Section 230: Mend it, don’t end it (2020)
medium.com
medium.com
> We will protect any speech that is protected under the First Amendment.
This will likely include speech that people and advertisers find objectionable, and will consequently want to disassociate from. There is a lot of First Amendment speech that people don't want to have shouted at them when they're trying just trying to go about their lives, or keep up with the media. Think about what HN would be like if the mods allowed all First Amendment speech in the comments.
> We will double down on our authenticity rules and procedures.
It's not clear if this requires people to use their real names + verify their identities, but if so it's dangerous for free speech. Pseudonyms can be a valuable way of enabling people to speak freely. Forcing people to use their own names also increases the risk of their being targeted by harassing speech (which defenders will claim is protected by the 1st Amendment). Again, people will likely leave for more curated communities or anonymous communities rather than endure it.
> We will provide users with the tools they need to curate content for themselves. For instance, we will give users the ability to hide or delete offensive comments to their posts.
I have these tools available for SMS and email, but it's exhausting to manage, and they've been rendered useless by the sheer volume of spam. For the average user, this is forcing them to take on a lot of work to protect themselves from spam and harassment. Many will just quit rather than add another channel they have to filter and manage.
If a "public square" (and I'm not convinced Twitter is a public square in the sense people say) becomes unruly and fails to provide a well regulated commons, people will depart for communities that regulate the way they want (like Hacker News or amenable Discord Servers)
This is the only good take on Section 230 of the Communications Decency Act, and the one that I agree with the most; since it would set the First Amendment as the bar for speech on social media, bringing parity to the protections we have elsewhere.
This entire section is just wrong. Fighting words are extremely narrowly defined, to the point where if you don't get punched in the face within a few minutes of saying something, it is not fighting words under law. The original definition of fighting words was laid out at a time when honor duels were still common, and that is the environment under which they were defined. Since then, every higher court decision referring to them has narrowed, not expanded their definition. There is no way a slur on the internet can be construed as fighting words as the law currently exist.
You're right that it's a very narrowly defined carve out that has since been narrowed further, but it's definitely from the 1940s from the cited Chaplinsky v. New Hampshire.
Again: if Twitter was held to the 1A standard, there is a great deal of content likely to cause imminent lawless action that they would be unable to block.
What's the difference between advocating violence and intending to cause violence?
The entire Brandenberg case is about the distinction, on this particular word.
Like I said, this is a hash of an argument.
The article, IMO, made it clear enough that information that causes violence but wasn't intended to cause violence is protected by the 1st amendment.
There is a clear legal standard for incitement. Sacks hasn't articulated it. Either he doesn't know what it is, or he does know, but smartly recognizes that it cuts directly against his argument. The point he wants to make is that First Amendment jurisprudence already provides a basis for service providers to eliminate the most objectionable content. It does not.
Particularly in the case of incitement: if Twitter was held to the 1A standard, it would be unable to block a great deal of content likely to cause imminent lawless action.
But I don't think it's a fair criticism of his article. I clearly understood from his writing that the "Incitement" exception only covers information intended to cause violence in the near future.
I don't know if he's familiar with the precise legal language, but even if he is, it wouldn't be appropriate to use it in this article for laypeople. He's using common English.
Carelessness in fact checking seems to becoming more common even among otherwise competent people.
First Amendment Twitter runs a cottage industry of dunks on well-regarded lawyers saying stupid things about 1A jurisprudence. I'm not a lawyer, but I follow 1A Twitter, and I think this would qualify; for instance: the "incitement" section refers to "clear and present danger", which is the Schenck standard, which was famously overturned by Brandenburg. My understanding is that this, to 1A law, is about as fundamental as knowing the difference between a hash table and a tree is to a software developer.
His 2nd point is that one should essentially end anonymity online.
This seems like a step backwards to me. I remember back in the 90's when we reminded everyone not to use their real name online, don't tell people your address, definitely don't tell them your age or gender. God forbid you tell random people you're <18/F/Nearby .
So just for safety reasons, anonymity has long been seen as important online.
Besides that, anonymity and pseudonymity seem to me to be one of the pillars of free speech and open debate in society. You can safely test the waters and say things that you fear might be unpopular. See eg. the Federalist papers, which were published pseudonymously.
Anonymity and closely-related pseudonymity have been important to western civilisation for millenia. It might not be a good idea to get rid of them.
Am I missing important context? If someone can point to resources that would better explain this to me, I'd appreciate it.
My question is, what'll happen if somebody moderates beyond the bounds of the First Amendment? If Twitter deletes an unpopular opinion that's legal to publicly express, would the poster be able to sue for unlawful removal?
If platforms are held to 1A standards, then they can't sell advertising. Online advertisers have already made it crystal-clear that they will not tolerate their brands on a free-for-all platform. Ergo, a requirement for platforms to keep constitutionally-protected speech up is effectively starving them to death. And if you're thinking of making it illegal to withhold ad revenue to a platform over their lack of moderation, then you're driving a stake through the heart of freedom of association.
A better idea would be to say, "ok, you can have rules, but you have to apply them evenly". A lot of platforms will bend the rules for popular users and that absolutely is a problem.
Some platforms - notably YouTube - have a platform-run ad exchange that creators can participate in and make money from. This is critical for people getting into the online video business. Like, to the point where people are expecting creators to jump ship from TikTok to YouTube the moment that Google figures out how to sell and attribute ads on Shorts.
In a world where platforms are legally barred from providing advertisers with brand safe placements, advertisers will just jump ship from platforms and start working with individual brands directly. Which means that the platforms are now just providing free hosting they can't pay for and smaller creators aren't able to use ad networks to get paid for their work.
How can multiple platforms (FB, Twitter) be the public square? The appeal to authority (Court with 200 years head start has better judgment) is also out of touch.
Maybe it should distinguish between forums, where everyone sees the same content, and social networks, where people choose who to follow and who to block. Maybe social networks should be regulated as common carriers[1].
But simply removing the second paragraph of Section 230, making moderated forums liable for every post, would make them legally unviable.
dang can ban me, remove this comment, hide it, etc, but in no way will he or hackernews be legally liable if someone sees it; I am.
If 230 were not there, then there could be legal liability and the protection against it would be positive moderation or none at all perhaps. Positive moderation meaning dang would have to read and approve each post because HN would be taking on the liability of said post. Simply not scalable.
This is mostly dead. You are not in control of the content you see. The algorithm decides what to show you.
If your platform a) decides what content I see, or b) editorializes that content, then you are a publisher. Publishers do not deserve 230 protections.
I think this is where the line should be drawn.
It's an absolute hash of an argument that would mire every American service provider in perpetual litigation. Twitter would be better off with no Section 230 than with one that requires them to prove "false statements of fact" (even the word "fact" in that phrase is a subject of white-hot intense litigation) or even "incitement". It's unlikely that Sacks stands by this analysis today, and more likely that Sacks wrote it believing that he'd never be personally responsible for implementing it.
Though, what's particularly interesting about this article is that Sacks is a friend of Elon's and as a result has now become directly involved with the reshaping of Twitter. I am certain Sacks no longer emphatically supports the idea that "these tech behemoths are too large and powerful, pose a threat to democracy and free speech, and need to be reined in for the good of America" now that it applies to his friends.
Worth a read, no matter where you stand on the issue.
This analysis from 2 years ago doesn't reflect "promotion of user content" as a distinct, and potentially unprotected activity. Arguably, recommendation algorithms are neither a simple act of hosting user content (first part of Section 230), nor are they good faith moderation to remove problematic content (second part of Section 230).
1. "Free speech" is an ambiguous term. If it refers to First Amendment protections then it immediately doesn't apply to Twitter, FB, etc. The first five words are quite literally "Congress shall pass no law". Later Supreme Court rulings extended this to state and local governments. So FB, Twitter, etc can't "Censor" or violate the First Amendment of anyone, by definition.
2. So if it's not a legal definition, it's a principle. Literally nobody is a free speech absolutist. Even 4chan has Terms of Service;
3. Section 230 was originally created to give a "safe harbor" to ISPs so they wouldn't be held liable or responsible for content they transmitted. This was and is very similar to telcos not being responsible for illegal activity occurring on phone calls.
4. The point of a safe harbor is that the provider becomes essentially neutral to the content. But this, like anything, has limits. Telcos cut off or block people for spamming, for example;
5. The voices calling to repeal Section 230, as in this article, are upset about isolated cases of, say, Twitter "censoring" the Hunter Biden laptop story. But if Twitter no longer has that safe harbor, there are only really two alternatives: more moderation or no platform at all.
Repealing Section 230 won't be friendly to the likes of Alex Jones, Tucker Carlson, Ben Shapiro or Kanye West.
In the past, journalists were the check against government over-reach, corruption, and fraud. That has been thrown out the window, as it is clear to the objective observer that the majority of media and government work very closely together to push a coordinated narrative, and have been for some time.
When citizen journalists emerged, whistleblowers and independent bloggers began publishing stories (some of them trash, others being very good at what they do) - yet they rely on social media for reach. If their stories oppose the narrative of both mainstream media and government, they are labeled (without any real evidence) as misinformation or "russian" propaganda. This in itself is propaganda.
Frankly, I'm tired of the nanny state. Neither myself or any other functional adult needs media, government, or party to tell us what to think, do, or say. The whole mess is antithetical to the core principles of the United States.
Fighting Words was handled by somebody else
> Incitement. The Supreme Court has long held that advocating the use of force is unprotected speech under the First Amendment when it is “directed to inciting or producing imminent lawless action.” The word “imminent” has been the subject of further litigation, generally requiring a “clear and present danger.”
"clear and present danger" was the standard before it was overturned by the incitement to "imminent lawless action"--the way it was presented here is completely backwards. Recall that Brandenburg v Ohio upheld that advocacy of violent overthrow of government was constitutionally protected. Incitement here has been narrowed to the point that you should think of the bar as around the level of "you are at the head of the mob and pointing out the next person to be lynched"--anything less, and there's a decent chance your speech won't be considered to be incitement.
> False Statements of Fact. The Court explicitly held in 1974 that “there is no constitutional value in false statements or fact.”
Yeah, but in 2012, US v Alvarez rather explicitly held that the government can't justify banning false statements just for being false.
Defamation was handled by somebody else.
> Fraud. Another kind of false statement is fraud. There is no right under the First Amendment to impersonate someone else or deceptively amplify one’s views through fake accounts.
That is not what fraud is. Fraud statutes require material gain, and impersonation isn't a kind of fraud. And again, impersonation without seeking that kind of gain is constitutionally-protected--that's basically what US v Alvarez is about (falsely claiming you have a military medal).
> Obscenity. Obscenity has a famously shifty and subjective definition, summarized by Justice Potter Stewart as, “I know it when I see it” in the 1973 case that established “prevailing community standards” as the basis for determining when speech is obscene and therefore not entitled to First Amendment protection.
What the fucking hell are you on about? "I know it when I see it" comes from the 1964 case. The 1973 case established the Miller test which defines obscenity as a three-prong test: (a) Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, (c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [quoting Wikipedia here].
The basic tenor of First Amendment cases is that the government cannot act as a moderator of speech. In virtually every single case, where the court is asked to rule on something that's around the bar of what is and isn't permissible, the court rules to push the bar yet further outwards. Were this analysis a paper in a high school civics class, I'd be hard-pressed to grade it above a C; as a suggestion for political analysis, it fails entirely.
Both Biden and Trump, for a start: https://www.theregister.com/2022/09/09/biden_tech_reform_sec...
And most of that hate is still considered acceptable even under the most restrictive policies.
There's hate speech like ageism, misandry, and racism against white people, which are technically covered by the policies but generally overlooked.
Then there's the shifting tide of hatred against people for a variety of other reasons. Like Elon Musk at the moment. Sometimes this even becomes harassment against private individuals (as in, not public figures) like when reddit falsely accused the wrong person of being the Boston Bomber, or the false allegations against the kids from Covington Catholic High School.
And of course the perennial political battle, which has somehow become even more partisan and hateful thanks to social media.
So I think that claims that changing Section 230 will unleash a torrent of hatred on social media and make it unusable are rather ill informed. Social media is already like that.
What it might do is give more people an opportunity to interact with people they hate and perhaps learn that they were wrong.
As usual, if people would stop being so shitty to each other and greedy for themselves, none of this would even be necessary.
The article correctly quotes and understands sec 230, and doesn't misrepresent it as either a license for censorship or a ban on moderation.
The article defines clearly what the author would like changed.
The Bad:
The article is very confused about what is or is not protected by the first amendment. For instance it claims (incorrectly) that hacked information is not protected. It is protected. If a reporter gets hacked information, but does no hacking himself, and the information is newsworthy, he's free to publish. The same applies to defamation and falsehood: I might be liable in civil court if I publish such things, but no one in the government has a right to take a red pen to what I want to publish pre-print because they decide it is false or defamatory. Also, be careful banning defamation separate to falsehood: that means I cannot say true-but-damaging things about people. Is that what the author or the general public want? I can't point out that someone is a thief even if they are and I can prove it?
The article's example is bad and I wonder if he will actually get what he wants. It complains about the censorship of the NYPost article about Hunter Biden's laptop. But then it goes on to claim that platforms should be able to censor hacked material (which that story was based on and that was the original reason it was censored on Twitter). And that it should be able to censor false information (again, most of that story was incorrect or at best remains unsubstantiated years later...) and defamation. So the sort of story he wants to be protected would fall under at least 3 of the categories he wants to be unprotected?!
The article misses the great un-written advantage of s230: s230 makes it clear who decides (the platform) what to moderate and uses a simple measure (whatever they want basically). That gives them a lot of power, but it also does away with a huge issue. Namely, if you give every twitter user recourse to courts AND you have complex rules over what is allowed (who defines falsehood? can you PROVE the moon landings occurred? is calling someone a bastard fighting-words or defamation? What if it's true? Is a penis "obscene"? What about Michelangelo's David?). So at best Twitter now has ungodly legal fees and every court in the land has to rule on all this nonsense. And that's without any judge making a mistake or (god forbid) falling to political partisanship. I don't envy the judge ruling on whether Trumps tweets on Jan 6th were incitement to violence. And they will of course have to give immediate and binding rulings in real time on such cases. S230 made all that disappear, just a tiny proportion of cases had any legal standing.
The truth is, and I suspect that the Author knows they but just cannot quite accept it, s230 isn't perfect. But its the best we can do without "the cure being worse than the disease"...