First thoughts on the section 230 executive order

It's all about demanding transparency from the powerful

|The Volokh Conspiracy |

For all the passion it has unleashed, President Trump's executive order on section 230 of the Communications Decency Act is pretty modest in impact.  It doesn't do anything to undermine the part of section 230 that protects social media from liability for the things that its users say. That's paragraph (1) of section 230(b), and the order practically ignores it.

Instead, the order is all about paragraph (2), which protects platforms from liability when they remove or restrict certain content: "No provider or user of an interactive computer service shall be held liable on account of  … 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."

This makes some sense in terms of the President's grievance.  He isn't objecting to Twitter's willingness to give a platform to people he disagrees with.  He objects to Twitter's decision to cordon off his speech with a fact-check warning, as well as all the other occasions on which Twitter and other social media platforms have taken action against conservative speech. So it makes sense for him to focus on the provision that seems to immunize biased and pretextual decisions to downgrade viewpoints unpopular in the Valley.

(I note here that the existence of a liberal bias in the application of social media content mediation is heavily contested, especially by commentators on the left. They point out, correctly, that the evidence of a left-leaning bias is anecdotal and subjective. Of course the same could be said of left-leaning bias in media outlets like the Washington Post or the New York Times. I'm friends with many reporters who deny such a bias exists. Yet most readers of these and other traditional media recognize that there is bias at work there—rarely reporting the facts, but often in deciding which stories are newsworthy, or how the facts are presented, or past events are summarized. If you are sure there's no bias at work in the mainstream press, then I can't persuade you that the same dynamic is at work on social media's content moderation teams.  But if you have seen even a glimmer of liberal bias in the New York Times, you might ask yourself why there would be less in the decisions of Silicon Valley's content police, whose decisions are often made in secret by unaccountable young people who have not been inculcated in a journalistic ethic of objectivity.)

What's interesting and useful in the order's focus on content derogation is that it addresses precisely the claim that anticonservative bias isn't real. For it is aimed at bringing speech suppression decisions into the light, where we can all evaluate them.

In fact, that's pretty much all it's aimed at.  The order really only has two and a half substantive provisions, and they're all designed to increase the transparency of takedown decisions.

The first provision tells NTIA (the executive branch's liaison to the FCC) to suggest a rulemaking to the FCC. The purpose of the rule is to spell out what it means for the tech giants to carry out their takedown policies "in good faith." The order makes clear the President's view that takedowns are not "taken in good faith if they are "deceptive, pretextual, or inconsistent with a provider's terms of service" or if they are "the result of inadequate notice, the product of unreasoned explanation, or [undertaken] without a meaningful opportunity to be heard." This is not a Fairness Doctrine for the internet; it doesn't mandate that social media show balance in their moderation policies. It is closer to a Due Process Clause for the platforms.  They may not announce a neutral rule and then apply it pretextually. And the platforms can't ignore the speech interests of their users by refusing to give users even notice and an opportunity to be heard when their speech is suppressed.

The second substantive provision is similar. It asks the FTC, which has a century of practice disciplining the deceptive and unfair practices of private companies, to examine social media takedown decisions through that lens.  The FTC is encouraged (as an independent agency it can't be told) to determine whether entities relying on section 230 "restrict speech in ways that do not align with those entities' public representations about those practices."

(The remaining provision is an exercise of the President's sweeping power to impose conditions on federal contracting. It tells federal agencies to take into account the "viewpoint-based speech restrictions imposed by each online platform" in deciding whether the platform is an "appropriate" place for the government to post its own speech. It's hard to argue with that provision in the abstract. Federal agencies have no business advertising on, say, Pornhub. In application, of course, there are plenty of improper or unconstitutional ways the policy could play out. But as a vehicle for government censorship it lacks teeth; one doubts that the business side of these companies cares how many federal agencies maintain their own Facebook pages or Twitter accounts. And in any event, we'll have time to evaluate this sidecar provision when it is actually applied.)

That's it.  The order calls on social media platforms to explain their speech suppression policies and then to apply them honestly. It asks them to provide notice, a fair hearing, and an explanation to users who think they've been treated unfairly or worse by particular moderators.

I've had many conversations with participants in the debate over the risks arising from social media's sudden control of what ordinary Americans (or Brazilians or Germans) can say to their friends and neighbors about the issues of the day. That is a remarkable and troubling development for those of us who hoped the internet would bring a flowering of  views free from the intermediation of traditional sources. But you don't have to be a conservative to worry about how this unprecedented power could be abused.

In another context, I have offered a rule of thumb for evaluating new technology: You don't really know how evil a technology can be until the engineers who depend on it for employment begin to fear for their jobs.  Today, social media's power is treated by the companies themselves as a modest side benefit of their astounding rise to riches; they can stamp out views they hate as a side gig while tending to the real business of extending their reach and revenue. But every one of us should wonder, "How they will use that power when the ride ends and their jobs are at risk?" And, more to the point, "How will we discover what they've done?"

Such questions explain why even those who don't lean to the right think that the companies' control of our discourse needs more scrutiny. There are no easy ways to discipline the power of Big Tech in a country that has a first amendment, but the answer most observers offer is more transparency.

We need, in short, to know more about when and how and why the big platforms decide to suppress our speech.

This executive order is a good first step toward finding out.

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  1. “He isn’t objecting to Twitter’s willingness to give a platform to people he disagrees with.”

    ROTFLMAO!

    That may well be the most optimistic description of president Trump I’ve seen in some time!

    1. Can you point to an instance where Trump has demanded that Twitter shut down the speech of a political opponent?

      1. From the Executive Order:
        (iv) reliance on third-party entities, including contractors, media
        organizations, and individuals, with indicia of bias to review content; and

        He’s telling Twitter they cannot use CNN for fact checking because He considers them fake news.

        1. The media were exempt from being sued for what they had on their sites because they were presented as being like ‘bulletin boards’ that did not control what was posted. Except now they ARE controlling what is posted, which makes them responsible for content, and they can be sued.
          Can’t have it both ways…

          1. That’s not what 230 says. What it does is make a distinction between the website’s speech and the speech of third-party posters of content, such as Trump.

        2. But he’s not telling them that they can’t permit CNN to post stuff on Twitter; He’s taking exception to Twitter itself attaching CNN’s stuff to his own posts.

          This “fact checking” thing represents a venture of Twitter into the publisher role.

          1. There’s nothing in U.S. law prohibiting Twitter from mixing publishing of their own content and posting of third-party content. They already do that.

            1. Nobody here is arguing there is a law against that dummy.

              1. Brett Bilmore did, just a few comments above mine. Your habit of gaslighting won’t work with me, JesseAz.

                1. I didn’t argue that they weren’t allowed to do it. They absolutely are.

                  I argued that it makes them a publisher in regards to those ‘fact checks”, and so exposes them to the sort of liability Section 230 protects them from for user originated content.

                  But if they want to take on that liability, they’re absolutely legally entitled to.

                2. that’s not gaslighting, that’s you huffing your own farts direct from the source.

                  1. Did you really create a sock to agree with yourself? impressive.

                3. My habit of pointing out your ignorant strawmans will always work because that is literally all you offer.

          2. Hmm, going back, let’s extract exactly what it says in the Executive Order:

            “The Attorney General shall establish a working group regarding the potential enforcement of State statutes …
            “The working group shall also collect publicly available information regarding the following:
            “(iv) reliance on third-party entities, including contractors, media
            organizations, and individuals, with indicia of bias to review content;”

            So, yes he isn’t exactly telling them they cannot do it. He’s saying he’s going to have the Attorney General track when they use someone like CNN to do fact checking. So, you are right no outright prohibition (yet), but “chilling effect” big time.

            1. How is this a “chilling effect”? Is it any more of a “chilling effect” than the NYT being exposed to liability for publishing defamatory statement? If so, please explain how.

              1. This is not defamation, chief.

                1. Want to take a stab at answering the question posed?

            2. “Hmm, going back, let’s extract exactly what it says in the Executive Order:”

              It doesn’t say anything in the Executive Order, because it isn’t an executive order. What we have is something that purports to be a “leaked” draft for a future executive order. However, as far as I can tell, no one has attempted to authenticate it.

      2. Sure. From Section 1 of the EO:

        “As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called “Site Integrity” has flaunted his political bias in his own tweets.”

        1. He isn’t asking for Schiff to be shut down dummy. He is showing it as an example of comparison.

          This is the same legal argument Nunes made in his lawsuit from a perspective of negligence, an arbitrary enforcement of the Twitter TOS.

          Why are you liberals so incapable of arguing in good faith?

          1. The tweet in question relates to the very questionably sources and edited Biden Poroshenko tapes:

            Trump tried to coerce Ukraine into smearing Joe Biden to help his reelection. [ed: THIS IS TRUE] His scheme failed and he was impeached. [ed: THIS IS TRUE]

            Now Russian-linked figures in Ukraine are leaking edited recordings which show nothing new [ed: THIS IS TRUE] , but have the same purpose:

            Advancing Trump’s corrupt scheme. [More of opinion than fact, but probably true].

        2. This is where banning govt agencies is effective.

      3. How about this Trump tweet from May 4, 2019: “When will the Radical Left Wing Media apologize to me for knowingly getting the Russia Collusion Delusion story so wrong? The real story is about to happen! Why is @nytimes, @washingtonpost, @CNN, @MSNBC allowed to be on Twitter & Facebook. Much of what they do is FAKE NEWS!”

    2. He’s asking for due process – which pretty much bans shadowbanning.

      1. Due process, because there’s a fundamental right to post on twitter?

        1. Actually, yes. They declared themselves to be a public sidewalk in order to limit liability for things said on the digital space they created. If they are not in fact a digital public sidewalk, not only are they no longer entitled to those protections from liability, but they may be liable for actions taken contrary to the spirit of being a public sidewalk prior to announcing they weren’t anymore.

          There is a very clear analogy here: I cannot create a non-profit, then start charging for the non-profit’s services and pocket the revenue when the economy picks up.

      2. Setting aside that he’s not asking for any such thing, it would have no such effect. So, you’re batting 0-2. Which is better than usual for you.

      3. I’m very curious what you think shadowbanning has to do. with this situation. Care to elaborate, or are you just using words that you don’t understand?

        1. Shadowbanning is the decision, by omission, to cease being a common carrier/open public forum and become a publisher whose site has a particular viewpoint to advance.

          Shadowbanning is particularly insidious because it encourages the widespread notion that stakeholders like posters and readers are participating in an open forum when they are not. This constitutes lying to stakeholders in order to build market power.

  2. It’s all about demanding transparency from the powerful.

    More accurate Stewart Baker: unless “the powerful” = “the government.”

    1. I don’t mind acknowledging the government as powerful, but pretending that FB or youtube aren’t is silly.

      1. I missed you with my point, I see.

        The point is that Baker sees dangers lurking in every corner of power other than the government, where unaccountable power is fine, just fiiiine.

        1. I’m not a big Baker fan, (Are there any, actually?) but it’s absolutely true that the major social media platforms have a lot of power and a decided lack of transparency in how they deploy it.

          And that is a serious concern, even if you don’t like Trump, or trust how he addresses it.

          1. Brett : “I’m not a big Baker fan, (Are there any, actually?)”

            Would you let me know if you find one? I’d like to see what he looks like.

            1. Check the jackboots section of the shoe store.

          2. You gotta be careful with throwing around terms like “power”.

            If Twitter reads 7 on the power-o-meter, the Federal government reads about 340.

            1. Yeah, and there’s more juice in the high tension line than in my household wiring. But get which I’m more likely to get electrocuted by?

        2. Just because Baker fails to realize that government is as insidious as any other powerful entity doesn’t mean his point here is wrong.

      2. And Fox News? Are we demanding good faith neutrality from them as well?

        1. To the extent they are covered by § 230, it would seem so.

          1. Sorry if I wasn’t clear, I was asking about the general policy preference re: requiring private companies to be politically neutral. Because as a matter of principle I don’t see any good reason to stop at social media companies.

            1. And, of course, there is no legal definition of “social media company”, so Fox would be subject to this Executive Order, too. Not that the Trump Administration would be inclined to prosecute them.

              1. When has Fox News attempted to claim 230 immunity or regulate their comment section in a non neutral manner? Half of their comments are from idiots like yourself flooding their boards.

                1. Try to keep up with what is being discussed.

            2. If they fall under 230 and are given extra legal protections, yes. What part of this don’t you understand? Flatulus literally answered you.

            3. You raise a very good point. Obviously any entity publishing user generated content on the web should either have to act as an open forum or be denied section 230 protections.

        2. Trump has already bitched about Fox News, so even they are on his shit list.

          1. You really are bad at hiding which sock you are using ABC.

            1. LOL, I have no idea who ABC is. You sick at unmasking sock puppets.

      3. Fb and twitter are huge, but do fear government, which is standard for companies worldwide.

        What? There is no corruption here, with politicians putting up roadblocks to coerce behavioral changes, or bribes? We’re not like everywhere else!

        Well, the above are terrified of 230 changes, with both sides threatening, one for hate speech, the other for blocking Republicans under the guise of that.

        Oh wait. I forgot about threats to break them up, held in reserve, but you know.

        Fact check or we remove 230! Especially our political oppone…good boy, twitter!

        Oh yeah? Fact check dems, too, or there goes 230!

        It’s sad, but the best way to protect 230 from Democrats is for Trump to want to repeal it. Then the parsimonious theory of “100% contrarianism to anything Trump does” will kick in as it overrides all other considerations.

  3. “It tells federal agencies to take into account the “viewpoint-based speech restrictions imposed by each online platform” in deciding whether the platform is an “appropriate” place for the government to post its own speech. It’s hard to argue with that provision in the abstract. Federal agencies have no business advertising on, say, Pornhub.”

    Ironically, from this perspective, Pornhub is actually LESS likely to engage in viewpoint discrimination than YouTube.

    1. Well, political viewpoint discrimination, anyway. About physical viewpoint I’m not so sure.

      1. No, I’m pretty sure they’re open to any camera angle you want to use.

      2. Pornhub has been used to host gun content: InRangeTV posted some things there when youtube was playing games.

        1. Yes, that’s actually what I was referring to. While they’re nominally specialized, they don’t actually require that posted content be pornographic. And they’re a lot less censorious of the non-pornographic content they host than Youtube is.

          1. I see you’re well familiar with the site. 🙂

  4. “If you are sure there’s no bias at work in the mainstream press, then I can’t persuade you that the same dynamic is at work on social media’s content moderation teams.”

    This is basically one of the largest problems. The mainstream press are overwhelmingly liberal compared to America as a whole. But, they don’t see themselves, or their views as liberal. They honestly believe they are moderates. Despite the fact that they are overwhelmingly Democratic, overwhelmingly vote Democratic, overwhelmingly donate to Democratic causes, and overwhelmingly endorse Democrats for office, almost every single time, they still believe they are “moderates” compared to America as a whole.

    Why is this?

    One argument is the bubble effect. They simply surround themselves with like-minded people and actively discriminate and dismiss those with alternative viewpoints. Since they don’t “see” anyone with views different from their own, they believe they are moderates.

    1. Why is this?

      Because facts have a liberal bias.

      1. Yup, that’s what confirmation bias looks like from the inside.

      2. “facts have a liberal bias”

        That’s an absurd statement. Why? Let’s illustrate with a different example.

        America’s newsrooms and media organizations are far more white and male than the country as a whole. You might as well say “facts have a white male bias”.

        The real answer is…systematic, pervasive discrimination.

        1. systematic, pervasive discrimination.

          It’s always amusing (and a bit sad) when white old men complain about systematic, pervasive discrimination. You have absolutely no idea what those words mean or what its really like to be discriminated against. You’re just whining that your privilege is finally being challenged.

          1. Damn, the VC really brought the lefty morons to Reason, didn’t it?

          2. Sometimes things just fly over people’s head….

        2. christian or catholic? Irish or Italian? Any one group overrepresented? And their political leanings?

      3. Facts do not have a bias towards ever-increasing, ever-detailed government control of everything.

      4. I must ask:
        What does that actually mean? = Because facts have a liberal bias.

        Aren’t the constructs of liberal, conservative interpretative, and not objective?

    2. Good thing we have you, who are not at all in a bubble, to set us straight!

      1. The whole justification is just more BS from the conservative bubble.

        1. Is it? The common rejoinder “facts have a liberal bias” is really just a inaccurate justification for why the discrimination exists.

          It’s the same type of irrational logic that was used for why African Americans shouldn’t be able to vote. What was it…”Black people lack the intelligence of white people and cannot vote intelligently”. Or something like that.

          Being forced to face the inaccuracy and logical contradiction in such statements is disconcerting to the world view of those who make them.

      2. While I doubt I’ll “set you straight” I am in a sort of bubble. Just, it’s the liberal bubble. I’ve learned to keep my libertarian-political feelings hidden to avoid discrimination. This is more of an outlet for me.

        1. LOL! You’re as much of a libertarian as Stewart Baker is.

    3. Conservatives desire for an unbiased media is both unrealistic and undesirable.

      Bias isn’t a problem that writers and publishers have. It is a problem readers and consumers of information who think that someone is going to spoon feed them a “neutral” and “objective” view of reality have.

      All people view the world from some standpoint of life experience. All people think some facts are important, and other facts less so. Thus, bias in writing is both unavoidable and desirable. Unavoidable, because it can’t be helped. Desirable because everyone has something unique to share due to their unique life experiences.

      The real problem with bias is readers. There never has been and never will be an unbiased newspaper or an unbiased news report.

      Sure, you can have news that never dares criticize “mainstream” liberal or “mainstream” conservative ideas, supposedly leaving the reader to decide for themselves. But this is ALSO biased, but in an even more insidious way. First, this leads to quoting people who are clearly lying or engaging in “spin” and propaganda and giving the same weight to their statements as those who are telling the truth. Second, this is false advertising. The claim to the reader that they are getting “objective journalism” that needs not be scrutinized by the reader is harmful if believed.

      Consumers of information who want to know the truth are always going to have to work for it, with the further caveat that the complete truth is usually not accessible. Part of your job as a reader is to identify the bias in what you read. Trying to shift the burden to the writer to not be biased and just spoon feed you “the truth” is asking for that which can’t be done. And worse, if you believe you are getting something “unbiased” (i.e. you are being spoon fed the truth), that actually is a disservice.

      There never has been and never will be a substitute for reading (or watching) with a critical eye, while thinking for yourself.

      1. I don’t really want an unbiased media, I know that’s an illusion.

        However, way back when I lived in Michigan, from the late 70’s to the early 90’s, I used to subscribe to TWO newspapers. One was the “liberal” (Left wing) Detroit Free Press, the other the conservative Detroit News. Both were biased as hell.

        But they had different biases on most topics. If the Free Press didn’t want me to know something, the News would probably go out of its way to tell me, and visa versa. By getting the same stories from two different perspectives, I got a much better idea of what was going on than either of them would have given my by itself.

        This ended with the JOA, of course, as the News became just an echo of the Free Press. Ironic, since the JOA was justified by the Free Press being a “failing” paper…

        I don’t mind social media platforms being biased. I mind them all having the SAME bias.

        We have a serious problem in this country. Network advantages in the internet age drives the social media platforms towards monopoly status. And somehow those media platforms always end up with the same politics. So if Twitter is left-wing, (And it is.) there’s no competition to keep their bias in check. Ditto for Facebook, for Google.

        We can argue about why it happened, but all the major social media platforms in America have the same politics, are aligned with the same party, and that is a horrible situation for a democracy to find itself in.

        1. Brett:

          I agree with you to some extent that it is problematic if everyone has the same bias. OTOH, it is not hard to get conservative viewpoints for people like you and me who actively seek them out.

          I am not for a second dismissing the problem of platforms like YouTube, Twitter, or Facebook engaging in censorship can be problematic, especially as these platforms become more dominant.

      2. A well thought out reply.

        Indeed, bias like this is not a problem, so long as it is
        1) observed and understood
        2) There is a major alternative source.

        The problem lies when.
        1) The biased source “claims” to be “non-biased” and is utilized as such.
        2) There is no major alternative source, and the biased vendor acts in such a way that is suppresses alternative sources.

    4. they are not reflected of America but rather of Vienna or Munich or St Petersburg “intellectuals” and “journalists” of the post WW1 world. We need to be honest with ourselves..the media in the US has been infected with socialists for decades..they control the journalism schools and decide who gets in..which is often used to shut off certain groups which the “media” has had issues back in the “old country.” Seriously the cultural marxism of the media..the NYT is the leader in this..lack of real diversity…a focus on globalism, destruction of any traditional American values (dare I say Christian like non interventionism and charity not govt) has gone on so long it isn’t funny. The socials are run by the same “gang”..NYC Ivy League “globalists” who honestly get the gig as VP of “Content Control” cause they buddies from Harvard or cousin or uncle run some hedge fund that funded these firms int eh first place. These firms product is to let people post their views/ideas/stories…deciding what to allow and what not to is discrimination. You run a “order your own burger” joint and decide for some customers they can’t have ketchup…the Feds would be on you in a second..this is the same thing.

    5. It’s true that the composition of large national newsrooms definitely skews white, male and educated. That surely has some effect on coverage even if it’s not intended, and studies of media bias do tend to show that sources like the NYT, Washington Post and CNN skew left in terms of how they cover the news.

      Of course, Baker doesn’t point at any objective studies and instead relies on some sort of appeal to incredulity, which I suppose makes sense because the argument against social media platforms doesn’t have any foundation. Baker’s argument seems to be that because some people say that the news media is left-biased and some of the same people say that the social media platforms are also left-biased, if one is true the other must be true. This, is of course, a ridiculous argument, and essentially all the studies I’ve seen don’t show left bias in the information contained in social media platforms. In fact, social media platforms tend to be amplifiers for conservative content (e.g., Fox News articles are regularly the most shared and reacted to on Facebook).

      1. One place to look is the following.

        https://ballotpedia.org/Fact_check/Do_97_percent_of_journalist_donations_go_to_Democrats

        This study demostrated that 87% to 97% of donations from journalists went to democrats or “liberal” organizations. That is overwhelming.

        1. You seem to be arguing the point I already agreed with?

          This has nothing to do with moderation of policies of social media platforms, except to the extent that Baker is saying something to the effect that some people disbelieve in media bias and therefore it must be true that social media moderation bias is real.

          1. So, a few points need to be made.

            1. That type of distribution (87-97% for one party) is OVERWHELMING bias. The general population is roughly split 50-50. By contrast, females make up roughly 37% of newsroom staffs (despite also being represented roughly 50-50) in the general population. So, while there is a gender bias in the media, there is an extreme political ideological bias.

            2. Social media bias: The users are the general population. Again, you have a roughly 50-50 distribution here in the user base. The real question is the moderator base, those who are part of the companies.

            3. Again, donations can tell a story. And again, you see large majorities flowing to democrats and liberals, consistently, with 70, 80, and even 90% margins going to democrats.
            https://news.yahoo.com/new-data-shows-just-how-liberal-silicon-valley-donors-are-233109872.html

            4. More anecdotally, there are many reported stories where conservatives feel “afraid” to voice their opinions as many tech firms, like Twitter, due to fear of reprisal. (I’ve got one link per post, but you can find them)

            1. Since most/all of the social media companies are based in fairly dense urban areas and hire lots of college educated employees, it’s probably unsurprising or even expected that their employees skew towards the left side of the current Democrat/Republican divide since both of those factors are fairly predictive of party affiliation at this point. So let’s acknowledge that there’s some propensity for bias at least.

              But when you look at actual results, it’s very hard to find any non-anecdotal evidence of biased moderation. Conservative viewpoints and sources are incredibly popular on all of the social media platforms, and Fox News has been the clear king of social media for a long time. See, e.g., https://www.businesswire.com/news/home/20200514005862/en/FOX-News-Digital-Marks-Double-Digit-Increases :

              “For the 68th consecutive month, FOX News remained the most engaged news brand on social media (Facebook, Twitter, Instagram) among the news competitive set, driving 55 million total interactions, according to Socialbakers. FOX News remained number one in Facebook and Instagram interactions among news competitors for the month, amounting more than 33.3 million on Facebook as well as ranking number one for Facebook video views and earning a record month for Instagram interactions with 21.4 million.”

              So the substance of the moderation does not in any way reflect a reality in which conservative viewpoints are somehow suppressed.

  5. “That’s paragraph (1) of section 230(b), and the order practically ignores it.”

    “He objects to Twitter’s decision to cordon off his speech with a fact-check warning”

    I think the fact check warning might actually be a paragraph (1) issue, as it’s not user generated content, it’s content chosen by Twitter themselves, to express Twitter’s own opinion. And the supposed “fact check” doesn’t actually prevent you from seeing the content.

  6. Shorter Baker:
    Trump wants to maintain his ability to lie on Twitter, while taking away Twitter’s ability to point out that a particular tweet contains lies.
    It’s pretty straightforward. And I can see reasonable arguments on both sides (if I squint hard enough).

    1. “Contains lies”

      Prove it, without lying.

      1. Trump’s statement on mail-in ballots has been demonstrably proved false by investigations by both Republican and Democratic administrations over the last two decades.

        Vote fraud in the US is extremely rare. Doesn’t matter if its mail in ballot or a voting booth.

        1. Seriously, when will these stupid GOPers learn that voter fraud never happens:

          https://nypost.com/2020/05/21/ex-philly-election-official-pleads-guilty-to-voter-fraud/

          1. Wow.

            The Judge took thousands of dollars from a “political consultant” to sit in front of the ballot box when no one was looking and rack up as many votes as he could for the Democratic slate of candidates. In federal elections. In 2016. In the closely contested state of Pennsylvania.

            How many other people did this “political consultant” pay to do similar things?

            1. Trump claims voting by mail will facilitate election fraud. But the case you point to did not involved votes cast by mail.

              And Trump claims that he didn’t lose the popular vote to Clinton in 2016 by 2-3 million votes; he maintains her surplus was the product of fraudulent voting by non-citizens. Like so many claims by Trump (e.g., the purported record number of attendees at his inauguration), that is without any credible evidence to support it, and just again proves him up as an incedible, habitual liar.

              There was the case of the NC “political consultant” who purloined absentee ballots to get a Republic elected to Congress late time around, but you didn’t know about that one or forgot it.

                1. So basically there are 14 cases of fraud resulting in election changes (numerator) with a denominator of all the elections held in the US through the last 20 years. I don’t know the magnitude of the denominator but I would suggest that it is probably more than 200,000.

                  1. We don’t know the numerator, because it’s been made very difficult to find it. We just know that it’s non-zero.

          2. Well, damn. Wouldn’t it be a lot easier if he could fill out the ballots from home and mail them in?

          3. Yes. That was bad, but what exactly does it have to do with fraudulent behavior wrt mail-in ballots, which is what Trump is touting to his true believers?

            1. There are times I wonder if the idiot left knows how to actually do basic research or they simply just rely on the latest MM or Vox talking points to do the heavy lifting.

            2. It’s a particularly bad example. But if you prefer, I can stick to just Absentee ballot fraud.

              1. Janice Lee Hart pleaded guilty to eight misdemeanor counts of attempted absentee ballot fraud in connection with misconduct while working on the 2013 campaign for District 2 City Commissioner Amos Newsome. Newsome defeated his challenger by only 14 votes and received 119 out of the 124 absentee ballots cast.

              2. Democratic Rep. Hudson Hallum, his father Kent Hallum, and two campaign workers, Phillip Wayne Carter and Sam Malone, pleaded guilty to conspiracy to commit election fraud. The lawmaker’s campaign bribed absentee voters and destroyed ballots in the Arkansas District 54 primary, runoff, and general elections in 2011

              3. Officials in the small town of Cudahy took part in a widespread corruption scheme that included accepting cash bribes, abusing drugs at City Hall, and throwing out absentee ballots that favored election challengers. After a lengthy FBI Investigation of the 2007 and 2009 elections, the former head of code enforcement, Angel Perales, admitted to tampering with mail-in ballots in city elections by opening them and then resealing and submitting votes for incumbent candidates while discarding votes for challengers.

              4. Sybil Allen, while serving as a Democrat on the Bridgeport Town Committee, engaged in a range of absentee ballot-related fraud. Allen completed ballot applications in the name of residents, forged signatures, and on at least one occasion got a voter to forge a ballot registration form for a family member who no longer lived in the community

              5. Deisy Cabrera pleaded guilty to charges of being an absentee ballot broker (boletera) as part of a massive absentee voter fraud scheme. Her notebook contained the names and addresses of over 500 voters who were mostly elderly Hispanics in Hialeah. The lists, titled Deisy’s Voters, reportedly included information as to whether the voter was illiterate or was blind, deaf, or had Alzheimer’s.

              I can keep going for quite a while, if you like…

        2. There are hundreds of examples.

          1. There’d be hundreds more, if the system weren’t almost designed to make spotting this sort of thing virtually impossible. And if Democrats didn’t go berserk any time somebody tries to look.

            I recall one time somebody proposed to do an absentee ballot audit. Nothing fancy, just take a list of people who’d supposedly voted absentee in a recent election, and physically visit them to confirm that they had.

            The Democrats went to court and got it stopped, claimed it was “vote suppression”. Like you can suppress the vote a week after the election is over?

            1. Just to answer that last question: you absolutely can. If you send the police to someone’s house a week after they voted to talk about their voting, some segment of the electorate (i.e. people with things to worry about in terms of immigration or non-election crime) will absolutely take that as incentive to think twice about voting again in the future. And given that “things to worry about in terms of immigration or non-election crime” both correlate with voting Democratic, Republicans will support such checks and Democrats will oppose them. Dog bites man.

              1. So, have a Democrat go with the Republican, don’t stop people from checking to see if absentee ballots actually came from real people.

                It’s the same with every security measure. Signature checks, voter ID, cleaning the voting rolls, election monitors. In every single case, if it’s a way to detect or prevent fraud, the left opposes it. And then they can’t understand why the right suspects they’re stealing elections!

                If you tell people they can’t have a burglar alarm, they conclude you’re a burglar, and all your fancy excuses as to why it isn’t necessary go unheard. Because it really is true: Why would anyone but a burglar oppose burglar alarms?

            2. Oh STFU.

              As always, your argument is that the absence of evidence just proves how effective the conspiracy is. Because hey, if you think so, it must be true.

              “I recall.” Has Dr. Ed. taken over your brain.

              1. Can you try for a non pathetic argument just once?

              2. yeah, that’s why the screeching from leftists like you becomes so deafening anytime election security measures are brought up. Nothing to see there so don’t bother looking.

            3. Did your Canadian girlfriend tell you this story that you “recall,” Brett?

              (And is her name Dr. Ed?)

        3. Trump’s statement was a) about a future condition that can not be proven false and b) is actually backed by over 20 convictions in the last 4 years alone.

          “Vote fraud in the US is extremely rare.”

          So is jaywalking if you choose to only look at convictions since nobody prosecutes it. But you’re too dumb to understand this.

    2. You really do continue to say stupid things.

    3. Hell pretty much everyday the NYT lies and no one does anything bout it…

  7. the risks arising from social media’s sudden control of what ordinary Americans (or Brazilians or Germans) can say to their friends and neighbors about the issues of the day.

    This is an antitrust issue, not a 230 issue.

    1. Yes, and government has that covered as a threat, too, that they will break up these giant companies. So better censor in just…the…right…way or (mafia guy looks around) “something might get broken.”

  8. https://www.sciencemag.org/news/2016/10/could-google-influence-presidential-election

    Because companies like Google have gotten so good at providing the best links first, the higher an item appears on a list of search results, the more users trust it. That’s OK if you’re looking for the best place to buy a set of kitchen utensils or back-to-school supplies, but the study’s lead author, research psychologist Robert Epstein of the American Institute for Behavioral Research and Technology in Vista, California, showed that by simply putting links for one candidate above another in a rigged search, he and his co-author could influence how undecided voters choose a candidate. In one phase of the experiment, they tested a group of actual voters before the 2014 general election in India and found that biased search results could increase the number of undecided voters who chose one candidate by 12% or more.

    The effect was largely invisible to the study participants; most had no idea they were seeing biased results. But even if they did, they thought the search engine was merely doing its job and ranking a better candidate higher than his or her opponent.

    Other companies, especially Facebook and Twitter, wield similar influence with their own algorithms. Jonathan Zittrain, a professor of law and computer science at Harvard University, has written about Facebook’s unique ability to mobilize voters by placing reminders in their newsfeeds. If it wanted to, Facebook could mobilize users likely to vote in line with the company’s interests (as it tried to do in India) based on their demographic group and geographic location—a sort of digital gerrymandering capable of garnering hundreds of thousands of additional votes.

    By Epstein’s calculations, biased Google results could shift the vote in November by up to 2%, or about 2.6 million votes.

    1. Fortunately we have laws restraining corporations’ and foreign governments’ interference in US elections! O, wait…

  9. He objects to Twitter’s decision to cordon off his speech with a fact-check warning, as well as all the other occasions on which Twitter and other social media platforms have taken action against conservative speech.

    Cordon off? No, that’s nonsense. To cordon off something is to block access to it. That’s not what’s going on. What Trump objects to is anybody, Facebook or anyone else, pointing out that things he says are not true, not close. That’s why he threatens and blusters about newspapers, CNN, and whoever.

    Why does anyone continue to pretend that we are dealing with a rational individual in the WH?

    1. “Why does anyone continue to pretend that we are dealing with a rational individual in the WH?”

      Why does anyone here continue to pretend that bernard11 is a rational individual?
      🙂

    2. bernard, what if the objection is that it is done unfairly, in a lopsided manner. Maybe left or liberal statements are much less subject to content warnings than the president’s, or conservative statements in general?

      1. Except that we can’t find any real evidence of bias against conservative statements. Unless you count racism and promoting violence as “conservative.”

        1. You’re a parody right?

      2. Maybe left or liberal statements are much less subject to content warnings than the president’s, or conservative statements in general?

        Maybe. Got proof? Not anecdotes, evidence.

        1. So suddenly, after spouting unsubstantiated nonsense all over VC, bernard insists upon “evidence” for my question about what might be going on. Ha!

      3. Fuck, every American used to have the phrase, “The cure for bad speech is more speech” memorized. If Twitter is biased in its fact checking, you can go right there, on fucking Twitter, and post a comment explaining what is wrong with their fact check. President Trump could do that; they wouldn’t stop him.

        1. The issue is …. that Twitter should not be doing the fact checking (editorializing and manipulating original tweets), while claiming legal protection afforded to “platforms.”

          Yes, anybody can then post a comment debunking the “fact-check.” This was always an option. But this is not about **everyone else** posting comments, but about **Twitter** publishing and/or manipulating content posted by others.

          1. Dude, you got repeatedly owned on another thread about this exact point. And not just from the liberals on here.

            And so you just come and post the same stuff here?
            Are you for real?

            1. If you mean he got owned by the asshole who specializes in invective and stale internet snark and not much else then, yeah I guess he got owned. Actually he got the Internet Forbearance Award for the month for remaining so civil with said asshole.

              1. Did you read the thread? It was not just…whoever you’re talking about. It was loki, LawTalkingGuy, santamonica811, Noscitur a sociis, Josh R, TheAmazingEmu, and David Nieporent.

                1. And I’d note no one stood up for him either. Even Brett was having none of that.

                  Except for you, just now, I guess.

                  1. Ah, so popularity is veracity.

                    Got it.

                2. Except that the entire article upon which you are commenting sets forth the exact point I was making.

                  Your girl Loki had a stroke because he couldn’t admit I was right.

                3. I do recall that several people weighed in with Guzba. Only one was an asshole.

                  LTG is the only one who specifically referenced the “good faith” qualifier and cited the case that apparently nudged the passage of the CDA. If I understood him correctly the “good faith” part was inserted to cover sins of omission, at least in part. Whether it immunizes an internet site from pretextual moderating that is not in accord with the legit reasons cited in 230 is what Guzba was asking.

                  1. Setting aside his made up idea about what legit reasons are, how could he have been asking about “moderating” when he was talking about “fact checking”?

                    1. In his reply to love… he says that fact checking is publishing which it is. I don’t know whether fact checking would be interpreted as moderating or not; probably not because moderation is generally associated with warning, deleting or banning. OTH it is an action taken by a moderator.

  10. “to cordon off his speech with a fact-check warning” isn’t a fair description of what Twitter did: the fact-check link, appended at the _end_ of a tweet, in no way “cordons off” (prevents access to) the tweet.

    To say Twitter’s action was “biased against conservatives” you’d have to (1) find _equally_ false speech by a top liberal that (2) Twitter treats differently. Good luck with (1).

    1. Uh…. Trump’s opinion about mass use of mail in ballots isn’t even falsifiable. They simply disagree.

      And to that effect…. they were wrong. There are multiple cases of voter fraud based on mail-in ballots that are being prosecuted right now. See North Carolina for a Republican example.

      1. So everything is an opinion now? Truth Is Dead?

        1. What exactly is falsifiable about the concept that mail in ballots are susceptible to voter fraud? I’m not even sure how that is controversial…. but it certainly isn’t falsifiable.

          Democrats have been running around worrying about Deibold voting machines and voter fraud for years and years. They are quite a bit more secure than a mail-in ballot that is mass-mailed out to all voters. You can disagree… or agree… as to the level of risk… but you can’t claim that it is “a lie”. Hell, it could even be a disingenuous objection because it is actually a more secure voting method that is less susceptible to fraud. But in any event, it isn’t provably false. And in the case of mass transition to mail-in ballots without even having a debate, you cannot really honestly argue that the controversial side is to stick with the status quo.

          But sure… go ahead and go with dismissal. That’s always easier. I mean, the very fact that vote-by-mail fraud cases from the primaries are being adjudicated as we speak proves that nobody will ever try to corrupt that system….

        2. No, not everything is opinion, but many things are, and supposed “fact” checkers persist in “checking” them anyway.

      2. And so what? Right there on the the Twitter thread, anyone, including Trump could respond to the “fact check” and point out where it is erroneous.

        1. How can one reply to the fact check? Which button allows a user to Tweet linked to the fact-check? No matter how I look, I cannot find a button for that.

          1. You can comment on Trump’s post, alongside the fact check. Trump himself could post a tweet in response to the fact check, and everyone would read it.

            1. Irrelevant.

              Twitter can keep fact checking … and will lose its liability protections as a result. Nobody is saying Twitter cannot do what it wants.

              1. Jesus.
                Your memento-esque legal fail aside, Trump can then reply to THAT fact-checking.

                That’s how the more speech thing works.

                1. So what if Trump can reply to it? You are completely missing the point (intentionally, it seems).

                  The point is not that Trump can reply. The point is that Twitter is publishing its own content.

                  1. Yes, by fact checking trump, Twitter is publishing its own content. But, that doesn’t mean it’s a good idea to hold them liable for user tweets.

                    1. Questions of policy, I think, are a separate matter entirely. I happened to think it is good policy. Either police everyone, equally, or do not police anyone. Or, do what you are doing now, and risk lawsuits. I think this serves the interests of free speech.

      3. “The Governor of California is sending Ballots to [illegal immigrants]” is falsifiable, and false.

        “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent” — when a President speaks as President, with such certainty, he’s asserting existence of substantial evidence for his claims. That existence is falsifiable.

        Known cases of mail-in voter fraud are not a “substantial” fraction of all votes, by any measure.

        1. That’s a nice take. An opinion on the topic. Even a defensible position.

          A much more defensible position would be “there is a huge opportunity for fraud when all ballots are out of the control of the election officials, and we are not even having a discussion about whether or not such a thing is a good idea”.

          There are a lot of reasons that we used to require a valid reason for requesting an absentee ballot.

          Vote buying is illegal. A secret ballot helps protect against such practices. Going to a polling place ensures a secret ballot. Allowing the boss at the town factory to have a chance to see all of his employees ballots before they mail them in is certainly one way that mass use of mail in ballots is more open to fraud.

          There are loads of others.

          Therefore, the assertion that “this will lead to fraud” is verifiablely false is unequivocally disproved.

          There is room for debate as to whether the problem is negligible or an existential threat to democracy. But there cannot be an honest assertion that it is undeniably false.

          1. Twitter didn’t assert that Trump’s tweet is “verifiably false”, it added a link titled “Get the facts”. This, at most, _arguably implies_ that Trump got key facts wrong. First, he undeniably did re: California ballots. Second, if we take “arguably implies” to mean “asserts”, then Trump asserts the existence of expert consensus that mail-in voting will lead to substantial fraud. That assertion is undeniably false.

            1. This is what motivated reasoning looks like

    2. Ironically, Twitter would probably be in a better Section 230 position if they HAD “cordoned off” his tweet, since Section 230 exists to immunize carrying or, when done in good faith, moderating, user generated content.

      The problem is the fact check ISN’T user generated content, it’s Twitter curated content, expressing Twitter’s own position. Which means it’s outside both rungs of Section 230! By adding “fact” checking to selected posts, they’re acting as a publisher, not a platform.

      1. Yup, and if they posted something libelous about Trump, they could get sued.

        It’s not a violation of any law to post a “fact” that isn’t actually true.

      2. This is an interesting point, but ultimately doesn’t matter very much.

        It may be true that Twitter is liable for any content that they’re appending as fact checks, but there doesn’t seem to be any argument that they’d lose 230 immunity for their other moderation activities. So, let’s assume that they are the publisher for the fact check and Trump can now sue them for the contents they’ve posted in reaction to a Tweet–do we think there’s any chance such a suit would be successful?

        1. I think that’s highly contingent on the specific facts of each supposed “fact check”. I was merely noting that, in Section 230 terms, what Twitter actually did was riskier than “cordoning off” would have been.

          1. That’s fair–my main point was just that the risk is that they’re responsible for whatever they’re posting in the fact check, not that they’re somehow going to be at risk of losing 230 immunity where they do “cordon off” content.

  11. Thanks for the analysis. It certainly offers a counterpoint to what I’ve been reading elsewhere.

    Here’s a question that I have not seen answered:

    How does Facebook avoid a violation of federal election laws on this?

    The intent is clear – they have made that clear both from their actions and from their statements…. they intend to weigh in on the presidential election and weigh in against Trump in particular.

    In so doing, they attached content to Trump’s tweets that is directly helpful to the Biden campaign. If Biden could have bought such placement, it would have run into the millions.

    Campaign finance laws are pretty strict about this stuff, aren’t they? You can’t even sell your services at a discount without risking having the discount classified as a contribution.

    In this case, we have “everybody knows it” level of knowledge that facebook is acting in coordination with DNC associated groups for their “fact check” function, even though they’ve declined to identify the groups. We also know that both the DNC (and their functionaries) and facebook officials have been talking about ways that facebook can prevent Trump from reaching his audience effectively. We also know that Facebook works directly with consulting groups like “The Groundwork” that were set up explicitly for the purpose of helping DNC candidates by using tech company technology – tying directly into the back end of these companies.

    So, it might take a little detective work to prove it in court, but by the “everyone knows” standard for speculating on the internet, facebook is coordinating with the DNC on messaging during a political campaign.

    Now, I don’t expect that anything will happen. Nothing ever does in these cases. When all 5 major news networks coordinated with the Kerry campaign during the 2004 election, nobody did a double-take. That effort was derailed by Dan Rather’s forged document problem, but they all coordinated with the campaign and with each other to focus on a campaign specified issue (Vietnam) for 1 whole week, with the campaign doing events and running advertising to support the news coverage.

    So when the big boys do it, it isn’t a violation, apparently. But still, it would be nice to see the legal analysis of how facebook can coordinate with MoveOn associated groups to do negative advertising campaigns against Trump during a federal election without running afoul of campaign finance laws.

    1. How does Facebook avoid a violation of federal election laws on this?

      It was twitter not Facebook.

      The intent is clear – they have made that clear both from their actions and from their statements…. they intend to weigh in on the presidential election and weigh in against Trump in particular.

      Does the 1st amendment not mean anything to you?

      1. What does the first amendment have to do with federal election law? If the first amendment was at all at play, we wouldn’t have any of that, would we?

        I was looking for someone who understands election law, not some party-bot.

        Here’s an article that touches on the subject.

        https://reason.com/2018/06/13/victory-in-lawsuit-over-colorados-system/

        Basically, if you want to coordinate with a couple of people for political speech where you spend money, you gotta form a PAC and be subject to all sorts of disclosure and bookkeeping rules, as well as rules about who you can talk to about your issues.

        It’s dumb. It certainly violates the first amendment. But it is the law.

        There were other, better articles on the topic here… but I can’t find them at the moment.

        The point of the question was, if 5 guys in my neighborhood can’t get together to buy a billboard in support of Proposition 12 without forming and registering an official PAC, why can Twitter coordinate with MoveOn.org and their associated groups for the explicit purpose of impacting a presidential election without so much as a nod to election law?

        1. One hinders you from challenging those in power. The other aids those in power.

          Nah, that’s too simple of an explanation. Nevermind.

        2. “What does the first amendment have to do with federal election law? If the first amendment was at all at play, we wouldn’t have any of that, would we? ”

          I would probably start with Buckley v. Valeo and move on to Citizens United v. FEC.

          1. That’s kinda the point. I suppose I should have surrounded that in the /sarc tag.

            Like much of constitutional law, election law restricting speech is directly in opposition to the black letter law in the constitution.

            Under the heading of “it is a really important function”, we round off a lot of the sharp edges of the constitution.

  12. About what I’d expect from Mr. Baker. Context-free and almost content-free.

  13. If tech giants want to edit content, no problem. But then they become publishers of the information, not merely a pass through. Thus, they should have liability for what is false and libelous . Can’t, or shouldn’t have it both ways.

    1. But then they become publishers of the information

      CDA 230 applies to all “interactive computer services” including any publisher, so long as they host 3rd party content

      they should have liability for what is false and libelous

      By your very wrong comments – twitter would be required to delete Trumps tweet because its demonstrably false.

      1. I keep seeing this tweet labeled as false… and you keep saying it is demonstrably false.

        Maybe I missed something. Didn’t he say that mail-in ballots would lead to voter fraud? Exactly how is that demonstrably false?

      2. “CDA 230 applies to all “interactive computer services” including any publisher, so long as they host 3rd party content”

        “So long as” or “to the extent that”? It makes a big different if they’re doing anything in addition to hosting 3rd party content.

      3. Going back to the actual text:
        “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

        Doesn’t so much as imply that they won’t be treated as the publisher or speaker of information they originate themselves.

        I suppose it can get a bit dicey if they go out and solicit information that somebody else originates, but it isn’t clear to me that Section 230 actually applies to Twitter to the extent they’re originating stuff.

      4. //By your very wrong comments – twitter would be required to delete Trumps tweet because its demonstrably false.//

        Or, you know, not do anything and leave it up. But that would burn them up wouldn’t it? If Twitter doesn’t want to be the content police, it can stop policing content and — voila! — no liability.

        Problem solved.

    2. Well, in the case of Trump’s tweets about mail-in ballots, Twitter didn’t edit his content and they didn’t libel him. So, that leaves us with no legal issue, Trump throwing a tantrum, and a bunch of workers at the FCC silently cursing him under their breath for being an asshole who is making a bunch of extra work for them.

      1. If you are holding up a sign in the street, and I run up to your sign with a sharpie and write: “This message is fake” … is that not editing your content?

        1. LOL.
          No, it’s not.

          1. Care to explain why it is any different?

    3. If you want this viewpoint, repeal the statute that clearly says to the contrary. It says they don’t have publisher liability even if they edit content.

  14. I wonder whether the Administration is angling towards making it too expensive to tag most of Trump’s falsehoods, by eventually arguing that any new transparency practices that result must be applied equally to all.
    Even AI-assisted, what with advance notice, rationales, appeals etc., and hundreds of millions or billions of users, I guess it’s still the case that only a tiny fraction on average of any given person’s falsehoods could be meaningfully processed without breaking the bank.
    If you’re trying to reduce societal harm due to others using your platform to spread falsehoods, however, it would seem to make sense to weight review effort by number of views, and by topic (giving more weight to topics with broader societal impact).

  15. deceptive, pretextual, or inconsistent with a provider’s terms of service […] restrict speech in ways that do not align with those entities’ public representations about those practices.

    How do the recent fact checks of Trump’s tweets on mail-in voting fare under these “transparency” measures.

  16. That’s it.

    No, it is not. There is a provision where Trump is trying to regulate which third-parties can do fact checking, and not allow ones that the government considers biased.

    1. Your cite fell off.

  17. Just to be clear, what “liability” is Twitter/Facebook being exposed to here? As Baker says, “It doesn’t do anything to undermine the part of section 230 that protects social media from liability for the things that its users say.” Instead, it is the section that insulates them for liability for removing or restricting content. What are the damages, what is the cause of action for doing so? How is it different from refusing to publish a letter to the editor? As private actors, they are not restricted by the First Amendment. There is no campaign finance violation absent direct coordination with a candidate. So long as any discrimination is not directed at a suspect class, aren’t they free to do so? Let’s say they remove something without reasonable cause. What is the liability?

    1. Eugene answered your question in an earlier post

      A plaintiff would have to find an affirmative legal foundation for complaining that a private-company defendant has refused to let the plaintiff use the defendant’s facilities—perhaps as Enigma did with regard to false advertising law, or as someone might do with regard to some antitrust statute.

      1. Sure, like a Youtube producer entering into a financial arrangement with Youtube for monetization, only to have their content depromoted, or banned from advertising, or any of the other actions Youtube can take to cut your eyeballs and/or cash flow.

  18. This makes some sense in terms of the President’s grievance. He isn’t objecting to Twitter’s willingness to give a platform to people he disagrees with. He objects to Twitter’s decision to cordon off his speech with a fact-check warning

    I agree with the other commenters here, Stewart Baker has departed reality if he believes Twitter’s actions amount to cordoning off Trump’s tweets. They didn’t edit Trump’s content, or restrict access to it, they simply added their own commentary on his commentary. It is irrelevant whether their comments are objective or subjective, the most aggressive application of the draft executive order wouldn’t deny Twitter the right to hold and express their own opinions through their own medium.

    1. //They didn’t edit Trump’s content//

      /[T]they simply added their own commentary on his commentary//

      This seems like a straightforward case of … editing.

      If you post a picture of your dog on a telephone pole with the following statement under the picture: “Looking for lost dog, Reward if Found,” and I walk up your sign and write underneath your wording: “Ignore the above. Please disregard. Dog has been Found,” is that not editing your content?

      I think you will hard pressed to argue otherwise.

      1. No. No more than your posting of a comment in reply to my comment, means that you edited my comment and are now responsible for its content.

        1. It’s more accurate to say that they are publishing rather than editing content. Would you agree that the fact checking puts them outside of 230 protection?

          1. Again: the words that Twitter posted are their own content. So “get the facts about voting by mail” (that’s not an exact quote, but it’s close and I don’t feel like looking for the exact words) are not protected by 230. They are also not actionable in any way. But it’s only those words that they’re the publishers of; they continue to be protected by 230 with respect to everything else they do. It does not turn Twitter the company from a protected platform into an unprotected publisher, as dumb Trumpkins think.

            1. This raises questions with respect to the scope of liability. Is liability under Section 230 limited to “only those words” or is it broader? Is this even a Section 230 question at all?

              For example, the New York Times could be liable for content in its editorials even though it didn’t write them. If you are a publisher, liability attaches even with respect to content you didn’t create yourself.

              1. Yes, the New York Times is liable for a letter to the editor that it publishes. But as <a href="https://reason.com/2020/05/28/47-u-s-c-%c2%a7-230-and-the-publisher-distributor-platform-distinction/#more-8064439"Eugene has already pointed out

                Under current law, Twitter, Facebook, and the like are immune as platforms, regardless of whether they edit (including in a politicized way). Like it or not, but this was a deliberate decision by Congress. You might prefer an “if you restrict your users’ speech, you become liable for the speech you allow” model. Indeed, that was the model accepted by the court in Stratton Oakmont. But Congress rejected this model, and that rejection stands so long as § 230 remains in its current form.

              2. This raises questions with respect to the scope of liability. Is liability under Section 230 limited to “only those words” or is it broader? Is this even a Section 230 question at all?

                There is no such thing as “liability under Section 230”; § 230 doesn’t create a cause of action.

                They are immune under § 230 for everything other than the content they themselves publish. Those words.

                For example, the New York Times could be liable for content in its editorials even though it didn’t write them. If you are a publisher, liability attaches even with respect to content you didn’t create yourself.

                Yes, that’s true. But under § 230, regardless of any other conduct a website engages in, it is not a publisher of content it didn’t create itself. There’s no condition attached to that immunity. It’s not immune if it is neutral, or if it acts in good faith, or anything like that. It’s immune, period, for the content created by others.

            2. Um I didn’t say I thought that it turned Twitter into an unprotected publisher except for the content that they explicitly provide or reference. So everything I said to VoR was correct then. Whether it is actionable or not is determined by the nature of the content. I don’t see why the voting by mail thing would be at all and of course I never said so.

        2. So, if Reason affixed a disclaimer to your post right now — for example, “Voize of Reazon is not telling the Truth” — within the body of your comment, right above the reply button, you would not consider that editing your post?

          If so, explain why.

  19. Yes, there is bias in the media, the truth has a built in liberal bias.

    The Law seems very clear. A private entity may take down post which it believes meet the criteria set out in the legislation.

    It is amzing how those who most proclaim their loyalty to freedom and capitalism and private action are so willing to bring in government force when the freedom of expression is something with which they disagree.

    1. How about concerns the 230 protections were under assault from the left before Trump and the Republicans got ahold of it? See, there were lots of loud, threatening behaviors during the Democratic primaries as the candidates fell all over each other to preen before voters in how to coerce these companies into censoring viewpoints they disliked.

      Instead of fighting over who gets to to twist the arm of these companies, how about all politicians stop twististing their arms by threats to remove 230, or break them up?

      Anybody? Anybody? Sigh. Didn’t think so.

  20. Pardon my ignorance, but…

    Is there a meaningful distinction between broadcast networks and cable ones these days? CNN is cable, while Fox is broadcast, whether we see it by virtue of the “airwaves” or it comes to us via a wire or other means of transmission? What does it matter, that is if in fact it does?

    Are Fox and Sinclair “mainstream” media? The WSJ? Huff Post?How about broadcast and subscription radio?

    Why didn’t Twitter take down or at least flag Trump’s libelous attacks on Joe Scarborough, which are so clearly and utterly baseless, malicious in intent, injurious, and indecent? That one seems as worthy of censure as Trump’s campaign against absentee balloting.

    1. It certainly would appear that they have their priorities backwards on those.

      If, in fact, their priorities had much at all to do with what they purport them to be for.

      But somehow I suspect that their publicly stated motives and their actual motives are not in complete alignment.

      Which is more important? For some reason, switching to all-mail ballots is very important to some people. People who happen to be in power. People who seem to align with one political party.

      The question nobody seems to be asking…. why? Why is this a place to plant your flag in the sand? I cannot recall a situation where we changed the way an election is held in such a substantial and pervasive way right in the middle of the election cycle…. all without any debate, without legislation, without any input from “the people”.

      Just… “Here, we are changing this… right now!”

      That would seem to be the extraordinary action, not complaining about it fecklessly on Twitter.

      1. Of course we know the reason. Every registered voter is sent a ballot and every one of those ballots will get mailed or sent in, one way or the other. Once mail-in voting (excuse me “vote at home”) becomes universal the push to legalize ballot harvesting in every state will gin up.

    2. Isn’t the fact checking thing relatively new and doesn’t the Scarborough thing predate it?

  21. As a liberal, I won’t resist snickering over the fact that there are now two Volokh Conspiracies, the one that adores Donald Trump, and the one that detests him. Mr. Baker and Mr. Blackman are now “lawyers” in name only, for they pay homage, not to the rule of law, but to the rule of Donald Trump; he commands, and they obey, like the sheep that they are.

  22. I get daily news summaries from the NYT and a conservative group. They are both factual. Very different choices in what they omit and what they clarify. You come away with very different feelings about the same news.

    Meanwhile I discovered the news feed in my Facebook app I use for my neighborhood bulletin board. Holy crap that is the most toxic distillation of pop culture “news” I could imagine. No wonder people are angry and confused.

    1. So what conservative news summary do you use?

  23. “journalistic ethic of objectivity”

    I’ll take “Phrases that make you go ‘Lol'” for $400 Alex.

    Give me a break. I’m pushing 50 and well-educated. There is ABSOLUTELY a liberal bias in the media. One thing I dropped from my head is the notion that despite probably 7 or 8 out of 10 journalists self-identify as a ‘liberal’ and vote Democrat (or Liberal here in Canada), that journalists are ‘objective’.

    Please.

    And youtube and Twitter absolutely does play little games with conservative voices and opinions. Bunch of illiberal and illiterate twerps go around demonetizing a bunch of sites for beyond dubious reasons. They play Calvin ball with their policies.

    I want to know a) if they’re that stupid and b) who is influencing them to engage in such unfair practices.

    Just look at the doctors who dare go against the ‘official Da Rona’ narrative’ who get their videos pulled.

    These social media sites want their cake and eat it too. Force them to decide if they’re publishers or not. Which they aren’t. Keep to the basics: They’re platforms. That they engage in any type of censorship on any level on any grounds while engaging in the specious practice of ‘fact checking’ (never mind Snopes is one of the fact checkers. So even the FC come with fake-neutral credentials) makes them more a publisher and so should be treated as such.

    Force their damn hands already.

    1. Apologies for the superfluous use of ‘bunch and ‘absolutely’.

      1. Why not apologize instead for making up fake legal arguments about publishers vs platforms?

        1. Why not point out what you disagree with?

          1. Because many informed people have already done so dozens of times in the five or six CDA threads active on the VC right now, and if people are going to ignore all of those, one more time will not help.

            But just one point: no, these sites do not have to choose.

            1. Is it your position that a site can be a publisher and a platform simultaneously?

              1. Well, no and yes.

                No, in that “platform” is a made up term; it is not found in the relevant law, and is just something twitter people made up.

                But addressing the substance of the question, yes, by jove you’ve finally gotten it. Twitter is a publisher of any content that Twitter creates. It is simultaneously a ‘platform’ — if by that you mean immune from liability — with respect to any content posted by anyone else, or with respect to moderation decisions it makes. It does not need to choose. Its immunity does not turn on choosing.

                Or to make it even more concrete:

                * The Volokh Conspiracy is a publisher of much content. It is responsible for the blog posts it publishes. All those things by Prof. Volokh and Prof. Blackman and Stewart Baker and others.
                * The Volokh Conspiracy is also a platform that allows Geraje Guzba and David Nieporent and many other people to publish material. The Volokh Conspiracy is not responsible for anything you or I publish. It is not responsible if it decides to delete the stuff you publish.

  24. “It doesn’t do anything to undermine the part of section 230 that protects social media from liability for the things that its users say. That’s paragraph (1) of section 230(b), and the order practically ignores it.”

    Wait, how did you get this at all? First off, I’m assuming you mean (c)(1) and (c)(2) since (b) is just an expression of policies. But, rather than practically ignore (c)(1), the executive order says:

    The Secretary of Commerce … shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:
    (i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

    It specifically is asking the FCC to regulate when services such as Twitter lose protection as publisher status and become liable for the defamatory statements of third parties if they engage in any content removal not specified in (2)(a). Rather than something “practically ignored,” it’s the most alarming part of the entire executive order.

    1. The “interaction” part wasn’t in the leaked draft that Eugene commented on. I would like to see Eugene comment on this claim from the order.

    2. Why is this alarming?

      1. Because it’s the executive branch attempting to amend a statute by bringing forth an “interpretation” that doesn’t make any sense as part of the rule-making process in response to Twitter exercising its first amendment right to comment on the speech of others.

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