Not a Twitter user or a Musk fan, so not defending them. But it's hard for me to see how this law wouldn't chill speech...
There's not even any compelled speech argument that Twitter is being forced to speak about something it does not want to. Twitter is a corporation, not a person. It has no right to exist and can have its business license revoked.
Now, if Twitter does want to make each Twitter user's speech its own speech, then maybe Twitter might have grounds to make a 1A stand. But as is Twitter and all social media absolutely do not want to be held responsible for what they publish so, frankly, they can pound sand.
It would be different if Twitter were considered similar to a newspaper where Twitter acted as editor and could be held accountable for what they publish. But they will fight that tooth and nail.
https://www.theverge.com/2019/6/21/18700605/section-230-inte...
On the contrary, Section 230 is what allows platforms to make some editorial decisions without thereby assuming liability for all user-generated content.
Before 230, what you said was true.
I like this explanation: https://www.techdirt.com/2020/06/23/hello-youve-been-referre...
AFAICS the proposal doesn't require them to moderate Twitter users in any way; it requires Twitter to state publicly and clearly what their moderation policies are. But arguably stating its moderation policies is "compelled speech".
Thing is, there's plenty of compelled speech going on, including food labelling laws. There's precedent (although I understand US law doesn't have "precedent" as such, just appeals to successive senior courts).
Can California demand that a restaurant provides daily report on how often each employee washes their hands and fine them $15k per day if they don't or provide incorrect information?
Per your simplistic argument it would be bonkers if California could create such law. It's a mere reporting of its relevant business activity.
To me it would be bonkers if California could create such onerous regulation.
In law analogies only get you so far. I'm pretty sure that things like food labeling were challenged in courts and were found to not violate 1st amendment but the onerous requirements California tries to impose here are not even close to use them as some kind of precedent.
Texas HB 20 prohibits the censorship of content based on viewpoint
Florida SB 7072 ... prohibits platforms from removing certain types of accounts.
So both laws require companies to engage in a type of speech. The CA law does no such thing: it just requires companies to disclose their policy and how it was applied.
(edit: sorry, I misread the parent. Individuals cannot violate the 1A, only governments can)
Sure, they could just take them to court for that fraud and get that information via discovery, but just compelling companies to publicly disclose the info bypasses all that and puts the decision making back into the hands of the consumers. And what is more American than that?
Note that that doesn't mean a company cannot violate a law with a basis in free speech. The 1st amendment isn't the only law when it comes to this - this is where state laws step in.
how do you figure this to be true?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The 14th amendment later extended this to apply to state governments as well - but still only governments.
A company can't violate someone's free speech (or other rights) because it's not the government. It literally isn't under the purview of the amendments. If it does something illegal, that is become that act is made illegal under some other code, not because of the bill of rights. They can be prosecuted for criminal or civil violations, but it wouldn't be a constitutional issue unless the government is the one doing it.
If a social media site wants to silence you, too bad. If the government wants to silence you, that's a big deal.
https://uwm.edu/free-speech-rights-responsibilities/faqs/wha...
https://en.wikipedia.org/wiki/United_States_Bill_of_Rights
(Edit: However, your argument isn't unheard of. Here's one opinion from the American Bar Association arguing the same thing -- that the 1A ought to apply to privately run public forums too: https://www.americanbar.org/groups/crsj/publications/human_r...)
It's not clear such a law is wise. ¿Cui bono? for tying private forum's hands against kicking Nazis, white supremacists, nation of Islam, Patriot Front, Proud Boys, etc. off their website?
The Internet is a network; communication on a network implies (at least) bipartite agreement. Either side of the conversation has veto over the signal.
FWIW you can apply your argument to an ISP to make the argument that it's right for them to arbitrarily censor as well.
That's just two bipartite agreements end-to-end. I could technically have said an n-ary agreement, with the freedom to select multiple paths, for more accuracy; I figured "bipartite" encompassed all the relevant nuance.
> FWIW you can apply your argument to an ISP to make the argument that it's right for them to arbitrarily censor as well.
Yes and. ISPs generally do have that liberty and do employ it when they deem it necessary (see Hurricane Electric cutting ties with IncogNET for doing business with KiwiFarms, various ISPs cutting user accounts for piracy, AUP, or TOS violations, etc.). The backstop against that behavior is generally that they're leaving money on the table if they don't provide as many people as much service as their system capacity permits. But in general, legally or morally, nobody is entitled to more access than showing up at the public library to use a community kiosk (and if you do that and look at porn, they can ban you too).
Whereas these three (or more) party situations are exactly what we're discussing here - where two endpoint parties are trying to communicate yet there is a third party in the middle playing the position of censor. This is the entire crux of the matter.
When you say that ISPs do have the liberty to censor, are you speaking positively or purely descriptively? Because what I see is a description of our traditional values that had been previously serving to foster an open society, but have now fallen apart with companies scaling to own much larger portions of markets, prying into what should be the business of their customers, and colluding with each other to create unavoidable de facto governmentesque power. If you really don't see the problem with an ISP censoring, then how about the electric company?
Also the idea of companies being incentivized to not unjustly deny service because they'd be leaving business on the table is blatantly fallacious.
Hey if they want to keep communicating they can send letters. There are plenty of communication solutions that don't involve conscripting a private third party to transit the data against their will.
> what I see is a description of our traditional values that had been previously serving to foster an open society, but have now fallen apart with companies scaling to own much larger portions of markets, prying into what should be the business of their customers, and colluding with each other to create unavoidable de facto governmentesque power.
What I see is the logical conclusion of that open society. If people didn't know we were going here they weren't paying attention. Additionally, the unfettered open society brings us KiwiFarms and 4chan; I think the burden of proof is on those who support this model to explain why companies should be forced to facilitate those actors on the Internet.
You can still set up your own ISP If you don't like how the others are playing. You can't do that if the government starts putting constraints on what an ISP is.
> If you really don't see the problem with an ISP censoring, then how about the electric company?
Entirely different scenario. Electric companies have government-sanctioned local distribution monopolies; those monopolies come with additional constraints on their corporate behavior.
Hypothetically, one could argue that in the US at least, this fact constrains Verizon and Comcast's hands. But it doesn't constrain Twitter, or Hurricane Electric, or Reddit, or Google, or Facebook, etc., etc., etc. If you don't like those companies' behavior you can go to another or set up your own. I didn't like Twitter; I run a Mastodon node.
If you're trying to make jokes, then you need to work on your delivery.
> What I see is the logical conclusion of that open society. If people didn't know we were going here they weren't paying attention
I generally hate references to the paradox of tolerance, but you're essentially advocating intolerance that takes advantage of tolerance. I'd say that when the logical conclusions of rules that currently lead to an open society are abused to create an ever-more closed society, those rules need to be amended - it's foolish to assume that the outcome is moral by construction.
Even when pushed you seem to be pretty explicitly support corporate authoritarianism, so I doubt I'm going to change your mind. But as I said in another comment - it's quite comfortable to cheerlead for authoritarianism when it aligns with your preferences, but the winds can change at any time.
I believe it's also foolish to assume the outcome of forcing people to transit signal harmful to them is moral.
The nice thing about the status quo is we can address this problem with our own choices: if one doesn't like HE's behavior, for instance, one can de-peer from HE. The 'net can interpret censorship as damage and route around it, as it were.
I'm not so much in favor of authoritarianism as individual sovereignty, and sometimes the "individual" is a corporation or large association. But so long as it can be routed around, it's fine (and if it cannot be routed around, we have antitrust for that). But consider Mastodon, where individual users are continuously deciding who to follow and who to block and node operators are continuously deciding similar questions at the node-to-node peer level. It's beautiful chaos, not authoritarianism. What business would the State of California have dictating to every Mastodon admin the rules of their node (or, for that matter: ¿cui bono? from the state even tracking those policies? Maybe it's none of the state's damn business who I let on my node and who I peer / de-peer from.
This is like the third time you've swapped in a sympathetically-small example to make it sound as if any regulation of large companies implies that grassroots individuals would be forced to unreasonably do things against their will. But we're not discussing a vibrant competitive landscape of Mastodon instances, local mom-and-pop ISPs, websites run by individuals, or "people". Rather we're talking about the likes of Twitter, Google, and Comcast.
> I'm not so much in favor of authoritarianism as individual sovereignty, and sometimes the "individual" is a corporation or large association
I wholeheartedly agree with individual sovereignty, and that's precisely where my comment is coming from. The second part is fallacious induction - scale is the entire crux of the matter, especially with the context of Metcalfe's law. The larger these companies get, and the more they cooperate with each other, the more inescapable interacting with them becomes. This destroys the ideal of individual sovereignty for actual individuals.
Hand waving about "antitrust" is an excuse that doesn't redeem the narrative. If you were actually concerned about coercive power created through anticompetitive actions, you'd lead with the utter lack of anti-trust enforcement and arrive at very different conclusion. For example reforming this bundling of identity, data hosting, and software that is pervasive across the industry would go a long way to reforming the power dynamics.
On the topic of actually running more decentralized nodes, I'm all for it. If you want to discuss things non-normatively as an assumption of the worst case fusing of government and corporate power, I'm right there with you. But in the context of the big tech power consolidation, what are currently small-time self-help options for the technical few to hide from the overall trend aren't particularly relevant. For example even though I've always run my own mail server and recommend people get their own domains, I can still condemn the negative societal effects of Gmail having unilateral control over many individuals' online identities. (In fact doing so gets even more important because Google blazing the trail of unilateral corporate authoritarianism has caused the domain registries to want to get in on the shameless action)
I'm also extremely leery of anything that makes it more difficult for any operator in this network to put up a sign that says "This is not a Nazi bar," even if it at the same time makes it easier for somebody to put up a sign that says "This is not a gay bar." Because I'm not worried about the authoritarian threat posed by unfettered communication in the LGBTQIA community, but I sure am worried about it from the white supremacist community.
No, I see authoritarianism as coming from both government and corporations. Government is logically equivalent to a monopolistic corporation where your only way to end the contract is by physically moving off from the land it has an ownership interest in. Individual freedom can only exist when both government and corporate power are kept in check. Government power through democracy, separation of powers, and bureaucracy. Corporate power through competition, exit, and regulation. If either one is allowed to run amok to the culmination of its own desires, the end result is centralized control and diminished individual freedom. (And since power coalesces regardless of the type, these imperatives generally feed each other)
> You believe that the only way to stop that is a stomp on that power at the cost of liberties
No - I do not believe it is correct, and in fact it is quite perverse and grotesque, to characterize corporate control as "liberty".
> California's registration policy nets up every Mastodon node and every home gardening forum and every still existent BBS
AFAICT this was debunked in the first round of comments: https://news.ycombinator.com/item?id=37469593 . As I've been saying, the key property here is scale, which you seem to be willfully ignored. Please stop standing in tiny, sympathetic, and utterly wrong examples as if they have anything to do with corporate power. Extrapolating about what's right for an individual or small collective to a large corporation/LLC is completely fallacious.
> Because I'm not worried about the authoritarian threat posed by unfettered communication in the LGBTQIA community
Didn't you kind of mismatch the analogy here? More appropriate would be saying that you're not worried about the threat posed to the LGBTQIA community by unfettered censorship. Which is really an appeal to popularity as how you perceive it currently - transplant Big Tech into the 80's enforcing popular social mores, and things would look much different. Just as how big business happily bends to the whims of China.
> I sure am worried about [the authoritarian threat posed by unfettered communication] from the white supremacist community.
This is why I feel justified characterizing your argument as cheerleading for authoritarianism. In order to actually stop the authoritarian threat from the white supremacist community, it is not enough to have the popular bars prohibit Nazism. Rather to stop white supremacists organizing, you have to control all avenues of communication. In other words, reinventing de facto governmental power through the private sector where the constitutional embodiments of natural rights don't apply.
I wish we could just scrap the Constitution and start over with a version controlled and annotated wiki of rules written in everyday language.
Our legal framework is so undemocratic (maybe even anti-democratic) and unable to address any of the major challenges of modern society... sigh. End rant.
It's quite tempting to cheer for autocratic corporate power when it appears to be doing things that you find favorable, but the wind can shift on a dime.
https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
> This holding was possible because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech. This distinction was significant because the U.S. Supreme Court had already held that under the federal First Amendment, there was no implied right of free speech within a private shopping center.[4] The Pruneyard case, therefore, raised the question of whether an implied right of free speech could arise under a state constitution without conflicting with the federal Constitution. In answering yes to that question, the Court rejected the shopping center's argument that California's broader free speech right amounted to a "taking" of the shopping center under federal constitutional law.
I generally believe that companies that enter spaces that previously afforded "users" first amendment protection should have similar laws to protect the free speech of users in said privately owned "spaces".
But that would require new laws.
What spaces are those? From where I sit, we went from BBSes (where the admin controlled the signal) to self-hosting (where the user controlled the signal, unless it was so onerous that an ISP cut service) to cloud-hosting (where a company controls the signal).
The ideal free speech world where people just spoke their minds online is a fantasy borne more out of lack of interest to regulate than power to regulate. Remember, the original network was a "network of peers" where most users were not pseudonymous; their academic or military sponsors could cut their access.
The network has never had anything like absolute free speech. Communication over the network has always been an affair involving at least two parties who must agree on the transmission of signal.
Town square. Snail mail. You're thinking very 2020s/technical here.
Snail mail is a great example, but the burden of proof is on those who think the Internet should work the same to justify why a model baked into federal Constitutional requirements should be used to justify de facto nationalization of private infrastructure. Now, if somebody wanted to put the tax dollars up for the federal government to build out "the people's Internet," regulated with something akin to first Amendment protections for transiting the network and rights to privacy, I certainly wouldn't be against it.
Maybe the reporting law doesn't itself prohibit a company from acting against its published terms, but it sure creates a database that could easily be weaponized against them by a future law or unchecked executive order.
Which is clearly not "prior restraint".
It's often the case that if a law were to have the potential to chill speech that would otherwise be expressed or not expressed (and I think this law falls under that category), it's open to questioning at least
https://www.mtsu.edu/first-amendment/article/897/chilling-ef...
I don't know how this will ultimately turn out... maybe California will win, but it's at least unclear enough to be worth a legal debate, I think?
> Maybe the reporting law doesn't itself prohibit a company from acting against its published terms, but it sure creates a database that could easily be weaponized against them by a future law or unchecked executive order.
I mean, I guess? I feel like the same could be said for laws that require worker injury reporting. If at some point in the future it's decided that there should be some regulation around moderation policies (and this seems increasingly inevitable) it would be useful to have some actual data to work off.
IMO only and IANAL.
For example if they ban a post for something that would be reflected but if they don't that's not shown
Thr lawsuit itself points out that, if nothing else, the California bill forces companies to editorialize on what speech is considered hateful etc. under California's guidelines. That categorization itself is a modern politicized process (especially in polarized states, deep blue or deep red) and different from older 1A protections. That wasn't my argument, but is part of the lawsuit.
In Lamont v. Postmaster General [1], the Supreme Court struck down a law requiring the recipient of Communist propaganda to state that they consented to receive it before it would be delivered. There was no penalty for doing so, but the court rule unanimously that it "imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment."
[1] https://en.wikipedia.org/wiki/Lamont_v._Postmaster_General
From TFA.
>Not a Twitter user or a Musk fan,
From your comment.
It sucks that the level of debate all over the place, including this forum full of people who are more educated than average, has fallen so low that the (extremely simple to grasp) concept of ad hominem is out of place and one has to write such disclaimers frequently in order to bring an argument into a discussion.
I know I certainly had to hold that impulse in check, myself. At first I was like "Oh god, what shenanigans is that guy up to now." And then I read the article and realized wait, this guy I dislike might actually have a point this time.
I say that not to be protective, really, but to point out that I think they may have a case here even though I find their entire operation suspect.
Hearers shouldn't be persuaded by fallacies; they're deployed in persuasive speech because (a) many people aren't familiar with logic, and find them persuasive, or (b) because the speaker isn't familiar with logic, or (c) because the speaker is out of logical arguments, but is still determined to win the argument.
Or some combination of the three.