Social Media

The Folly of Government-Imposed Social Media 'Neutrality'

Trump supports a bill that would encourage censorship in the name of free speech.

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Last week, two days after he lost a First Amendment lawsuit brought by critics he had blocked on Twitter, Donald Trump promised to "protect the free speech rights of ALL AMERICANS" through "regulatory and legislative solutions" aimed at guaranteeing equal access to social media. "At a time when social media platforms are banning conservative voices and supporters of the president," said Brad Parscale, Trump's 2020 campaign manager, "it's important for President Trump to emphasize that he appreciates their support and wants to protect their First Amendment rights."

No one would mistake the president, who averred during his "social media summit" that press coverage he considers unfair is "not free speech," for a constitutional scholar. But his views reflect widespread confusion about the First Amendment that has led many of his supporters to endorse policies that would interfere with freedom of speech in the name of protecting it.

In the case that Trump lost, the U.S. Court of Appeals for the 2nd Circuit ruled that he had created a "public forum" by using his Twitter account for official purposes and letting people participate in the "interactive space" associated with it. Under those circumstances, the court said, the president could not constitutionally exclude Twitter users whose opinions offended him.

The principle described in that decision is politically neutral. On the same day the 2nd Circuit issued its ruling, two critics of Rep. Alexandria Ocasio-Cortez (D-N.Y.), a prominent Trump opponent, filed lawsuits arguing that she had violated their First Amendment rights by blocking them on Twitter because of their views.

But the 2nd Circuit's ruling did not impose any obligations on Twitter or any other social media platform. That's because the First Amendment applies only to government officials, not to private companies, no matter how inscrutable or unfair their decisions might seem.

The premise of the so-called Ending Support for Internet Censorship Act, which Sen. Josh Hawley (R-Mo.) introduced last month, is therefore fundamentally mistaken. The bill, which Trump calls "very important," would charge the Federal Trade Commission (FTC) with determining, every two years, whether social media companies such as Twitter, Facebook, and YouTube are moderating content "in a manner that is biased against a political party, political candidate, or political viewpoint."

Companies deemed biased would lose protection under Section 230 of the Communications Decency Act, which says "no provider or user of an interactive computer service shall be treated as the publisher or speaker" of information posted by others. That principle, which was crucial to the development of the internet, generally shields websites from civil or criminal liability for material they did not produce.

To pass muster with the FTC, a company would need the votes of four out of five commissioners, three of whom are currently Republicans. In other words, if two Republicans think a platform is biased against Republicans, that would be enough to strip it of the vital protection that Section 230 provides.

Although Hawley claims he is trying to promote freedom of speech, the upshot of such decisions would be more censorship, not less. If they could not rely on Section 230, social media platforms would be forced to monitor content much more intensely than they currently do, since anything that is arguably libelous or criminal would expose them to liability.

Hawley argues that services such as Twitter and Facebook are getting "a sweetheart deal" while failing to "hold up [their] end of the bargain," which he says requires them to maintain "politically neutral" forums. But that "bargain" is a figment of Hawley's imagination. As Sen. Ron Wyden (D-Ore.), who wrote Section 230, recently told my Reason colleague Eric Boehm, the provision "has nothing to do with neutrality."

Hawley and Trump are pushing a solution to censorship that will encourage censorship, under the control of partisan bureaucrats who supposedly will guarantee neutrality. No conservative who claims to believe in limited government, free markets, and freedom of speech should be tricked into buying their snake oil.

© Copyright 2019 by Creators Syndicate Inc.

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  1. Orwell, thou shouldst be living at this hour.

    1. Saint Orwell is living. He never died, but ascended to heaven.

      1. I heard rumors at one point, in one of the safe spaces here at NYU, that he was seen lurking in the courtroom during our nation’s leading criminal “satire” trial, but they turned out to be unsubstantiated and to amount to nothing more than fake news and trigger “speech.” There’s no trace of any such visit in the documentation available at:

        https://raphaelgolbtrial.wordpress.com/

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  3. “In the case that Trump lost, the U.S. Court of Appeals for the 2nd Circuit ruled that he had created a “public forum” by using his Twitter account for official purposes and letting people participate in the “interactive space” associated with it. Under those circumstances, the court said, the president could not constitutionally exclude Twitter users whose opinions offended him.”

    “On the same day the 2nd Circuit issued its ruling, two critics of Rep. Alexandria Ocasio-Cortez (D-N.Y.), a prominent Trump opponent, filed lawsuits arguing that she had violated their First Amendment rights by blocking them on Twitter because of their views.”

    “But the 2nd Circuit’s ruling did not impose any obligations on Twitter or any other social media platform. That’s because the First Amendment applies only to government officials, not to private companies, no matter how inscrutable or unfair their decisions might seem.”

    No one is claiming that the ruling imposes any obligation on Twitter so why are you trying to refute something that was never said?

    Alexandria Ocasio-Cortez also created a “public forum” by using her Twitter account for official purposes and letting people participate in the “interactive space” associated with it. She is a government official after all, not a private company.

    1. And could they explain how a bureaucrat who uses Twitter should be able to block people? If some drone at the EPA, who creates asinine rules that others must live by, is on Twitter — is that not a public forum as well?

  4. Personally, do not what Trump is up to, he makes these policies without thinking about the overall impact. Anyways; it is nice to get information from your side.

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  5. We already have censorship. You might argue that it’s perfectly fine, because it’s not the government doing the censoring, just big tech. But we’ve already seen them not just keeping speech off their platforms, but people being denied financial services.

    1. “That’s because the First Amendment applies only to government officials, not to private companies, no matter how inscrutable or unfair their decisions might seem.”

      Sullum, you’re a delight , the Interesting Topics guy, and I hate to disagree with you lest you not provide further Interesting Topics for us to natter at in future. I do disagree, though. Politics are downwind of culture. Too frequently, we narrow gazes at politicians wallowing in polluted streams and make much of how they’re strolling about in raw sewage that cannot but bode ill for us all, all while neglecting that we’re looking downstream at the politicians cavorting through waterways in which we are actively pissing.

      The First only restricts government. The rest of us are free to demand whatever hell we find fit, and yet never mistake that a popular and profitable hell is nevertheless the one to take people by surprise.

      The trickiest thing about the free market is its ability to allow people to sell themselves into slavery, should no better opportunity present itself.

      1. My bad, Jeremy, I did not intend this to be a reply to you. I mean, it sort of works if we squint and tilt our heads, and yet that was not the intention.

      2. The First only restricts government.

        Technically, it only restricts Congress. SCOTUS is entirely free to tell you that you can’t, say, yell ‘fire!’ in a crowded theater. The executive is free to eject private citizens and members of the press and even detain them somewhat whimsically for limited periods of time.

        I’m not saying I agree with it and I agree that the US has some of the most liberal free speech laws and policies on the planet, but the idea that anything that can be conceptualized as speech is an automatic no-go for any government entity is incorrect. Free speech doesn’t mean you can lie to the IRS.

        1. The executive is definitely not free to violate the free speech rights of citizens, since all executive power flows from duly elected laws passed by congress. There is no free standing executive power, which is why the framers didn’t have to mention the executive in the First Amendment, because it is implied that something that limits the legislative also limits the executive branch.

    2. But we’ve already seen them not just keeping speech off their platforms, but people being denied financial services.

      Okay, and?

      I agree that this is problematic. What I don’t see are any proposed solutions to this problem that won’t make things worse.

      Should government create a right to access the formal banking system? Guaranteed checking accounts and credit cards for everyone?

      Should government prohibit discrimination on the basis of political viewpoint? So banks (and everyone else) must now be forced to associate with Nazis and Communists?

      Should government create a state-run commercial banking system for people who are denied service at private banks? Congratulations, you agree with Bernie on his post office proposal.

      I haven’t seen any proposed solution from the aggrieved right that would actually make things better. All I see are complaints, and “solutions” that would make things worse.

      1. God you’re a joke. The government isnt censoring anything baby jeffrey. They are removing excess benefits. Companies are free to remain neutral and keep said benefits, or censor away and dont. Stop being a fucking parody

        1. They are removing excess benefits.

          “Excess benefits” such as, not being liable for content that they had no role in creating in the first place?

          Is it an “excess benefit” if I am not charged for a crime my neighbor committed?

          You’re trying to frame government censorship of social media as something other than censorship in order to try to push a narrative. Be honest about what you stand for.

          And stop licking Josh Hawley’s boots. It’s unbecoming.

          1. “Excess benefits” such as, not being liable for content that they had no role in creating in the first place”

            If you’re willing…hell, ANXIOUS…to censor speech you dislike you then, by default, are expressing support for any speech that remains.

            That sound rough? Well, then don’t censor any of it without something like a court order and, well, your problem is solved.

            1. If you’re willing…hell, ANXIOUS…to censor speech you dislike you then, by default, are expressing support for any speech that remains.

              But that’s just silly.

              If Alice posts “I Love Trump!” and Bob posts child porn, but the platform takes down Bob’s child porn, this act does not imply agreement with Alice’s statement.

              1. Given that one of your examples is expressly illegal, your analogy sucks.

                If one guy posts “black guys suck” and another guy posts “white guys suck” and you only remove the post blasting black guys, you’re expressly supporting the post blasting white guys. Because you showed you will remove speech you find offensive AND you didn’t take that one down.

                Hey, again, all they have to do is not censor based on viewpoint. Would make their lives substantially easier.

                1. If one guy posts “black guys suck” and another guy posts “white guys suck” and you only remove the post blasting black guys, you’re expressly supporting the post blasting white guys

                  No, it doesn’t. If the site’s policy is “no insults against people of color”, then taking down the post with “black guys suck” is consistent with enforcing the policy, but says absolutely nothing about the site owner’s judgment on the merits, or lack thereof, on the statement “white guys suck”.

                  Here is another example:
                  Suppose person A writes “I love Trump”, person B writes “I love Bernie, and person C writes “I hate cats”. The site owner has a policy against hating cats, so he takes down person C’s post. So should we then presume that the site owner loves Trump, or loves Bernie? No.

                  1. “So should we then presume that the site owner loves Trump, or loves Bernie? No.”

                    So, if Twitter has rules that are quite specific AND utterly idiotic, then yes, they are safe?

                    Not sure why DO NOT CENSOR VIEWPOINTS is such a troubling concept.

                    1. Not sure why DO NOT CENSOR VIEWPOINTS is such a troubling concept.

                      Because it undermines private property rights?

                2. The text of the applicable law, section 230 of the Communications Decency Act, explicitly states that you are wrong. Choosing to remove some users or posts, does NOT, as a matter of law, mean that you endorse or are responsible for the remaining posts. Read the text of the law. End of story. Your opinion on the matter has nothing to do with what the law is. Once again, please read it.

      2. “Should government create a right to access the formal banking system?”

        Given that the government secures said system…yes. That is absolutely how it should be. Those banks didn’t create their own financial system.

        “Should government prohibit discrimination on the basis of political viewpoint? So banks (and everyone else) must now be forced to associate with Nazis and Communists?”

        Yes. Why should they not?

        “Should government create a state-run commercial banking system for people who are denied service at private banks?”

        No. Those private banks, though, should have zero access to the financial system secured by the government.

        1. “Should government create a right to access the formal banking system?”

          Given that the government secures said system…yes. That is absolutely how it should be. Those banks didn’t create their own financial system.

          Okay, so how would this work? Free checking accounts and credit cards for everyone? How about guaranteed car loan? Guaranteed mortgage? Precisely how far would this so-called right extend? What is to prevent this right to morph into complete nationalization of the banking system?

          1. “Okay, so how would this work? Free checking accounts and credit cards for everyone?”

            Would you prefer free accounts for white folks while blacks must pay a fee? If you qualify, they shouldn’t be permitted to refuse because you are rude. Sorry.

            “How about guaranteed car loan? Guaranteed mortgage? Precisely how far would this so-called right extend? ”

            Notice how I don’t blast you like everybody else does, Jeff?

            It’s because I’m polite. I fully notice the absolutely asinine attempts you make at logic, but am too nice to call you out for it.

            Can you, for the enlightenment of all of us, give us YOUR definition of “ACCESS”? Because what you are thrashing about here is not, by any definition I’ve ever heard of, access. It is guaranteed funding.

            1. What I mean by “access”, in the context of the banking system, is “the ability to successfully execute a transaction”.

              If I apply for an account, and get turned down, then I don’t have access to the banking system. Agreed?

              If I apply for an account, am approved, then I have access. If my permission is later revoked, then I lose my access. Agreed?

              What you seem to be saying, based on this standard, is that everyone ought to be able to execute transactions within the banking system. Is that correct?

              Notice how I don’t blast you like everybody else does, Jeff?

              It’s just a handful of trolls, Trumpbots, and insignificant people who are rude to me.

              1. “If I apply for an account, and get turned down, then I don’t have access to the banking system. Agreed?”

                Why were you turned down? That does matter.

                “What you seem to be saying, based on this standard, is that everyone ought to be able to execute transactions within the banking system. Is that correct?”

                Yes. If you have cash, you should be free to engage in any financial practice in our banking system. If anything you do involves credit — where somebody ELSE has to front the money — then, no you do not have a right.

                1. Why were you turned down? That does matter.

                  Why does it matter?

                  Under what circumstances do you think it would be acceptable?

  6. “That’s because the First Amendment applies only to government officials, not to private companies, no matter how inscrutable or unfair their decisions might seem.”

    That is not exactly what the supremes said – – –
    They said government ‘control’ over a space is sufficient. Which bodes ill for banning based on political content.
    The web is a public forum;
    While the Supreme Court has referenced the “vast democratic forums of the Internet,” Reno v. ACLU, 521 U.S. 844, 868 (1997), has described the internet (including social media platforms such as Twitter) as one of “the most important places (in a spatial sense) for the exchange of views,” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017), and has analogized the internet to the “essential venues for public gatherings” of Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 60 of 75 61 streets and parks, id., the lack of historical practice is dispositive, see Forbes, 523 U.S. at 678. Accordingly, we consider whether the interactive space is a designated public forum, with “governmental intent” serving as “the touchstone for determining whether a public forum has been created.” Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997). “Intent is not merely a matter of stated purpose. Indeed, it must be inferred from a number of objective factors, including: [the government’s] policy and past practice, as well as the nature of the property and its compatibility with expressive activity.” Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (citing Cornelius, 473 U.S. at 802-03). Here, these factors strongly support the conclusion that the interactive space is a designated public forum.

    No viewpoint descrimination in a public forum;
    D. Viewpoint Discrimination “[T]he extent to which the Government can control access depends on the nature of the relevant forum,” Cornelius, 473 U.S. at 800, so we next consider whether the blocking of the individual plaintiffs is permissible in a designated public forum. “Regulation of [a designated public forum] is subject to the same limitations as that governing a traditional public forum” — restriction are permissible “only if they are narrowly drawn to achieve a compelling state interest.” ISKCON, 505 U.S. at 678- 79; see also Cornelius, 473 U.S. at 800. Regardless of the Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 62 of 75 63 specific nature of the forum, however, “[v]iewpoint discrimination . . . is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Rosenberger, 515 U.S. at 830; see also Matal, 137 S. Ct. at 1763 (“When government creates such a forum, in either a literal or ‘metaphysical’ sense, some content- and speaker-based restrictions may be allowed. However, even in such cases, what we have termed ‘viewpoint discrimination’ is forbidden.” (citations omitted) (quoting Rosenberger, 515 U.S. at 830-31)).

    1. And that’s not what the article said…

      “But the 2nd Circuit’s ruling did not impose any obligations on Twitter or any other social media platform. That’s because the First Amendment applies only to government officials, not to private companies, no matter how inscrutable or unfair their decisions might seem.”

      The ruling applies to the government official who is in control of a particular Twitter space, not to Twitter generally. I can’t tell from the article whether Sullum agrees with that or not, but he’s clearly making the case that this is not a precedent for government regulation of Twitter (or the internet) as a whole

    2. The term “public forum,” designated or traditional, has traditionally referred to government property. The argument that the “the web is a public forum” is interesting in that “the web” is not really property but more of a concept. It’s hard to even come up with an analogy as to what exactly the web is relative to property.

      What IS clear, is that Twitter (for example), is NOT government property. If that’s the case, then how can Twitter as a platform really be a public forum? Doesn’t that designation violate the Takings Clause?

      1. If govt officials are using twitter (esp for advocating public policy), then how is it not a public forum?

        Granted, I actually don’t know what blocking someone on twitter means. But whatever it is, I can see where it could involve suppression of speech, press, or petition govt for redress of grievances.

        1. Govt officials also use newspapers and news channels to advocate for public policy. Are they public forums?

          Is any and all private property which a govt official uses to advocate policy a public forum?

          1. If they are writing an oped, then yeah it is. If someone else is writing ABOUT them, then no it is not cuz it is an exercise of speech/press.

            And yeah – I can also see where this means a particular channel is a public forum at times and not a public forum at other times.

          2. Yes, exactly. If you allowed Donald Trump to come to your house and hold a gathering open to the public, you couldn’t kick anyone out based on them not liking Trump. If they violated a law or were disruptive in some way, then that is different, but if the only reason they were ejected is because of opposition to Trump then that would be unconstitutional. The usage is what is determinative; if Trump wasn’t at your house you could kick anyone out at any time for any reason.

      2. Back many, many years ago, a Texas court, in a second amendment question, ruled that a parking lot at a mall, privately owned, was, due to its nature, a “public meeting place,” due to the fact that lots of people gathered there for lots of different reasons, and, therefore, employees of a particular business in that mall could not punish its employees for storing their firearms locked in the trunk of their car.

        So, it is not completely unheard of that, under certain circumstances, though privately owned, a place, and Twitter and Facebook are certainly “places,” can be determined as “public” for certain activities. Twitter is in no position to be able to guarantee freedom of speech, but may not be able to confine it, at least beyond its “terms of service.” Twitter and FB are really just versions of the community chalk board where people leave messages for each other. The person who provides the chalk board cannot be held responsible for what people write on it.

        1. Are you crazy? That chalk board owner is a publisher if he ever decides to erase it.

          1. “Are you crazy? That chalk board owner is a publisher if he ever decides to erase it.”

            Your opinion is not without merit. But, by the same token, he is not responsible for what people might write there during his once-daily or once-weekly “monitoring” of it. The same would be true for “message boards” which some businesses hang up for people trying to sell their unwanted goods, or trying to reach someone. Publisher? Yes, in the sense that he can remove the message board which he has provided. But that still doesn’t mean he is responsible for some jerk posting something unseemly on it.

          2. That isn’t correct. It was in classic English common law, but American constitutional principles have overturned that concept. A line of cases going back decades even before the passage of the CDA in 1996 followed the principle that the only person liable for words are those who wrote them.
            https://www.mercatus.org/publications/regulation/erosion-publisher-liability-american-law-section-230-and-future-online

            1. It was sarcasm

              1. Noted. You forgot your sarc-font 🙂

        2. But if the person routinely — i.e repeatedly each day — wipes out stuff they disapprove of, then this person cannot claim to be a platform.

          Again, a phone company is a platform. If Sprint cut your phone call because you called a tranny the “wrong” sex, then they’d be a platform. Just like Twitter is.

          1. Once again, there is NO legal requirement to be a platform. It isn’t in the law. What you are saying explicitly is contradicted by the applicable text. Why do you comment when you are so obviously ignorant?
            https://www.govinfo.gov/app/details/USCODE-2011-title47/USCODE-2011-title47-chap5-subchapII-partI-sec230

  7. For fucks sake cullum, nobody is asking for government control of social media. They are simply advocating removal of extra legal protections they have, protections most people dont have. Protections so broad that california dismissed Meagan Murphys contract dispute with social media on 230 grounds.

    Why is reason so fucking dishonest on this point.

    1. Why is reason so fucking dishonest on this point.

      Follow the money. Reason has become a hack publication for tech giants and various left wing globalists. I don’t see how else you explain their dishonesty on this issue, immigration, and trade.

      1. I don’t see how else you explain their dishonesty on this issue, immigration, and trade.

        Another explanation is that they support the Libertarian Party platform positions on these issues.

        1. Yeah that is it. Pleasing their donors has nothing to do with it. Libertarians are just special and above all reproach aren’t they?

          1. Do you disagree that a self-proclaimed libertarian magazine might not necessarily have nefarious motives in promoting the ideology it proclaims to follow?

            1. Nobody disagrees with John in good faith. Don’t you know that?

          2. In Leo’s defense, craven ineptitude and/or true belief could explain their stance.

            Personally, I’d believe almost any given mix of the three for any given writer.

    2. In Censor Jesse’s world, “extra legal protections” means “not being held liable for defamatory content that they had no role in creating”

      1. not being held liable for defamatory content that they had no role in creating”

        If they are censoring their content, they did have a role in creating it. They are publishers. Newspapers have no role in creating the advertising that appears in them. The NYT had no role in creating the libelous advertisement at issue in NYT v. Sullivan. Their publishing it made them responsible for it. The same is true of copyrighted material. If the NYT published an add that contained excerpts from a published book without permission, the Times would be on the hook for statutory damages.

        If social media companies want to deny people access to their platform for arbitrary reasons, that is their right. But once they do that, they are then publishers and not common carriers.

        This shit isn’t hard. You might try understanding how the law works before shooting your mouth off sometime.

        1. It would be practically impossible for Twitter to be able to censor or moderate every bit of content on its platform due to the nature of it as a platform. That’s the difference between it and NYT.

          1. It would be practically impossible for Twitter to be able to censor or moderate every bit of content on its platform due to the nature of it as a platform.

            No it wouldn’t. It does so now. They have algorithms and an army of people watching content all of the time. They have total control over that platform. Moreover, since when is “its hard” make it okay to violate the law or relieve you of the consequences of your actions?

            You people just refuse to believe that freedom comes with any responsibility. If you want the freedom to discriminate on your platform, great, it is your platform, but you can’t have that freedom without responsibility.

            Freedom with no concept of the responsibility that comes with it ought to be reason’s logo.

            1. No it wouldn’t. It does so now.

              Even the people who have been deplatformed by Twitter were able to post their content at some point. All it would take would be a screenshot of such content prior to Twitter having the ability to pull it down to be the basis of a defamation lawsuit against Twitter.

              1. Correct.
                Thus exercising their option to selectively censor demonstrates their ability to do so.
                They, and they alone, are responsible for this

              2. Even the people who have been deplatformed by Twitter were able to post their content at some point. All it would take would be a screenshot of such content prior to Twitter having the ability to pull it down to be the basis of a defamation lawsuit against Twitter.

                Sure, but there is no statutory damages or attorney’s fees in a slander suit and the real damages of a single tweet that was quickly removed would be so small that it would make no sense to bring it. There is very little danger of that.

                Copyright suits do have statutory damages, but they are something like a $1,000 per violation, which isn’t much to the social media platforms. So I doubt that would make it impossible to operate.

                The larger point here is that even if you are right and there is no way they can operate within the law without immunity, so what? All that means is that you can’t run a large social media platform and discriminate based on viewpoint or content. You have to act as a common carrier. Why is that such a bad thing that it justifies treating these companies differently than every other company is treated?

                1. All that means is that you can’t run a large social media platform and discriminate based on viewpoint or content.

                  All that public accommodation laws at the time meant was that you can’t run a cake shop and discriminate based on your religious views.

                  1. No one is forcing them to do anything. They just have to take responsibility for what they do. So the public accommodation laws are not analogous. There, people are forced to accommodate by the law. To be analogous, there would have to be a law that gave them immunity from tort liability in return for accommodating everyone.

          2. Thus they don’t selectively moderate and retain their status as a platform.
            Your argument is a point against your wishes.

          3. “It would be practically impossible for Twitter to be able to censor or moderate every bit of content on its platform due to the nature of it as a platform.”

            …bit they manage to censor content they do not approve of. Routinely.

            Therefore, logically, if anything remains — they support it.

            VZW, AT&T, et al do not censor content of phone calls because it’d be absurdly difficult to do so making trying a foolish errand. Twitter should do the same.

            But since they want to decide what is published, they lose the protections of not being a publisher.

        2. The NYT has editors that review and approve everything that goes in it *before* publication, making them responsible for content.

          Facebook, Twitter, et al don’t review anything beforehand, if they did they would have to operate like the NYT, where only staff writers and invited guests (or paid advertisers) get to publish content

          1. Facebook, Twitter, et al don’t review anything beforehand, if they did they would have to operate like the NYT, where only staff writers and invited guests (or paid advertisers) get to publish content

            No, but they know immediately when it goes up and have armies of people who monitor these things. Is it hard? Sure, but tough shit. Since when does something being hard relieve you of the duty to do it? If they don’t like it, they can always go back to being a common carrier and stop discriminating based on viewpoint.

            1. Except they don’t have any such duty, you’re simply inventing this concept as a premise for government control of the platform. Even if they didn’t censor anything, they’d still be a target for the government (see Backpage.com)

              1. Except they don’t have any such duty

                Yes they do. When you control the content of something, you are a publisher. If you don’t believe that, imagine if the phone company started refusing service to people because they didn’t like what they had to say over their lines. You think they would get away with that? Hell no. The phone company is a common carrier. If I plot to kill my wife using a phone, the phone company isn’t responsible for giving me the means. The price of that is the phone company has to take all comers. The social media platforms should be treated the same.

                Again, you think these companies should be above the law and above taking any responsibility for the way they run their platforms. How very Libertarian of you.

              2. “Except they don’t have any such duty, you’re simply inventing this concept as a premise for government control of the platform.”

                Why should Facebook be protected in a way media is not?

                Your argument about “government control” is that censorship should be just fine on social media.

                The argument of people like John, myself, and others is that social media is free to censor all they want. But the PROTECTIONS they get from the content that ALLOW to remain (and they have to allow it to remain, given a track record of removing content)’s liability concerns should go away.

                We advocate treating Facebook/Google/Twitter/et al the way we treat cell phone companies. Do your phone calls stop the moment you say something the cell carrier disapproves of? No. Because they are neutral content platforms. They do not censor ANYTHING.

                Can you make the same claim about Twitter? No. Facebook? No. Pinterest? Nope. YouTube? Nah.

                Why treat them like cell phone companies when they are closer in behavior to old school media entities?

              3. Except they don’t have any such duty, you’re simply inventing this concept as a premise for government control of the platform.

                Incorrect. They do have a duty and it’s written into case law. The CDA takes the issue out of the courts’ hands and put it in Congresses, in specific and overt violation of the 1A.

        3. If they are censoring their content, they did have a role in creating it.

          Once again:
          If Alice posts statement A, and Bob posts statement B, but the platform owner decides to remove Bob’s statement B, that removal does not imply agreement with Alice’s statement A. It only implies that statement A did not violate any of the rules of the platform.

          1. “If Alice posts statement A, and Bob posts statement B, but the platform owner decides to remove Bob’s statement B, that removal does not imply agreement with Alice’s statement A. It only implies that statement A did not violate any of the rules of the platform.”

            Given that they literally never express exactly HOW said posts violate the “rules” (which, mind you, are so vague as to be utterly meaningless and would not stand up to ANY legal scrutiny whatsoever)…what is your point?

            Then they can also change their rules AND punish you, years after the fact, for violating rules that were not in place when the material was posted.

            Why the hell are you defending these people?

            1. I’m not defending “these people”. I’m defending a certain principle here – private property rights. I’m also objecting to basic errors of logic.

              If two claims are made, then objecting to one claim does not automatically validate the second claim.

              If their site rules are too vague, then demand clarity in their rules. It’s not a demand that government substitute its judgment for the site owner’s judgment.

              1. The NYT is a private company. If a printer managed to sneak in “Chemjeff is a pedophile” into a day’s paper and the NYT refused to do anything — they could be sued. Harshly. It’s their fault for not making sure everything was right before they distributed it.

                Why should Twitter et al not have the same scrutiny? Why are they
                “special”?

                1. Was the printer hired on behalf of NYT to provide a service?

                  By contrast, are individual users on Twitter hired by Jack Dorsey to provide a service?

                  Here is a better analogy.
                  Suppose you go to a Bernie Sanders rally and blurt out “Elizabeth Warren Eats Puppies!” Precisely how much liability should Bernie Sanders suffer for that defamation?

    3. I think Sullum’s point is that if you strip the 230 protections of Twitter, then you’ll see a much broader deplatforming of people. Why would Twitter want to be potentially liable for content that it can’t reasonably control?

      Hawley and Trump are pushing a solution to censorship that will encourage censorship, under the control of partisan bureaucrats who supposedly will guarantee neutrality.

      The unintended consequences are worse than the problem.

      1. I think Sullum’s point is that if you strip the 230 protections of Twitter, then you’ll see a much broader deplatforming of people. Why would Twitter want to be potentially liable for content that it can’t reasonably control?

        We might, but all Twitter would be doing is turning away its customers. Frankly, I don’t really see why that matters. If the responsibility that comes with running a social media platform means banning tons of people, so be it.

        Moreover, Sullumn and the rest of you can’t have it both ways. You can’t on the one hand claim that deplatforming is not an issue because they are a company but then on the other hand say that stripping them of their immunity is bad because it would cause more deplatforming. Those two positions are mutually exclusive.

        1. Deplatforming is an issue. On that we can agree. I don’t think it’s a big enough issue that requires me not to respect the property rights of Twitter.

          There are other solutions to this. Free market solutions that don’t require a heavy hand. President Trump and the other Republicans could choose right now to leave Twitter and a significant portion of Twitters users would follow them to whichever platform they choose to promote. Twitter would change its position on deplatforming people or see a dramatic reduction in ad revenue.

          1. I don’t think it’s a big enough issue that requires me not to respect the property rights of Twitter.

            Since when is being immune from tort liability part of your “property rights”? No one is violating their property. No one is saying they have to do anything. All that is being said here is that they shouldn’t be able to avail themselves of special protections that other publishers don’t get and that were given on the assumption that they would act as common carriers.

            Do you not understand that? If you do, then why do you keep equating it to public accommodation laws? The two are not the same. You either don’t understand the issues involved her or are just being dishonest.

            1. Maybe the analogy isn’t perfect, they rarely are.

              Hawley’s bill is really more like a protection racket. Government agrees to protect Twitter’s business model with Section 230, so long as they conform with whatever 4 out of 5 members of the mob think is fair.

              Just stop and think about the potential negative consequences of Hawley’s bill. What do you think would happen if 4 out of 5 of these FTC commissioners happened to be Democrats? Do you not see the potential for corruption if Twitter needs just 1 more vote for something that they seem to think is vital to their business? It’s potentially an awful lot of power to give to these FTC commissioners.

              1. I agree that Hawley’s bill is a band aid on top of a gangrenous wound. However, Reason’s relatively unified ‘no it isn’t‘ attitude, especially when their obligation as libertarian magazine is the opposite, is arguably a similar or even worse condition or evil.

                1. It’s more like a tourniquet. We’ll stop the bleeding, but our arm might end up falling off.

                  1. It’s more like a tourniquet. We’ll stop the bleeding, but our arm might end up falling off.

                    Sure. Even then the loss of a limb may be preferable to sepsis and organ failure.

              2. Hawley’s bill is really more like a protection racket. Government agrees to protect Twitter’s business model with Section 230, so long as they conform with whatever 4 out of 5 members of the mob think is fair.

                Maybe Hawley’s bill isn’t the right answer. I am not debating the bill. I am saying what I think should be done. If that is somehow different from Hawley’s bill, so what?

          2. “There are other solutions to this. Free market solutions that don’t require a heavy hand.”

            Gab tried that. And then the tech oligarchs teamed up to shut them down as much as they possibly could. Limited availability of its app. Paypal cut its access to money. GoDaddy cut its access.

            True, they have found other ways to survive…but this whole “Well, just make a new thing” is bullshit when the “free market” is aligned to attack anybody, even if they are not remotely a competitor to them.

        2. Keep in mind, Google demands 230 protections while ALSO arguing that YouTube shouldn’t be forced to perform speech they do not agree with (i.e carrying videos they don’t approve of).

          As Tim Pool pointed out…platforms do not have speech. That is specifically why they aren’t liable for anything. None of it is THEIR speech.

          If you have free speech rights, grand. You’re not a platform. You cannot demand publisher rights AND demand platform protections. One or the other.

          1. Nothing you are saying is correct. Why do you keep lying about section 230?

    4. Most people don’t have those protections because most people aren’t publishers

      And if you think taking away those protections won’t be quickly followed up by more government control, you haven’t been paying attention. That’s literally the reason they want to take the protections away

      1. And if you think taking away those protections won’t be quickly followed up by more government control, you haven’t been paying attention.

        So taking away a government created immunity that no one else has will equal more government control.

        Freedom is slavery I guess.

        1. Everyone else has it. You aren’t liable for things I say. I am not liable for things that a third party says.

      2. Most people don’t have those protections because most people aren’t publishers

        Also, the mute don’t have a right to free speech and anybody who doesn’t already own a gun doesn’t enjoy 2A protections.

    5. They aren’t dishonest at all. You are.
      If California misapplied the law, then the issue is California, not section 230, and certainly not Season.

      1. *Reason. But that was obvious.

  8. So is T-Mobile, or any cell phone carrier, responsible for all the content of phone calls and texts?

    1. The difference is that T-Mobile doesn’t decide what can get transmitted over their “lines” based on their opinion of who the person speaking is or what they’re saying.

  9. “Congress shall make no law…” =/= “a company must grant access to anyone”.
    Don’t like what twitter is doing? Tough shit.

    1. Again, there is no demand for censorship. Twitter is free to censor anybody they want.

      They just will be liable for the speech they choose to publish from now on, since they do, in fact, choose what they do and do not permit.

      Cannot figure out why you oppose telling companies to either be content neutral platforms OR publishers but that one cannot be both.

  10. Companies deemed biased would lose protection under Section 230 of the Communications Decency Act, which says “no provider or user of an interactive computer service shall be treated as the publisher or speaker” of information posted by others. That principle, which was crucial to the development of the internet, generally shields websites from civil or criminal liability for material they did not produce.

    That principle wasn’t “crucial to the development of the Internet”, that section was crucial to the development of gigantic tech monopolies.

    Section 230 should just be struck. If it were, companies like Facebook and Google would be replaced by entirely content-neutral hosting companies.

    To pass muster with the FTC, a company would need the votes of four out of five commissioners, three of whom are currently Republicans. In other words, if two Republicans think a platform is biased against Republicans, that would be enough to strip it of the vital protection that Section 230 provides.

    Oh, please, if those “Republicans” make a wrong decision, there would be an endless string of lawsuits and injunctions.

    The fact is that this act is very easy to comply with: don’t moderate based on content or viewpoint. Only remove content that is illegal in the US.

  11. That’s because the First Amendment applies only to government officials, not to private companies, no matter how inscrutable or unfair their decisions might seem.

    Google and Facebook are not “private companies” in any practical sense; not only do these companies benefit from lucrative government contracts around the world that can be withdrawn on a whim and used as pressure tools, they are subject to stacks of nebulous regulations that allow Congress, the executive branch, and many bureaucrats (and their equivalents abroad) to exert massive pressure on them to comply with the political preferences of different groups. That is, if any important regulatory agency wants Google or Facebook to censor, they can force them to censor.

    So, in our progressive regulatory state, corporations like Google and Facebook are already extensions of parts of the government and as government censors. Hawley’s act is simply part of a power struggle between different parts of government of what form that censorship takes, and as far as government censorship goes, demanding content neutrality in return for providing legal exemptions that probably shouldn’t exist in the first place is arguably an improvement over what we have now.

    1. That isn’t how it works. Yes they are private companies. By your reasoning the government can tell every citizen what to do because it chooses to place regulations on them.
      That is fascist bullshit.

    2. Google and Facebook are not “private companies” in any practical sense

      Objection! Invalid premise!

  12. That principle, which was crucial to the development of the internet

    It wasn’t crucial to the development of the internet. The internet, including e-commerce, existed well before the CDA. The CDA was crucial to the development of Social(ly Irresponsible) Media.

    1. Indeed. It is no more vital to the establishment of the internet than government provided monopolies was vital to the establishment of phone service.

      It simply allowed large companies to control everything. Hell, the media SHOULD be outraged since these groups, which have largely replaced media, used Section 230 to do so.

      1. You have no idea what you are talking about. It is literally the opposite. Section 230 helps small companies. The threat of liability would mean that no small company could host user content, at all. You wouldn’t be commenting at Reason right now because there wouldn’t be a Reason comment section. Even if you win a lawsuit, you still have to pay court fees and discovery fees, etc. The threat of a lawsuit, on its own, is enough to make a business not allow any user content at all.

    2. Absolutely false. The internet existed, and previous court decisions, without Section 230, correctly held users of internet services liable for their speech. But the Stratton Oakmont decision went against the precedent. Under the rule of Stratton Oakmont, there would not have been user-provided content services going forward, because of potential liability concerns. So Section 230 was added to restate what proper common law principles of intermediary liability are.

  13. Section 230 of the CDA was written to specifically obviate or ‘rectify’ two ‘disparate’ cases. Cubby v. CompuServe and Stratton Oakmont v. Prodigy both of which were textbook cases decided according to pre-existing legal precept. CompuServe, which didn’t moderate its users’ content wasn’t found liable and Prodigy, which did moderate, was found liable.

    Of note, the Stratton Oakmont that brought suit against Prodigy is the same Stratton Oakmont created by Jordan Belfort, the titular character in The Wolf Of Wall Street, who later plead guilty to securities fraud and money laundering.

    Also of note, pretty much the entirety of the CDA has been overturned except Section 230.

  14. Okay, so you don’t want the FTC making the decision because it would give the government censorship power. Fair enough. Why not leave it to the courts? If a plaintiff can show a platform has exercised editorial discretion beyond objective, neutral, transparent standards (i.e. acted like a publisher), Section 230 won’t apply. If the social media giants want to be publishers, that’s absolutely their right. But, then they’re liable for all the same things any other publisher is liable for. Uniform rules that don’t set up cronies favored by the state used to be a pretty firm libertarian principle. Or have we moved on to where principals take precedence over principles?

    1. The courts are a great answer, but not how you describe it. We don’t need judges determining who is a publisher. The TOS are a contract. Enforce them as such.

      The other obvious solution is the market. Conservatives, including Trump (their biggest draw, by far), should simply leave Twitter for a service that doesn’t ban people based on their viewpoints. Trump alone could severely hurt Twitter’s bottom line almost instantly.

  15. Net Neutrality is a good idea.
    Every fascist censor is in favor of it, and you should be too!

  16. Leo is right – Hawley’s bill is more like a protection racket.
    “Run your platform the way WE think you should run your platform, and there won’t be any trouble, see?”
    It is just as odious as outright censorship and should be resisted by anyone who values liberty.

  17. The problem is, is that what YouTube, Google, FB etc are doing is so blatantly obvious. At the same time, the government has few if any legitimate ways to deal with it. The censoring is bad, but what is worse is the coordination and blatant targeting. I don’t know how it is solved. I would love to see the free market decide it, and maybe it will. Though, considering how these platforms have managed to do a fairly decent job of stunting any competition, I am not extremely hopeful. Also, considering how Europe and Canada are going full bore into regulating on line speech I also am less hopeful for a more free and open forum being competitive, as they will likely run afoul of the SJW in control of a number for so called ‘liberal democracies’.

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