Free Speech

Senator Ron Wyden (Co-Author of § 230) Trying to Pressure Internet Companies to Restrict "Indecent" Ideas?

That's how I read his item last week in TechCrunch, which warns Internet companies that this might happen if they "fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography."

|The Volokh Conspiracy |

Here's Wyden's post (emphasis added):

I wrote the law that allows sites to be unfettered free speech marketplaces. I wrote that same law, Section 230 of the Communications Decency Act, to provide vital protections to sites that didn't want to host the most unsavory forms of expression. The goal was to protect the unique ability of the internet to be the proverbial marketplace of ideas while ensuring that mainstream sites could reflect the ethics of society as a whole.

In general, this has been a success — with one glaring exception. I never expected that internet CEOs would fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography.

If you want to be the CEO of an internet titan where schools communicate with students, artists with their fans or elected officials with their constituents, you need to limit content like pornography — and they all do. But for some reason, these CEOs think it's entirely appropriate to allow these other forms of indecency to live on their platforms. Their ineptitude is threatening the very legal foundation of social media.

Social media cannot exist without the legal protections of Section 230. That protection is not constitutional, it's statutory. Failure by the companies to properly understand the premise of the law is the beginning of the end of the protections it provides. I say this because their failures are making it increasingly difficult for me to protect Section 230 in Congress. Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms. Even if government doesn't take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.

Were Twitter to lose the protections I wrote into law, within 24 hours its potential liabilities would be many multiples of its assets and its stock would be worthless. The same for Facebook and any other social media site. Boards of directors should have taken action long before now against CEOs who refuse to recognize this threat to their business.

It's telling that Reddit, of all the social media sites, has been on the forefront of striking a balance — telling because they're the only site owned by a traditional pre-internet corporation. This balance is not the one I would have chosen — and certainly there have been missteps and failures — but an average user of Reddit won't encounter the extremes of obscenity and indecency that it allows in darker corners of the site. And even they have defined certain speech as too indecent to be permitted on their platform.

There are real consequences to social media hosting radically indecent speech, and those consequences are looming. They are threatening to undo more than 20 years of internet law and jurisprudence that has protected speech and expression as never before. The forces of government regulation and control never sleep. Unfortunately, the internet CEOs have been asleep at the wheel.

One common argument in support of indecency regulations is that they merely restrict certain modes of expression, and leave people entirely free to express whatever ideas they like; as Justice Stevens put it, defending the indecency restriction in FCC v. Pacifica, "Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." One common response is that indecency bans do restrict ideas (as Justice Brennan argued in the Pacifica dissent) or can easily morph into restrictions on ideas, especially given the vagueness of the term "indecency." Senator Wyden's broad definition of "indecency"—which labels entire categories of ideas and arguments as "indecent," and of course contemplates not just privately chosen action, but action taken for fear of greater governmental regulation—seems to support that critique of indecency restrictions.

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31 responses to “Senator Ron Wyden (Co-Author of § 230) Trying to Pressure Internet Companies to Restrict "Indecent" Ideas?

  1. “far-right House and Senate leaders”

    Imaginary creatures are forcing me to be a censor!

    I do like how Wyden makes his “nice business you have there…” threat openly.

    1. Well Senator Cruz has argued that only “neutral public forums” should be entitled to Section 230 protection. Here’s the fucking imbecilic op-ed he wrote.

      1. Look, squirrel!

        1. Politicians being partisan and Political. News at 11.

          It’s Squirrels all the way down. 🙂

        2. Senator Cruz isn’t imaginary.

  2. Sad to see Sen. Wyden retreat from what had been a principled position.

  3. “their failures are making it increasingly difficult for me to protect Section 230 in Congress”

    Yes, he’s saying the companies need to take steps to *protect* themselves, hint hint.

  4. On the one hand, Trump routinely threatens businesses publicly for far less than this and far more routinely.

    On the other hand, that shouldn’t be normalized.

    On the third hand, Wyden does not seem to have the actual power to follow through on his clumsy prediction-not-a-threat.

    1. What does Trump have to do with a naked threat from a liberal Democrat?

      Its just not possible for you to criticize your side cleanly, its got to be some GOP bogeyman involved too.

      1. Yeah, you’re right. I tu-quoque’d.

        Wyden is bad here, and should feel bad.

      2. Where would he learn such a thing?

        1. Wyden? From his Progressive Plantation tovarisch!

    2. On the one hand, Trump routinely threatens businesses publicly for far less than this and far more routinely.

      Considering the NYT just hired an editor who literally wrote the book on how to execute just this type of selective curation in the service of progressive ideology, you’re not really in a position to be complaining about Trump appropriating their methods.

        1. Wherefore?

        2. Why? That’s the left fielder!

  5. I encourage him to repeal it, causing the stocks of twitter, facebook, Google, and so on to tank, dragging a good chunk of the retirement savings of millions right along with it and simultaneously destroying the reason the US has left many other countries in the dust in explosive Internet growth.

    But he’s right. Government should properly twist the arms of free Americans to force them to censor.

    1. I encourage him to repeal it, causing the stocks of twitter, facebook, Google, and so on to tank

      You’re kidding, right? These guys and their employees are the backbone of the Democratic party now. it wouldn’t matter if it was repealed, they’d find a way to make sure the companies’ bottom lines aren’t affected.

  6. S. 230 is one of the few things Congress has gotten right over the past few decades. You could argue that it goes too far (for example, in not requiring providers to remove things, except pursuant to DMCA takedowns), but the general principle is sound.

    1. The general principle is sound, I think the only problem is that some of the sites taking advantage of it aren’t doing so in good faith. They’re actually doing things that are outside the safe harbor, and counting on its boundaries not actually being enforced.

      1. “The general principle is sound”

        Which is exactly why section 230 is almost certainly going to get repealed eventually. Politicians just can’t let sound principles be. It’s like nature abhorring a vacuum.

  7. I find Wyden’s post to be, well, simply indecent. When is it going to be removed and when will those responsible be fired?

  8. “an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children,”

    What if the people are unborn babies? Uh oh.

    1. an individual endorsing (or denying) the extermination of millions of people

      This will be bad news for the Communists of social media, won’t it.

    2. Yes, once you assume the whole debate, the other side sure does look bad!

  9. I must be buying cut-rate copies of the United States Constitution — the indecency exception is always omitted.

    1. I must be buying cut-rate copies of the United States Constitution

      Goes along nicely with your cut-rate IQ.

  10. This thread points the way into a horrible, useless snarl.

    When every red herring, false lead, straw man, and ideological hobby horse has been worked to exhaustion, the issues left standing will be the need to recognize 5 points:

    1. That the big social media companies are in fact publishers;

    2. That they have become too large, which gives each of them too much control over content nationwide;

    3. Because legal prerogatives for publishers empower them to manage content, and are not prohibited censorship, the solution to the problems can’t be found by any method suggested by advocacy against censorship;

    4. The problems can be solved by reducing the size of the social media giants, resulting in newly available competitive space, and filling that space with rivals;

    5. Because Section 230 empowered the monopolistic-tending business models which resulted in this state of affairs, a method for doing 4 (above) can be found in revision or elimination of Section 230.

    Argue all you want. Until you come to grips with those 5 points, you are not going to be talking about the problem the nation needs to solve.

    1. The problem the nation needs to solve is that there are people out there doing things that make them happy, and Stephen Lathrop won’t stop until he’s turned every smile upside down.

      1. That is a very bizarre reading of Mr. Lathrop’s post.

        When people choose, under the veil of anonymity, to publish snark, hatred and lies for the purpose of inflicting harm on others, enriching themselves or simply drawing attention to themselves to compensate for their fear, that is a social problem that is not easily fixable by Senator Wyden or Mr. Pichai.

        I did my part by teaching my three children not be assholes. I hope others will catch the wave.

        1. *not to be. The lack of an edit function here is annoying.

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