Free Speech

Newspaper Lobbyists and Encryption Foes Join the Chorus Against Section 230

How the press learned to stop worrying and love censorship.

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The Department of Justice has joined the campaign against Section 230, the federal law that enables the internet as we know it. Its effort is probably part of Washington's ongoing battle against encrypted communications. And legacy news media companies are apparently all to happy to help them in this fight.

On Wednesday, the U.S. Department of Justice held a "public workshop" on Section 230. Predictably, it wound being up a greatest hits of the half-truths and paranoid bellyaching commonly employed against this important law.

Section 230 prevents digital companies from being automatically treated as the speaker of any third-party speech they assist in putting online. It also allows companies to moderate content without becoming liable for it. The law was passed in 1996 to address the fact that the then-dominant web companies felt forced to choose between very strictly gate-keeping or allowing a free-for-all if they wanted to avoid civil lawsuits and criminal liability over user-generated speech.

Section 230 has never prevented the Justice Department from enforcing federal criminal statutes against online violators, as many have misleadingly argued. (For a quick debunking of more Section 230 myths, see this video.) It acts as a shield against civil lawsuits and against state and local criminal charges.

U.S. Attorney General Bill Barr opened the event yesterday by saying that "criminals and bad actors now use technology to facilitate and expand the scope of their wrongdoing and the victimization of our fellow citizens."

This is the same line of talk Barr has used against encrypted communication.

Barr invoked child exploitation as one reason to reexamine Section 230. But the statute was passed explicitly to address this issue, as part of a larger law concerning "communication decency" and online pornography. It provides the legal framework that allows companies to actually try to keep exploitative content offline. And nothing in Section 230 prevents the enforcement of federal laws against child pornography and other forms of sexual exploitation.

"Section 230 has never prevented federal criminal prosecution of those who traffic in [child sexual abuse material]—as more than 36,000 individuals were between 2004 and 2017," points out Berin Szoka in a post dissecting draft anti–Section 230 legislation proposed by Sen. Lindsey Graham (R–S.C.). Graham's bill would amend Section 230 to lower the standard for legal liability, so tech companies needn't "knowingly" aid in the transmission of illegal content to be found guilty in civil suits and state criminal prosecutions; they'd merely have to be deemed to have acted "recklessly" in such matters as content moderation or product design. The legislation would also create a presidential commission to offer "best practices" on this front. Taken together, Szoka sees this as a back door to banning end-to-end encryption by declaring it reckless. (More on that bill from First Amendment lawyer Eric Goldman here.)

Barr's remarks yesterday didn't explicitly mention giving government backdoors to spy on people. Instead, he played up several popular (and wrong) arguments against Section 230, such as the claim that it's responsible for "big tech" restricting online speech or that it prevents us from having "safer online spaces." Lurking in these comments is the schizophrenic proposition girding a lot of Section 230 opposition: that getting rid of it would somehow permit freer speech online and keep online spaces "safer" and more palatable for everyone.

Barr also engaged in the kind of social media exceptionalism common among Section 230 critics, insisting that online platforms today are so radically different than their predecessors as to warrant different rules. In doing so, he suggested that walled-off internet services like AOL had less control over content than their current counterparts and implied that Section 230 only protects social platforms and "big tech" companies.

In reality, Section 230 applies to even the smallest companies and groups (and is more important for ensuring their existence than it is for big companies, whose army of lawyers and moderators have a better chance of weathering a post-230 onslaught of lawsuits from users). And it applies to many types of digital entities, including behind-the-scenes web architecture (such as blogging platforms and email newsletter software), consumer review websites, crowdfunding apps, podcast networks, independent message-boards, dating platforms, digital marketing tools, email providers, and many more.

Barr said Wednesday that the Justice Department was "not here to advocate for a position." Yet everything else in his speech suggested otherwise, including his waxing about how civil lawsuits against tech companies (of the sort disallowed by Section 230) could "work hand-in-hand with the department's law enforcement efforts."

He concluded the talk by saying "we must remember that the goal of firms is to maximize profit, while the mission of government is to protect American citizens and society."

So: tech companies bad, government good. Got that?

Not everyone in Washington buys this simplistic argument, thank goodness. In a recent Washington Post op-ed, Sen. Ron Wyden (D–Ore.), who co-authored Section 230, explains how the law protects individual speech rights and pointed out that major media and tech companies have in fact been working with regulators against the law.

"Occasionally," writes Wyden, "Congress actually passes a law that protects the less powerful elements of our society, the insurgents and the disrupters. That's what it did in 1996 when it passed [Section 230]." He explains that the law "was written to provide legal protection to online platforms so they could take down objectionable material without being dragged into court."

"Without 230, social media couldn't exist," adds Wyden. Neither could movements like Black Lives Matter or #MeToo. "Whenever laws are passed to put the government in control of speech, the people who get hurt are the least powerful in society."

People often pretend government regulation of speech is somehow neutral. But defining permissible speech can change greatly depending on subjective and partisan priorities. Without Section 230, what online content is permissible and who gets punished would be determined not by an array of private companies but by a centralized political institution with the power to imprison, not just deplatform.

"I'm certain this administration would use power to regulate speech to punish its enemies and protect its allies," writes Wyden at the Post. "It would threaten Facebook or YouTube for taking down white supremacist content. It would label Black Lives Matter activists as purveyors of hate."

A Democratic administration would approve and disfavor different sorts of speech. But we would still have a partisan and centralized command over the bounds of online communication. And either way, the spoils will go to the big tech companies that are best able to lobby, contribute, curry favor, or otherwise game the system.

Powerful entities like Facebook, Disney, and IBM are all fighting to re-write the rules for digital speech in their favor. A recent New York Times article detailed how the fight against 230 is being led by a coalition of old media companies resentful of Google, Facebook, etc. and other corporations whose business has been bit into by digital tools. For instance, Marriott has been campaigning against Section 230 as a way to stick it to vacation rental platforms like Airbnb.

"The easiest lever to hurt tech companies that a lot of people see is 230," Stanford Law School professor Daphne Keller told the Times.

Mike Masnick suggests this illustrates the "concept of political entrepreneurs v. market entrepreneurs. One of them builds better, more innovative products that increase consumer welfare and increase the overall size of the pie by making things people want. The other uses its enormous power and political connections to pass regulations that hinder competitors who have innovated."

The companies now opposing Section 230 are "the legacy companies which have fallen behind, which have not adapted, and which are using their political will to try to suppress and destroy the open systems that the rest of us now depend on," Masnick writes.

One such example from this week is the News Media Alliance, formerly known as the Newspaper Association of America, which "represents approximately 2,000 news organizations across the United States and Europe." At the Justice Department's Wednesday workshop, the group's president, David Chavern, testified that "Section 230 has created a deeply distorted variable liability marketplace for media." This, he said, is bad not just "for news publishing but for the health of our society."

Chavern insisted this wasn't merely about news industry profits. But he ended his testimony by endorsing a "Journalism Competition & Preservation Act," which he said "would allow news publishers to collectively negotiate with the platforms and return value back to professional journalism," which…sure makes it sound like this is about news industry profits.

And when entrenched industry profits line up with the feds' surveillance agenda? That's when we're invited to kiss the open internet goodbye.

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  1. Excellent piece! Responding a bit off topic, the next time Reason runs a story on porno, how about illustrating it with a picture of a hot dude instead of a hot chick? Unless all libertarians are either straight dudes or, you know, lesbos.

    1. Go to your next libertarian happy hour and find out. (Hint: don’t go looking for a date if you are a straight guy.)

  2. The national media wants to be the sole sources , the pols want control. Many gun grabbers want gun companies to be sued for people using their product to kill people. Then there’s the national gun permit Bloomburg wants to enforce. Seems freedom is being attacked in all forms.

    1. Yes, this is what a section 230 guarantees: Google and Facebook monopolies.

  3. If you want to see what the United States would look like without Section 230, go look at a website with a comment section in a country that doesn’t have the benefit of Section 230. Here’s an example from the FAQs at News Corp Australia (AKA Fox in the U.S):

    Q: Why is it possible to comment on some articles and not on others?

    A: Some articles are subject to legal constraints so comments will not be opened in case the comment may jeopardise court action or result in vilification. We typically allow comments on articles for 14 days following publication to ensure comments are timely and relevant.

    Q: Why are comments moderated?

    A: We moderate all comments before they appear on articles as a legal requirement to comply with Australian Law and to maintain appropriate community standards. We do our best not to publish comments that are in poor-taste, prejudicial or profane. We hold the right not to publish any posted comment if the comment does not comply with the Commenting Guidelines.

    Q: How do you moderate comments?

    A: After a comment has been posted, moderators and Editorial teams will review comments before they appear on article pages. We do our best not to publish comments that are in poor-taste, prejudicial or profane.

    Q: I complained about a comment and you didn’t remove it, why?

    A: We use our discretion in moderating the comments on articles. We moderate comments before they appear on our articles and do our best not to publish comments that are in poor-taste, prejudicial or profane. Comments that have been flagged by readers using the flag icon within the comments will be reviewed again. If your complaint is made within the comments forum, we cannot guarantee a response. Some of the reasons we remove comments include if comments break any laws or breach anyone’s rights, if comments are untrue, or if we believe they may be offensive to our readers. We also remove comments that appear to be for commercial purposes.

    https://www.newscorpaustralia.com/commenting-faqs/

    It is unlikely that Reason would keep this comment section open if Section 230 were repealed, and if they did keep it open, it is likely that all of your comment would be pre-screened for anything that might trigger a lawsuit–whether it would have merit or otherwise.

    Oh, and be aware, this sort of policy isn’t a blow to big companies like News Corp or Facebook. We know that Facebook wants this sort thing–because they have the financial means to hire people to screen comments before they’re posted and their smaller competitors don’t. Anybody who argues for getting rid of Section 230 is carrying water for Mark Zuckerberg, whether they realize it or not.

    1. You are aware IRCs and all chatrooms never caused AOL to pay out libel suits right? Over a decade and a half prior to 230 being passed.

      This dystopian nightmare the pro 230 crowd pushes doesnt actually help your argument.

      1. But the sky will fall without corporate carve outs to publishing liability!

        #LibertariansForCronyCapitalism

      2. See my comment below.

        1) All cases in which someone sues the party who didn’t write the defamatory comment are necessarily frivolous. It isn’t surprising if AOL never paid out on one of them. How much money did it cost AOL to fight those cases? Did AOL hire a legal team to do nothing but fight those cases? What about their smaller competitors?

        2) AOL’s service didn’t really take off until December of 1996, when they stopped billing customers by the hour and started charging customers a flat, monthly rate. Section 230 didn’t become law until President Bill Clinton signed the “Telecommunications Act of 1996” on February of 1996. That means AOLs service was mostly computer science nerds before Section 230 existed. No, I’m not saying necessarily that AOL couldn’t have gone mainstream without Section 230, but, yes, the fact is that Section 230 was law before AOL went mainstream.

        1. “All cases in which someone sues the party who didn’t write the defamatory comment are necessarily frivolous. ”

          A magazine can’t be sued for the articles they publish?

          I suspect that most of the writers are independent contractors, so that they are not “agents” of the magazine. They write articles. Reason buys them.

          Can they buy libelous articles and publish them without any liability? I doubt it.

          1. A magazine should not be liable for articles that they didn’t willfully choose to print, no.

            Incidentally, companies that turn wood pulp into paper shouldn’t be responsible for libelous comments that are written on the paper they manufacture either.

            We are not responsible for what other people choose to do.

            1. …or sites could at like platforms and not publishers. There’s that option.

              1. Makes no difference whatsoever.

                People shouldn’t be held liable for things they didn’t do regardless of whether you call them platforms or publishers or whether you don’t like them or what they’re doing.

      3. It is some smooth reporting that can refer to the looter-subsidized fake news octopus as “legacy news media” and not be drowned out by guffaws.

    2. isn’t a blow to big companies like News Corp or Facebook

      You do realize that the kids with the big money bags are the ones that people sue, right?

      1. You do realize that it’s the kids with the moneybags who live in court anyway. Facebook has its own legal team. When Steve Bannon met Breitbart in his “office”, it was in Breitbart’s parents basement.

        There’s this thing called rent seeking. Zuckerberg is going around lobbying Congress to pass laws that require Facebook to enforce certain guidelines by law right now–and they have the money to hire moderators to do nothing but read people’s comments and take them down.

        Your average new media startup doesn’t have that kind of money–which is precisely why Zuckerberg wants this regulation. He’s trying to strangle Facebook’s next competitor in the cradle–and everyone who wants to get rid of Section 230 is helping him, whether they realize it or not.

      2. YOU realize the whole point is to create a scenario where smaller companies can’t afford to legally defend themselves, right?

    3. The alternative to CDA 230 is for social media to act like common carriers and not publishers. Then enable users to do their own filtering, with delegation.

      The technical means is not complicated.

      Social media doesn’t *have* to be subject to corporate mind control.

      1. Go start yourself a blog.

        You don’t need a license to be a journalist. You don’t need a license to be a blogger.

        And there’s no reason why you should be held liable for something you didn’t write on your blog–but one of your commenters did.

        There’s no reason why you should act like a common carrier or a publisher or anything else. The only thing that matters is that if you start a blog, you’re not responsible for defamatory statements that you didn’t write. You are responsible for what you do–not for what other people do.

        1. It’s the publishing, not the writing of libel, that makes for libel.

          If a Reason writer writes some defamatory lies about you, and submits it to a Reason editor, that submission does not create damages unless you have some relation to the Reason editor.

          Reason does not absolve themselves of the liability in what they publish by saying “we only bought the article and published it, we didn’t write it.”

          And the “actual malice” standard is for public officials, and isn’t about being mean as much as knowing the libel was false, or acting with reckless disregard for whether it was false.

          https://www.thoughtco.com/the-basics-of-libel-and-libel-law-2073724

          1. “It’s the publishing, not the writing of libel, that makes for libel.”

            It’s the willful disregard or violation of someone’s rights that makes something rape, murder, robbery, arson, fraud, or libel.

            You cannot have willfully disregarded someone’s rights when you wrote something if you’re not the one who wrote it. And no, printing false accusations made by third parties isn’t and shouldn’t be libelous by itself.

            Kesha defamed her former producer in a text about rape to one of his business associates.

            https://reason.com/2020/02/07/kesha-defamed-former-producer-in-private-text-to-lady-gaga-about-rape-says-judge/

            If Reason had reported what Kesha had said, before the producer in question had denied it, that wouldn’t be libel by itself. Reason is and should be free to print the fact that Kesha said that producer did this awful thing–without being subject to libel laws. They don’t know whether the accusations are true, but Kesha’s accusation itself is a statement of fact.

            1. “They don’t know whether the accusations are true, but Kesha’s accusation itself is a statement of fact.”

              . . . i.e., there is no malice, no First Amendment equivalent of mens rea. It isn’t the printing that violates someone’s rights. It’s the malice.

              You can shoot people in the head in self-defense cases–because in a true case of self-defense, it’s impossible to distinguish between mens rea and self-preservation.

              Man gets his gun and gets in his car with the express intent of driving to his ex-wife’s house to murder her. On the way to her house, an extremely dense fog rolls in. As he’s driving along, he accidentally runs over his ex-wife. She was out jogging when the fog rolled in and strayed out into the middle of the street. Is he guilty of murder?

              The correct answer is “no”. Because he didn’t choose to run over his ex-wife, so there was no mens rea. If he had intentionally pointed his gun at here and intentionally pulled the trigger with the intention of shooting her, he would have been guilty of murder.

              Yes, there’s a difference between one person kicking a dog and another person tripping over a dog just like there’s a difference between being liable for the things you write and not being liable for the things you didn’t write. In both cases, the difference is mens rea.

            2. You just keep ignoring the law for what you feel should be.

    4. Facebook is already screening and censoring comments. That’s why Section 230 shouldn’t apply to them

      You’re right that there Reason comment section wouldn’t exist. Good riddance to this ad infested p.o.s. We can return to/switch to discussion forums independent of advertising and specific web sites like we used to have.

      Thanks for supporting the argument for getting rid of 230.

  4. I don’t know what to think about Section 230. Both sides seem to have pretty good arguments. I do, however, think that people should be able to more easily sue for libel and slander.

    1. In that case, a better regulation might require that people identify themselves–so that the individuals perpetrating the libel can be sued and they don’t have to go after the website to get to the person who actually perpetrated the libel?

      I’m voting against that, too. What are you going to do–make VPN against the law? There are Fourth Amendment implications, obviously, but even without that, anonymity is also a function of First Amendment speech protections.

      Jonathan Swift used numerous pseudonyms–or published anonymously.

      A right is the obligation to respect someone else’s choices, and anytime you have them, there is potential for people to abuse society’s obligation to respect their rights. You can’t have a right to choose to own a gun and not have some people use that right to purchase a gun and use it commit a robbery. You can’t catch every single armed robber either, and the idea that people who respect their obligation not to rob people can’t own a gun until we can guarantee that no one will ever rob someone and get away with it is ludicrous.

      This is a relatively new technology, and, over time, people may evolve mechanisms so that people willingly abandon their anonymity in order to be heard, but you can’t have free speech and anonymity on the internet and not have a certain amount of libel–just like you can’t have the First Amendment and not have a certain amount of libel.

      I once lived in an apartment where the next door neighbor sometimes played his TV too loud. That’s going to happen if you live in an apartment. It’s a problem, but it doesn’t necessarily require government involvement if your landlord doesn’t care and the your neighbor won’t stop. You have to come up with a solution yourself to that problem, and one of them is to just live with it.

      1. You can’t have a right to choose to own a gun and not have some people use that right to purchase a gun and use it commit a robbery.

        No one is arguing that the 2nd amendment gives people the right to commit armed robberies, though. A more appropriate analogy would be that, although we have a 2nd amendment, that doesn’t mean that gun store owners should be sued for what their customers do with purchased firearms (although there is a misguided push to change that).

        I think you have a point, Ken, which is why I am on the fence about it. But 230 is being abused to affect contracts in ways I cannot abide. It’s time to modify 230. I know you’re into the status quo, but I’m generally interested in improving things when possible.

        1. Abused to affect contracts?

          How is CDA 230 used to affect contracts?

          There are lawsuits in process about how deplatforming campaigns amount to tortious interference.

          https://en.wikipedia.org/wiki/Tortious_interference

        2. “But 230 is being abused to affect contracts in ways I cannot abide. It’s time to modify 230. I know you’re into the status quo, but I’m generally interested in improving things when possible.”

          The way to get people to stop abusing their right to own a gun is not to ban guns, and I suspect the abuses you’re referring to may not really be a function of Section 230 at all.

          Section 230 does not protect the right to violate contracts. Section 230 does not allow platforms to change their terms of service on an arbitrary basis so that content that conformed to the ToS when it was created doesn’t conform anymore–and so their creators are suddenly deplatformed after having invested considerable time, money, and effort into creating content for the platform–and from which the platform itself profited.

          These are the real problems, and government has a legitimate role in protecting the rights of content creators.

          The dream of burning social media to the ground with frivolous lawsuits because social media is rife with progressive social justice warriors isn’t the solution to anything. In fact, the mostly likely outcome of that misguided effort is to see Facebook and Google writing the laws. Rewriting Section 230 is basically carrying the wood for the people who are building a gallows with which to hang political incorrectness and the competition. If you think Facebook and Google are too big and influential now, wait until the only people who can keep sites like that up are the people with deep pockets to hire live moderators 24/7–like Facebook and Google.

          Look at that News Corp link from Australia!

          “After a comment has been posted, moderators and Editorial teams will review comments before they appear on article pages. We do our best not to publish comments that are in poor-taste, prejudicial or profane.”

          If political correctness and bias is your issue and that’s what the world looks like without Section 230, then that is not an improvement. That is the means by which no one gets heard on the internet unless it’s approved by moderators working for a major news outlet.

      2. This is a relatively new technology, and, over time, people may evolve mechanisms so that people willingly abandon their anonymity in order to be heard, but you can’t have free speech and anonymity on the internet and not have a certain amount of libel–just like you can’t have the First Amendment and not have a certain amount of libel.

        I agree, you’ll have some libel. But libel should be punished when possible. If the person cannot be identified, no suit will be brought. I don’t see this as some sort of existential crisis in the way you do and I don’t think your argument on the subject is persuasive.

      3. “Jonathan Swift used numerous pseudonyms–or published anonymously.”

        I’m pretty sure his publisher knew who he was. If he doesn’t then one will assume it is the work of the publisher. Imagine getting dragged to court for libel due to a FB post you made and claiming that you let some stranger use your account. It aint gonna fly even if it is true.

        Truly anonymous speech is incredibly hard to accomplish. You can publish a book under a false name, but the publisher is going to know someone involved if you expect to get paid. As a result if you commit libel the publisher can give info on who you are. Same goes with a website that you purchase. You can hide who you are, but you create a papertrail that leads back to you through things like payment processors.

        What we have now are businesses allowing anonymous speech, making money off of it, and no one is held responsible. It’s not that websites aren’t requiring people to use their real names, but the sites don’t have any way of identifying who is posting and they’re making bank. We’ve realized this is possible so why would we not be anonymous? If we use TOR/VPN we’re not getting in trouble. Both are free.

        A site owner can use those tools to post on his own site and then avoid liability. They just use the Shaggy defense and claim “It wussin me”.

        With cable TV subscriptions dwindling it really begs the question as to why CNN just doesn’t become an interactive computer service. They could have avoided the payout for the MAGA hat kid case. “It wussin me”.

        1. “Imagine getting dragged to court for libel due to a FB post you made and claiming that you let some stranger use your account. It aint gonna fly even if it is true.”

          It’s up to a jury to decide the relative importance and credibility of testimony.

          It’s up to the system of justice to refuse to hear cases against “defendants” who did not perpetrate the action in question–according to the plaintiff.

    2. What are the good arguments against 230?

      Without 230, your comments and posts will be pre-screened before they ever appear online (this is currently the case in many countries). Who thinks this is a good thing and why? If someone thinks Facebook etc. are abusing their dominant position to censor public discourse, eliminating 230 will do the exact opposite of what they want.

      1. Section 230 has been expanded way beyond it’s original intention. In the Megan Murphy lawsuit the judge invoked 230 for both contract violations as well as forcing a venue change to Silicon Valley judges. 230 is now being used to cover for generic contract abuse.

        Take YouTube as an example. YouTube advertised to content creators as being a free, all opinions allowed, shared revenue system. Content creators spent a year building a fan base and figuring out what did and did not work. Google simply changed the terms of this contract without warning, demonetizing videos made under previous rules as well as arbitrary and capricious rules (vague rules) that allow Google to still profit while content creators no longer do on some areas of content. And no this not a conservative only issue, go read up about protests from LGBT creators against demonetization.

        Basically 230 has been abused to create favored corporations. Major reform is needed if it is to be kept.

        But the facial analysis done by reason editors ignores the actual issues.

        1. “Take YouTube as an example. YouTube advertised to content creators as being a free, all opinions allowed, shared revenue system. Content creators spent a year building a fan base and figuring out what did and did not work. Google simply changed the terms of this contract without warning, demonetizing videos made under previous rules as well as arbitrary and capricious rules (vague rules) that allow Google to still profit while content creators no longer do on some areas of content.”

          I don’t understand why repealing Section 230 should be considered a solution to the problem of people misreading the statute the way it’s written.

          I don’t understand why repealing Section 230 is a good substitute for a real solution–like a class action lawsuit by content creators for breach of contract.

          1. I don’t understand why people think section 230 can’t be revised and improved.

            Why should section 230 be so expansive that it lets platforms unilaterally change the terms of its user contracts then met out punishments for behavior that occurred before the contract was changed.

            This doesn’t have to be a binary choice.

            1. I don’t recall seeing anything in 230 that prevents a user from suing a platform that does that.

              1. Me neither, but look up what happened to Meghan Murphy.

                Just because the law is misinterpreted doesn’t mean it can’t be rewritten or amended to try to make it more clear and less prone to abuse.

                1. Just because the law is misinterpreted doesn’t mean it can’t be rewritten or amended to try to make it more clear and less prone to abuse.

                  One judge misinterpreting a law in one case is not cause to start re-writing laws.

                  1. No one said it was only one judge and it only happened this one time.

                    1. No one has to. I’ve never heard of a second case. Do you know of one?

                    2. Many judges and prosecutors have misinterpreted the theft and murder laws when law enforcement was the perpetrator. I think we need to rewrite those laws.

              2. Oddly you arent the court system and I actually provided a lawsuit where the judge read it differently than you. Sometimes it helps to look at how a law works in practice and not how you personally read the law.

                1. That’s exactly one case, which most everyone agrees was poorly decided and tortures the text of Section 230.

                  If a judge decides the 2A applies only to government agencies, not individuals, that’s the judge being wrong, not the 2A being wrong.

                  1. So we are going with naivete and hope as a defense? There have been multiple lawsuits dismissed on similar grounds, so it isnt one judge.

                    The only reason Nunes lawsuit wasnt dismissed was because the judge agreed with his argument for liability for twitter not enforcing it’s supposed rules.

                    The judicial system works largely off of precedents. It is why lawyers have law clerks look for established rulings. Murphy is the most public lawsuit so far and will be utilized as precedent for the most part until over ruled by a higher court.

                    Let’s stop this mythical defense of a law that is abused.

                    Did you think it wasnt worrisome when various district judges started ignoring Heller?

                    1. Murphy is the most public lawsuit so far and will be utilized as precedent for the most part until over ruled by a higher court.

                      This contradicts what I said how?

                      Did you think it wasnt worrisome when various district judges started ignoring Heller?

                      So . . . repeal the 2A?

                  2. “That’s exactly one case, which most everyone agrees was poorly decided and tortures the text of Section 230.”

                    Yet that was the decision. Incredibly poorly decided cases still become law (see Roe v Wade for a prime example).

                    Section 230 provides benefits if one ALSO honors their obligations. Why provide a benefit when an obligation is duly ignored.

                2. Murphy is not seeking damages for Twitter’s failure to comply with an alleged contractual or quasi-contractual promise, but rather is seeking injunctive relief to compel it to restore her and others’ Twitter accounts and to refrain from enforcing its Hateful Content Policy against her.

                  Looks like she did it wrong.

                  1. You may think the following actions are solid contractual actions, I dont.

                    “Twitter enforced its new ‘misgendering’ policy retroactively to permanently ban Murphy based on Tweets that she sent before Twitter covertly enacted the new policy sometime in late October 2018,” the lawsuit said. “It also promulgated and enforced its new policy without giving Murphy or any other user advance notice of this change, despite having expressly promised in its Terms of Service that it would provide users 30 days’ notice of changes that affected their rights or obligations with respect to their use of Twitter’s services.”

                    I used to have the link to the decision, the judges reasoning was terrible.

                    1. the judges reasoning was terrible.

                      The italicized text was from the decision. It wasn’t a great decision, but it seems more like it came down to a procedural issue. Who knows what would have happened if she sued for damages instead.

                3. Although I must say, her complaint sure makes me want to be on her side.

                  ”I think it’s really scary that this massive corporation has so much power over the information that we’re allowed to access and the news we’re allowed to access and what journalists and writers are allowed to say and criticize and comment upon.”
                  “People can say, ‘Well, it’s a private company, they can do what they want, they can make their own choices.’ But we all know that social media controls information now. We can’t just pretend this is just a private company. We’re giving them way too much power if we do that.”

                  *eyeroll*

              3. https://www.law.cornell.edu/uscode/text/47/230

                The actual text seems about right to me. Maybe it could use some clarification on what contractual obligations platform providers have.

                1. Weve been through this zebra. And youve ignored it every time. So why bother.

                  I’ll posit a question I asked last time and you refused to answer.

                  On what other commercial enterprise do you support one side arbitraril changing terms on a whim? What other commercial enterprise do you support the use of vague clauses in defense of contracts?

                  You’ve already made it clear you support privileged companies in this regard.

                  1. On what other commercial enterprise do you support one side arbitraril changing terms on a whim? What other commercial enterprise do you support the use of vague clauses in defense of contracts?

                    What part of Section 230 addresses contract law?

                    You’ve already made it clear you support privileged companies in this regard.

                    When you start straw-manning, it doesn’t make you look confident in your argument.

                  2. 1. I’m not refusing to answer anything. I have other things to do.
                    2. Why do you think I support arbitrarily changing terms of a contract on a whim? To be clear, I think perhaps it could use some clarification that platform providers are obliged to honor the contracts they enter into with users. And I don’t support privileged companies. The same rules should apply to all companies.

          2. Ken… you should have read the full post.

            “Major reform is needed if it is to be kept.”

            1. You know why we can’t get people to support calling a new constitutional convention to consider a new amendment requiring a balanced budget?

              It’s because they don’t trust people not to try to outlaw abortion in exchange for language nullifying the Second Amendment–or something like that.

              Persuade me that what you really want to do by “improving” Section 230 is to continue to provide content forums with protection from frivolous lawsuits, and I might listen.

              Right now, they’re coming after Section 230 from both the left and the right to take that protection away. Why should I pretend otherwise?

              1. It is worthless to persuade you because you believe in a dystopian outcome if 230 is not kept. See your first post.

                1. See your first post.

                  The one where he provides the concrete example of the dystopian outcome?

                  1. Yeah, I don’t know why that keeps getting lost in the shuffle here.

                    It seems to me these people are looking for a novel way to destroy Facebook, and they figure the unintended consequences don’t matter as much as that.

                    That’s how we got Wickard v. Fliburn among other shitty knots that will probably never be untied.

                2. I don’t think citing a country that does not free speech as a constitutionally protected right really fits here.

                  The First Amendment is the internet’s first amendment too. Section 230 is just cronyism at this point.

                  1. Again, the question isn’t whether people are liable for comments they didn’t write. The question is whether people who didn’t write libelous comments can be hauled into court to defend themselves against allegations that the plaintiffs don’t even allege were perpetrated by the defendant.

                    You’re pointing to a distinction without a difference.

                    I assure you, American companies are just as worried about having to defend themselves against nuisance lawsuits as News Corp and the other companies that operate in Australia. If the companies in Australia are worried about a flood of nuisance more than we are, it isn’t because they don’t have the First Amendment. It’s because they don’t have Section 230.

                    Are you or are you not alleging that American companies like Facebook wouldn’t suffer a flood of frivolous lawsuits if Section 230 were repealed–because of the First Amendment?

      2. Censorship doesn’t matter. They’re private companies. Those arguing censorship are barking up the wrong tree. You can’t and never will have public discourse on a private platform. Just the illusion of it. You can have public discourse at a town hall meeting.

        If one goes into a knitting forum and complains that all talk of big boobies is being removed then maybe they’re in the wrong forum. We know what the tech companies are like and what positions/ideas they favor. If you’re complaining you’re in the wrong forum. If you don’t like that because everyone else is there and you don’t want your post removed then maybe change your point of view. It becomes your problem. They’re private. Demand government-owned/operated interactive computer services. (Don’t use them though)

        230 was made because a bad court ruling lead to it being more profitable to not moderate. With the way tech and the law is now it is more profitable to moderate however you please, let anyone use it without knowing who they are, and allow a foreign government to intervene in an election because interactions skyrocket. (The cost of the investigation far surpassed the cost of intervening and the profits made go far beyond both)

        I don’t care this way or that way about Trump. I gotta admit if Warren or Bloomberg wins the companies are going to take a massive hit. It’s highly-profitable for them to make sure the candidate that causes the most interactions (outrage causes that) to win.

        Here’s the thing:

        CDA 230 means we can’t know if those that operate the site are creating content that’s defamatory because by the time the site is taken to court they claim immunity. You can’t get discovery and there is no law saying that they have to retain data anyways.

        Look at the MAGA hat kid. It’s more profitable to allow people to suffer damages without any form of recourse than to prevent it. (MAGA hat kid didn’t win a court case. No precedent was set) There is no incentive to improve and unlike a news network they’re in the clear.

      3. The phone company doesn’t pre-screen your texts and phone calls. Yet they still manage to exist.

        Removing CDA 230 removes a particular legal carve out for online communications providers that allows them to behave as publishers with only the liability of common carriers.

        Remove 230, and they revert back to prior law and common law precedents.

        End the carve out, and the viable strategy for social media is to behave as common carriers, while enabling *users* to control how their media is filtered.

        1. “The phone company doesn’t pre-screen your texts and phone calls. Yet they still manage to exist.”

          Should the phone company be liable for defamation if I say something bad about you over the phone?!

          1. No. Which is part of the point.

            Phone companies should not be held liable. Phone companies act as common carriers and not publishers.

            1. Phone companies aren’t responsible for what I say because they didn’t say it. If they said something defamatory, they would be liable–whether they said it over the phone or otherwise.

          2. “Should the phone company be liable for defamation if I say something bad about you over the phone?!”

            If they censor some calls, yes.

            If they do not…no.

            Companies cannot whine that their preferred actions are too hard to do well.

    3. Both sides seem to have pretty good arguments.

      FFS here we have, on a libertarian website, a ‘both sides’ argument where one side is a law regulating free speech passed by Congress.

  5. “Without 230, social media couldn’t exist,”

    OK; given that, what’s the down side?

    1. Do you really want to return to the pre 1990s times without journalism?

    2. Or heaven forbid a return to slideshow parties….

  6. We have in our lizard brains two primal urges at play here: avoid personal responsibility and tell others what to do.

    So we want to broadcast all kinds of bullshit, but lay the blame on others when it gets distributed (or not). And we want to control what others get to say, on the individual and national (or even global) level.

    At least social media better reveals human psychology than old school curated media.

    1. “So we want to broadcast all kinds of bullshit, but lay the blame on others when it gets distributed (or not).”

      What about when you can’t lay blame on who originally broadcasted it because of how the system was designed and then you can’t lay blame on who designed/owns/operates/profits from the system? These “Oh well, what can you do?” situations are going to become the norm because everyone is going to avoid blame. The parties enabling that are immune.

    2. “So we want to broadcast all kinds of bullshit, but lay the blame on others when it gets distributed ”

      If you behave as a publisher, you get the liability of a publisher.
      If you behave as a common carrier, you get the liability of a common carrier.

      If I call you on the phone and call you a douchebag, you can’t sue the phone company. You can hang up. You can even block my number.

      Common carrier + user control makes for a communications platform.
      Curating content makes for a publisher.

      Choose.

      1. It doesn’t seem that black and white to me. Serious question: if a bookstore chooses not to carry certain books, say ones that are clearly defamatory to someone, is it a publisher in your mind, and can it be successfully sued because it didn’t catch all defamatory books?

        1. Few things in society are black and white.

          Law draws lines. I don’t know how caselaw has turned out for bookstores (or most any large retail outlet, which likely sells books or magazines somewhere).

          I assume that retailers are ordinarily not held liable for libelous books they sell. Maybe if they knowingly sell a libelous book. The lines between publishing and distributing are also worked out through caselaw.

  7. One such example from this week is the News Media Alliance, formerly known as the Newspaper Association of America, which “represents approximately 2,000 news organizations across the United States and Europe.” At the Justice Department’s Wednesday workshop, the group’s president, David Chavern, testified that “Section 230 has created a deeply distorted variable liability marketplace for media.” This, he said, is bad not just “for news publishing but for the health of our society.”

    Enemy of the People

  8. Maybe we should have an amendment to the Constitution about the principle of free speech and how providing a platform for speakers is not the same thing as actually speaking.

    1. If it weren’t for Section 230, third parties wouldn’t be liable for things they never wrote anyway–because our libel laws had to evolve in the face of the First Amendment. In order to win a libel claim, you must show malice.

      The Second Amendment doesn’t protect violating other people’s rights with a gun, and the First Amendment doesn’t protect violating other people’s rights with your speech. In order to be found guilty of violating someone’s right with a gun, you need to prove mens rea, that what you did, you did on purpose. Even if it’s a case of negligent homicide, you may need to prove to the jury that you purposely disregarded someone’s rights. Largely because of the First Amendment, if you want to prove that speech in question violated someone’s rights, you need to prove “malice”. You knew what you were saying or writing was bogus, and you did it anyway in violation of that person’s rights. Without that malice standard, it’s covered by the First Amendment.

      A third party website, like Reason, can’t possibly possess malice for a statement that one of their commenters wrote–so there’s no way they can possibly possess malice. Section 230, therefore, isn’t really protecting websites like Reason from guilty verdicts in defamation cases. What it’s protecting them from is frivolous lawsuits–which are a legitimate concern. If the suit doesn’t address the author of the comment in question, then it has no business being heard by the court. Incidentally, a lawsuit that goes after Miller Brewing Company for the damage done by drunk drivers or Smith & Wesson for a mass shooting shouldn’t be considered to have any merit either. If you want to go after someone who committed a crime, don’t go after the person who didn’t commit the crime by your own admission.

      1. Very well said sir.

      2. Of course, there are a ton of nuissance lawsuits, and preemptively cutting them off is a huge benefit (both to society and the putative targets of nuissance lawsuits).

        But Section 230 is necessary for allowing platforms to moderate content without being liable for the content which doesn’t get moderated. And it’s hard to believe the world would be better off if platforms couldn’t moderate content – it would mean you couldn’t even have children-friendly areas of the internet, and you’d force websites to host abhorrent speech or prevent comments altogether. I mean, it’s pretty obvious outfits like 4chan would go crap all over the internet if they could for the lulz.

        1. But Section 230 is necessary for allowing platforms to moderate content without being liable for the content which doesn’t get moderated.

          ^ This.

      3. In a lot of jurisdictions if someone publishes a false statement of fact about you, it harms your reputation, and you can prove that they made it then you have a case. Sometimes you don’t have to prove that there were damages caused. If someone publishes on FB that you have AIDS and syphilis you have a case if you don’t regardless of if that person truly thinks you do. Malice isn’t needed there if you aren’t a public figure. The standards are much lower.

        There are cases out there with high rewards issued for simple mean things that someone said on FB. One that comes to mind exceeded 50K and it was someone inferring another person was a drunk. They had a case because they could prove who said it and display that they weren’t an alcoholic. No dollar amount of damages was required.

        When the third party allows a person to broadcast the libel anonymously it creates a problem and results in people purposely posting anonymously so they can libel someone with malice and get away with it. The third party enables it and profits from the damages caused to you. 230 means that the 3rd party never has to do anything to prevent it and as we saw from MAGA hat kid the business of anonymous defamation fuels lots of interactions which results in money being made off of it.

        1. Is commenting the only time anonymity becomes a problem?

          Should it be impossible to perpetrate financial transactions without the government knowing about it, too?

          What about monitoring speech in public places? We can’t just let people talk to each other without verified name tags–because they might say something about each other that isn’t true?

          There are all sorts of problems that really shouldn’t be solved by government, and the “problem” of anonymity is one of them.

      4. “If it weren’t for Section 230, third parties wouldn’t be liable for things they never wrote anyway–because our libel laws had to evolve in the face of the First Amendment. In order to win a libel claim, you must show malice.”

        If Reason publishes a libelous article, they’re liable, and can’t simply foist off all legal liability to their writers.

        If they’re going to similarly behave as publishers in their comments section, they should have similar liability.

        Arguably, CDA 230 struck a reasonable balance, providing an exemption for blocking particular classes of nuisance speech, but unfortunately “otherwise objectionable” in the law was incorrectly interpreted to provide a blanket immunity to blocking any and all communications the company preferred to block.

        You want the phone company to do that too? Internet backbone companies? Should hotels bug your room and kick you out for WrongThink?

        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”.

        1. “If Reason publishes a libelous article, they’re liable, and can’t simply foist off all legal liability to their writers.

          If they’re going to similarly behave as publishers in their comments section, they should have similar liability.”

          Reason has the power to hire and fire their writers. Their writers probably have an employment contract with the Reason Foundation. Reason may have editors whose job it is to approve stories before they’re published. You don’t think they read what their writers are writing before they publish it in the magazine? Reason willingly takes on the liability for what their employees write.

          Commenters have none of those features. Reason hasn’t accepted the liability for what I write in any way so Reason isn’t and shouldn’t be liable for what I write. They can’t fire me because I don’t work for them. There is no employment contract implied or otherwise. They have no obligations to me, and I have none to them. Why should they be held responsible for my choices?

          1. “Reason has the power to hire and fire their writers. Their writers probably have an employment contract with the Reason Foundation. ”

            Maybe. Maybe not. I think most magazines take article submissions and print those they like. I doubt that Reason writers are hourly employees. They likely have business to business contracts with Reason for them to submit articles and *maybe* get paid, if Reason likes it and decides to publish it.

            Much of publishing works without employees. You submit articles, maybe they like it, publish it, and pay you.

            IN academic publishing, you submit articles, and you *hope* they publish it and you get a chance to *pay them* for the privilege. I assume academic journals have libel liability for what they publish too.

          2. AFAIK, Reason doesn’t curate their comments section, hence they’re acting as a common carrier in their comments section, and hence have no liability for what is published.

            CDA 230, *rightly interpreted* to protect removal of nuisance posts but not any and all WrongThink, would explicitly apply too.

            1. You keep using this “common carrier” word as if it makes a difference.

              Under no circumstances should be people be held liable for things they didn’t do. When the plaintiff admits the person they’re suing didn’t do the act in question, the case should be dismissed.

              End of story.

              1. Publishing is a doing. Acting as a common carrier is *another* doing. We get different legal liabilities for different doings.

                Behavior makes a difference. If I shout at you at a million decibels and explode your head, I don’t get to say it’s just my freedom of speech. Libel law is about publishing ideas, not writing them.

                Phrases like “end of story” are a tell for cognitive dissonance when people sense that they have no argument.

            2. The appropriate term for holding people liable for things they didn’t write is “injustice”.

              1. Libel law is about publishing, not writing.

                You can insist a million times it is not the case. It still will be.

    2. Providing a platform where you curate content is generally called publishing.

      In academic journals, you submit your article, and if you’re lucky, you pay for the privilege of them publishing it. I think reviewing it as well. But I don’t think the publisher is has no libel liability from publishing libelous articles because they didn’t write it.

      Twitter curates content for WrongThink.

    3. Maybe we should have an amendment to the Constitution about the principle of free speech and how providing a platform for speakers is not the same thing as actually speaking.

      Let’s start it off by by saying “Congress shall make no law” and then look the other way when Congress does pass a law.

      Also, free speech doesn’t mean dick if the people with all the money and the people in the government can never be required to listen, we should probably roll the principle of free speech up with the right to petition. And *then* look the other way when Congress passes a law, which our amendment says they can’t pass, that fucks with *both* free speech *and* the right to petition.

  9. Section 230, the federal law that enables the internet as we know it

    “Without 230, social media couldn’t exist,”

    The Internet is not social media. Social media is not the Internet. It’s fine to say that social media wouldn’t exist without Section 230, it’s silly to say the Internet wouldn’t.

    1. Depends who “we” is. For many people, I’m sure that the Internet as they know it is social media, streaming services and Amazon.

    2. Just the same, Facebook and Twitter aren’t social media. People were socializing on IRC, BBSs, Usenet, and P2P applications well before even Myspace and section 230. There’s certainly an argument to be made that those media were on the decline prior to the rise of Facebook and section 230 but there’s an empirical case that people are less able to communicate and less able to do so freely now than prior to Facebook and Section 230.

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