, and each of those can tell hundreds more again. That's how one person can reach millions, without the existence of massive kingmaker amphitheaters.

The logical solution to this problem then, seems to be breaking up the amphitheatres. If these places are too big that we are forced to treat them as public squares, then we should pass laws that do not allow amphitheatres that large to exist.

That actually seems like a pretty reasonable solution.

It would solve all the issues with private people/companies having too much sway. And the disconnect people have trying to reason about someone with that kind of world altering influence.

It would be like monopoly laws but for amphitheaters. I think we’d need to be much more aggressive with the definitions though and having fewer than 10s would trigger these laws.

If people want there to be a public square online, lobby the government to build and maintain it. Call it "US GOV Civic Not-Facebook public square". Let your taxes pay for it and enjoy all the awesome freedom it'll bring. Otherwise, stop trying to dictate how a private company runs their own business. You already pay for literal, physical town squares, why not a digital one?

No need for a government-sponsored forum, when smaller forums are explicitly exempted from the Texas law.

The law at issue still allows forums with 49,999,999 or fewer users to discriminate based on political viewpoint. It only says sites larger than that need to allow all political viewpoints (but only if they allow any political viewpoints, and only if they have users in Texas).

Legal: Message board with 49 million users that says "no Republicans allowed."

Legal: Message board with 51 million users that says "no politics allowed."

Legal: Message board with 51 million users (none in Texas) that says "no Libertarians allowed."

Not legal: Message board with 51 million users (some in Texas) that says "no Democrats allowed."

Why the cutoff? Is it because all the companies it would apply to agents conservative, like Truth Social?

Because there needs to be a cutoff in determining when it becomes a "public" square.

I just googled it and found that "With so many “small towns,” the average local jurisdiction population in the United States is 6,200." why not use that as the limit?

I'm not really interested in what the number is, there are going to be an infinite number of opinions on that but regardless there has to be some number defined.

In this case, these are platforms that don't target a local community specifically, so it does make some amount of sense that the number is based on the population as a whole.

> the number is based on the population as a whole.

One way to look at this is to consider that the 2016 popular vote difference between Trump and Clinton was 2,868,686 which means if your platform can change the votes of 3 million people then it can change the results of the biggest election (even if the bias of the electoral college were removed).

Of course that's begging the question, but it's not hard to imagine that on a site with 50 million active users, the most susceptible 10% could have their voting decision change based on the world they see and the arguments they read through social media.

This also assumes that there is an imbalance in terms of which side does more "influencing", or which sorts of arguments it is easier to convince susceptible people into believing.

https://en.wikipedia.org/wiki/Eternal_September

I think moderation gets exponentially more difficult, the larger a community is.

There's probably something in the legislative history[0] as to why that particular number was chosen, but I keep getting 404s and certificate errors when I try to click on links to the remarks.

[0] https://capitol.texas.gov/billlookup/History.aspx?LegSess=87...

It would indeed seem so, since the suggested cutoff of 25M/month that would supposedly include Gab and Parler was rejected.

You would think that the judges would realize that it's in their best interest if they want this to stick to throw their political opponents a bone, but... nope ?

When you can cram 50 million people into your local cafe, come talk to me.

This law is limited to platforms with > 50 million MONTHLY active users.

People talk about 2nd order effects all the time, here's the really interesting part.

These companies will suddenly be incentivized to clearly identify bots as not-real-people due to this law. Imagine how much power this will take away from those with the platform to scale bots.

You can disagree with the specifics, but the spirit is in the right place.

We should stop trying to find comparisons or analogies to other situations. Social media is its own totally unique phenomenon. We need to analyze it from first principles. If we try to draw comparisons to print media, cafes, or whatever, we are just going to confuse ourselves.

I thought that censoring speech in privately owned public spaces was fine. It's only when a government censors speech that the first amendment kicks in.

I do, as it happens, believe it is a problem that Twitter censors so much speech without 'legitimacy'. Not because they censor the wrong things, but because their censorship without legitimacy fuels a persecution complex.

This is mostly a problem because Twitter is so big. And I don't think starting alternative Twitters (like truth social) is a good solution, mostly because it partitions the conversation even more.

i don’t think the crux of the issue is determining how to legislate the priv/publ dichotomy, but rather how can we enable as many people as desire an ability to establish their own chalkboard. legislation as its proceeding is serving to entrench big tech platforms, its disabling the common person from having their own chalkboard with its own moderation preferences. let the market decide. this, in my opinion, is not the place for law. you don’t like how twitter does things? use a different app. it doesn’t exist? build it.

this includes things like legislation determining how to “appropriately” handle user data. it would be very easy to make it too expensive for any one person to “appropriately” handle user data in their webapp, which is my concern with the current twitter drama

That may be a better ideal solution, but that’s not the world we live in.

I have no interest in establishing my own chalk board, nor do most people.

Your lack of motivation is on you

This would be very easy for ISPs to set up on their leased routers. In fact until recently most people would have their email come from their ISP ! Some would also have a personal website space - mine is somehow still up 20 years later ! (At the time, routers wouldn't be common, especially not full-blown Linux computers, so it was all on ISP's servers.)

The only tricky part (which is perhaps even worse already with the "cloud"), is that some legislation is needed to simplify transfers (and not just the file ones) from one ISP to another, like we already have with phone numbers.

Make your own website if you want a chalkboard

MySite.com will crash if a million people try to read it.

BigCorp.com will not.

If you can serve more than two dozen people you're not a home, pub or private property, you are by definition a public square.

So a theatre can't evict someone for ruining the performance for everyone?

A concert venue can't evict someone for smuggling in alcohol?

what theatre can hold a million people?

You said more than two dozen and it becomes a defacto public square.

> I don't see how the heck my website is a public square but my home or café isn't, this argument sounds self-contradictory.

If it's a website with over 50 million users, and it's designed explicitly as a place for these users to express themselves, then calling it "a public square" seems entirely warranted.

Why?

If you're not protecting free speech in the places where free speech actually happens, then you are not protecting free speech at all.

If speech has shifted online, to massive social media websites like Twitter, and you don't protect it there, then you have no free speech in your country.

There's no protection for free speech in the US only that the government can't make laws restricting it

Freedom of Expression is a core value in the US:

> Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.

https://www.aclu.org/other/freedom-expression

As expression increasingly moves online, we will have to find ways to protect it online. A future in which the vast majority of speech happens in private online platforms, that may curtail it at will, is not just dystopian but goes against core American values, and the essence of freedom.

This is not in the constitution, you just pasted the opinions of others.

Core american values? There's massive censorship of pornography, there are noise laws, library books are being challanged and removed. A town voted to defund a library because they wouldn't remove a book. Explain to me how it's a core value?

Perhaps the problem is the definition of free speech. Free speech is you can't go to jail for what you say. It certainly doesn't mean speech without consequences of any sort nor does it mean that you automatically get an audience for it.

Let's start by defining what Free Speech isn't.

There is no Free Speech if you can't speak freely where speech is actually happening.

So if nearly all speech is moving online to massive social media sites, and you can't speak there freely, but instead your speech is subject to the whims of random employees - there is no Free Speech in this situation.

> It certainly doesn't mean speech without consequences of any sort nor does it mean that you automatically get an audience for it.

But it does mean you can speak. Even if there may be consequences, and even if you don't automatically get an audience.

That's the right I'm supporting here, against an alarmingly large group that seems to consider this right to be no longer necessary, and even undesirable.

Before the Internet, where was nearly all speech actually happening?

That’s not the definition of free speech in the US. The reason you should care is that your definition is likely to produce a free speech absolutist counter-movement.

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