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Comment by galaxyLogic | Hacker News Reader

> a corporation’s unenumerated right to muzzle speech ..

That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody.

They don't knock on your door and say you better stop expressing these views or we will harm you. They don't even harass people online. They just simply choose which speech they will pass on and which not.

If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech". Of course not. Rather it is the case that you don't have the right to demand that I pass on your emails to all my contacts.

This is bad jurisprudence. I wonder, was this judge perhaps nominated by D. Trump?

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"choose which speech they will AMPLIFY"

That makes private messages an interesting question, though. Or even cases where many people explicitly subscribe to a single voice -- is the platform really amplifying anything?

Blocking such messages (to specific recipients who specifically opt to receive them) seems materially different than declining to promote/amplify such messages.

I'm speaking from an ethical standpoint; it may or may not matter legally.

> Corporations simply have a right to choose which speech they will AMPLIFY

I'll readily admit that algorithms can amplify content; but more than enough people have been tweeting for years and barely have any likes on their tweets (see @CNN, though I'm being cheeky). People say that algorithms reward bad content, because they amplify controversy; but really they just give people what they want. A "controversial" tweet with no likes won't get amplified.

The crux is that if you agree that due to their use of algorithms, these platforms "amplify" all the content they host, then surely that means they endorse whatever they don't ban, to some extent? I'm not making a legal argument, just an intuitive one. That reasoning doesn't scale to an understaffed, undermoderated social media platform that can't even ban the omnipresent "double your crypto" scam accounts.

> That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody.

It depends, can I go to the mall and start preaching the gospel?

The answer is yes - at least in NYC, SF, Chicago, etc (where these legal cases have played out). I’m legally aloud to do that; and as it’s the public square I cannot legally be removed (doesn’t mean you wont). It is considered the commons and open to the public. Inside a store is not the same thing, some jurisdictions have various rules.

Now back to this discussion. I agree a company wouldn’t be obligated to amplify, ie promote via an algorithm. That said, they shouldn’t remove someone’s ability to share political speech. On social media platforms they have been banning people for just that.

Social media is the commons, as such anyone should be able to preach to the masses. Though, perhaps it’ll be limited to only those who follow them.

That said, I think the Texas law is kinda stupid. Because the tech companies have claimed they ban for other reasons such as: misinformation — challenging elections, questioning vaccines, questioning masks, etc all get banned.

None of them are directly political in nature. However, only one political party rejects that stuff… that said, arguably I could go to a mall and preach any of those. The same protections should apply.

"Inside a store is not the same thing".

Social media is not the commons.

The internet is the commons.

Social media platforms are the stores.

For many, many people the internet doesn’t really exist outside of a few FAANG apps.

Even for technical users, if you want to post a political video, is there really an alternative to YouTube with any audience for it?

Add to that platforms such as Facebook groups and Reddit subreddits, where the individual groups are much more like stalls and the platform is like the mall.

> Even for technical users, if you want to post a political video, is there really an alternative to YouTube with any audience for it?

To be fair, Rumble is a decent alternative. Some videos have millions of views, they basically accept anything that’s protected by the first amendment. A lot of banned creators have moved or are moving there.

That said, I’d still argue YouTube is “the commons”. Just like you can have multiple malls and a town square, there’s no real argument there should be a limit.

No one's entitled to an audience.

No one disagrees with that.

In a free society you’re free to speak in the commons. That doesn’t mean anyone has to listen. That said you can’t boot everyone you don’t like from the town square.

Social media posts can be made, doesn’t mean you have to follow or read.

Start your own website. It's not a town square. There's infinite land on the internet for interested people to create their own forums for discussion. There is no barrier to getting started, there's no reason to make laws creating entitlements for viewpoints in the private domains of others.

> Social media posts can be made, doesn’t mean you have to follow or read.

... or share posts. The same applies to social-media-companies themselves. They don't have to "share" your post to anybody.

They have much the same rights and obligations as you do (especially if you believe that corporations are "people").

It is a different question as to are they monopolies and should the law do something about monopolies.

Social media companies' platforms are not "Town Square". How do we know that? Because tax-payers are not paying for their operations. Their share-holders are paying for that by retaining some or most of the revenues in the company.

I’d argue sharing is still free speech. If I copy & paste that’s okay? Lol

> Social media companies' platforms are not "Town Square". How do we know that? Because tax-payers are not paying for their operations. Their share-holders are paying for that by retaining some or most of the revenues in the company.

This has already been litigated in American history. It’s called a “company town”. I also previously mentioned how you can have protected speech in places like malls (litigated in New York and Chicago).

The stores or more like company towns ?

https://en.m.wikipedia.org/wiki/Marsh_v._Alabama

> ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk even though the sidewalk was part of a privately-owned company town

The difference is that people giving out the religious materials were doing the giving out. The ruling didn't say they could just send the materials to the owners of the side-walk who would then have to give them out to everybody who walks on their sidewalk.

That would be like expecting Facebook or Twitter to distribute any materials you give them, to everybody who visits FB. That would be totally unfair, companies don't have the obligation to pass on your messages to anybody.

Freedom of Speech means I don't have to repeat and amplify what somebody else says or wants me to say. It is not only the freedom to speak what I want, but also the freedom to NOT speak. And companies have freedom of speech too.

This judicial ruling sounds very suspicious to me.

The internet are the roads (also the commons), social media is the town & national square.

The stores would be equivalent to stores. So Amazon, Etsy, etc. you can get there through social media.

One nuance these judges don't understand is that picking one person to amplify is often de facto muzzling another because bandwidth is finite in the age of zero friction social media. These dinosaurs are trapped in a 20th century paradigm.

Even in a 20th century paradigm, opportunity cost exists. Something gets more time or budget, something else gets less.

Social media has dramatically magnified these preexisting 'material contradictions' to America's sociolegal conception of free speech. The absurdities are becoming larger and larger and cracks are showing. Stochastic terrorist there. Fascist elected here. 500k anti-vaxxer deaths over there. What will come first, will the dam finally break in the form of society collapsing into conspiracy driven dictatorship, or will the ideologues realize that their constructs can't cope with the modern world?

What is a stochastic terrorist?

"Stochastic terrorism" is the concept that a media campaign with large enough reach that vilifies and dehumanizes a target group will cause a rise in attacks against them, without any central planning who is attacking whom when, but rather because it pushes random (hence "stochastic") at-risk people to commit random attacks.

A good and clear explanation. God Damn the Pusherman. Would you say that this is what happened on January 6th?

A perpetrator of stochastic terrorism. In this context, a lone wolf who is radicalized online.

"that is not the same as muzzling"

They are actively blocking stories about Biden. Actively filtering stories about negative aspects of COVID vaccines. They are actively filtering stories about inconsistencies in the 2020 election - "The most secure ever".

They are amplifying stuff - absolutely... but they are also censoring free speech because "corporations are allowed too".

"If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech"."

No... but if you post a story and your account gets banned for stuff that's later found out to be true (IE: hunters laptop and the New York Post RIGHT BEFORE AN ELECTION)? that's absolutely muzzling speech and suppressing facts.

"They" also ban anyone not supporting Trump from posting to their site

...or from forever blocking nonsense unscientific articles from a newsfeed

...or from wearing a shirt that's pro-Democrat at a convention

...or from bringing scientific consensus into Fox talking heads shows

...or from posting on their subreddit unless certified by a peer as being sufficiently conservative

That your post focuses singularly on denial of Republican establishment talking points shows the real intent implied by those pushing such laws, without any consideration that the "cancel culture" has been a deep tradition pervasive in media and American life on both sides of the aisle.

Using "actively" as emphasis is so, so tired. You're implying without evidence that they're doing it as part of some pro-Biden strategy. Why?

Also, corporations either have personhood or they don't. Do you support the Citizens United decision?

> Also, corporations either have personhood or they don't.

I'm fine with allowing them to censor speech if they also are liable for the speech they do choose to publish, just like any other individual, newspaper, or publisher would be.

Platforms cannot simultaneously claim that:

(1) They are mere conduits for other people's speech, and thus, deserve to be shielded from any liability for what they publish

(2) What they publish is their own speech, and thus, their publication choices should be considered protected expression under the first amendment.

I was under the impression that the law isn't quite settled on this point. I certainly am not going to pretend to understand the legal interests at play in this question. Why exactly should I be suing YouTube for hosting someone else's libel?

The law is very settled when it comes to publishers and common carriers, and has been for very long time.

If Fox News publishes libel, they can’t just claim that they’re hosting someone else’s reporting.

If a telecommunications provider publishes someone’s libel, they are shielded from liability as a common carrier. In exchange, however, they must provide their services non-discriminatorily to the public.

If FedEx delivers controlled substances as part of their usual course of business, they are also shielded from liability as a common carrier, but the same responsibility to serve the general public applies.

YouTube and other “interactive computer services”, however, were granted an explicit privileged shield from liability by the Communications Decency Act of 1996, with none of the responsibilities historically associated with that privilege.

Without the CDA, Twitter wouldn’t exist; they’d have been sued into oblivion long ago. Instead of solving that problem by extending our well-understood common carrier framework to “interactive computer services”, we granted them a massive privilege and asked for nothing in return.

> they must provide their services non-discriminatorily to the public

Providing service without discriminating... how does holding all users accountable to the same terms of service not satisfy that requirement? I don't know of any cases where a person kicked off their ISP for torrenting subsequently denounced the ISP as a "publisher".

Are you saying that we get to dictate to internet companies exactly what their services entail? Doesn't sound quite right to me.

The idea that a single website is a common carrier seems to stretch the definition to the breaking point. It ignores the general understanding that common carrier designations tend to occur in situations involving natural monopolies.

A website decides what information it takes in, stores, displays, and transfers. No one's rights are violated when they take information from you but don't display it anywhere else. You are not entitled to an audience on their infrastructure; go find a website who shares your ideas about how to operate.

Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.

When internet giants suddenly have a huge incentive to withhold content that powerful interests might sue over, what sort of platform for free expression do you think social media will end up becoming?

Is this close enough ?

https://news.softpedia.com/news/ISP-Sued-For-Banning-BitTorr...

In countries with Net Neutrality, or more : those where Internet access has been deemed a minimal human right, needed for basic citizenship, Internet Service Providers are indeed very restricted in what and how they are allowed to block...

Not really. This is a lawsuit about an ISP misrepresenting their services, not banning users for violating their terms of service.

> The idea that a single website is a common carrier seems to stretch the definition to the breaking point. It ignores the general understanding that common carrier designations tend to occur in situations involving natural monopolies.

The definition and purpose of a "common carrier" has no relation to monopoly status whatsoever, whether you're referring to English common law (the concept dates back to the 1600s), or in its modern US incarnations.

Conceptually, the principle of common carriage is that:

(1) There are beneficial services that private entities can only feasibly provide if they are granted special privileges generally reserved by the government.

(2) Such services, in exchange for being granted those privileges at a cost to the public, must also serve the public.

> Are you saying that we get to dictate to internet companies exactly what their services entail? Doesn't sound quite right to me.

"Telecommunications providers" — landline and cellular telephone companies — are already classified as common carriers under our telecommunication laws. We don't dictate exactly what their services entail.

ISPs are not classified as "telecommunications providers", mainly because ISPs have spent a lot of money and lobbied very, very hard over the past three decades to avoid exactly that outcome. They convinced Congress to grant them the privileges without the responsibilities. Net neutrality was just a skirmish in this very long-running war.

> Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.

Yes, absolutely. If you do not want to operate as a common carrier — that is, on a non-discriminatory basis, neutral as to use and user — then you do not get the special privileges granted by the government to common carriers serving the public interest.

Websites will be forced to either:

(1) Take responsibility for their content posted by their users — including the spread of libel, disinformation, harassment, doxing, threats, et al, or

(2) Serve the public square, neutral as to use and user, in exchange for the privilege of limited liability for what they publish.

> The definition and purpose of a "common carrier" has no relation to monopoly status whatsoever, whether you're referring to English common law (the concept dates back to the 1600s), or in its modern US incarnations.

From https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...:

"As part of its attempt to exempt new entrants from common carriage requirements, the FCC ruled that even providers who held themselves out as serving all comers were not common carriers unless they possessed market power, only to see this decision struck down on judicial review as exceeding the FCC’s statutory authority. Congress subsequently amended the statute to give the FCC the authority to exempt firms that lacked monopoly power from common carriage requirements. After experimenting with different approaches, the FCC now applies a traditional market-power framework to determine when it should exercise its so-called forbearance authority.

Even skeptical commentators recognize that it has become the dominant, if not the sole, criterion for determining the scope of common carriage."

> > Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.

> Yes, absolutely. If you do not want to operate as a common carrier — that is, on a non-discriminatory basis, neutral as to use and user — then you do not get the special privileges granted by the government to common carriers serving the public interest.

Is this dichotomy recognized as such in any consequential legal decisions? Where can it be shown that internet companies meet the standard criteria for being a common carrier? Since I cited a source, perhaps you might also.

> on a non-discriminatory basis

All references I can find to nondiscrimination in connection with common carriers are about price, e.g. charging different prices for the same service quality, or vice versa. How does this apply to social media companies who charge their users nothing, and whose service is not a commodity whose quality is measurable in absolute terms?

You clearly don't like section 230, but you're not really contending with the ramifications of your position.

Your analysis stops at the point of passage of some hypothetical legislation removing section 230 protections, which is not really the point of my question about free expression. What is the actual downstream systemic effect on what speech users are allowed to express, and that providers are discouraged from permitting?

I think it's safe to say that correctly identifying disinformation (not to mention libel) is flat-out impossible at a certain scale. Much disinformation is impossible to prove as such at any scale - would you require users to cite sources? Or just limit themselves to expressions of opinion?

Providers and users will thus have to satisfy themselves with imperfectly coarse filters and policies that inevitably chill more speech than intended. This probably goes double for video content, since analysis is that much more difficult.

Not an internet I would be interested in using.

Your citation was paid for, in part, by Broadband for America — an industry lobbying organization backed by the likes of Comcast.

Lobbying efforts, lobbyist-funded legal opinions, and a captured regulatory body don’t a valid legal/policy argument make.

Yes, congress has given away massive privileges to ISPs and none of the responsibilities; that’s the whole point. That was a mistake; the gift of privatization of a public good.

Thanks to heavy lobbying, ISPs have avoided being classified as common carriers entirely (irrespective of their sitting in a monopoly position).

> Your analysis stops at the point of passage of some hypothetical legislation removing section 230 protections, which is not really the point of my question about free expression. What is the actual downstream systemic effect on what speech users are allowed to express, and that providers are discouraged from permitting?

The downstream effect is that providers either have to take responsibility for what they claim is their own speech, or in exchange for the privilege of a shield from liability for what they post, serve the public good regardless of use or user, and operate their sites as an open public forum.

I think it’d be an incredible improvement to the state of public discourse.

If this particular comment section is any indication, there are large groups of people living entirely in information bubbles that have no idea what their ostensible opposition actually believe, have seemingly lost the ability to actually critically read and understand opposing viewpoints, and whom argue voraciously and without exception against straw men solely of their own devising.

If you're not willing to engage with arguments by people with an agenda, I don't think anyone needs to hear from you on critically reading and understanding opposing viewpoints, let alone public discourse.

"Anyone may use our platform so long as they do not post messages speaking positively about homosexuality".

Not exactly clear on your point. Is it to say that anyone who opposes limiting a platform's power to control speech on its services is implicitly supporting this bad policy? If so you might as well complain that the federal government still hasn't outlawed disliking gay people.

At any rate, this would be a stupid and abhorrent policy which would nonetheless not discriminate in the sense described by federal law. The marketplace of ideas being what it is, I'm not sure what kind of foothold such a site would be able to get, having such a stupid policy.

Exactly. They want it both ways. If you are algorithmically boosting some views and deleting others, now it’s your speech and you should be liable.

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