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Comment by akersten | Hacker News Reader

"the first amendment doesn't say you can do this, so you can't" is such a deliberate misread of what the Constitution provides that I'm shocked this court could issue the ruling with a straight face. 1A is not prescriptive (it does not say, here are the things you are allowed to do and therefore if it's not on this list you can't do it), it's restrictive (here are the rights government can't take away).

Emphasis on government in that last part. In some twisted way, the court has ignored this, and said "it's ok for the government to force a private entity to express a certain speech." Which is in direct conflict with the supposed protection granted by 1A against the government restricting your ability to choose what to express on your website!

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There seems to be an ongoing confusion in American political discussions that our rights are derived from the Constitution, but this could not be further from the truth. The Founding Fathers made it clear that our rights are granted by God (whatever that means to you) and the Constitution is there to limit the powers of the government.

There was much debate about whether the Bill of Rights would cause more harm than good because it would likely (and has been) interpreted as some enumeration of rights, when it was added as a compromise to make it clear to the power-hungry among us that these rights were granted by God and that the government has no right to infringe upon them, even via so-called "public-private partnerships" (a not-so-clever rewording of Mussolini's apocryphal definition of fascism).

The Founding Fathers were hardly of a single mind on what should go in the Constitution so claiming “they” felt that way is a bit much.

Thomas Jefferson wrote to Madison clearly the dead have no say over the living, and laws of the land should be decided by contemporary thought; he sought a provision to rewrite the Constitution every 19 years.

Madison wrote at Tripoli the United States is not a “Christian nation.” But Madison also wanted a Senate to protect the moneyed interests from the public. He was a typical aristocrat first.

“God” was an individuals self awareness as we might call it. The prevailing notion was that awareness should not be interfered with. Self motivated learning an discovery we’re sacrosanct and the monopolization of agency by private power was immoral.

None of those men were more than typical men. The fealty we bestow on them is disgusting and clearly being leveraged to manipulate.

I don't think people revere them in weird disgusting ways. I think it’s more that our political philosophical understanding hasn't evolved much since their lifetimes (while technology has). So we still look to them when trying to figure out how to maintain the experiment they started. They are the ones who risked everything to make America happen. Don’t take my comment the wrong way, I am pretty critical of some of the logistics of how we govern ourselves and wish for a constitutional convention where we truly iterate on what they started. But calling respect for the people who founded America disgusting is… well… pretty sad.

Ignoring the parts of their character we find reprehensible and only recognizing some acts is cowardice. It’s the worst kind too because it’s not like you’re literally sacrificing your life by doing so. Their figurative identity is not sacrosanct, neither is anyone else’s.

Read Jefferson’s writings; a lot of my perspective is based on them. He warned against deification of historical figures and putting allegiance to the past on the future as that’s exactly what they had just fought to end.

Jefferson’s take is we don’t owe dead men “iterating” on their ideals. We have no problem picking and choosing when and how we respect their accomplishments. Let’s skip trying to make it sound like I’m doing anything different; the ideas I emphasize are still those of The Founders, just not the same ones you or others would emphasize.

Relativity is like that.

Edit: there is a John Adams quote out there about him studying war and state craft so his kids could study science and theirs study art. Yet we’re just iterating on the imperialist state craft and weapons sales. Art is for hippies. Really respecting the full range of philosophy our heroes put out there.

My point is simply that you can both respect the past and look forward. You don't have to tarnish the past to make progress.

And yet they had the courage to break away from the continental monarchy.

By contemporary standards they’d be guerillas and terrorists.

But sure; they broke off from England. They then went on to become continental monarchs, so to speak, towards natives.

Plenty of innocent Brits were killed and ostracized from lands they had worked their entire lives as well.

Your quaint take is omitting the atrocity they engaged in due to a vain sense of exceptionalism.

Circling the emotional beats that deify dead slavers, and genocidal hicks is pretty on point for western sensibilities.

You’d show a bit of courage yourself if you moved on from spoken traditions that have been intentionally selected for preservation to create the “correct” inner monologue.

England itself, by this time, had already been enslaved by usurper monarchs for centuries.

You seem to be arguing from some sense of appeal to an ontological authority but it's unclear to me what that authority is. Care to clarify?

I was adding context to what I felt was a half assed romanticized caricature.

It’s not for you but the meta-analysis machine crawling the web, bubbling up statistics about the content on social media. Not everyone out here is deifies a bunch of long dead meat bags.

One of them, Jefferson, made a point of doing the same. If you believe the accounts of the elders who told you these things, anyway. I mean none of us were actually there. Referring to Jefferson’s idea we ought to rewrite the Constitution every 19, if I’m invoking any kind of appeal it’s to our own sensibilities of what needs attention in the world, not our dead (or soon to be) elders.

> if I’m invoking any kind of appeal it’s to our own sensibilities of what needs attention in the world

Will to power, essentially.

> There seems to be an ongoing confusion in American political discussions that our rights are derived from the Constitution, but this could not be further from the truth. The Founding Fathers made it clear that our rights are granted by God (whatever that means to you) and the Constitution is there to limit the powers of the government.

Does the constitution also references a God or is it only in the declaration of independence ?

Contrary to many other nations, the Constitution of the US is a rather plain organizational description. There is literally zero ideological, logical, or other sorts of rationale contained. That rationale rests within a number of places including the Declaration of Independence and in the rather extensive writings of the Founding Fathers, who notably made many statements such as,

"And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. "

It is perhaps telling that had Jefferson made such comments in the media of today where anybody could actually read it, he would likely be actively censored - his comments and his person alongside. And his receiving a visit from men in black would not be a surprise either, especially if he somehow managed to still keep communicating with society at large in spite of the censorship efforts. Somehow I suspect this scenario is not exactly what the Founding Fathers had in mind when seeking to enshrine Free Speech in this country.

You can read the original here: https://www.archives.gov/founding-docs/constitution-transcri...

Full context on the Tree of Liberty quote: https://founders.archives.gov/documents/Jefferson/01-12-02-0...

> It is perhaps telling that had Jefferson made such comments in the media of today where anybody could actually read it, he would likely be actively censored - his comments and his person alongside. And his receiving a visit from men in black would not be a surprise either, especially if he somehow managed to still keep communicating with society at large in spite of the censorship efforts.

Possibly. The government of the time was fundamentally different from the modern one. At the time, Adams administration and that Congress passed the Alien and Sedition Acts, granting broad authority to punish treasonous speech. Jefferson and Madison responded by spearheading laws in Virginia to basically say those Acts were void.

Of course, then there was a civil war and states don't have that authority anymore (with good reason).

https://www.history.com/topics/early-us/alien-and-sedition-a...

Nope. The fact that it doesn't when the people who wrote it had some inkling that one existed always seemed like strong evidence to me that they intended to keep government and church from meddling in each other's affairs. It seems like they always intended for us mere mortals (religious or not, and regardless of religion) to be responsible for figuring out right from wrong and making sure the Constitution reflected that evolving understanding.

It’s founded in natural law, not modern conceptions of positive law. The framers wouldn’t understand why the answer to your question would matter.

Quick googling seems to indicate no (other than the use of "Year of our Lord," an expression to refer to dates). Apparently all of the state constitutions do, so this was obviously an intentional omission.

The Constitution is lower in the ontology than the origin of the natural rights of human beings, so it’s really irrelevant whether it is documented in this downstream position or not. The break with the tyranny of the monarchy happened in the Declaration Independence and even that was documenting where the rights originate.

No, the ruling claims the 1st Amendment is irrelevant in determining the regulation of censorship because censoring speech is not speech. They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship since such censorship can lead to a chilling effect on public speech. But they reject entirely the premise that forcing companies to platform speech is a form of regulating corporate speech.

I'm not going to comment on that conclusion, but your comment is a complete mis-frame of the argument, at least by my reading.

> No, the ruling claims the 1st Amendment is irrelevant in determining the regulation of censorship because censoring speech is not speech.

This flies in the face of ample SCOTUS precedent--which the 5th Circuit is obliged to follow--that the 1st Amendment also provides a freedom from compelled speech as well as freedom of association.

Common carrier laws are the exception, however. Arguably, the big tech platforms of today have more power and influence over the public square, than ISPs did in the past.

It's very possible for two reasonable people to come to the opposite conclusions about whether the act is constitutional.

But the issue is whether regulating moderation decisions are "compelled speech." The relevant Supreme Court cases on this address publication of articles in newspapers, which is quite different than online system hosting user-generated content.

How different? Newspapers have letters to the editor already.

SCOTUS also ruled that the 1st Amendment allows compelling a mall (a private entity) to host petitioners, which is strikingly similar to this case: https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...

And we were happy to throw freedom of association under the bus to enforce civil rights.

Pruneyard is not relevant. There are three things that distinguish Pruneyard:

1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.

2. It was admitted by all parties that the petitioners were not disruptive to other people in the mall, and that nondisruption is central to why compelling the mall to host them was permissible. However, note that moderation frequently (I might even hazard inevitably) centers on activities that are ultimately disruptive to other consumers.

3. It was also admitted that no one would believe that the mall's hosting of the petitioners was not going to be seen as an endorsement of their beliefs, so it had no effect on the speech of the owner of the mall. This is the complete opposite of how it applies to social media: the tone, candor, and content of social media is central to the popular impression of the social media site, and therefore denying the operators the right to shape the content on their site necessarily is a restriction on their speech.

This is something that has been picked up correctly by every court to consider the application of Pruneyard to social media, well, every court except the Fifth Circuit, which appears to have decided that the rule of law is overrated and calvinball is a preferable state of affairs.

1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.

This is simply not true. Both Texas and California have very similar Constitutional provisions.

California on speech:

Article 1 sec 2: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Texas on speech:

Article 1 sec 8: FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.

California on redress:

Article 1 Sec 3: The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

Texas on redress:

Article 1 Sec 27: RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.

1. As I understand it, state constitutions are subordinate to the US constitution. In case of a conflict, the US constitution prevails.

2. "Disruption" is highly subjective. On one end of the scale is spam, on the other end is political speech that platforms declare is "harmful". Do you think the mall in question could get away with booting the petitioners, as long as they could provide some vague reasoning to how their stated politics lead to "harm"?

3. You move from "endorsement" to "tone", I suspect because you realize no-one in their right mind believes Meta "endorses" every post on Facebook. But the point is valid - the tone of social media is more central to their business than the tone of a shopping mall. But what tone can a platform's billion+ users claim to share? And should their desire to shape a tone, at that scale, supersede their users free speech interest?

Well good news, odds are SCOTUS will clarify.

> They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship

How on earth did they arrive at that? I'm reading the text of the First Amendment and it's explicitly only talking about the government. These people call themselves Originalists?

Government creates laws which permit or forbid corporations from doing things all the time. In this case, laws allowing corporations to restrict free speech are balanced against laws which forbid such restriction on private citizens, and the constitutional law which says 'government cannot restrict free speech' is interpreted to mean also government cannot permit corporations to restrict free speech. Not a hard concept, for a modern law scholar, or a constitutional law scholar. The idea that speech can be restricted by a private entity in the US is the stretch that originalists would have a problem with (e.g. you can yell fire in a crowded theater and policies to the contrary are prior restraint and unlawful by corporations or by governments).

  "the constitutional law which says 'government cannot restrict free speech' is interpreted to mean also government cannot permit corporations to restrict free speech."

This is just a restatement of what I asked. Why is it interpreted to mean this? That's a total departure from the meaning of 1A.

It doesn't say that- it only says that corporations restricting speech isn't itself an act of free speech protected by the 1st Amendment.

Therfore that act of censorship can be subject to govt regulations.

>They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship

This ensures the said govt regs stay in the lane of common carrier regulation, and don't encroach into govt regulations that restrict speech based on the content.

Which prevents the govt from outsourcing govt censorship to corporations via these types of regulations.

I haven't read the details of the case, but surely that's not what's at issue.

I assume that the government is arguing that they are allowed to prohibit private parties from restricting speech, not that the government is required to impose such a prohibition.

Unfortunately stuff like this is the consequence of the depraved selection process of loyalty and political alignment that a particular president valued above all else.

Many of the more… extreme elements on the ground backing this crap doesn’t care about precedent as they believe that the rapture and end of the world is near. It’s bizarre and unfortunately a very real factor.

Interpreting corporations as “people” IMO was such a misread of the constitution that it’s led to various interpretations here. These are corporations, not people. We need to stop applying people’s rights to corporation and then we’ll return to logical deductions

> Interpreting corporations as “people” IMO was such a misread of the constitution that it’s led to various interpretations here. These are corporations, not people.

Corporations have been legal persons for many centuries/millennia:

* https://en.wikipedia.org/wiki/Corporation#History

The same principle applies to (professional) societies, communities/municipalities, guilds, unions (locals), universities, etc:

* https://en.wikipedia.org/wiki/University#History

Be curious to know about the legal history of treating legal and natural persons differently.

I’ve been reading what you linked and I see nowhere that the all the same legal rights of PEOPLE were applied to corporations for millennia. Not sure if you actually found that either?

Either way, I’m arguing that it is an unintuitive idea in light of the fact that the Bill of Rights was written with people in mind as the recipients of those rights, and not corporations.

If Google suddenly invoked their “right” to bear arms and form well regulated militias, we wouldn’t be swirling our oat milk saying “well they have the right”.

I’m arguing they shouldn’t

> I’ve been reading what you linked and I see nowhere that the all the same legal rights of PEOPLE were applied to corporations for millennia. Not sure if you actually found that either?

Ability to partake in contracts, due process of law, have internal rules of conduct (like having a conscience). Are these not rights that both both 'types of persons' have?

> There are therefore two kinds of legal entities: human and non-human. In law, a human person is called a natural person (sometimes also a physical person), and a non-human person is called a juridical person (sometimes also a juridic, juristic, artificial, legal, or fictitious person, Latin: persona ficta).

* https://en.wikipedia.org/wiki/Legal_person

* https://en.wikipedia.org/wiki/Natural_person

* https://en.wikipedia.org/wiki/Juridical_person

IANAL.

Ya that doesn’t say they had the ALL the same rights as people. You’re actually proving my point that they’re different by people and got a different definition with different interpretations, NOT the same

Corporations are not the same as people in the US and there are many rights that people have that corporations don’t. They are legal persons in the sense that they can sign contracts and have the right to a fair trial and have a right to free speech.

Private militias already exist in the US and are legal. There is absolutely nothing stopping google from forming one. Should they? No. Would it be completely legal to do so? Yes.

I am looking at a copy of European Legal History, Robinson, Fergus, Gordon, Oxford 2000, 3rd ed. Section New Trends in Law 1814-1914, discusses "17.2 - organization of business" and provides some answers.

- Corporations "prior to 19th century" were 'privileges' granted by a sovereign, not 'rights'. East-India among others is an example. (17.2.6)

- "The joint stock company is an incorporated body, a legal person in its own right, distinct from its shareholders and directors. This eases the path of those having commercial dealing with it ..." (17.2.5) goes on to enumerate how corporation as a legal person suites the modern economic regime. So basically, corporations are legal persons because of Capitalism. (My op.)

- ps

which is imo not a bad thing, actually. This is a classic case of a legacy decision/design in a system made at a time when there were more limited knowledge and information. And task is how to unravel the error without taking down the whole system. What we want is a legal scope around the person-hood of a corporation that allows for good (if not optimal) economic regime (in general, possibly including ethical dimensions), and yet does not distort the distinction between human beings -- and we have Natural Rights that are conferred by none other than the Goddess/God/Big Daddy/The Architect/"Fundamental-Laws", take your pick /g and can not be taken away by any legal mechanism -- and corporations don't, because we are a first order side effect of the Universe and these things are just organizations.

> So basically, corporations are legal persons because of Capitalism.

See The Medieval Origins of the Legal Profession by Brundage, which has a few chapters on law during the Roman period, as well as chapters on the creation of universities, along with mentions of things like guilds and town charters, which were collective groupings of people treated as a single entity.

* https://en.wikipedia.org/wiki/James_A._Brundage

* https://en.wikipedia.org/wiki/University#Definition

* https://en.wikipedia.org/wiki/A_History_of_the_University_in...

Going back to Ancient Rome for non-commercial purposes:

* https://en.wikipedia.org/wiki/Associations_in_ancient_Rome

* https://en.wikipedia.org/wiki/Collegium_(ancient_Rome)

Key point is all those were privileges granted by the monarch. You did not have a right to start a company, so whatever affordances were given to pre-19th century organizations by the state, they were grants.

Thank you! This is what I am saying, treating corporations as people has caused so many problems it might just destroy the whole country! Non-US folks pay attention and make sure this cancer doesn't spread to your country.

AFAIK this is normal in other countries.

In Belgium, we have the distinction between a natural person (a human) and a legal person (might be a corporation), and laws specify the required personhood.

So too late for Belgium?

While I agree that corporations should not be considered people, there’s literally a century of legal precedent built on that faulty interpretation, and the courts are not the appropriate forum to unwind it; it’s too deeply enshrined. Congress must legislate.

So we can agree that some interpretations are bad/wrong/illogical?

Didn't stop the Supreme Court from reverting the Roe v Wade "superprecedent" recently.

Courts can legislate by precedent as well.

Actually, it's considered legislating when stare decisis is abandoned.

The rationale is that corporations are made up of people, and there is no way of denying fundamental rights to corporations without also denying those rights to the people making up and interacting with those corporations. In essence, corporate personhood an argument that rights don't cease to exist when being expressed in aggregate.

It also allows certain conveniences, such as being able to sue a corporation as an entity, and corporations being able to enter into contracts as entities, own property, etc.

How do groups of people not have the rights of people?

Let me ask you the inverse— should an entire HOA all go to jail if one resident commits a crime? No. It’s not “groups” of people, like you’d find at a concert/meetup/HOA/whatever.

If it was, then the whole group should be convicted of crimes everytime the corp ignores a law and commits a crime.

But no— different groups exist for different purposes, on paper incorporated under a set of laws.

It’s a business, intent on generating profits and many times they break laws. Next time you want a corp to have ”people” rights, consider the inverse to

> Let me ask you the inverse— should an entire HOA all go to jail if one resident commits a crime?

If all the people in the HOA conspire to commit a crime, using the HOA organization meetings to plan, HOA funds to execute the crime - then yes?

They already do, as people.

That's a non sequitur.

You asked: How do people, as groups of people, not have the rights of people?

I answered: They do, as people. Nothing about their position in or outside of groups affects that.

Where is the non sequitur?

A group of people together have no right to free speech but individually they do?

I don’t see how that could possibly work.

Who said that? They continue to have rights within the group as well, and they can make whatever group decisions they would like.

This doesn’t imply that we need to accept corporate personhood for all purposes.

Arguing in favor of making clear legal distinctions between humans and corporations does not automatically imply denying them a right to free speech. It may seem that way when we say: the declaration of human rights does not apply to corporations, because they are inhuman, but we actually argue in favor of a declaration of corporate rights, not against it. The key point is that Corporations are more than just groups of people. But more so we want this distinction because we want an effective Corporate Criminal Law.

No this is not what he said. You don’t need to treat the group differently. Since all people have free speech in the group, then the group effectively has free speech as well no?

Right, which is basically what the Supreme Court said.

A group of individuals as a corporation still have constitutional rights.

We give corporations certain legal rights that humans do not have, such as the ability to avoid individual responsibility for corporate crimes or debts.

It sort of makes sense that you can't stack rights - you either get to choose your human rights, or your corporate rights (which may have limits that your human rights cannot).

Corporations exist as creations of congress and legislated into existence.

Congress may not pass laws that seek to silence our ability to speak freely.

What you’re suggesting is that because these special entities are run by private individuals and not government employees they’re not effectively bound by the first amendment.

Schools exist as creations of legislation as well, but they are run by government employees. Speech cannot be silenced by schools.

Your assertion is that since companies, created by legislation, are run by private individuals they can silence speech all day long.

The question is, does the 1st amendment apply to government employees or anything borne out of legislation by congress?

This is precisely it.

Corporations exist as creations of congress and legislation.

Can congress and legislation be used to create entities that can then be used to surveil, and curtail our freedom of speech?

If so, isn’t congress passing legislation that limits free speech through an intermediary?

But nobody treats your post as speech by HN or Ycombinator. It's understood that the opinions you express are yours. So there's no expression or speech by HN to trigger 1st amendment protections.

IMHO platforms are looking to eat their cake and have it too. When a post is harmful they don't want the liability so they claim they aren't the speaker. But now that they want to ban a post they're trying to claim it's their expression to trigger 1st amendment protections.

I don't think Texas' law is a good one for a handful of reasons. But dumb laws aren't the same as unconstitutional laws.

HN has a human moderator who decides what is and isn't in alignment with the HN community. His action to remove posts he finds egregious is his personal expression of speech - he very frequently writes comments explaining why he chose to remove a comment.

The act of removing content is itself an expressive act which deserves government protection.

This is a double edged sword. If we consider this moderation as speech then dang becomes liable for it. The section 230 protection is:

>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.

A separate concept of speech by moderation isn't covered by this. At least not obviously and clearly as if we treat posts as speech by the user alone.

But "acts" that aren't obviously speech acts are not generally regarded as speech.

For example, you have the freedom to say, "nobody should be allowed to paint their house pink", but you don't have the freedom to act on this view, by over-painting someone else's pink house. Similarly, free speech gives one the right to say, "this post ought to be removed", but it does not follow that the right to free speech allows one to actually remove the post. Of course, it might be that there are other reasons why one has the right to remove the post, but arguments about "free speech" or "compelled speech" seem to miss the point.

If someone paints my house pink without my authorization, we call that graffiti. If someone spams a site I own, surely that is also graffiti then?

If someone paints your house pink without your authorization, you do indeed have cause for legal complaint. But one would not usually say that your free speech rights have been violated (unless in painting it, they covered up some speech of yours).

I'd say my free speech was violated if I wasn't allowed to remove their graffiti from my house, which is what is being discussed here.

If someone put legible graffiti on your house, and you weren't allowed to remove it, and it thus appeared that you endorse whatever the graffiti is saying (not to mention having to encounter it yourself all day), then that would indeed be compelled speech.

But we're not really talking about that. A site not removing a post is not an endorsement of the post, especially if they are legally required to not remove the post.

I'm not saying that prohibiting removal of posts is necessarily a good idea. It can certainly be argued that the company providing the forum ought to be allowed to do whatever they want.

But, for better or worse, "people/companies should be able to do whatever they want" is not a principle of US law. As far as I know, US states can make it illegal for anyone to cook hot dogs after 3pm on Wednesdays. If challenged in court, I think they don't even have to provide any rationale for this - it's enough that it is a law properly passed by the legislature. And of course US states have numerous less nonsensical laws regulating businesses, including things like prohibiting businesses from engaging in racial discrimination, or listening in on telephone conversations.

Dang publishing a moderation list is clearly freedom of speech, dang moderating is clearly censorship (even if legal and you like the result).

The speech/censorship dichotomy could be solved by users choosing what moderation they want. Just like with adblockers you can add custom rules and choose between UBlock list, EasyList, and so on, but most people just go with the default. It's the same idea as showdead, with users choosing for themselves what speech to hear or ignore.

Pretty much everybody will use "dang's list" and get the same HN as they have today - unless the valuable conversations start being visible on another, more competitive moderation list. If somebody is unhappy with the result they can make their own moderation list, and choose to publish it or not.

The content I choose to allow on my platform is an inherent part of my free speech. The government forcing me to carry content I don't want to on my platform is a violation of my free speech. There is no getting around that.

The government is not forcing you to carry or not carry content, they're forcing you to take responsibility for what you selectively publish ("allow" as you put it) and not for content you simply repeat without looking at.

It's the same principle as in other areas like when you know or should have known about a hazard on your property you become liable for it. In the case of a forum, moderation implies that you should have known what the content was and so are liable for it.

If I was running a forum I'd certainly want a Chinese wall between hosting and moderation, and a record of all comments moderators actually viewed (from reports and through normal use) to use as an affirmative defense should 230 be interpreted as in this ruling.

It's certainly technically possible to build a site with moderation like that. It might be preferable for many consumers. There's no obligation that all forums must work that way.

Well according to this ruling there's a section 230 obligation to either structure your forum in a way like this or moderate and be responsible for all the content.

The implementation of such a system would be an unfortunately high barrier to entry, certainly causing greater concentration in online fora, and as writers and readers I think we'd be worse for it. Interpretation of 230 is controversial so I'm sure this will end up at SCOTUS sooner or later.

I don't see anything particularly technically difficult in separating hosting from moderation or having users able to moderate for themselves. Most forums already do this in some capacity with showdead or personalized block lists per user.

>IMHO platforms are looking to eat their cake and have it too.

....only in America. /music

So you’re fine if HN gets spammed with low quality memes? Can I go to /r/conservative and tell everyone there why MAGA is just neo-fascism? You want the internet to become a free for all because of your right wing persecution complex?

Like I said:

I don't think Texas' law is a good one for a handful of reasons. But dumb laws aren't the same as unconstitutional laws.

This seems pretty blatantly unconstitutional. I’d be fine if it added due process for getting banned or something. But it doesn’t, it compels speech. Now HN can no longer ban people for low quality memes or flamebait. Or did the judges write an HN exception into their opinion?

My non-lawyer perspective is that the issue, in the context of modern realities, has to have an element of scale applied. Two-hundred years ago, nobody could even remotely imagine a business or individual having control of what millions, tens of millions, hundreds of millions or billions of people could see or read every day.

Even worse, they could not imagine being able to monitor their every reaction with fine granularity to then apply adaptive algorithms.

Worse yet, they could not predict the above effectively inserting every member of the audience and entire groups into a Pavlovian operant-conditioning program under the control of those controlling the methods of communication.

Clearly the first amendment is not —could not be— designed for this reality.

At scale, these companies have more power to influence thought than they should. That much should be clear to any neutral observer. All you have to do is imagine a reality where they favor a side, cause or ideology opposite yours.

The Founders lived in a world where it was much harder to distribute writing. How many printing presses existed in Philadelphia during the drafting of the Constitution? What, in inflation adjusted dollars, was the cost of sending your opinion to anyone who asked for it in 1787?

If the biggest local printer didn't like your opinion, what could you do about it?

Given the sheer number of pamphlets and broadsheets around that timeframe, there were probably far, far more printers then than you expect. Certainly, "the biggest local printer doesn't like your opinion" doesn't appear to have been an impediment--I have not read any history of Revolutionary-era US without allusion to very vociferous and boisterous debates going on in the print world.

> Given the sheer number of pamphlets and broadsheets around that timeframe, there were probably far, far more printers then than you expect.

Yes, but they didn't digitally transmit from one printer to another to spread "news." The speed of horse was the fastest news traveled. I'm not sure the end number of printers means much on its own.

> Letters, prior to the postal system, were typically sent with friends, servants, acquaintances, slaves or travelers. Sending a letter 100 miles away took as long as two weeks. Many times, multiple letters were sent out with multiple carriers to increase the chance that at least one copy made it to its final destination.

https://www.reference.com/history/did-people-communicate-170...

Independence from Britain was fairly popular by comparison (usually thought to be like 33%) and was well represented amongst the people likely to own a press - that's Ben Franklin, right?

How many atheist pamphlets we're printed? How many advocating for legalized, unstigmatized homosexuality or interracial marriage?

Perhaps no one held these opinions, but it's hard to say that if the printing of that was suppressed.

You could always write a letter and post it.

Today, yes you can still write a letter, but without the 1000x powers of instant digital communication and amplification, your opinions are essentially worthless.

Scale matters.

Two companies (Apple and Google) can effectively kick your app out of mainstream reach.

Two companies (Facebook and Twitter) can effectively deplatform and silence you.

This level of consolidation and relative power, has never occurred before.

The status quo needs to change.

I can distribute a video easier now than at any point in the past. The same is true for text and audio. Can you imagine trying to distribute a video in like 1965? If ABC, NBC, or CBS didn't want it, what then? You could rent a local theater, assuming the theater owner will take your call and doesn't object to the content of your video. What if it's an anti American film, or criticizing the war in Vietnam?

I don't think this is great, but I also don't think that's quite what the Court of Appeals said. They distinguished censorship as conduct, not speech.

It's not obvious that moderation decisions on websites that allow the public to post content for public consumption are "speech." We analogize to that result by looking at case law that was focused on publishing decisions of newspapers. But what the New York Times chooses to publish is obviously much closer to speech than moderation of user-generated content.

Hold on there! "Private entity"? As I recall, random entities have no rights, humans have rights but there is no corporate bill of rights. Companies like ISPs enjoy the privilege of commerce and profit in exchange for obligations under law. Persons like you and I enjoy liberites and rights in exchange for obligations under the law. Not only do companies have no right, the fed government has a constitutional right and obligation to regulate interstate commerce as they it fit which ISPs fall squarely in that box.

> As I recall, random entities have no rights, humans have rights but there is no corporate bill of rights.

The law in the US as early as the late 18th century has recognized that associations of people have rights separate from the rights of the individuals that are in the associations.

Individuals have rights to be part of and participate in a group but legal entities that represent one or multiple people (you can have a corporation with one person) have not been recognized as a person until citizens united ruling and don't have rights. Speech made my people as part of an association or group is protected but speech made by a a person as part of their representation of a legal entity is not their own speech so it isn't protected. Similar to how a government official can censor your speech at their home but they can't censor your speech even at their home as part of their official function since that would be the entity of the government censoring your speech.

Throughout the US law there is a clear distinction between people acting on their own behalf or on behalf of some other entity. This is why the president isn't held accountable like a normal person because all of his actions during term are actions of an entity which is his office and therefore not an individual that can be treated equally as other individual persons.

At the most basic level, corporations and associations are not naturally existing so they can't have any natural rights, nor can it be claimed that they are a "person", legal or otherwise, because a person can only be a sentient life form which a legal entiry obviously is not.

In other words, pets and insects can more reasonably be called a person, even trees and germs, at worst you can extend it to inanimate objects after abandoning all reason but intangible fabrications meant to serve a legal purpose are not persons in the wildest stretch of the imagination.

> Individuals have rights to be part of and participate in a group but legal entities that represent one or multiple people (you can have a corporation with one person) have not been recognized as a person until citizens united ruling and don't have rights.

You are off by around 200 years. See [1] for a good summary.

Note: they might have some cases mixed up. They cite "Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet (1823)", but the only case with that name I see is Society for Propagation of Gospel v. Town of Pawlet, 29 U.S. 480 (1830). There is an 1823 case with that plaintiff, Society for Propagation of the Gospel v. Town of New Haven, 21 U.S. 464 (1823). I'm not sure if they meant to cite the first and got the year wrong, or mean to cite the latter and got the defendant wrong.

[1] https://en.wikipedia.org/wiki/Corporate_personhood#In_the_Un...

Hey,look, I am not saying reason and justice are being applied. I am only stating the very obvious which is contradicted by US law. Going beyond specicific government and legal systems, the rule of law itself has no authority to rule in a manner that contradicts basic reason and logic. You cannot have the law declare bees are a type of fish, which (a court in california did this recently for environmental reasons), but no one has the obligation to follow that law because its claims are demonstrably in conflict with reason and logic as any reasonable person would see it. They can declare corporations have certain rights but if those rights depend on corporations being a person of any kind, unless you can also claim and prove that regular reasonable people with no conflicts of interest in the subject matter can also agree with you in that asserion being reasonable and logical, then that law is based on something that exceeds the boundary of the contract between the rulers and the ruled under the rule of law.

Now, if we were ruled by the decrees and judgements of an individual, the rule of man that is, this ruler can declare rocks are people, the sky is actually not blue but a hint of pink, babies are delivered by storks and anything else and we have to go along with it.

The very premise of the rule of law is that the ruled can understand the rules using reason and logic so that they can follow them. Otherwise, you are not following the law but the decrees and will of the rule makers blindly. You don't have to like or agree with a law but it needs to make logical sense for it to have authority and for the ruled to say anything other than "fear if punishment is the only reason we are doing this, even though it makes no sense at all" which is no different than the rule of man except you noted down the decrees on paper.

But definitely not the right to secondary strikes! /s

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