Free Speech

There's Some "Hate Speech" for You

|The Volokh Conspiracy |

A reader passes along this item, which led to his account being locked (for 30 days, apparently) on "hate speech" grounds by Facebook (I've redacted his name below):

Why exactly is that "hate speech"? I posed the question to some law professors. Some thought it was because it was "blatant misogyny," because of the word "bitch" or perhaps the phrase "bitch slap." Someone added that the "grow a pair of balls" may be further evidence of "misogyny." (I'm skeptical of that theory, but this is what I was told.) The Facebook "hate speech" policy gives "bitch" as an example of a word that's forbidden, though only when "targeting a person or group of people on the basis of their protected characteristic(s)," and it's pretty clear that this meme doesn't target people based on sex. (I don't much care for "bitch slap" and even "bitch" myself, but they seem far removed from "hate speech," especially used in this context.)

Someone else suggested that it might be "direct attack on people based on what we call protected characteristics," namely "national origin"—i.e., Americans. My friend and coauthor Mark Lemley reported,

Whether for ideological reasons or to show even-handedness, Facebook has been blocking posts viewed as "anti-American."  I had a post blocked (and the block upheld on appeal) for saying "Americans are idiots" to caption a picture that showed Americans being, well, idiots.

OK, but "hate speech"?

Now Facebook is a private company, and is legally entitled to block what it wants. And it's hard to say that there's real damage in its blocking memes like this, or any real chilling effect on speech, at least speech by private individuals: How much do you really lose from having your post deleted and your Facebook account blocked? (Some say you gain from it.)

Yet instances such as this help show, I think, the danger of attempts to restrict "hate speech," whether through broadly applicable laws or through campus speech codes and the like—situations where people might be much more worried about punishment. "Hate speech" is always either defined very vaguely, or defined more precisely (as Facebook is trying to do) but in a way that ends up being ridiculously broad.

Such attempts to suppress "hate speech" always start with people talking about how of course we need to stop Nazis and racial epithets and calls for genocide. But they don't seem likely to end with that.

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  1. Facebook should be considered to be a public utility. It should be subject to limits on government censorship of political speech.

    1. Or broken up the way that Ma Bell was 40 years ago.

      1. Yeah. That turned out so well…

        1. It did. It directly lead to the explosion of telecommunications services, the decrease and eventual elimination of long-distance charges, the dramatic decrease in telephone service prices, and the improvement of home internet speeds.

          1. Not to mention the introduction of cell phones and then smart phones.

            1. “Not to mention the introduction of cell phones and then smart phones.”

              Not to mention time travel. Without the breakup of the Bell system in the 1980s, cell phones could never have been invented in the 1970s.

              1. Ericsson and others would beg to differ — cell phones were in Europe and Japan first.

                1. “Ericsson and others would beg to differ — cell phones were in Europe and Japan first.”

                  No, they can operate a calendar, and they know that they were in Japan first before Japan broke up NTT. Oh, yeah that’s right, Japan didn’t break up NTT and got the first cellular phone system.

              2. “introduced” =/= “invented”.

                There’s a reason cell phones were common in Japan well before they were common in the US. Ma Bell’s innovation-stifling monopoly was part of that.

          2. Maybe. It’s interesting to think about what would have happened had Ma Bell remained intact but cell and cable became its competitors.

            In the short term, many people saw their phone bills increase after the breakup because their local unlimited subscriptions became much more costly and this was not offset by decreases in long-distance charges.

            1. ” It’s interesting to think about what would have happened had Ma Bell remained intact but cell and cable became its competitors.”

              That happened in academia — most colleges sought to use wired telephones in their dorms as a cash cow, charging outrageous long distance rates.

              The cell phone companies — realizing that their networks were used most during business hours — started offering “free nights and weekends” and — much to their surprise, had lots of parents buying cell phones for their kids because it was cheaper than paying for the dorm phone.

              Inside of about six months in the late 1990s, UMass went from one tower to three and even that wasn’t enough, a few more were needed contiguous to campus.

              Something similar happened in Europe where there were long waiting times for a new wired phone from the governmental bureaucracies — young people instead went with a cell phone, which they could get immediately.

            2. ” It’s interesting to think about what would have happened had Ma Bell remained intact but cell and cable became its competitors.”

              That happened in academia — most colleges sought to use wired telephones in their dorms as a cash cow, charging outrageous long distance rates.

              The cell phone companies — realizing that their networks were used most during business hours — started offering “free nights and weekends” and — much to their surprise, had lots of parents buying cell phones for their kids because it was cheaper than paying for the dorm phone.

              Inside of about six months in the late 1990s, UMass went from one tower to three and even that wasn’t enough, a few more were needed contiguous to campus.

              Something similar happened in Europe where there were long waiting times for a new wired phone from the governmental bureaucracies — young people instead went with a cell phone, which they could get immediately.

              1. “That happened in academia — most colleges sought to use wired telephones in their dorms as a cash cow, charging outrageous long distance rates.”

                When I went to university in the 1980’s, there weren’t any phones in the dorm except for the payphone in the lobby.

                1. Yah, got to join some other commentors in trashing Dr. Ed here. We (1981) didn’t even have payphones – only a phone on the wall that would receive calls but had no option to call out. I didn’t even have a pager until 1984.

                2. I attended Valparaiso University, starting Fall of 1978. Every Dorm room had a wall-phone and, yes; the Rates were extreme. Cheaper to Call Collect Long Distance.

                  1. ” Every Dorm room had a wall-phone and, yes; the Rates were extreme.”

                    How extreme were the rates on the calls you didn’t make?

          3. The Baby Bells didn’t stay split up. The split had nothing whatsoever to do with improvement of home Internet speeds, and little to do with pricing of telephone service prices.

    2. Facebook is not freely exercising their first amendment rights. They and other tech companies are suffering under direct threat by politicians who want to limit or abolish 230, or break them up, or pass other direct legislation to hurt them for not censoring hate speech.

      And then 0 seconds later, they call for the censoring of their direct political opponents because it’s hate speech, or violent, or “not just wrong but dangerously wrong”. One such politician won the “hurt the media companies over hate speech” debate during the Democratic primary by promising more direct legislation. She is now in line to become the VP, and almost certainly the president within the next 4 years.

      Facebook declines to censor politicians, saying it doesn’t want to get involved and you need to hear what your politicians are saying, and they catch holy hell for it.

      1. It isn’t like Farcebook (et al) are innocent victims here — they know how “the great unwashed” were able to unify behind Donald Trump and they’ve been on an “Orangeman Bad” Crusade for the past four years.

        They’re going after Marsha Blackburn — I’ve met her and Farcebook is making a mistake, a big one, in doing that: https://www.newsmax.com/politics/blackburn-twitter-censorship-warning/2020/05/29/id/969644/

        1. And this is what I was looking for:
          “The footage includes a shot of an internal order to the Cognizant team instructing moderators not to censor a video of Lemon saying that white men are “the biggest terror threat in this country.”

          https://dailycaller.com/2020/06/23/project-veritas-facebook-bias-cnn-don-lemon/

          1. You guys are late to the “blame the corporations for everything that’s wrong with politics” party. The libs started blaming corporations and corporate profits a couple of decades ago.

      2. “threat by politicians”

        Oh noes, words by politicians.

        “Facebook is not freely exercising their first amendment rights.”

        Criticism does not mean your rights don’t exist.

      3. “Facebook is not freely exercising their first amendment rights. ”

        Is there a way to unfreely exercise them?

  2. No, no, no, and no again.

    No.

  3. Maybe Facebook was looking at this as promoting violence.

    1. No, Farcebook was looking at it as promoting conservative politics.

      1. One could easily read it as promoting liberal politics (e.g. legalize MJ, fight racial injustice, increase [legal] voter participation, etc.).

        1. Agreed. The Republican party controls the executive branch, the senate, and the supreme court.

          Whom are we supposed to be “taking back the government” from?

          That said, seems to me that it’s the result of a faulty algorithm.

            1. Oh, this was another conspiracy-theory meme? about how they’re out to get you? The darn commies are under every bed and behind every tree, and they’ve infiltrated the State Department and I have right here in my hand a list of them? That’s the rational approach you’re advocating?

          1. “Whom are we supposed to be “taking back the government” from?”

            The Republican Party — The Bushes, The Romneys, The Roberts, and the bureaucrats.

            Andrew Jackson had the right idea — he FIRED every bureaucrat when he took office. And didn’t Thomas Jefferson eliminate every Federal District judge by repealing the judiciary statute?

            1. “didn’t Thomas Jefferson eliminate every Federal District judge by repealing the judiciary statute?”

              No, since Presidents don’t (can’t) repeal statutes.

            2. Given decisions and rulings from scotus, I think your claim that the GOP controls them holds no water. All in all, fairly well balanced versus the howls foretelling apocalyptic jurisprudencial doom.

        2. apedad, that’s what I meant — and they’re big time into tranny advocacy. Big time.

          1. Sooo….you’re into that sort of thing?

            1. No, but Farcebook & Twatter are…

      2. Clarification: Farcebook CENSORS anything promoting conservative politics.

        1. Further clarification: Facebook makes a considerable amount of its revenue promoting conservative politics. (because that’s what people are willing to pay them to advertise.)

  4. Or maybe it just shows that Facebook’s algorithms aren’t very good…

    1. Or that their algorithms are working perfectly to remove anything faintly individualistic from view?

      1. “hey, be just like us” is your version of “faintly individualistic”???

    2. “This,” as they say.

      Don’t look for consistency in facebook’s enforcement because the mechanisms are just terrible and only loosely connected to the stated policies.

    3. It does show that. But Prof. Volokh is right that unless cabined to some very historical forms of it, the term “hate speech” as a legal category is extremely hard to define well.

      1. quite a few people define “hate speech” as ‘speech I hate’. And then some instead define it as “speech i agree with”. But everybody can find some examples that are notably heinous enough that an argument can be made for avoiding it.

        1. Avoiding it but not preventing it…

          1. You are correct, I used one word and not another word. You looking for some kind of prize? Or just want to avoid addressing anything I said?

          2. Preventing. And how do you propose one does this? Remove the ability to think freely? He is correct, avoiding.

  5. Big Tech censorship and election interference should concern everyone.

    It doesn’t concern the Left since censorship and election interference is being applied in their favor and their ideology is a outcomes based one and not a principled one. (e.g. Disparate Impact, Living Constitution, etc.)

    1. They can’t censor you if you don’t use their software or their computer systems.
      If you don’t like they way they use their software or their computer systems, provide you own, and get other people to join you on your competing platform. That’s capitalism, which Republicans are allegedly in favor of.

      1. How do you feel about:

        a.) Monopolies?

        b.) Multinational companies engaging in political interference in our elections?

        c.) Citizen’s United?

        1. Monopolies? Point to one.

          1. Facebook, Google, Twitter.

            I accept your silence on multinationals interfering in our elections and CU as your confession of you being a proto-liberal hypocrite.

            1. I accept you lack of reasoned argument as a concession that you are incapable of it.

              1. You asked for one I gave you three.

                Can you not count?

                1. Network effects do not a monopoly make.

                  I learned that on this website.

                2. “Can you not count?”

                  I can count up to zero, which is how many actual arguments you bothered to make.

                  1. Fie, IT guy. Although incrementing negatives to reach 0… Here, cutting (pin) headers for a board, then into arduino to set up temperature sensitive switches for some fans. From scratch. For the the hell of it.

      2. What if their computer systems designed natural wedding cakes and they refused to design gay wedding cakes?

        1. What if you shut up and someone with some basic intelligence started posting under your name?

          1. “They can’t censor you if you don’t use their software or their computer systems.
            If you don’t like they way they use their software or their computer systems, provide you own, and get other people to join you on your competing platform. That’s capitalism, which Republicans are allegedly in favor of.”

            The principle described here must be gerrymandered to exclude Christian artisans and craftsman and their capitalist bakeries and flower shops.

      3. This is not capitalism, when the Democrats (and some Republicans) are threatening section 230 changes if they don’t censor the way politicians want.

        No, this is not capitalism, which is a natural corollary arising out of freedom, but rather good old dictatorial threats from those in power.

        1. If the Democrats (or some Republicans) actually make section 230 changes, that won’t make the system any less capitalist. Any more than it was uncapitalist before section 230 was passed.
          Find another boogeyman, this one isn’t scary.

      4. Except governmental agencies increasingly use it for official communication. Things like parking bans.

        1. Egads. They use the telephone system for some official communication. Guess that means the phone system aren’t capitalist, either.

      5. >don’t use their software or their computer systems…and get other people to join you on your competing platform.

        OK, but then what? I do a ton of work convincing others to move to that competing platform. Then, either: 1) big tech bans the new platform (e.g., Gab); 2) big tech buys the new platform (e.g., Instagram); or 3) big tech lobbies government to de facto ban the new platform (e.g., Gate’s and Smith’s calls to “regulate social media”).

        1. So when big tech “bans” your new platform, you work around the ban, and then when they come around and offer you a big pile of money for your project you turn them (and their money) away, and 3) you do your own lobbying. You do know that lobbying can go both ways, and when it isn’t Republicans being lobbied, the bigger company doesn’t always win.

          1. But asking a gay to go around the corner to a different bakery is a bridge too far!

            1. Are you mad because you’re being kicked out of bakeries for walking in and asking if they have glory holes?

              1. Why do you associate glory holes with homosexuality?

                1. Why do you fail to see that banning invidious discrimination in commerce is a legitimate government endeavor?

                2. “Why do you associate glory holes with homosexuality?”

                  Didn’t. That was you.

                3. “Why do you associate glory holes with homosexuality?”

                  Read again. I associated glory holes with YOU, and you closed the loop by associating YOU with homosexuality.

    2. “It doesn’t concern the Left since censorship and election interference is being applied in their favor..”

      Don’t get out much, do we?

      https://boingboing.net/2020/08/31/facebook-is-a-parallel-unive.html
      [link is to synopsis of a NYT article behind a paywall]

  6. “Such attempts to suppress “hate speech” always start with people talking about how of course we need to stop Nazis and racial epithets and calls for genocide. But they don’t seem likely to end with that.”

    The problem is that they define “hate speech” as “speech I disagree with”, “Nazis” as “people I disagree with”, and “genocide” as, “any policy I disagree with”.

    Their policies make a lot more sense, if you just do that substitution.

    1. Exactly. I got in “trouble” for the term “tranny bathrooms” — 18 months later — and eliminated my account.

      1. Such a shame that they wouldn’t allow you to continue to be an idiot in public.

        1. Yes, but we have you as the bench warmer of choice.

          1. At least I can operate an alphabet well enough to spell my own name, which seems to be beyond your ken.

        2. Idiot because you disagree with him? Wrong =/= stupid =/= lies.

          1. you wisdom is on full display, or at leastt it would be, if there was any there to observe.

    2. Wait until they get that whole “hate speech is violence” thing mainstreamed.

      You’ll be committing felonies if you disagree with them.

      1. For 10 years I’ve been warning about the coming “speech changed my brain and therefore it’s bannable!” argument to predictably come around. A lite version of this is the basis for censorship in schools and business. Free people cannot allow that censorship to escape into the wild.

        Nobody learns. The problem with dictatorial powers is the powers, not who wields them. Do not grant the government those powers to begin with, and you shall have no problems.

        1. ” A lite version of this is the basis for censorship in schools and business.”

          Businesses are free to censor their employees or their customers as they see fit to do.

          1. Except, in the minds of some, when it comes to bakeries.

            1. The poor censored bakeries.

              1. Yes, the poor bakers being held to the same rules as other businesses. Simple enough, one would think, to refrain from discriminating against people for an unlawful reason.

                1. If baking cakes in exchange for money offends your religious sensibilities, then perhaps operating a bakery is not a wise choice for you.

        2. Sapir-Whorf, as fashionable as it may be in certain groups who think like that, is a discredited theory. Not that this will make any difference.

    3. “The problem is that they define ‘hate speech’ as ‘speech I disagree with’, ‘Nazis’ as ‘people I disagree with’, and ‘genocide’ as, ‘any policy I disagree with’.”

      The problem happens when a business feels the need to protect their revenue source from information that they won’t like.

      So, back in the early days of network television, the sponsor of the show could affect storylines. There’s a case where the gas company was sponsoring the show, which meant that a script that had someone committing suicide had to come out, not because anyone is anti-suicide, but because in the script, the person did it by putting their head in the oven, and that might offend the sponsoring gas company. The extremely famous original Apple MacIntosh “1984” commercial was suppressed because it was aimed fairly squarely at IBM, which was itself a major television sponsor at the time.

      but of course, “poor me, I’m the victim here” conservatives see it as all about THEM.

      1. The problem happens when a business feels the need to protect their revenue source from information that they won’t like.

        How is that different from a consumer products or retail company altering their behaviors due to a threatened boycott by a liberal or conservative movement? What is the “problem” in either case?

        1. It’s a problem because they have to guess what the advertisers will object to. Sometimes they guess right, and sometimes they’re worried about something they didn’t really need to be.

  7. “Such attempts to suppress “hate speech” always start with people talking about how of course we need to stop Nazis and racial epithets and calls for genocide.”

    Is it still a good thing when the fascists take over the definition of hate speech?

  8. I know some people who feel that the Republican party is a racist organization and anything attributed to the GOP or a Republican automatically qualifies as hate speech. They would be happy if Facebook banned any posts mentioning the GOP or GOP candidates in a favorable light.
    Facebook is a private company that can do whatever it wants. But at some point, the public that does not agree with Facebook’s political and social mandates will take their business elsewhere.

    1. “The public” are not Facebook’s customers. “The public” are Facebook’s PRODUCT.

    2. The problem is that Farcebook has a monopoly.
      My neighbor, a Millennial, gets ALL her news from Farcebook.

      1. If you had a neighbor get ALL her news from OAN, would that make OAN a monopoly?

      2. That proves your neighbor is an idiot, not that Facebook is a monopoly.

        You know how you can tell I’m right? You don’t get all your news from Facebook, so there’s obviously other channels to do so.

      3. And your ass has a monopoly. You pull all your facts out of your own ass.

  9. Like beauty is in the eye of the beholder, “hate speech” is in the ear of the listener.

  10. Facebook enjoys an exemption from slander/libel because they allegedly don’t censor

    That exemption needs revoked

      1. It’s inaccurate, but it has some truth to it. Facebook enjoys immunity from defamation from publishing others’ defamatory statements. Congress granted that so that the internet could take off, and companies could censor porn without worrying about being held liable for defamation. Not so they could censor one side of the political spectrum.

        The internet is now well established and will not collapse if that immunity is taken away or limited.

        1. “The internet is now well established and will not collapse if that immunity is taken away or limited.”

          Sure, the Internet won’t collapse, but user-generated content will. If platforms become liable for what users post, they just won’t allow users to post anything. The thing Section 230 is shielding the platforms from is not having opinions about what sort of content is “good” or “bad” or “right” or “wrong”, it’s some commenter on the Volokh Conspiracy writing that a lawyer committing malpractice and having Reason be on the hook for that libel.

        2. ” Congress granted that so that the internet could take off”

          No, Congress granted that so that user-generated content on the Internet would get some moderation rather than the none at all that a court decision had created. They felt that directing defamation lawsuits and people doing the defaming rather than targeting the deepest pockets was the proper avenue to redress of defamation.

        3. jb and JP

          This is all true. But the modertion Congress had in mind was removing porn and maybe Nazi propaganda, not siding with one side of the political spectrum. I understand that is what current law allows. But it is an unintended consequence.

          IMO, Section 230 should not be abolished, but it should be reformed. My thought (half-baked as it is) is require sites to disclose their removal policies, and it they don’t stick with it, they lose Section 230 immunity. Facebook can favor one side of the political spectrum, if it so chooses, but it has to be above-board about it.

          To quote Louis Brandeis:

          Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

          1. This is all true. But the modertion Congress had in mind was removing porn and maybe Nazi propaganda, not siding with one side of the political spectrum. I understand that is what current law allows. But it is an unintended consequence.

            There is no evidence whatsoever for this. The CDA was enacted before mass social media; at the time you were more likely to have special interest forums, and moderation included attempts to keep posts on topic, to eliminate spam, sexually explicit material, to stop harassment, profanity, violence.

            IMO, Section 230 should not be abolished, but it should be reformed. My thought (half-baked as it is) is require sites to disclose their removal policies, and it they don’t stick with it, they lose Section 230 immunity. Facebook can favor one side of the political spectrum, if it so chooses, but it has to be above-board about it.

            They do disclose their removal policies. They reserve the right to remove any material that they don’t like.

            1. This is sophistry. They do indeed remove whatever it is with which they don’t agree. They do not however provide a coherent explanation or reason. This is explained to some degree by the fact that different people are making the enforcement decisions, so their is little appearance of consistency. And, to some degree, this is understandable. But, professional organisations don’t operate in a piecemeal fashion, and when they claim neutrality, they do their damnedest to maintain it, or at least the appearance thereof. That is not the case here. Surely one can understand that hypocrisy and unfair business practices tend to set folks off, even when there are more important issues that one could be working on?

    1. Facebook enjoys an exemption from slander/libel because they don’t slander/libel, and by law they can’t be sued for what someone else says on their service.

      1. If they censor someone in bad faith, they can be liable for that. At this point, it is hard to find good faith in Facebook’s behavior — for example, they kicked a group (Patriot Prayer) off their platform in response to a member of that group being murdered in Portland.

        1. Oh my! The caterwauling of victims here is like a freshly pulled mandrake root.

        2. If they censor someone in bad faith, they can be liable for that

          No, they can’t.

          Even setting aside § 230 in its entirety, what’s the theory of liability?

        3. “If they censor someone in bad faith, they can be liable for that.”

          This is, at best, a misunderstanding of the text of Section 230. At worst, it’s just wishful thinking stated as fact.

      2. Farcebook does NOT enjoy an exemption from the Sherman Act, as Google will soon discover.

        1. Is that your expert opinion as an antitrust lawyer?

          1. Dr. Ed is an expert the way Donald Trump is an expert. “I feel like popping off today” is all that’s required.

        2. Neither Facebook nor Google has a monopoly, as you may yet discover.

      3. Only because they aren’t editing content — which wasn’t technologically possible back in the 1990’s — but now is and they now are, and hence now that they de-facto edit what others write, I’m not so sure the exemption would apply.

        1. Only because they aren’t editing content — which wasn’t technologically possible back in the 1990’s —

          Is this like your notion that there was no 911 service in 1995?

        2. “Only because they aren’t editing content — which wasn’t technologically possible back in the 1990’s”

          Your technical expertise is as keen as ever.

    2. Wow, that’s a breathtakingly bad understanding of the law. The effect of Section 230 is that Facebook has an exemption from slander/libel for content posted by other people because they censor. The censorship is literally the whole point of Section 230, since before platforms either had to censor nothing at all (including terrorist recruitment messages or child porn, say) or become liable for what everyone posted.

      1. ” The effect of Section 230 is that Facebook has an exemption from slander/libel for content posted by other people because they censor.”

        Nope. The effect of section 230 is that Facebook has no liability for content posted by other people whether or not they censor, and regardless of what they choose to remove.

  11. “How much do you really lose from having your post deleted and your Facebook account blocked? (Some say you gain from it.)”

    This should have been the entirety of your post.

  12. The social media tech industry has become increasingly brazen while the political class is in disarray over the pandemic. See, for example, https://www.linkedin.com/pulse/censoring-science-ari-trachtenberg.

  13. In the commercial context, “hate speech” is any speech that bothers the people paying the bills, so, in Facebook’s case, it means advertisers don’t/won’t like it.

    1. Except, again, Farcebook has a monopoly over advertising.

      1. Except, again, you’re pulling that out of your ass. Facebook has a monopoly over advertising the way you have a monopoly on good sense, ie, not at all.

    2. One thing I’ve not heard in all the kerfuffle over Facebook removing content is that it’s driven by advertisers’ complaints. I *have* heard it’s been driven by various activist groups and I’d be interested in any sites you can provide.

      Thanks.

  14. Just make section 230 only applicable to entities who largely don’t edit user content. Problem solved. The whole point of 230 was that providers couldn’t scrutinize user content like a publisher could. If they’re going to do that, they can remove libelous material.

    1. Plus we’d get to hear from Artie Lee Ray Jim Bob.

      1. Probably not. I appear to have jumped on Prof. Volokh’s last good nerve enough that he would use a religious freedom claim to censor me.

        1. The cachet of perceived victimhood, stronger than nicotine.

    2. No, the whole point of § 230 was so that providers could scrutinize user content if they wanted, without having to worry that doing so would make them liable.

      1. No, it actually was that they couldn’t catch all the porn — remember this was the CDA that SCOTUS struck down.

        1. It actually was that removing anything legally implied that they were screening everything, that anything not screened was intentionally approved. If they didn’t want to screen everything this kept them from screening anything. they wanted to put in a system that allowed them to be notified by something other than a court order that there was something objectionable on their system.

      2. Indeed. The pre-230 state of the world was that platforms weren’t liable as long as they didn’t edit user content. This forced platforms to choose either to leave all content up (including porn in forums targeted for children, or vulgarity on a bible study site) or become liable for everything that any user posted. Does anyone actually think that world is better?

        1. “This forced platforms to choose either to leave all content up […] or become liable for everything that any user posted.”

          Or not allow any user-created content, the most likely result if section 230 were repealed.

    3. “Just make section 230 only applicable to entities who largely don’t edit user content. Problem solved.”

      That’s how it works now. Problem solved?

  15. “How much do you really lose from having your post deleted and your Facebook account blocked?”

    If that deletion or blocking is done with an agenda, and especially if it is hidden from view, there is considerable harm both to the person whose speech was suppressed, and to their community more broadly, who see an inaccurate representation of what people are saying.

    1. So, not much harm from not being able to use other people’s computer equipment in a way they didn’t want it to be used?

      Wah! The public is being deprived of my opinion because I’m not allowed to spray-paint it on the side of Trump Tower!

  16. Yeah, it’s because of the misogyny. It’s not hard. You don’t like it, but it’s not some mystery or conspiracy against conservatives. I mean, I see conservative memes all day long that don’t invoke the imagery of violence against a women as a metaphor for the kind of “action” that needs to be taken in order to “take back the country.”

    That’s it. There’s lots of very conservative ways to say the exact same thing. Some of them probably even more inflammatory and stupid than this. But yeah. it’s the misogyny.

    1. A liberal pal of mine posted “men are dumb” and got a warning the other day. News flash: You are likely to run into confounding notions of decency on Facebook. But the guidelines are published. And unlike Volokh I don’t think it’s clear that this meme isn’t targeting women. It’s pretty clearly saying that unspecified Americans aren’t being man enough to take back the country, and invoking negative stereotypes of women to make the point. These are the clear implications of the actual words.

      To object to this interpretation is to discard the meaning of the actual words being used and instead valorize the supposedly clear intent. I think we’re getting more information about the poster than he probably intended.

      1. ” These are the clear implications of the actual words.”

        Or would be, if labeling men as females weren’t a method of motivating them that reaches back to middle school. The best way to tell you’re doing something that is associated with masculinity (military training, high-level sports) is to count the number of times the leader refers to “you ladies”.

    2. Pretty hard to determine misogyny w/o knowing intent and the individual. The claim that use of a term in common use equates to support for or glorification of violence against women is tenuous at best. One wonders how ‘fatherfucker,’ or any of the varied women’s insults about lesbians being men -generally transphobic as well, would be approached. Especially given that ‘misandry isn’t a thing.’ One guesses the same vigorous application of double standards at which popular culture excels.

  17. it’s pretty clear that this meme doesn’t target people based on sex

    No, it targets them based on their bitchslappability. Even the bitchslap-worthy have rights.

    1. And who’s to say only women can be bitches nowadays? Stop with the archaic thinking!

      1. “Female” is part of the actual definition of “bitch”. Look it up.

        1. Anyone can self identify as a male or female (or non-binary or any of a variety of other [non]genders).

          If one doesn’t want to be accused of “bitch slapping” someone when they slap them, the slapper can merely assume the identity of a male and instead be accused of “stud slapping”. Being a mutable identity, it’s more like “Republican/Democrat/Green Party” member than “Black/White/Asian”.

          The entire notion if “misogyny” is now an obsolete notion that should be relegated to the archives of history retained only to remind how horrible life was before the gender enlightenment movement cleansed society.

          1. “The entire notion if ‘misogyny’ is now an obsolete notion that should be relegated to the archives of history ”

            Good luck with that spin.

  18. Now Facebook is a private company, and is legally entitled to block what it wants. And it’s hard to say that there’s real damage in its blocking memes like this, or any real chilling effect on speech, at least speech by private individuals: How much do you really lose from having your post deleted and your Facebook account blocked? (Some say you gain from it.)

    Yet instances such as this help show, I think, the danger of attempts to restrict “hate speech,” whether through broadly applicable laws or through campus speech codes and the like—situations where people might be much more worried about punishment. “Hate speech” is always either defined very vaguely, or defined more precisely (as Facebook is trying to do) but in a way that ends up being ridiculously broad.

    OK, to be clear, since Facebook is a private entity with no power to punish its users, you actually don’t object to how it edits or removes user content? Because having just told Arthur Kirkland there’s no principled basis for him to complain that your removal of his posts is an affront to free expression, I’d hate to think you’re throwing me under the bus by criticizing Facebook for what Arthur criticizes you for. ☺

    1. Of what import are a few tread marks in the context of promoting movement conservatism in America?

      See you around, Mr. Marvin.

  19. Social media platforms like Facebook should either be classified and regulated as public utilities with an obligation not to jmpose viewpoint censorship, or classified and regulated as punlishers with full liability. The speech involved should be either fully the user’s property, or fully the platform’s.

    None of this wild west situation where the platform gets to own all the speech as its property, yet doesn’t have to have any responsibility to others for it.

    Because social media platforms function much like the mail, railroads, and telephone of earlier days, treating them as utilities with users owning the content might be the better course of the two. Or it might not.

    Let there be competition between a free model where the platform owns all the content and makes whatever rules it wants, and a subscription model where the user owns the content but pays a fee, and unless illegal it’s none of the platform’s business. Let the market decide.

    1. The market is already deciding. You’re literally advocating for the opposite. There are conservative variants of both Facebook and Twitter. They are not popular. One reason is that people really aren’t having a difficult time expressing their political views on either dominant platform. You just have people complaining that they can’t be as rude as they would like to be.

    2. I have no idea what you’re talking about with respect to owning speech and property. The only way one “owns” speech is via copyright, and nothing about § 230 has anything to do with copyright.

      Also, “let the market decide” is rather an odd argument when you’re proposing to outlaw choices that otherwise exist in, and are winning in, the marketplace.

      1. Of course, there’s nothing limiting anyone who objects to Facebook’s policies from launching their own site and applying whatever rules they prefer. Oh, you say it costs money? Yeah, I guess it does. And?

  20. “it’s hard to say that there’s real damage in its blocking memes like this”

    True. However, Facebook and a few other companies largely control most of the information and traffic on the Internet. And studies suggest they can wield significant influence over elections.

    https://www.judiciary.senate.gov/imo/media/doc/Epstein%20Testimony.pdf

    1. The best solution is to ignore them, then they can’t affect elections (or anything else). See also Mr. Soros or Mrs. Koch.

      1. Sure. Just have everyone stop using Google.

        1. It’s your choice; why are you mad at me because you don’t like the choice(s) you made?

          1. Facebook and Google account for almost all searches online made in USA and dominate global searches outside of China. Internet ads are purposefully harder to trace but when researchers tried they found if their scanner could find evidence of an ad engine on a page it was from Google. Nothing else came close. These companies use control over those backbones of Internet use to make competition not viable especially when you consider the initial cost to provide even substandard versions of their services. Their market power is much stronger than companies that were hit with antitrust cares in past. Why shouldn’t they be a target?

            1. “Facebook and Google account for almost all searches online made in USA and dominate global searches outside of China.”

              If true, would the reason be that people made the choice to use Google to search for things on the Internet? How is their choice to do so somehow MY fault?

  21. Did Facebook whimper when Prof. Volokh censored the term “c@p succ@r” in the context of a debate with respect to police conduct?

    Did Facebook whine when Prof. Volokh censored the term “sl@ck-j@wed” when that term was used to describe uneducated conservatives?

    Did Facebook protest when Prof. Volokh banished a commenter for making fun of conservatives (identifying ‘low signal to noise’ as the justification for the censorship)?

    Yet Prof. Volokh appears to perceive himself to be legitimately positioned to offer lengthy, public pointers — ostensibly rooted in concern for freedom of expression rather than in, say, partisanship — to Facebook on proper grooming of comments at Facebook’s similarly private forum and on the “danger” precipitated by censorship.

    #FreeSpeechConservativeStyle

  22. > Why exactly is that “hate speech”?
    Hard to say without knowing the context. For instance, if it is in response to an article about the civil rights gained by blacks in the 1960s, then it seems fair to characterize it as hate speech.

  23. Shit like this only stops when people stop it.

    1. How do you propose we stop Prof. Volokh’s longstanding campaign of viewpoint-driven censorship, Jimmy?

    2. What exactly are you advocating here?

      1. Suicide, apparently.

  24. “Now Facebook is a private company…”

    Which, I understand, works with governments throughout the world to work out censorship standards. Or do they act with total autonomy?

    1. Either way, they’re using their own equipment and software to do it. Don’t like their choices? Don’t use their equipment and software to spread your message.

      Delete your account and demand a full refund.

    2. So is your question “does Facebook remove content that is illegal based on local laws?” the answer is obviously yes. Just like they remove child porn or take down information in response to court orders in the US.

  25. “Conservative digital activists were smeared as behaving like “Russian trolls” by a recent article in the Washington Post. The writer also made sure to reach out to both Twitter and Facebook to get the teenage activists banned.

    The article goes to great lengths — even interviewing PhDs — to compare the teenagers to “bots,” even though the article presents no evidence that any accounts were not operated by humans, and to “Russian trolls,” even though the article acknowledges that the people in charge of the accounts were Americans.

    The article also casts normal behavior of political activists, like reading from a shared list of talking points, as somehow unusual. The Washington Post labels the act of paying people to repeat political messages — a standard feature of virtually all major political campaigns — as “coordinated inauthentic behavior.”

    Twitter and Facebook appeared to agree, suspending the accounts after the Washington Post reached out to them.”

    https://www.breitbart.com/tech/2020/09/16/washpost-compares-pro-trump-teenagers-to-russian-trolls-gets-them-banned-from-social-media/

    1. ML, you continue to reveal your one-sided reading habits.

      If you read the actual story in the WaPo, you will see the botlike behavior is because they paid the kids to spam out the same message as one another, over and over.

      Usually bashing Fauci, apparently.

      Awesome thing to defend, there, chief.

      1. Nope. I read the WaPo article when it came out. Now this the next day. If you read the actual stories in both outlets, there’s no spamming. The most that the WaPo article even alleges is “the campaign draws on the spam-like behavior of bots and trolls.” But they don’t spam. Read the other article for the other side of the story. They coordinate talking points just like the other side does, but it is nothing but regular political advocacy. Literally, the other side does the exact same things. The Washington Post’s constant lies are simply laughable.

    2. “The article goes to great lengths — even interviewing PhDs — to compare the teenagers to “bots,” even though the article presents no evidence that any accounts were not operated by humans, and to “Russian trolls,” even though the article acknowledges that the people in charge of the accounts were Americans.”

      So, they were Americans who were “like Russian trolls”, then?

  26. We can argue what is “hate” speech or just regular old speech but hate speech is 1A protected so I’m not seeing a legal issue here.

    What I’d like to see Professor Volokh op-ed on is the recent federal judge ruling that PA’s ruling is unconstitutional.

    Any chance for something on that ?

    1. PA’s emergency order is unconstitutional that is.

  27. FB is a private company, but it’s still subject to defamation law. For a while they were blocking all links to my site, for reasons they never told me, although I followed the links to ask repeatedly. If someone posted a link to my site, he got a reply saying that the page violated Facebook’s community standards.

    It occurred to me that, assuming they had no basis at all for the claim, they might be legally liable for defaming me. I never bothered to do anything about it, and FB eventually stopped blinking the links, without ever explaining why they had done so. But it occurred to me that it was a legal approach someone in a similar situation might want to try.

    They might at least change it to “We believe this page may violate our community standards,” which given that they have to do their filtering on a mass production basis, using very imperfect rules, is something close to a true statement.

    1. Not a recent viewer of your content, but when I was a frequent viewer I never saw anything remotely upsetting; nor that was likely to upset almost anybody sane. So, that FB would block links to your site is surprising to me.

      That being said, is it defamatory for FB to claim that something on someone’s site violates FB’s community standards? How would their claim state a fact that could be proven to be true or false rather than a protected opinion? Of course, as you are likely a public figure, it would be necessary to prove malice, which we all know has nothing to do with malice.

  28. Hate speech can be anything one wants it to be. Trying to define it or hold social media/ progressive media to their vague and ever changing definitions is like trying to describe water eddies in a ripple or current.

    I say that, but there really is hate speech among us, which has very real political deception, social manipulation, and spiritual animus behind it, but it next to never is identified correctly because doing so would require computing a functional calculus between and good and evil and truth and lie, both of which are mortally fraught with difficulty and hypocrisy.

    More pertinently, even speaking of true good or evil or anything vaguely having to do with soul constitutes hate speech and anti-science on social media, so no going down that metaphysical road, unless it’s Mephistopheles Freeway.

    1. Take the engineered left-right paradigms. When centrists to conservatives intellectually or emotionally inveigh against leftist opinion or disagree with, for example, AGW and inherent racism of Caucasians, they’re often cited for “hate speech.” When liberals or leftists say their piece which often includes colorful to nasty invective against non-Progs, they’re often derided by their opponents as idiots but not banned for “hate speech,” per se, only occasionally on account of their excessive vulgarity and gratuitous insult. Rarely do targets of Progressives whine and cry about the “hate speech” sent their way; they remain defensive regarding their opinions as hateful, instead of looking at the imbalanced and aggressive equation using Hate Speech as a force multiplier for one side.

      The ideas of hate thought and “hate speech” are being unofficially but, sad to say, effectively adjudicated in the US and western nations as a one-way phenomenon. They are rarely applied and accepted as a valid two-way occurrence.

      1. ” When centrists to conservatives intellectually or emotionally inveigh against leftist opinion or disagree with, for example, AGW”

        If centrists disagreed with AGW, we could argue about why they do this. but, for the most part, they don’t. It’s the conservative “true believers” who reject science.

        1. There’s a good portion of center-left, left, and progressives who only accept consensus ‘science’ and those theoris that their in-group accepts. This is not a far right-wing-only problem. It’s an education (in regard to one of your comments, also 40 years ago, it was the left bashing schools, education isn’t better) issue, a groupthink issue, an issue of media representation of scientific theory.

  29. Btw, what is the FB “community” for it to have such delineated “community standards”, or is FB actually invoking its corporate standards that it writes and rewrites in fluid and situation dependent fashion, either for profit or du jour and du lieu political-social conscience?

  30. “or is FB actually invoking its corporate standards that it writes and rewrites in fluid and situation dependent fashion, either for profit or du jour and du lieu political-social conscience?”

    Du jour and du lieu: as in Progressive touchy-feely censuring and censoring of speech previously considered free but currently impolitic and mostly unpublishable here by mainstream and social media, simultaneously with Progressive fascist censoring of all State-designated subversive opinion in China and elsewhere for China and elsewhere.

    1. Put up a big fight blaming the “progressive fascists” and it’ll continue to be a hit with your regressive fascist friends, and continue to be ignored by everyone else.

  31. What?!

    How can we have an article, and all these comments, without anyone noticing that it’s not the words by themselves, it’s the image manipulation of the flag, which is obviously part of a well-known far right conspiracy theory. Put against that background, the words become deeply antisemitic – at best; at worst they’re an attempt to start a pogrom.

    The point of that bit of nastiness is that ‘you’ need to ‘take back your government’ from ‘the Jews’.

    You can argue the toss about the semantics of hate _speech_, if you’re so inclined, but this is as virulently racist as chants of ‘the Jews shall not replace us’.

    1. Huh? Please tell me this some sort of joke that I’m not getting.

  32. Now Facebook is a private company, and is legally entitled to block what it wants.

    An important caveat: Facebook can block what it wants consistent with it’s contractual obligations.

    I would wager that Facebook’s contract does not specify what constitutes “hate speech.” A party to a contract – particularly a contract of adhesion – should not be subject to the unreasonable whims of another party.

    By denying access to it’s service, Facebook has breached its agreement with the user.

    Class action lawsuits for breach of contract should be filed against these social media companies.

    1. I think you should demand a complete refund of your Facebook membership fees for this “breach of contract.” LOL.

  33. Re: Section 230, it doesn’t actually allow interactive computer services to censor whatever they like while enjoying its protection. It only allows them to remove “objectionable” content. The problem is that it leaves it to each site’s owner to decide what is “objectionable”, and Twitter and Facebook have apparently decided that some mainstream conservative viewpoints are included.

    It seems to me that this could easily be fixed by amending the section to specify that such moderation must be viewpoint-neutral. Something like this: “No provider or user of an interactive computer service shall be held liable on account of: (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected, provided that they do so in a viewpoint-neutral manner. A provider or user who removes or restricts access to material merely because they object to the viewpoint it expresses shall not be entitled to this section’s protection, and shall be considered the publisher of whatever material they choose not to remove.”

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