Section 230 Bootleggers and Baptists

An unlikely coalition to kill Section 230

|The Volokh Conspiracy |

Economics Professor Bruce Yandle developed the concept of "Bootleggers and Baptists." Often, different groups with different motivations favor the same regulation. For example, who favors prohibition laws? Baptists, because they are morally opposed to alcohol. And Bootleggers, who stand to profit from selling moonshine on the black market. Independently, each group may not be able to advocate for prohibition laws. But when the coalition works together, they can achieve results. Yandle writes, "[Baptists] take the moral high ground, while the bootleggers persuade the politicians quietly, behind closed doors."

We are seeing a strange "Bootlegger and Baptist"coalition with respect to Section 230. President Trump and other Republicans have called for the repeal of that seminal law. As have Joe Biden and other progressives. Indeed, advocates for revenge porn laws placed a target on Section 230's back many years ago. They seek to repeal Section 230 for very different reasons. The conservatives think Twitter is biased against conservatives, and is shadow-banning their tweets. And progressives think Twitter is shielding abusive content that affects marginalized groups.

The coalition to support Section 230, I fear, is dwindling. The ACLU is not what it used to be. And tech companies are not particularly sympathetic plaintiffs.

The next Congress may be able to muster bipartisan votes to kill Section 230. But I am skeptical they can adopt far-reaching privacy legislation. Once the preemption argument is gone, states will adopt their own European-style privacy laws. Tech companies would face a patchwork of fifty-one extremely imperfect solutions.

I'll let you decide which group is the Baptists, and which group is the Bootleggers.

NEXT: Court Orders: Stop Tweeting About Your Ex-Friend's Criminal Conviction—Though Tweets Didn't Use the Man's Name

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  1. I am hoping the Democrats’ (appropriate) reflexive opposition to everything Trump will increase their wavering support for 230.

    1. Unthinking responses are the best responses.

      1. You are the expert.

        1. You are too modest.

      2. They’re obviously not. But I’ll take a good response that arises from bad reasoning over a bad response.

    2. Trump effectively decided that Twitter’s warnings on his tweets constituted hate speech. I’m just glad to see that many progressives now agree that such hate speech really is free speech, protected by the First Amendment.

      I also wonder how the Trump-Twitter feud affects progressives’ thinking on free expression vs. inclusivity. Trump obviously feels unwelcome and excluded by Twitter’s warnings on his tweets. Do progressives now agree that protecting Twitter’s right to express its views about Trump’s tweets takes precedence over creating an open and inclusive safe space? Also, what is the criterion for determining inclusivity: (a) whether Twitter intentionally is trying to exclude Trump, (b) whether a reasonable third person would conclude that Twitter’s comments create a hostile and exclusive environment, or (c) if Trump “feels” excluded, then those feelings are automatically validated?

  2. Maybe someone could just define ‘impartial’ so that, if a site starts controlling content then it is self defining as no longer impartial, and then subject to the laws that apply to content providers.
    Stay neutral and uninvolved, of face up to the change in your business plan.

    1. So you’re saying a site like redstate.com shouldn’t be able to have a policy that they only allow pro-Republican points of view in the comments?

      1. As with other toxic substances. I would require redstate to come with a warning label.

        In medieval England, before there was plumbing, the lady of the house would yell “gardyloo” to warn passers by that she was about to heave a bucket of waste out the door. Perhaps redstate could do something similar.

    2. The entire purpose of § 230 is to enable sites to control content without exposing them to liability. The law neither expects nor requires neutrality or impartiality.

  3. As I keep pointing out, the conservative answer is to enforce Section 230 as written, Instead of ignoring the “good faith” requirement. Limit moderation to the listed basis.

    Notably, this is the approach Trump’s EO is taking: He proposes to give that “good faith” language teeth.

    Ultimately, though, the only real answer is competition, diverse platforms instead of the current ideological monoculture. But, how to achieve that?

    1. You know how people stop their subscriptions to local newspapers? Many papers are in trouble, having forgotten that, even if everyone the writers know is a Progressive, many of the subscribers are not, and they tire of the preaching. Loss of ad revenue is at least partly due to loss of circulation.
      The Babylon Bee jokes that Trump is migrating to MySpace. Something very like that is possible and will lead to two completely separate Americas, who do not even attempt to listen to each other. It does not have to end that way, but the social media companies are driving it.

      1. Worsen when you look at what is happening in Minnesota right now — progressive looters and armed volunteer “redneck” security guards — I’d say we’re not that far from a civil war.

        1. Rednecks in Blue Minnesota? With decades of Blue Mayors (Coleman in St. Paul was initially elected on DFL ticket). With a generation of DFL DAs? (49 years)

          How many rednecks and how influential can they be?

    2. What I like about you, Brett, is that no matter ho many times people who know what they’re talking about tell you that you’re wrong, you never let it discourage you from repeating the same wrong thing again five minutes later. It’s that sort of aggressive refusal to be discouraged that brought us the Hindenburg and the Titanic.

      1. Of course, “know what they’re talking about” depends very much on whose bias they confirm.

    3. He’s also proposing enforcing the good faith requirement to a part of the statute that doesn’t include a good faith requirement.

      Assuming, for a second, that we are only talking about direct liability under subsection (c), what actions have been taken by Twitter that are tortious?

      1. “He’s also proposing enforcing the good faith requirement to a part of the statute that doesn’t include a good faith requirement.”

        Trump is actually proposing a number of things.

        He’s proposing to clarify exactly what that “good faith” requirement which as anybody can see actually IS in the law, requires. That’s Section 230 based, but only deprives the platform of civil immunity in regards to a particular act of moderation.

        He’s also proposing to treat pretextual moderation by platforms as a deceptive business practice. I think that actually bypasses Section 230.

        1. “He’s also proposing to treat pretextual moderation by platforms as a deceptive business practice.”

          How is “shadow banning” *not* a deceptive business practice?

    4. “this is the approach Trump’s EO is taking: He proposes to give that “good faith” language teeth.”

      I’d like an end to fraudulent and deceptive practices such as shadow banning, which inherently are not “good faith” — fraud never has been considered “good faith.”

      “Ultimately, though, the only real answer is competition, diverse platforms instead of the current ideological monoculture. But, how to achieve that?”

      Two words: Affirmative Action.

      Social media is largely used not only by Federal entities but but the even larger group of Federal Fundees. The NH DOT announces winter road conditions on its Farcebook Page, colleges announce football scores on their Twatter feed. It they were required to instead use the minority platform for this purpose, it would require those seeking to find out if the Kancamagus Highway was open or how the UMass Minutemen are doing to go to these other platforms. And neither the NHDOT nor UMass is going to give up Federal funding over choice of social media platforms.

      Even “Equal Opportunity” and requiring that all posting must be concurrent and equal would be effective — that was the model of USA Today and Fox News — both started from nowhere with an equal opportunity to report the news, and went after underserved markets. USA Today went after the businessman who wanted a consistent newspaper regardless of which city he was in that morning, and FOX News went after conservatives (and now has abandoned us).

      1. Fox News has abandoned conservatives?

        What an amazing statement. Have they fired Hannity and Ingraham?

    5. “Ultimately, though, the only real answer is competition, diverse platforms instead of the current ideological monoculture. But, how to achieve that?”

      I agree that more competition in the social media space would be good (maybe we should stop letting Facebook acquire all of its potential competitors?), but the implication that the current platforms are somehow resulting in an ideological monoculture is absurd. Conservative sources and viewpoints spread widely on all of the social media platforms, and Fox News dominates engagement on them. See 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.”

  4. Professor Blackman,
    230’s good faith requirement is the right idea, but trying to get social media to follow the same rules governments have to follow violates the Social Media’s first amendment rights. What do you think about a more modest solution — recognizing that the good faith requirement incorporates basic due process protections of notice and right to appeal or cure? See my article at the Federalist for a libertarian-friendly way to regulate social media:

    https://thefederalist.com/2019/11/12/what-the-feds-should-do-instead-of-banning-viewpoint-censorship-from-social-media/

  5. If the “good faith” standard means anything, then persons being censored at the very least must be given notice of that censorship. When social media companies use stealth censorship practices like shadow banning, i don’t see how such censorship could ever be treated as “good faith.”

    1. I don’t necessarily see any reason why good faith requires notice. Due Process would certainly require notice, but good faith seems to be focused on the actions of the person doing the censorship, not on the person being censored. A good faith but mistaken action can still be good faith as long as the motives were reasonable.

      That’s not to say that notice has no bearing on the subject. It seems to me that someone who does it secretly might be unwilling to be called out on their actions or learn about whether their beliefs were mistaken or not. However, it doesn’t strike me as a minimum requirement so much as something to consider in the totality of circumstances.

      1. Eugene doesn’t see why good faith requires not lying about the reason for a moderation act. The bottom line here is that “good faith” is being interpreted to not require ANYTHING.

        1. Eugene doesn’t see why good faith requires not lying about the reason for a moderation act.

          Correct. One has nothing to do with the other.

          Let’s suppose my real reason for moderating your post is R. If you looked at internal emails, if you waterboarded me, if you were psychic and read my mind: you’d find out that my reason was R. Let’s assume that R is a legitimate reason (by whatever definition you choose) for moderating your post. That means I have moderated your post in good faith.

          Now, let’s suppose I then falsely announce, “I have moderated your post for Reason F.” This is a lie. F wasn’t my real reason. R was my real reason. Does that have the slightest relevance to whether I moderated in good faith? No, of course not. The question is whether my real reason is legitimate, not whether I lied about my motives.

          The bottom line here is that “good faith” is being interpreted to not require ANYTHING.

          No, he gave an example of the rare kind of thing that might not be. If someone banned a user not because he objected to the user’s content, but just to suppress competition.

      2. “I don’t necessarily see any reason why good faith requires notice.”

        But wouldn’t fraudulently making something appear to be posted when it actually isn’t posted constitute an inherent lack of good faith?

        1. No.

          Boy, my Simple Answers to Stupid Questions macro is getting a workout.

  6. Jack Balkin, (Who I don’t usually find myself in agreement with.) has a good post on this at his own blog. He suggests that what is really needed is interoperability requirements for social media platforms, to negate the network effect that drives such platforms towards monopoly.

    It strikes me that this probably really would help. But I wonder about the constitutional basis for imposing that.

  7. Section 230 reform has been percolating for some time. Before the current initiative, the bootleggers were the indie folks targeting the Big Four and the economic conservatives wary of any platform that could bring the unwashed masses into the corridors of power. Although it looks like the President is trying to shoot the horse that he rode in on, I suspect that it’s an attempt to control and direct a long-percolating issue that might be crucial to his faction’s fortunes. (Both electoral and subsequently.)

    Mr. D.

    1. The social media platforms have been putting a pretty heavy thumb on the scale in their moderation decisions, in an open attempt to influence election outcomes, and there has been talk of just outright censoring the President’s campaign speech on them.

      I suspect the EO is at least in part an effort to ‘brush back’ the platforms, dissuade them from going any further down this path for this election cycle.

      1. That sounds about right, though since the second part of the editing exception specifically says that they can allow users to moderate content in any way they see fit, it’s hard to argue that there’s any increased statutory responsibility to preserve the discourse.

        Before the Executive Order, the question seemed to be whether companies as large as FB needed the protection, and whether it didn’t avert some necessary Schumpterian turnover. And now the frame is the degree to which the statute keeps the sites from altering the content, which wasn’t necessarily at the top of the list beforehand. At least not all of the lists.

        Mr. D.

  8. I see Twitter escalated its foolish fight against Trump.

    I guess they are banking on him losing. Decent bet right now but November is a long way away. If you try to kill the king etc.

    1. Not everyone is a robotic optimization machine. Especially when it comes to political fights.

      Maybe it was just an unthinking response.

      1. They have never done it before.

        Deliberate is foolish, unthinking is doubly so.

      2. Political bias is actually their business plan.

        If you earn money running a social media platform, and then spend it on politics, the income is taxable. But if you use your social media platform to directly influence politics even if it hurts you financially by alienating part of your customer base, the money you ‘spent’ doing that isn’t counted as income. On the contrary, it shows up on your balance sheet as a loss!

        So social media platforms are motivated to “take profit” in the form of political influence rather than money. Doing that has actually become a routine part of how the businesses are run.

        1. Then we need to tax them.

        2. The paranoia is strong with this one.

  9. About 60 years ago when I was growing up in West Virginia one of the perennial political issues was “Liquor by the Drink”, that is allowing restaurants and bars to serve drinks. At the time mixed drinks were only available in private clubs and other private venues. My father always said the measure was opposed by the preachers and the bootleggers.

    1. Yes.

      This was commonly understood to pertain to liquor issues, in parts of the South at least, more than half century ago, and probably much further back.

  10. Well, we now have Twitter’s response: “Bring it!”

    Twitter censors Presidential tweet.

  11. Commenters flocking in from all directions, eager to tinker with the machinery of press censorship, and make it work right.

  12. Bruce Yandle did discuss the “Bootleggers and Baptists” in an AEI piece back around 1983 and mentioned in Wikipedia. But when I moved to North Carolina I heard that phrase used many times – that was back in the early 1960s. It was often used in saying, “Bootleggers and Baptist keep the country dry.” That was expressing exactly the same concept as Bruce Yandle discussed in his writings.

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