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Comment by Spivak | Hacker News Reader

This is gonna be a weird ruling if it goes in favor of the states. If you run a public bulletin board tearing down fliers is absolutely a form of speech, and if you do it to people you disagree with it becomes political speech. I can't imagine even this court ruling that the government is allowed to regulate political speech. That would kick the door open to an easily constitutional broadly applied national hate speech law, and reintroduction of the fairness doctrine.

So the unintended consequence I expect will be that censoring people for their political views will be the only strongly protected moderation actions.

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> If you run a public bulletin board tearing down fliers is absolutely a form of speech

I'd say where the protection starts is that the board is yours. You can make it as open or restricted or curated or nonsensical as you wish. Other individuals can put up their own boards and they can display whatever they wish.

This is what the 1A protects.

In a reality where an opinion can be displayed from millions of boards - I suggest that one individual removing it their own board is a fairly poor use of the term censorship.

You're portraying it as if there's not a small number of de-facto public square "boards" that the vast majority of people get almost all of their information from. Manipulation of those boards has an absolutely massive effect, and saying "well, you could go out in the woods and create your own public forum that a handful of people would ever see" isn't really an acceptable alternative.

You're assuming that the vast majority of people want to hear your message. Maybe they like that site because it doesn't allow messages like that.

This is why I wish there was a megaforum where anyone can isolate themselves into smaller forums as they wish. Then no one gets deplatformed by the feds or corporations or whatever (unless they call for violence or doxx someone, something like that), and yet no one has to see what they don't want to. Still but a stopgap to foster better communities, alas.

Isn't that essentially reddit?

I suppose, but more general ways to structure the forum, moderation, how to do upvotes or likes, and so on. Maybe decentralized and federated. Make the whole Internet message passing, even!

Isn't that Mastodon?

Sure, if Mastodon works as broadly as I described. It just needs to be more widespread then.

>I'd say where the protection starts is that the board is yours. You can make it as open or restricted or curated or nonsensical as you wish. Other individuals can put up their own boards and they can display whatever they wish.

As mentioned in the article, Pruneyard Shopping Center v. Robins ruling rejected that logic. The government can regulate your conduct. The speech in your bulletin board is that of those who wrote it, not your's. Thus not 1A issue.

The underlying issue is if social media is a platform (like a bulletin board) or a publisher (like a newspaper).

> Pruneyard Shopping Center v. Robins ruling rejected that logic. The government can regulate your conduct

Pruneyard “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” [1].

[1] https://en.m.wikipedia.org/wiki/Pruneyard_Shopping_Center_v....

Unfortunately, I think it's inevitable. Both parties have talked themselves into a justification for regulating speech on the internet. One side wants to force platforms to publish speech against their will, the other wants to force platforms to police speech against their will. Both positions fall afoul of the spirit of the First Amendment, which is that only the people have the right to abridge freedom of speech (and explicitly not the federal government, except in certain narrowly-defined circumstances.) And the Supreme Court is stacked with ideologues who seem dedicated to defederalizing the government and ceding power to the states, whose restrictions on speech would be far more radical than the federal government would be capable of.

> So the unintended consequence I expect will be that censoring people for their political views will be the only strongly protected moderation actions.

That's entirely intended. Look at what happened during COVID, the race riots post George Floyd, the election in 2020 and 2024, etc. Social media platforms are defacto content curation websites and not "free speech zones" in the sense of a soapbox in a public park. It was especially egregious during COVID and the race riots because the platforms made certain that you could not so much as criticize the political zeitgeist even when it was deserved.

The law really should make it clear that, illegal activity excluded, if you engage in any form of censorship you are not given section 230 protections. Places like twitter are left-wing content curation websites. It's no problem to have these - except for the fact they are still given section 230 protections. Under no circumstance should social media, engaging in one-sided censorship, be given any protection under the law for their content they curate. This would go for a similarly censored right-wing content curation website. It just so happens those are extremely small in reach by comparison, and thus significantly less important.

As always, the squeaky wheel gets the grease. The chronically offended, terminally online losers tend to get what they want.

> The law really should make it clear that, illegal activity excluded, if you engage in any form of censorship you are not given section 230 protections.

Say I run a forum for pet fish discussion. Would my removal of content derailing the discussion into a flatearther one constitute my loss of 230? What if only logged in members can see the content?

It seems odd that we don't let private property operate as it wants.

Have a scale or a topic carveout. Your pet fish message board doesn't have the same social relevance as the twitters and facebooks of the world that are intended to be generic communications platforms. Despite what people like to claim, these sites are de facto public squares and should be treated as such. It's clear people resist this idea because they like the fact that these companies censor speech in the direction they prefer.

> Have a scale or a topic carveout

This (topic) is a sign your framework is flawed. Unless there is a fabulous reason to believe this is the sole legitimate carve-out.

You know, you could just offer additions to the list of carveouts, or give your alternative take, instead of whatever this comment is.

> you could just offer additions to the list of carveouts, or give your alternative take

I don't see one. It's DOA. The point is starting with a list of carve-outs to any framework is an early sign it's fucked.

I do believe we have a problem with free speech in modern America. But we also have an unprecedentedly broad amount of it. Given the elementary issue of spam, it's unclear we have any consensus around what censorship means on social media.

> The point is starting with a list of carve-outs to any framework is an early sign it's fucked.

While I think this is a fair point in general, in specific cases it can be legitimate. We should not be powerless to legislate unless we're able to articulate some ideal discriminator that picks out only the intended target and nothing else. The world is almost never that tidy. We can probably agree in broad strokes what spam is, even if we can't articulate a sufficient decision criteria to identify it with 100% accuracy. We can also agree that one man's passion project shouldn't be powerless to ensure his forum remains on-topic. We can also agree that mega communications platforms have become so engrained into modern society that being censored or removed from them can have outsized effects on one's ability to effectively engage with society (e.g. losing access to your email, kicked off payment platforms).

There are a lot of grey areas in between, and identifying carveouts are one way to handle the messiness while still working towards the overarching goals. It's not perfect, but doing nothing in this case is worse in the sense of how far we are from our ideals.

> in specific cases it can be legitimate. We should not be powerless to legislate unless we're able to articulate some ideal discriminator that picks out only the intended target and nothing else

Sure, but there should be a guiding principle. The point isn't we're powerless to act. It's that we should act thoughtfuly. Defaulting to carve-outs indicates the idea is inchoate.

Even in this thread, we've expanded from major social media platforms to e-mail providers and payment platforms. We're still brainstorming the general scope of the idea.

That the problem is big and requires care doesn't strike me as a substantive objection to the effort of addressing it using the tools that we have (legislation, however imperfect).

> That the problem is big and requires care doesn't strike me as a substantive objection to the effort of addressing it using the tools that we have (legislation, however imperfect)

Again, not disagreeing. Just saying the solution as presented is obviously flawed. And I haven't seen a solution whose proponents don't similarly throw their hands up with generalities the moment it's poked.

"Throw my hands up" doesn't seem like a fair characterization. I wasn't offering legislation, I was offering a framework within which the details can be fleshed out that perhaps would lead to practical legislation (I mean, this is an HN comment after all, there's only so much you can reasonably expect). You seemed to disagree with the effort entirely, but your critique merely points to difficulties inherent in legislating nebulous phenomena. I certainly don't disagree, but I fail to see why that should short-circuit the effort. If that wasn't your intention, then perhaps we don't disagree much at all.

Fair enough.

> was offering a framework within which the details can be fleshed out

So the framework is revoking § 230 for large websites that moderate user content. Except providing a safe harbor for removing illegal stuff. Also off topic. Presumably also spam.

What does that actually do except buy every lawyer a ranch? We haven’t actually drawn the line between censorship and moderation. And I’m arguing we can’t; there isn’t one. Where we draw the line we do so by identity; who is speaking or doing the moderating/censorship.

The act of censorship or moderation is the expression of an opinion. I haven’t seen a way to remove one without the other; that’s the error drawing up a list of examples doesn’t solve. There is always another example, and at that point, we aren’t drawing a line anymore, we’re back to putting content in a good and bad bin, just a little more centralised.

>What does that actually do except buy every lawyer a ranch? We haven’t actually drawn the line between censorship and moderation. And I’m arguing we can’t; there isn’t one. Where we draw the line we do so by identity; who is speaking or doing the moderating/censorship.

In broad strokes the line is simple: moderation is ensuring content stays on topic, censorship is limiting the topic. In practice it gets thorny. But we don't need to solve the concept in its full generality. This would only apply to sites that reach the size such that "public square" is a reasonable description of their social relevance.

The problem is these sites want to be the destination for communication, while also shaping that communication according to some narrow political aims. Also throw in maximizing engagement. These constraints should be seen as inherently contradictory. If you want to be the de facto public square, you should not be limiting topics among interested parties. I'll leave the specific verbiage to the lawyers, but the target is clear enough: people interested in engaging on some topic (barring illegality) should not be prevented by the site in engaging on that topic. I see nothing inherently contradictory or impossible about any of this.

> I see nothing inherently contradictory or impossible about any of this.

Maybe neither contradictory nor impossible, but I would still argue it's bad policy to slap a label on a private company stating they're a de facto public square, when in reality all they've done is the best job at attracting users.

Well with that sort of thinking, why not sit back while I kill this mosquito with a nuclear weapon?

There must always be a floor of reasonability and articulability before legislation is the answer. Especially where Federal legislation is concerned.

> public squares and should be treated as such.

What does this mean?

It means the principles that constrain how governments engage with society (e.g. free speech in the public square) should also constrain how these new government-sized institutions engage with society. We've got to the point where so much of governance is pushed off to the private sector that these entities should be bound by the same rules. E.g. private companies shouldn't be able to do widespread content scanning of private data that would be illegal for the government to do.

> It means the principles that constrain how governments engage with society (e.g. free speech in the public square) should also constrain how these new government-sized institutions engage with society

I think you're missing the distinction between public and private entities.

We constrain governments because they have a defacto monoploy by law and by definition. This means there are no alternatives. Additionally, our government is granted power through its citizens, not vise versa. Rights are negative meaning the government doesn't let us say what we want, the government isn't allowed to prevent us from saying what we want.

The fact that a company is large in employees or has many users shouldn't impact its ability to moderate. Forcing private companies to not moderate in the name of the public good would be a 5A violation: seizure of private property for public use. It is different if you uniformly rescind 230, but then you kill all third party commentary on the web in general. Look at Craigslist's response to fosta/sosta, for example.

> e.g. private companies shouldn't be able to do widespread content scanning of private data that would be illegal for the government to

The government isn't allowed to do this because the Constitution forbids it. Private companies can only get your data if you transact with them.

That transact line is usually blured on the web, but there are defensive measures one can take to help evade them. The simplest of them is to choose not to use a business or service.

I don't have a meta account. I don't have a tiktok or X. In fact, I have a HN, lobsters, and Blur Dwarf account. That's it. So easy to opt out of what concerns you. Additionally, I run both clearnet domains and hidden services. While what I say on the clearnet may get me kicked off a domain registrar, that can't happen on the government-invented-and-implemented tor.

These are all choices we make. We can simply make different choices. Nothing you've said argues against making choices that are more in line with our ideals given the reality of the size and power that modern corporations have over our social lives.

> if you engage in any form of censorship you are not given section 230 protections.

I disagree that governments should punish people who fail to amplify the messages of powerful political parties.

Selective amplification is editorialization when the decisions are content sensitive. It being algorithmic doesn't change the substance of this.

> Selective amplification is editorialization

Editorialisation as in the press?

As in the status that renders a service not subject to section 230 protections.

Exactly like the press. The press that is held liable for what they publish.

The entire purpose of section 230 was to protect platforms from being sued for censorship. You are talking about repealing it, not changing it.

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