Section 230

Sen. Josh Hawley Rails Against ‘Big Tech,’ Anti-Conservative Bias, and Section 230

"Google and Facebook should not be a law unto themselves. They should not be able to discriminate against conservatives."

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Hawley
KEVIN DIETSCH/UPI/Newscom

In his brief remarks Friday at the Conservative Political Action Conference, Sen. Josh Hawley (R–Mo.) accused "big tech" companies of discriminating against conservative voices—and called for the government to do something about it.

Hawley was interviewed on the CPAC main stage by The Wall Street Journal's Kimberly Strassel. He made clear that he believed purportedly anti-conservative big tech companies needed to be regulated.

"Google and Facebook should not be a law unto themselves," he said. "They should not be able to discriminate against conservatives. They should not be able to tell conservatives to sit down and shut up."

Hawley's proposed solution to this problem—which is not, in fact, a solution at all—is to meddle with Section 230 of the Communications Decency Act, which shields internet platforms from certain sorts of lawsuits. Section 230 treats companies like Facebook and Twitter as neutral platforms rather than publishers; if someone posts a libelous comment on Facebook, that person can be sued, but Facebook cannot. It is no overstatement to say that Section 230 is what allows the internet to exist in its current form. If content providers were to lose this protection, they would invariably default toward censoring all kinds of speech.

Thus, it is not at all obvious that an internet without Section 230 would be friendlier to conservative viewpoints, since this would actually give platforms even more cause to police speech. Strassel raised this issue with Hawley, saying "there are libertarians and some conservatives who say if you change Section 230, if you impose liability on them for anything anybody says there, they are going to go after even more conservative voices."

Hawley didn't really address this concern, but he did try to deflect libertarian opposition by framing Section 230 as a kind of special government-granted perk. He repeatedly called it a "sweetheart deal" between big government and big tech. It is of course true that big tech companies receive all sorts of illegitimate favors from government—for example, the hideous subsidies designed to lure Amazon to Arlington, Virginia. But Section 230 is very different. It conveys a sort of protection that more content providers ought to enjoy, from a maximally libertarian free speech perspective.

This is not the first time Hawley has expressed interest in modifying Section 230, and some within the White House share this desire. Again, torpedoing Section 230 protections for Facebook, Twitter, and Google would do very little to protect conservatives from unequal treatment—though it would make life much harder for these companies. That, I suspect, is the actual goal: revenge.

For a great explanation of why changing Section 230 is a bad idea, see this old Popehat article.

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63 responses to “Sen. Josh Hawley Rails Against ‘Big Tech,’ Anti-Conservative Bias, and Section 230

  1. “If content providers were to lose this protection, they would invariably default toward censoring all kinds of speech.”

    So what would be different from how it operates now?

    I’m not saying he’s right, but if they already censor commentators for saying “Learn to Code” then how can we still pretend like they are a neutral platform entitled to the protections of Section 230?

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    2. I’m not saying he’s right, but if they already censor commentators for saying “Learn to Code” then how can we still pretend like they are a neutral platform entitled to the protections of Section 230?

      That’s just half of it. They can shut people down for saying “Learn to Code” but if female celebrities promise sexual favors to have a teenagers beaten up, they’re just a neutral platform.

      Not only is 230 being violated when they filter their content, when they should be explicitly legally neutral and against specifically targeted calls to violence, they’re suddenly unable to filter their content.

      1. Wrong. A platform cannot “violate section 230”.

      2. That’s just half of it. They can shut people down for saying “Learn to Code” but if female celebrities promise sexual favors to have a teenagers beaten up, they’re just a neutral platform.

        Legal jiu jitsu might be the best strategy in that situation. The teenager in question can have his 14 year old friend “read the offer and let it motivate him to slap the target.” Then the friend can sue Facebook under the new changes in the law that brought down Backpage.

    3. I’m not saying he’s right

      He’s not wrong. It either needs to be more effectively enforced for neutrality at all points or done away with entirely.

    4. What? Section 230 says that providers can’t be held liable for what their users post. It has nothing whatsoever to do with being a “neutral platform”. It has nothing to do with how the provider is supposed to behave.

      It’s no different than saying a gun shop can’t be held responsible for what someone does after they buy a gun.

      1. If the platform isn’t neutral, then it is not a platform. It is a publisher. That is quite different.

        1. If Facebook posts something on Facebook then they are liable for its content. If a user posts something on Facebook then Facebook is not liable for it, but the user is. Period. It doesn’t matter how many people they unfairly ban. There is no “neutral platform” or “publisher” designation. All that matters is who posted the content.

          1. Facebook exercises editorial control over user’s posts. They are a publisher. But for the special exemption in the CDA, they would have the same liability as all other publishers.

            The phone company does not exercise editorial control. They are not publishers. They are not held liable for what you say on the phone.

            Publisher or common carrier. Pick one.

            Without the special exemption of the CDA, twitter would immediately choose common carrier.

          2. If Facebook posts something on Facebook then they are liable for its content. If a user posts something on Facebook then Facebook is not liable for it, but the user is. Period.

            If FB actively censors stuff they do not like — and we know that they, in fact, do that — ANYTHING that remains is, by default, approved by them. That makes them publishers, not a platform.

            It doesn’t matter how many people they unfairly ban.

            Yeah, it does. If you show that you are more than willing to censor voices, then the voices you did NOT censor are assumed to be approved by you. They brought the issues on themselves. I hardly bemoan their fate.

          3. As buybuy notes below, AT&T doesn’t end your calls if you say something they do not like. They are a platform. Facebook is not that. At all. Publishing houses only print books by authors. They don’t WRITE the books. Using your logic, if an author slanders somebody and the publisher is aware of it, well, it’s not THEIR problem.

    5. “If content providers were to lose this protection, they would invariably default toward censoring all kinds of speech.”

      The premise is simply false. It’s the opposite of the truth.

      There is no way Twitter wants to have a publisher’s responsibility for everything said on twitter. Censoring implies curating implies they are behaving like publishers.

      If content providers lost their special legal exemption to liability law, they would immediately stop being publishers and start being common carriers.

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    7. Bingo.

      I think half the problem is we need better enforcement of section 230. If Facebook and Google and Twitter want to censor speech fine. But then they lose the protection of 230 and are libel for anything posted on their site.

      They can’t have it both ways. Either they are just a means to allow things to be publish without editorial oversight (and hence not libel for what is published), or they allow things to be publish only with editorial oversight (and hence libel for what is published).

  2. “They should not be able to discriminate against conservatives. They should not be able to tell conservatives to sit down and shut up.”
    “there are libertarians and some conservatives who say if you change Section 230, if you impose liability on them for anything anybody says there, they are going to go after even more conservative voices.”

    Calm down, pissy eyes. One person effectively used Big Tech to become President, so maybe it’s not all that bad.

    1. “One person effectively used Big Tech to become President, so maybe it’s not all that bad”

      President We Rate Dogs 2020

  3. “It is no overstatement to say that Section 230 is what allows the internet to exist in its current form. If content providers were to lose this protection, they would invariably default toward censoring all kinds of speech.”

    It’s not even theoretical.

    Go to an online newspaper in Australia, and chances are you can’t get a comment on a story published without it being reviewed first. Companies that can’t afford to hire people to pre-screen comments either close their comment sections down or are just begging for lawsuits. We’ve seen this shit happen at Hit & Run where just getting a frivolous lawsuit shot down is still time consuming and expensive.

    Oh, and Facebook should be perfectly within their rights to discriminate against conservatives. And conservatives are perfectly within their rights to call out Facebook as a shitty platform for shitheads who are too stupid to care about their own privacy.

    1. “Oh, and Facebook should be perfectly within their rights to discriminate against conservatives.”

      And yet libertarians cry the blues about networks keeping their candidates out of presidential debates.

      1. We can complain about other people’s bad choices without necessarily advocating that the law be changed to force them to make the choices we want. That’s one of the great things about being a libertarian.

        1. Amen brother.

        2. What if you don’t think the law needs to be changed at all? Do you really think that the argument that these are “neutral platforms” will be sustained in courts over time?

          1. Agreed. The law requires platforms to be neutral and they aren’t neutral. No reason to change the law, just apply it.

            1. The law requires platforms to be neutral

              No it doesn’t.

              1. Yes it does.

    2. We’ve seen this shit happen at Hit & Run where just getting a frivolous lawsuit shot down is still time consuming and expensive.

      Except that without Section 230, it wouldn’t have been frivolous.

      1. I don’t think Section 230 came into play on that one. They were going after individual commentators, not the publication, and that can still happen with Section 230, per Robby:

        “if someone posts a libelous comment on Facebook, that person can be sued, but Facebook cannot. It is no overstatement to say that Section 230 is what allows the internet to exist in its current form”

        And the subpoenas didn’t have to do with libel. They were alleging criminal threat. It was entirely frivolous

        1. Those were dark times.

          1. But all glittery when you all tell it.

    3. “Companies that can’t afford to hire people to pre-screen comments either close their comment sections down or are just begging for lawsuits.”

      Just in case that wasn’t clear enough, the point is that what this fool wants to do to Facebook to punish them is exactly what the rent seeking bastards at Facebook want him to do.

      If Facebook could have it their way, everyone would be forced to hire people to read comments separate libel from sarcasm and hyperbole–and everyone who couldn’t already afford to do that like Facebook just couldn’t even become a competitor.

      If you really hate Facebook, don’t give them what they want.

      Facebook: “Whatever you do, Senator Hawley, please, Please, PLEASE–don’t throw me into that briar patch!”

      https://www.youtube.com/watch?v=v9oWq9zIXTY

      1. It’s like Big Box Store X being all for requiring every business in town to be completely wheelchair accessible.

      2. “If Facebook could have it their way, everyone would be forced to hire people to read comments separate libel from sarcasm and hyperbole”

        But that’s not what would happen.

        If you’re a common carrier, you’re not a publisher, and don’t have the liability of publishers.

        If I slander you on the phone, the phone company is not liable.

    4. Does the New York Times even allow comments anymore? I assumed they haven’t for a long time. Few Leftist sites do.

      Does the phone company ban people for BadThink? Not that I’ve heard. They’re a common carrier. They’re a platform.

      If you want to be a publisher, you have liability for what you publish.
      If you’re just a communications platform, you don’t.

      But for Congress interfering with a special carve out for internet companies, that’s the choice Twitter would face, and they’d immediately choose to be a platform, because they don’t want to be liable for all that is said in their current publishing platform.

    5. Plenty of journalists are looking for work. This is a perfect match.

  4. Oh, and I’ve got family using Slack for Facebook stuff now.

    Facebook’s competitors have already emerged, and their competition is the solution to consumer problems with Facebook.

  5. De Blasio and ‘co-mayor’ wife have wasted $1.8B of taxpayer money

    Chirlane McCray, wife of Bill De Blasio, is the proprietress of ThriveNYC, a mental-health-related something-or-other created four-plus years ago to give a little heft to the conceit that Bill and Chirlane were elected as co-mayors ? which is nonsense on stilts.

    Fast-forward to Wednesday, when the City Council was startled to discover that McCray and Team Thrive are closing in on having spent an eye-popping $900 million since the program’s inception ? and nobody seems to have a clue on what.

    1. Wow. That will definitely play well in Iowa.

      1. They must have learned from the Clintons how to use a nonprofit to line their own pockets.

  6. “there are libertarians and some conservatives who say if you change Section 230, if you impose liability on them for anything anybody says there, they are going to go after even more conservative voices.”

    She then went on to say “But don’t worry, there are plenty of libertarians who agree with you.”

  7. No, see this one. It’s Ken’s favorite:

    see this old Popehat article.

    1. That was Clark

      1. ClarkHat is best Hat

  8. But Facebook and Twitter are censoring and blocking content, so why should they be immune to lawsuits as a neutral provider? I’m no fan of the notion neccessarily, but it seems like a stolen base to assume it applies to these two entities.

    1. And as I recall Twitter was conceptually nationalized when the government said Trump can’t block people from posting on his private feed. Twitter is a townhall meeting so why can they censor at all?

    2. If someone puts a sign up in your front yard extolling hatred for LGBTQI+ Jews and you take it down, does that suddenly mean you’re no longer a neutral provider? That if someone else subsequently puts up a libelous sign on your front yard while you’re on vacation, that means you should be financially liable for its content?

      I don’t think so.

      Just because Twitter sells advertising to companies that don’t want their advertising associated with content that includes conspiracy theories, gun videos, or videos that are disparaging of Muslims, that doesn’t mean they aren’t a neutral provider as far as libel is concerned.

      1. Facebook curates, an editorial function.

        They are a publisher.

      2. It is impossible to post on Facebook without Facebook’s code posting your comment. If someone mails something libelous to your home, and your robot butler posts it in your front window, you need to turn the robot off each time you go on vacation.

  9. I don’t know, making platforms liable for the speech they allow might be a good thing. Maybe we should try it in a limited fashion, see how it works out. Maybe we could start with The Congressional Record, hold them responsible for the lies and bullshit and fake news and ignorance they publish.

    1. *Platforms* are *not* liable. You can’t successfully sue the phone company for slander if *I* slander you over the phone.

      *Publishers* are liable.

      What the CDA did was give internet companies a special legal carve out to *behave* as publishers with only the liability of a platform.

      End the carve out. They’ll go platform immediately and end the publishing, as they won’t want to be liable for everything on their platforms.

      If they choose to still be publishers, they will be sued to oblivion, or have to cripple their platforms as communication services. Either is fine.

  10. “If content providers were to lose this protection, they would invariably default toward censoring all kinds of speech.’

    That is what they are doing now. So why are they protected?

    Reason is even more dopey than usual today. Geez!

  11. It is no overstatement to say that Section 230 is what allows the internet to exist in its current form.

    Yeah, I’m calling full bullshit on this. The idea that you couldn’t say what you wanted on the internet prior to 1996 just doesn’t stand up to reason.

    What it actually smacks of is early net neutrality and codifying the idea that Ma Bell was providing a neutral utility rather than facilitating communications.

  12. The fair answer is for the platform to not ‘censor’ anyone. That is the fairness everyone should expect from the language of 230.
    That the social media sites would degenerate into vile chaos is immaterial, it would be fair.

    1. The CDA is premised on a number of findings and policy assertions, including user control and true diversity of political discourse.
      https://www.law.cornell.edu/uscode/text/47/230

      (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
      (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

      (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

      What exactly a finding or policy means in its implications to enforcement of the law is unknown to me. I would assume it delimits applicability of the law, as otherwise it’s superfluous to the legal interpretation of the statute. Maybe. Maybe not.

      But what’s clear is that the intent of the law assumes user control of content on a forum, not a publisher of curated ideas.

      1. The relevant clause for immunity is here:
        (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

        In this context, “objectionable” does not simply mean “anything the provider objects to”, as this renders all the other types of material superfluous parts of the law. They could have written “ban anything you want”. They didn’t.

        “Otherwise objectionable” means that the previously listed category are meant as exemplars of what objectionable is to mean within the statute. The objection needs to be within the ballpark of those categories, not simply “whatever you happen to object to”.

  13. NO

    CENSOR

    I

  14. Dissenter. Dissenter solves all of these problems without more government.

    Dissenter.com

    1. All your web are belong to us.

  15. Fuck Missouri in the ass. Garbage state. Hawley is a bitch.

  16. US Congress gave internet companies a special legal exemption from usual publishing law, with the legal privileges of publishers to control content but only the liability of common carrier communication platforms.

    If they ended the exemption, twitter would choose to behave as a common carrier tomorrow.

    The only thing the Congress needs to do to fix this is *undo* their original interference in the market.

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