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Mark Zuckerberg Speaks Out Against Removing Holocaust-Denying Speech

Indeed, Facebook shouldn't set itself up as the arbiter of historical truth (or scientific truth or moral beliefs) -- and doing that even as to Holocaust denial would just yield pressure for much more.

Facebook's Mark Zuckerberg has been getting flak the last couple of days because of his arguments against removing Holocaust-denying speech from Facebook. He was asked in the interview why Facebook wouldn't take down conspiracy theory sites, such as those that say the Sandy Hook shooting didn't happen, and he brought up Holocaust denial as an analogy:

Okay. "Sandy Hook didn't happen" is not a debate. It is false. You can't just take that down?

I agree that it is false.

I also think that going to someone who is a victim of Sandy Hook and telling them, "Hey, no, you're a liar" — that is harassment, and we actually will take that down. But overall, let's take this whole closer to home...

I'm Jewish, and there's a set of people who deny that the Holocaust happened.

I find that deeply offensive. But at the end of the day, I don't believe that our platform should take that down because I think there are things that different people get wrong. I don't think that they're intentionally getting it wrong, but I think-

In the case of the Holocaust deniers, they might be, but go ahead.

It's hard to impugn intent [he may have meant "impute intent" -EV] and to understand the intent. I just think, as abhorrent as some of those examples are, I think the reality is also that I get things wrong when I speak publicly. I'm sure you do. I'm sure a lot of leaders and public figures we respect do too, and I just don't think that it is the right thing to say, "We're going to take someone off the platform if they get things wrong, even multiple times." (Update: Mark has clarified these remarks here: "I personally find Holocaust denial deeply offensive, and I absolutely didn't intend to defend the intent of people who deny that.")

What we will do is we'll say, "Okay, you have your page, and if you're not trying to organize harm against someone, or attacking someone, then you can put up that content on your page, even if people might disagree with it or find it offensive." But that doesn't mean that we have a responsibility to make it widely distributed in News Feed. I think we, actually, to the contrary- ....

I think Zuckerberg had it largely right even before the "clarification":

[1.] My sense is that many people who repeat historical falsehoods -- whether silly conspiracy theories about recent events, or broader historical nonsense -- sincerely believe them.

Obviously, I can't point to statistical studies (nor can people on the other side), since one can't just do a survey asking, "When you deny the Holocaust, are you deliberately lying?" But based on my sense of human nature, people genuinely believe all sorts of bunk. And especially given that expressing such views will often yield massive social opprobrium, the people who say them are often true-believer fanatics, not rational liars.

True, some of the speakers might be deliberately lying for political reasons -- e.g., to use even knowingly false Holocaust denial as a means of implying that Jews or Israelis have gotten undeserved sympathy or slack. And even many of those who sincerely believe the denial may be especially open to such beliefs because of their preexisting anti-Semitism. But I agree that it's hard to tell a speaker's intent, and some speakers may in fact be sincerely (even if unreasonably) getting this wromg rather than "intentionally getting it wrong."

Now of course one might argue that intent doesn't matter here, and certain speech should be removed from Facebook regardless of the speaker's intent. I'll turn to that shortly.

But many (not all, but many) calls to suppress "fake news," "hate speech," and the like stress that they're not trying to restrict sincere discussion or suppress honest mistakes, but are aimed at deliberate lies. (In American law, that sort of argument goes all the way back to the Sedition Act of 1798.) Indeed, that is often a way of suggesting that the proposed restrictions, government-imposed or otherwise, are modest and narrow, and indeed that they would leave it possible for anything to be discussed so long as it's done without knowing falsehoods. I think Zuckerberg was right to point out that even Holocaust deniers (or Sandy Hook deniers or whoever else) are sometimes not intentionally lying, and that it's very hard for Facebook to sort the liars from the fools.

[2.] But why not have Facebook just remove Holocaust denial because it's wrong? After all, Facebook is not the government; it's not bound by the First Amendment.

Because of course it's not just about Holocaust denial. As we saw from the interview, we see the same calls for suppressing conspiracy theories about current events. We can equally easily see calls for suppressing speech that the influential view as "conspiracy theories," but might prove to have at least some (and perhaps much) truth to it. Likewise for history: If Facebook censors Holocaust denial, many will ask: Why not speech that is perceived as denying the Ottoman World-War-I-era genocide of Armenians, or dissenting views about whether the killings were deliberate genocide? Leading historian Bernard Lewis was actually fined by a French court for arguing that the killing happened, but that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks.

Likewise, many will ask: What about speech that conveys what they see as falsehoods about white settlers' actions towards American Indians? Speech that conveys what they see as falsehoods about Poles' behavior during World War II? What about what they see as dangerous falsehoods about science, such as about the causes and social effects of homosexuality, or about how we should characterize people's desire to be treated as a gender that is different from their biological sex?

And what about speech that might have even more direct harmful effects? Many will ask: What about speech that spreads falsehoods about vaccination, or about what foods to eat or not to eat, in a way that can cause physical illness and death? Some condemn Holocaust denial because it may lead to more anti-Semitism and from there to physical harms to Jews -- but bad health choices can of course cause physical harms, too. What about speech that they view as "global warming denialism"?

Facebook would then have to choose. It could come up with a long list of forbidden viewpoints about history, science, morality, and so on. Or it could treat Holocaust denial as somehow special -- which of course many will perceive as treating Jews and the historic crimes against them as special -- which I think would only exacerbate the offense felt by groups that think (and the historical accounts that are understandably especially important to them) that they are not being treated equally.

Censorship breeds censorship envy, and that's true of private suppression by massively influential platforms such as Facebook as well as of governmental censorship. And censorship envy can lead not just to more censorship, but more feelings of insult and injury as a result of decisions not to censor. (For similar reasons, I don't think that such businesses should generally ban supposed "hate speech," but I think the problem is even more severe when they start to police historical claims and not just advocacy of behavior or slurs and insults.)

[3.] Now of course these judgments about what is true and what is false are commonplace when it comes to individual publications. The New York Times -- or for that matter Reason or The Volokh Conspiracy -- isn't going to evenhandedly publish submissions from everyone regardless of their views. Even sites that deliberately try to let a hundred flowers bloom (and not just in a Maoist sense) distinguish flowers from weeds. They might make errors in their editorial judgments, but their readers expect them to exercise some quality control; indeed, that is one reason why readers read them. Indeed, we expect publications not just to exclude outright falsehoods, but also a wide range of material that they view as insufficently thoughtful, unclear, too one-sided (for those publications that specialize in more objective presentations), or in general written by people who don't know what they're talking about.

But I think Facebook, Twitter, and the like promote themselves not as publications, but as platforms -- as places for the public to speak. They don't screen for quality or credentials, nor do people look to them (as to the pages, rather than the newsfeeds) as reliable sources or reliable screeners.

They also include vastly more speech than a newspaper does, on a much greater range of topics, in a much greater set of languages, dialects, and genres (e.g., parody, humor, sarcasm, and the like, often not obvious to outsiders). And they also often have a much larger share of their particular market than do typical news or opinion outlets (especially these days).

This doesn't make them legally obligated to allow speech they disapprove of, and I'm not saying they should be so legally obligated. But I do think that there are many more costs, both to public debate and to the companies themselves, from their setting themselves up as arbiters of what speech is historically false, or, as they would then be pressured to do, scientifically false or morally wrong. And on balance, I think, the costs -- the costs of thus encouraging such massive and massively powerful economic organizations to also exercise power over political debate, historical discussion, scientific arguments, and more -- much exceed the benefits.

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  • Stephen Lathrop||

    And they also often have a much larger share of their particular market than do typical news or opinion outlets (especially these days) . . . . And on balance, I think, the costs -- the costs of thus encouraging such massive and massively powerful economic organizations to also exercise power over political debate, historical discussion, scientific arguments, and more -- much exceed the benefits.

    As those remarks show, EV sees the problem. As they also show, he doesn't understand it. Simply put, there shouldn't be any such monopolistically large "platforms," which, by the way, are acting as publishers, not platform proprietors.

    If it were just a "platform," there wouldn't be any underlying algorithms steering you to stories, screening you from stories, mechanistically re-enforcing your world-view in its own self-image. A platform just sits there. Facebook is very far from just sitting there.

    But the size is the problem, not the danger of editing. If the size were small, and the competitors many, their diversity would ameliorate every worry in EV's long list of "What about(s) . . ."

    The solution to unique problems created by these new things in the world is to stop trying—in the service of enabling giantism—to overturn completely long-standing publishing norms which already proved both their utility and their worth. Go back to editing everything before it gets published. Let the need to do that force smaller size and greater diversity. Problem solved.

  • NToJ||

    Could you be clearer about what you are proposing? When you say "Go back to editing everything before it gets published..." do you mean regulating the industry? Or are you just arguing that Facebook should do their business the way you think they should do business?

  • Stephen Lathrop||

    NToJ, I'm proposing what I have proposed in multiple previous comments—get rid of Section 230. The rest will take care of itself.

    Without protection from civil liability for defamation afforded by Section 230, internet publishers will have to read everything that goes into their publications—just as traditional media publishers still must do. As a result—and again like traditional media—internet publishers will by doing that reading enable competition on the basis of accuracy, content, appeal to selected audiences—all major steps to address Volokh's "whatabouts"—none requiring government regulation.

    Also, experience teaches that monopolistic media giantism on the scale of Facebook will prove less feasible—likely impossible—if everything has to be read, with factual assertions checked. That's another gain. More accuracy. Content better tailored (and more intelligently tailored) to specific audiences. No reliance on hackable algorithms. More editorial employment, hence more brains at work on the nation's media content. All good.

  • Smooth Like a Rhapsody||

    Why not punish the company that provides the smartphones or the laptops?

  • Smooth Like a Rhapsody||

    Why not allow schools to be sued when Suzy gets her feelings hurt by a playground taunt or an unkind piece of grafitti in the rest room?

  • Longtobefree||

    Same reason we do not punish the press manufacturer

  • Smooth Like a Rhapsody||

    What if the school knew that all the rest rooms had KKK propaganda--n-word this, and kike-that--and did nothing about it?
    Is the school liable for defamation?

  • Stephen Lathrop||

    Your view is that a publisher which edits what it publishes is thereby inflicting punishment? Peculiar.

  • NToJ||

    "Without protection from civil liability for defamation afforded by Section 230, internet publishers will have to read everything that goes into their publications—just as traditional media publishers still must do."

    That's literally the opposite of what will happen. If Facebook doesn't read any content it is no longer a publisher, it's a distributor. When Stratton Oakmont v. Prodigy--STRATTON OAKMONT THE SUBJECT OF WOLF OF WALL STREET, KEEP IN MIND WHO YOU ARE CHAMPIONING--came out, online publishers had a perverse incentive to avoid editing any content to avoid being labeled as "publishers", so they could be treated like bookstores, libraries, etc. Section 230 was intended to remove that perverse disincentive. If you eliminate Section 230, online distributors aren't going to stop distributing, they're simply going to stop editing content. Entirely. The only world in which Facebook voluntarily censors Nazis is one in which Section 230 exists.

    On that point, if you think Facebook should censor Nazis, why not just mandate that rather than force private people to enforce it through defamation suits? And why do you think enforcement of defamation judgments is not "government regulation"?

  • NToJ||

    "More editorial employment, hence more brains at work on the nation's media content. All good."

    This is not what will happen. Courts only treat websites or distributors like publishers if they exercise editorial control. If they don't exercise any editorial control, they will escape liability.

  • David Nieporent||

    NToJ, I'm proposing what I have proposed in multiple previous comments

    : censorship.

  • Stephen Lathrop||

    Sure DMN. You are a media expert. And a defamation expert. And in your expert opinion private editing equals censorship. That's pretty far from the mainstream, buddy.

  • David Nieporent||

    No, it isn't, which is why you are alone in your quixotic crusade.

    Moreover, even if private editing could not be deemed censorship, it's not properly deemed private when it's done at the barrel of a gun. What you are saying is not, "Gee, I wish these websites would make a decision to screen everyone's content before allowing it on the internet." What you are saying is, "I wish the government would force these websites to filter everyone's speech by holding the threat of massive liability over their heads if they don't."

  • Stephen Lathrop||

    I'm saying I wish the government would treat these websites alike with the way it has always treated legacy media.

    Your panic at that suggestion makes evident that your own preferred program demands radical departure from the publishing laws and norms which fostered the style of speech freedom to which the nation is accustomed.

  • Ridgeway||

    Lathrop's idea is intriguing in that it is both objectively wrong, and utterly impossible to implement.

    By his logic libraries should have to read and censor everything in their collection, because they provide algorithms that point people to certain items (card catalogs and search engines).

    Moreover, how many people would Facebook have to employ to read and fact-check every post and every link on their site? And how will their customers enjoy the 90-day lag time between posting that they are currently enjoying margaritas at Senor Tadpoles, and having that "news" appear on the site.

  • NToJ||

    "...which, by the way, are acting as publishers, not platform proprietors."

    Besides the steering/screening of content, do you have any other arguments as to why Facebook is a publisher?

    "A platform just sits there. Facebook is very far from just sitting there."

    Why do you think that matters?

  • Stephen Lathrop||

    Facebook is a publisher because it does what publishers do. It assembles content. It recruits an audience. It arranges content for publication with an eye to the preferences of the recruited audience. It publishes content. It sells advertising to businesses and others seeking to reach the recruited audience. In short, Facebook does everything a publisher does, except read what it publishes. In traditional publishing, doing all that, but not reading the content, would not be evidence of not being a publisher. It would be evidence of being a negligent publisher.

    Why does it matter? Because the entire case for exempting Facebook (and other internet publishers) from civil liability depends on the spurious argument that they should be treated like traditional libraries or bookstores. That argument fails, not least because everything offered in traditional U.S. libraries and bookstores has already been through an editing screen—unlike on Facebook.

    You may perhaps suppose that no-editing is a new-fangled advantage of some sort, with which the internet has blessed society. If so, it is not a publishing advantage. It is an authors' advantage. It has no place being called an advantage in publishing, while the social costs of permitting it mount, and so obviously do damage. Let authors who are not publishers have that benefit, and send their stuff by email. Or turn themselves into publishers, and accept responsibility accordingly.

  • NToJ||

    "Facebook is a publisher because it does what publishers do. It assembles content. It recruits an audience. It arranges content for publication with an eye to the preferences of the recruited audience."

    You're describing a bookstore, and bookstores are unquestionably not publishers. They're distributors.

    "It sells advertising to businesses and others seeking to reach the recruited audience."

    Distributors do this too?

    "...except read what it publishes. . . . It would be evidence of being a negligent publisher."

    Wrong. If it doesn't read or exercise editorial control over the content, it's a distributor. See Cubby, Inc. v. CompuServe Inc.

  • gormadoc||

    "It sells advertising to businesses and others seeking to reach the recruited audience."

    Hell, bars do this. I can't imagine pretending that they're publishers.

  • Stephen Lathrop||

    You're describing a bookstore, and bookstores are unquestionably not publishers. They're distributors.

    To make that point, you had to selectively leave out the part of the quote where I said, "It sells advertising to businesses and others seeking to reach the recruited audience." When you did that, what were you thinking?

    The rest of your analogy works only out of context, because "content," for instance, means a different thing to a publisher than to a bookstore. Once the arguments get this strained, I suggest you concede my point, but aren't yet ready to admit it to yourself.

    My point that traditional bookstores feature content which has uniformly been read by publishers also goes unaddressed. It matters. What do you say about it? Isn't that a notable point of difference?

    It may be the court erred in Cubby. If this notion of a "distributor," in fact creates a loophole for defamation that runs in a clear protected path all the way from the author to the consumer, with no practical liability anywhere, then it's a failed analogy. Nothing like that was ever seen in traditional publishing. It shouldn't be seen on the internet.

    Are you another advocate that the internet ought to escape completely from the law of libel?

  • NToJ||

    "When you did that, what were you thinking?"

    But I didn't; I quoted it in the immediate next part of my post. Also bookstores advertise?

    "My point that traditional bookstores feature content which has uniformly been read by publishers also goes unaddressed."

    I addressed it in a separate post. Control f "editing screen". It's below. 4chan would be treated like a bookstore even before Section 230, so I don't even know what point you're trying to make. If you think only people who get Penguin House to read their books should be published, I fucking disagree you elitist asshole.

  • Stephen Lathrop||

    According to your own citation, it took an act of Congress to separate internet publishing out from the category of just-plain publishing. Given that, it's disingenuous to try to pretend there is some clear difference in kind. What there is, is a special privilege to let internet publishers escape liability which traditional publishers continue to suffer.

    That was foolishly granted by Congress without thinking through the implications. One of the implications turns out to be Russian hackers meddling in U.S. politics. If Congress wants to find out who to blame, it only needs a mirror to find out.

  • NToJ||

    The Act of Congress had nothing to do with treating Internet "publishers" differently from non-internet "publishers". It had to do with when an internet distributor becomes an internet publisher. If they hadn't enacted 230, the internet would be much more toxic than it is today. You refuse to confront that counterfactual. If distributors become publishers by performing the editorial oversight THAT YOU WANT THEM TO EXERCISE then they won't perform that exercise absent liability exemption.

  • Stephen Lathrop||

    I want failure to read what you published to be regarded as reckless disregard of whether your defamatory allegations were true or false. It is not acceptable to let government control speech. Likewise, it is not acceptable to put a power of remedy-free defamation into the hands of every fool with a keyboard. That means there has to be private editing—an unsurprising conclusion which characterized private publishing for centuries, and worked beautifully for free speech, and for the nation.

    Perhaps the unspoken motivation behind your own comments, probably Nieporent's comments, and many others besides, is a desire to once and for all install defamation as a new privilege associated with free speech. Once it's clear to everyone that has become the rule, you can expect free speech itself to come under attacks so various, pervasive, and sustained that it will become hard to sustain the right at all.

    Advocating protection for libel is not a wise move for someone who regards himself as an advocate for speech freedom.

  • NToJ||

    "Nothing like that was ever seen in traditional publishing. It shouldn't be seen on the internet."

    What do you think "traditional publishing" is? It has always been the case that if you merely repeat what someone else says, you aren't liable for defamation. Why do you think bookstores aren't liable for defamation contained in the books they sell?

  • Stephen Lathrop||

    It has always been the case that if you merely repeat what someone else says, you aren't liable for defamation.

    Sure you are, if you know it's untrue, but publish it anyway. Or if you are in reckless disregard of the truth. And by the way, you can hear on this blog explanations of reckless disregard of the truth which make it sound like a standard almost impossible to transgress. I would be cautious about trusting those before publishing a story that might land me in an actual courtroom, with serious money at stake.

    I already explained to you why the bookstore analogy falls apart. But consider this. There are bookstores on the internet. Amazon runs a bookstore on the internet. That is plainly different in kind from Facebook, right? And from the Volokh Conspiracy? See why the analogy is no good? Because they aren't alike.

  • NToJ||

    Amazon is not liable for defamation contained in the books it sells because it is a distributor not a publisher. If Facebook exercises the same editorial control over its users' content as Amazon does over the things it sells (ie none) it will never be liable for defamation. Same for Reason.com and this blog.

    No one ever asks a bookstore whether it sold a defamatory book "recklessly". Because it doesn't matter. As a distributor it isn't liable for defamation. Full stop.

  • Stephen Lathrop||

    That argument fails. A dogs tail is not a leg. Publishing comments is not book distribution. The only reason anyone would insist on that conflation is to enable libel without redress or remedy. That's what you argue for, apparently. Why keep dodging around. Just go ahead and say it.

  • NToJ||

    Hosting third party comments without editing the content is distribution. Not publishing. People can still sue the publisher (ie the writer) for defamation. If you remove 230, there will be less editing. You're arguing against yourself.

  • NToJ||

    Also...

    Below you ask about reading versus not reading. One reason Facebook wouldn't read its users content is because that would make it more difficult for a plaintiff to prove knowing or reckless disregard for the truth. You think you're arguing for more editorial oversight, but you aren't.

  • Stephen Lathrop||

    Not reading defamatory content, then publishing it, is reckless disregard for the truth. If that isn't clear in the law now, it needs to be made clear.

  • NToJ||

    So if you post a link of defamatory material, on this website, I can sue you for defamation?

  • jph12||

    "Not reading defamatory content, then publishing it, is reckless disregard for the truth. If that isn't clear in the law now, it needs to be made clear."

    Writing defamatory content, then publishing it, isn't even reckless disregard for the truth if you're the New York Times, so you have more work to do on the state of the law than you think.

  • Stephen Lathrop||

    Sure, that could be right, if the defamation was was done with the certain knowledge it was untrue. Otherwise, what are you talking about? The NYT could be guilty of libel, even libel of the President of the United States, or any other public figure. Do you think otherwise?

  • jph12||

    You need to pay more attention to current events.

  • NToJ||

    "That argument fails, not least because everything offered in traditional U.S. libraries and bookstores has already been through an editing screen..."

    What do you mean by "editing screen"? Private publishers? Editors? Bookstores can sell books that have defamatory material and which themselves have not gone through anything approximating serious professional editing, much less whatever journalistic standards you have in mind. The "editing screen" for books is the same as the editing screen for Facebook posts: They've been written.

    "...while the social costs of permitting it mount, and so obviously do damage."

    What did you have in mind with this?

    "...and send their stuff by email."

    If someone says defamatory shit about me in an email, I can sue them.

  • David Nieporent||

    Facebook is a publisher because it does what publishers do. It assembles content. It recruits an audience. It arranges content for publication with an eye to the preferences of the recruited audience. It publishes content. It sells advertising to businesses and others seeking to reach the recruited audience. In short, Facebook does everything a publisher does, except read what it publishes.

    So, in short, Facebook doesn't do the sine qua non of publishing, which makes it... not a publisher.

    When I type "Lathrop is a censorious poopyhead" and hit "Submit," Reason magazine is not doing anything except providing a platform. I am the one acting as author and publisher.

    Why does it matter? Because the entire case for exempting Facebook (and other internet publishers) from civil liability depends on the spurious argument that they should be treated like traditional libraries or bookstores.

    You are mistaken. The case for exempting Facebook and other interactive computer services from civil liability is that the existence of these services is a good thing, and imposing liability on them for things other people say would drive them out of business. That they act more like libraries or bookstores than publishers is an observation as to how they fit into existing doctrine, but it is not the reason for the CDA.

  • Smooth Like a Rhapsody||

    I'm all in with No Theory here.
    Lathrop's proposal makes no sense.
    Facebook out-competed MySpace and if people start not digging Facebook, competitors will emerge.
    No private company should have imposed on it a legal duty to be nice.
    If a Muslim social-networking site wants to prohibit pictures of Allah (pbuh), more power to them.

  • Stephen Lathrop||

    No private company should have imposed on it a legal duty to be nice.

    Indeed. Nor is doing that any part of what I suggest.

    A legal duty not to publish defamation is another matter. Every publisher should abide by that duty—despite the fact that we discuss this now because internet publishers have recklessly been exempted by Congress.

    If you are in favor of getting rid of the law of libel altogether, just go ahead and say so.

    But please, no mealy mouthed advocacy of procedures which would support libel law in name, while exempting the publication of defamation for want of any practical remedy.

    That's what Congress did with Section 230, and it's proving a disaster. Absent Section 230, the Russian election hacking on Facebook would never have occurred.

    If you think that's no big deal, because it didn't affect anything, and Trump is your guy, please don't answer. Saying that is tantamount to telling half the electorate that foreign election subversion directed against their preferred candidate is inconsequential. If you think that is inconsequential, then you are a civil nihilist, with no legitimate place in a discussion about public issues.

  • NToJ||

    "Absent Section 230, the Russian election hacking on Facebook would never have occurred."

    Huh? Why?

  • gormadoc||

    Because Buff Bernie would've been too strong for the rest of the "hacking" to overcome.

  • David Nieporent||

    "Absent Section 230, the Russian election hacking on Facebook would never have occurred."

    Huh? Why?

    Well, the real answer is because Facebook wouldn't exist without § 230.

  • NToJ||

    "Well, the real answer is because Facebook wouldn't exist without § 230."

    I'm not so sure. The counterfactual is that Facebook would just stop moderating its content, which is basically what it does today. It may look a bit more like 4chan than it does now.

  • David Nieporent||

    Without § 230, Facebook would face liability for anything defamatory posted by anyone on Facebook, which means it couldn't exist.

    (Although it is true that the original idea behind § 230 was to protect interactive computer services from liability if they chose to moderate, that's a minor part of its functionality nowadays. Its primary function is to protect them from liability for other people's publishings on their platforms.)

  • NToJ||

    I'm not sure that's true. They'd still have to be a publisher under pre-230 jurisprudence. And they can just solve that by refusing to moderate anything posted.

  • David Nieporent||

    I'm not sure that's true. They'd still have to be a publisher under pre-230 jurisprudence. And they can just solve that by refusing to moderate anything posted.

    Fortunately, I can be sure enough for both of us. I follow § 230 jurisprudence pretty closely. (I have both Westlaw and Google alerts set up to notify me of all such decisions that come down.) A solid majority of the time in which § 230 is invoked, it's not a situation in which the plaintiff is arguing, "you're liable because you moderate your content." It's a naked, "You're liable because such-and-such was posted on your site and you shouldn't have allowed it."

    Moreover, note that even under your scenario, if FB were to refuse to moderate, that would not protect them from litigation; it would merely be a factual defense for them to assert. Plaintiffs would still allege that FB (and other service providers) did moderate, creating a factual issue that would require full discovery.

    (By the way, keep in mind that § 230, which Lathrop wants to eliminate, covers a lot more than just defamation. Harassment, negligence, right of privacy, products liability...)

  • NToJ||

    In the absence of 230, I would assume that court decisions setting the outer boundaries of liability, and holding that (as a matter of law) certain classes of providers were definitively not publishers. But I take your point re: fact issue.

  • Stephen Lathrop||

    Thanks for that last bit. Please consider my own comments to suggest changes only in the law of defamation as it applies to internet publishers.

  • Stephen Lathrop||

    And yet, somehow, the NYT continues to exist without benefit of § 230.

    So what's wrong with Facebook, that it can't do what the NYT can do? Don't bother to answer, unless we disagree on what the answer is. I suggest it's because the outsize scale of Facebook, coupled with the various quality of its posters, would make it super-hard to match NYT editing standards.

    But gigantic, media-monopoly size, coupled with a profusion of defamatory contributions, can hardly be the good things you mention when you say Facebook's existence is a good thing. Yet you also say you support their freedom to publish defamation. I'm not clear whether you think that is a good thing too. Are you another who thinks the law of defamation ought to be done away with on the internet?

  • NToJ||

    The NYT and Facebook aren't the same thing. 230 doesn't affect the NYT at all. If a bookstore sold Facebook posts, it would not be sued for defamation. The proper analogy is comparing the NYT to the defamatory poster on Facebook.

  • David Nieporent||

    And yet, somehow, the NYT continues to exist without benefit of § 230.

    Not NYT.com.

    The print NYT, which indeed is not covered by § 230, essentially does not allow public input. That's okay for the NYT, since that's not the service it's really offering since print doesn't allow for that. But the internet does, which is why NYT.com works differently.

    Since public input is the essence of Facebook, it would effectively cease to exist w/o § 230.

  • Stephen Lathrop||

    Thank you for that summary of why you demand that the law of defamation be abolished for internet publishers. The next step is to admit that is what you are doing.

  • Stephen Lathrop||

    Remember, if editors start reading stuff, they start to care about whether what they publish is true.

    Because editors would have been reading the hacker stuff—before it got published—it wouldn't have taken much to suspect the pattern, ask questions about where it was coming from, and query whether much of it was true. If purported news looks especially consequential, editors get cautious about publishing it if it can't be verified. Russian hacker stuff isn't going to get through that screen for long.

    Those are the instincts and customs which separate publications which mainly print news you can trust, from Russian hacker festivals of lies and disinformation. Fans of publishing lies and disinformation won't like it, but it's better for free speech if deliberate lies and disinformation have trouble commanding an audience. That's true even if you think there should be no legal bar to publishing them, by the way.

  • NToJ||

    If 230 didn't exist, Facebook wouldn't read anything posted on Facebook to avoid defamation liability entirely. They'd have no incentive at all to moderate Russian hacking (which they do today, under 230).

  • Stephen Lathrop||

    The "editing screen" for books is the same as the editing screen for Facebook posts: They've been written.

    Don't you even understand that a book publisher is liable if what it publishes proves defamatory? And Facebook isn't?

  • NToJ||

    So why isn't a bookstore liable for selling a defamatory book? Publishers SPEAK. Distributors don't. That's what you're missing.

  • Stephen Lathrop||

    What you are missing is that a business which publishes comments without reading them is a publisher speaking in reckless disregard of the truth. Once again, is that what you are trying to privilege—unlimited defamation without practical legal remedy?

  • NToJ||

    A business (bookstore) that sells words (books) is not liable for defamation, even if it doesn't read the books. Do you think bookstores are publishers, yes or no?

  • Stephen Lathrop||

    No, I don't think bookstores are (usually) publishers. No, I don't think Facebook is a bookstore. Yes, I think Facebook is a publisher. And, yes, so would almost every knowledgeable bystander have thought Facebook was a publisher, absent Congress moving to exempt Facebook from defamation liability by pretending it was not a publisher.

    Whether by that action Congress has the power to make its pretense come true is what experience will now test. It may not be a simple test to evaluate. If defamatory comments published on Facebook make people try to sue Facebook, as they will, some court will sort it out, either as a matter of reality, or as a matter of enduring legal fiction.

    Just in passing, I doubt you could find many experienced folks in the publishing industry to say Facebook isn't a publisher. Maybe I'm mistaken. But note, when it has seemed expedient, even Facebook's own lawyers have called it a publisher. Maybe a plaintiff will bring that up in court, when Facebook is defending a defamation claim.

  • NToJ||

    Another thing that's stupid about your entire position is that you think editors of published books are worried about defamatory materials. They're selling books for them to be entertaining, not fact-finding the conclusions in the books the way a journalist would. I think you just have a fundamental misunderstanding of how the world works.

    But, again, Compuserv wasn't a publisher. Facebook would just act like Compuserv. Your only response is that Compuserv was wrong. Ok. Why do you think bookstores are not publishers, but Facebook is? They both sell other peoples' words, don't they?

    Publishers are liable because they are the author. They claim ownership of the written material. They aren't merely publishing some third-party's work, they own the work. Facebook doesn't own the things its users distribute online.

  • Stephen Lathrop||

    Another thing that's stupid about your entire position is that you think editors of published books are worried about defamatory materials. They're selling books for them to be entertaining, not fact-finding the conclusions in the books the way a journalist would.

    Well, finally, some clarity arrives—if not clarity in the argument, at least clarity about why the argument. You simply have no notion how legacy publishing works, or what the law of libel as applied to legacy publishers requires. To get better informed, and incidentally, also for your entertainment, read Seymour Hersh's new book Reporter. There you can read how some of his books were delayed for months, while teams of fact finders went through every line, page by page, checking every factual assertion. They were mostly protecting the publisher from libel charges, of course, but also protecting its reputation for truth and accuracy.

    Maybe once you have seen that, what I have been saying will make more sense to you. If nothing else, you will have a better understanding of what stands to be lost by lifting the law of libel as it applies to the internet.

    I am so glad you wrote that remark. It brings some sanity to this otherwise almost inexplicable conversation, to know where you were coming from.

  • NToJ||

    You're so fucking stupid. Reporter is about journalism. Do you think Simon and Schuster fact-checked a Thiusand Shards of Glass? Penguin House is not holding itself to journalism's standards.

    "Lifting the law of libel as it applies to the internet"? Section 230 became the law 22 years ago you dumb dick fingers. And book stores can sell books that aren't fact checked, without fear of defamation. WHY DO YOU THINK THAT IS?????

  • Stephen Lathrop||

    NToJ, you have lost your composure.

    And, you already know my answer.

    I am not going to repeat it endlessly, even if you endlessly reiterate your "book store" blather. Just one more time, on this one point: Facebook's own lawyers call it a publisher. Before Section 230, every court in the nation would have called it a publisher. Why? Because it is a publisher.

    I have several times charged that you want to be sure internet publishers are held to a lesser standard of legal responsibility than legacy media are. Your repeated silence in response proves the charge. That's what you want. Go ahead and say it.

  • Stephen Lathrop||

    Just as an aside, to any masochists still reading along. Everyone who cares about media, legacy or otherwise, should read Reporter, by Hersh. You will have to put up with a somewhat obnoxious personal presentation, and get past a bit of (actually, well-earned) self-importance, but what you will learn about the hated "mainstream media," and wha't at stake if opponents win the war they are waging, will more than repay the effort.

  • Stephen Lathrop||

    Is it your view that a traditional book publisher could escape liability for defamation just by not reading the books it publishes?

  • NToJ||

    No. It's my position that if in my comment I quote a book that you contend is defamatory, you can't sue me for defamation. The "not reading" part for Facebook is simply to prove beyond a doubt that they exercise no editorial control. Like bookstores don't rewrite the books they sell. (Though if they did, they would be liable for defamation in the rewrites.)

  • David Nieporent||

    The question is nonsensical, since then it wouldn't be a traditional book publisher. It would just be a printer. Do you think a printer - whether Kinko's for an individual person, or a commercial printing press - is liable if it prints defamation authored by someone else?

    P.S. Er, I guess Kinko's doesn't exist anymore. But whoever their successor is. FedEx, I think?

  • Smooth Like a Rhapsody||

    Well, it didn't affect anything, and no one who has any connection to the "investigation" will say any different.
    I'm looking forward, though, to the studies showing how "the Russians" managed to get the precisely right number of women in the midwest to forsake Hillary.
    Also: (getting back on topic) what is your definition of "defamation"?
    Surely you don't think that a Jew, qua Jew, has a viable defamation claim against a Holocaust denier?

  • JonFrum||

    If we're going to censor lies, the NY Times will have big white spaces all through each edition. Including the speeches of your average politician.

  • Eddy||

    Isn't there a low-cost way for the anti-Semites (or whatever the euphemism is) to operate their own platforms, so they don't need Facebook and Facebook doesn't need them?

  • BigHands||

    It's called the Internet (or World Wide Web, if you prefer) and all sorts of groups make extensive use of it but, of course, that's not the question. The question is whether Facebook, et al, are platforms or publishers and in that respect I kind of like @Stephen Lathrop's comment, above:
    "If it were just a "platform," there wouldn't be any underlying algorithms steering you to stories, screening you from stories, mechanistically re-enforcing your world-view in its own self-image. A platform just sits there. Facebook is very far from just sitting there."

  • Eddy||

    Well, my inclination would be to assume that so long as they don't censor the normies, they can still have a chance at keeping their large market share, but if they ban normal people by equating them with anti-Semites and so forth, then someone will come up with a competitor for Facebook to scoop up all of Facebook's alienated patrons.

    But if the only people they ban are bona fide anti-Semites and terrorists, then the anti-Semites can get a new site which lets them do their thing, but that new site won't be very competitive with Facebook.

    In contrast, if the government decides Facebook is some kind of public utility or whatever they call it, in order to limit competition, then censorship becomes more of an issue.

  • Stephen Lathrop||

    Eddy, I hope this is reassuring. It's doubtful that any of the realistic options encompass the concerns you express. Facebook may be forced to change radically, but not in the ways that concern you. A government-dictated program of content censorship isn't on the table, and never will be.

    Nor will Facebook end up as a public utility. Its lawyers have already shown they are willing to acknowledge being a publisher to prevent that. That would be a radical step, and would doubtless occasion great change, and probably a reduction in size, and a reliance on private editing, as other publishers do.

    How that would affect Facebook's treatment of your preferred politics might become a reasonable concern. But it wouldn't be a free speech concern, or a censorship concern. As you suggest, you might decide to favor another, more congenial, platform. If Facebook becomes smaller, there will be plenty of others which spring up to take up the slack.

  • Eddy||

    Or...is the holocaust argument just a Trojan horse to get Facebook to censor lots of other stuff as well?

    That is, are we going to see a whole bunch of people being labelled as morally equivalent to the anti-Semites and Nazis, to justify censoring them?

  • Careless||

    Not "equivalent to"

    They call them nazis.

  • Don Nico||

    Seems that you missed Eddy's point, especially that for the past two years everyone not a radical leftist is called a nazi.

  • Smooth Like a Rhapsody||

    The "Nazi" slur has more savoir faire if it's preceded by "literally".

  • phattyboombatty||

    I don't think the intent of the author makes any difference with respect to incorrect statements. Take a flat-earther for example. Maybe somebody who makes the claim that the earth is flat really knows that the earth is a sphere, but is just having some fun. Whether they truly believe it or not, I still do not think that Facebook should be in the business of censoring it. In fact, in some cases (e.g. The Onion), the intentionally false statement may simply be satire.

  • Smooth Like a Rhapsody||

    Facebook should be in the censorship business if that's how they want to run their platform. If not, then not.
    Government has no role here.

  • Ramer||

    The problem with suppressing "conspiracy theory" type videos is that you insulate those videos from scrutiny. The amazing thing about the internet is that false ideas are readily exposed. Remember Kony 2012? While 100 million people viewed the video, it did not take long before it was discredited. Had that video been banned from YouTube, those who encountered it elsewhere would not have the benefit of the refutation evidence etc. And because it included a lot of half-truths, the person trying to fact check it on their own is just as likely to end up "confirming" its content, as opposed to uncovering it deeper deception.

    As for those who are personally offended by conspiracy videos, what is more healing that a good debunking video?

    The flat earth theory is another good example -- while it did catch on for a while, it didn't take YouTube long to debunk the entire theory and now it's a joke.

  • Bartholamew Kendrick||

    "...historical truth (or scientific truth or moral beliefs)"

    The guiding principle on which Starfleet is based.

  • Rev. Arthur L. Kirkland||

    Why should Facebook be held to a higher standard than the average conservative-controlled school? There are reasonable arguments to be made about free expression, truth, dogma, editorial control, defamation, responsibility, and the like in this context, but conservatives are poorly positioned to advance them.

  • VinniUSMC||

    This is what happens when you no longer have the ability to think for yourself.

    Thanks for sharing Artie, your opinion is totally not worthless junk.

  • AmosArch||

    Mandatory TRUTH(TM) in practice tends to be an all or nothing thing. You want it...don't be surprised if you end up at the wrong end of the government's wrath when your orthodox opinion becomes unorthodox one day. Or you can just settle with actually trying to be a little less lazy and go out to find the truth yourself without having your worldview curated for you into a neat little package to directly put into your head.

  • jdgalt1||

    The important thing, from a moral standpoint and I think a legal one too, is not how Facebook makes decisions about editing or blocking content or removing users for posting it, or even that it does make those decisions. The important thing is that Facebook has what amounts to a monopoly. Where the bleep are Trump's DOJ antitrust people, and why are they still allowing more mergers and acquisitions among the already-too-few giant multinationals that control nearly all communications media, including telephone and Internet service providers?

  • David Nieporent||

    The important thing is that Facebook has what amounts to a monopoly.

    A monopoly on what?

    Where the bleep are Trump's DOJ antitrust people, and why are they still allowing more mergers and acquisitions among the already-too-few giant multinationals that control nearly all communications media, including telephone and Internet service providers?

    Trump's DOJ antitrust people tried to block the AT&T-Time Warner merger, but lost in court because there was no good reason to block the merger.

  • Stephen Lathrop||

    A monopoly on what?

    It's not a monopoly. With regard to publishing ad sales, it's a dangerously large concentration of market power among only a few internet institutions. Its effects are plainly evident in the distress of the legacy publishing industry, especially newspapers. It's power seems also to preclude the re-creation on the internet of anything like the diversity of publishing institutions which the nation previously enjoyed.

  • Smooth Like a Rhapsody||

    I take it that jdgalt's moniker is meant to be comedic.

  • apedad||

    This problem is born of ignorance and bigotry.

    More education, more multiculturalism, more secularism, more Reason (all things that Pubs are against), would fix this problem.

  • VinniUSMC||

    Artie in training? To be honest, I'm not sure whether that would be an upgrade or a downgrade for you.

  • Stephen Lathrop||

    These comments, taken as a whole, provide a demonstration that what movement conservatism is after with regard to speech freedom is just a mirror image of its own peculiar impressions regarding "mainstream media."

    Right wingers think of mainstream media as weaponized speech, directed at them. That outrages them. They want to weaponize back. They see mainstream media as full of lies. They want to lie back. They see mainstream media as an engine of defamation, directed their way. They want their own engine of defamation, directed the other way. They see the internet as the potential tool to right those wrongs, to weaponize their own speech, and to scourge the mainstream media. So they want no restrictions on lies and defamation on the internet.

    What surprises me, given the rage the right feels about traditional media, is that it never pauses to ask itself what will happen to speech freedom if it gets what it wants—and everyone it targets becomes as enraged about speech as the right wing already is. That has begun happening on the left, and already threatens speech freedom, as right wingers are already quick to complain.

    Can right wingers really suppose that promoting that outcome with the internet will prove an effective way to protect speech freedom? It will not. It will make everyone hate speech freedom—hate it variously, and hate it everywhere, and bring it into such general disrepute that it becomes impossible to protect. Doing that seems unwise.

  • David Nieporent||

    This is as tinfoil-hat nutty as your claim that the ACLU is a far right-wing organization trying to destroy public education because it insists that the first amendment applies to public schools.

  • Stephen Lathrop||

    I said that? That the ACLU is a far right-wing organization? That it's trying to destroy public education? Doesn't sound like me. Maybe someone else? You got my quote? Maybe you adjusted the emphasis a smidge, and made up some words, and attributed it to me?

  • David Nieporent||

    You've argued that people who advocate for treating government schools as covered by the First Amendment are right wingers whose goal is to destroy public education. The ACLU is foremost in advocating for treating government schools as covered by the First Amendment. QED.

  • Stephen Lathrop||

    Get help.

  • David Nieporent||

    I note that you don't actually deny that you made that argument.

  • Stephen Lathrop||

    Get help quick.

  • NToJ||

    "So they want no restrictions on lies and defamation on the internet."

    Section 230 was part of a bipartisan, nearly unanimously approved bill in the mid-90s. Your conspiracy theory requires a time machine.

    You can't save free speech by killing it.

  • Stephen Lathrop||

    NToJ, private editing never killed free speech in legacy publishing. It wouldn't kill free speech on the internet.

    Just go ahead and say it. You want to do away with the notion of liability for defamation on the internet, right?

  • David Nieporent||

    NToJ, private editing never killed free speech in legacy publishing.

    Yes, it did. Could you publish whatever you wanted in the Washington Post, or in Reason magazine? Heck, forget about whether the content passed muster; even if it would have been unobjectionable, could the vast majority of people ever publish anything in the Washington Post or in Reason magazine? And yet, for the past four years or so, you personally have been able to do those things, as have scores of others of us. (Although with annoyingly low character limits!)

    Just go ahead and say it. You want to do away with the notion of liability for defamation on the internet, right?

    Please stop with this stupidity. Nobody wants to do away with the notion of liability for defamation on the internet. We just want that liability to lie where it belongs: with the person who publishes the defamation.

  • Stephen Lathrop||

    We just want that liability to lie where it belongs: with the person who publishes the defamation.

    Perhaps you meant to say "authors," instead of "publishes?" Otherwise, what are we disputing?

    And of course you understand that your advocacy is to do away with the practical remedy for defamation that prevailed in legacy publishing, pre-internet, right? And that without that remedy of suing the publisher, no practical remedy will remain in the vast majority of cases of internet defamation. You know that, right?

    So if you do know it, where do you get the face to insist that, "Nobody wants to do away with the notion of liability for defamation on the internet." Or are you being deliberately facetious, and suggesting support for the, "notion," while championing abolition of the substance?

  • David Nieporent||

    Perhaps you meant to say "authors," instead of "publishes?" Otherwise, what are we disputing?

    We're disputing who the publishers are, obviously.

    And of course you understand that your advocacy is to do away with the practical remedy for defamation that prevailed in legacy publishing, pre-internet, right?

    At least you're approaching asymptotically the admission that you're advocating for censorship.

  • Stephen Lathrop||

    Sure, for all values of censorship which equal private editing. Which are none. It's an empty set. Censorship is about government.

  • David Nieporent||

    Sure, for all values of censorship which equal private editing. Which are none. It's an empty set. Censorship is about government.

    Even if that were true, liability is also about government. Defamation cases involve state action.

  • Stephen Lathrop||

    Even if that were true, liability is also about government.

    Isn't it customary in law to distinguish criminal cases from civil cases? And isn't one distinction to be found by answering who gets initiative to start proceedings in each kind of case—the government in criminal cases, private parties in civil cases? And isn't assuring protection for publishing freedom dependent on denying initiative to government in related cases? Civil liability accomplishes that protection.

    What are you complaining about? Apparently not publishing freedom vis a vis government. You seem instead to be complaining about objections to the impracticality of your own advocacy—advocacy for completely unfettered, world-wide, cost-free, defamation-approved, anonymous publishing for everyman.

    Society isn't going to allow that. It will choke on the defamation part. Perhaps you are unaware how strongly that value is held. You may need more small-town experience, where the feedback works better.

    Americans hate defamation so much, and value publising freedom so lightly, that they won't hesitate to cripple publishing freedom generally, to avoid licensing defamation. You're inviting a high-stakes game, where the risks of play are staggering, but prospects of winning are nil. That's foolishness.

  • David Nieporent||

    Isn't it customary in law to distinguish criminal cases from civil cases?

    Well, I mean, it's a weird question, but sure. There are many many differences.

    And isn't one distinction to be found by answering who gets initiative to start proceedings in each kind of case—the government in criminal cases, private parties in civil cases?

    Well, no, not at all. While it's mostly (though not always) true that the government initiates criminal proceedings, the government can start proceedings in civil cases too, and does every day. Not really sure where you're going with this, in any case.

    What are you complaining about?

    Censorship. Thought that was pretty clear.

    Society isn't going to allow that. It will choke on the defamation part. Perhaps you are unaware how strongly that value is held.

    You are obsessed with this. Most people are not. Most people value speech more than weird concerns about bizarre hypotheticals that you always come up with.

  • Stephen Lathrop||

    You are suggesting the U.S. government has, or would, initiate civil cases for libel? I'm not aware of that practice. Got any examples?

  • Stephen Lathrop||

    You are obsessed with this. Most people are not. Most people value speech more than weird concerns about bizarre hypotheticals that you always come up with.

    Most people are neither investigative journalists, nor editors, nor publishers. Check among those, and you will discover my concerns aren't unusual at all, but widely shared. Why wouldn't they be? They are routine professional considerations. Doubtless, lawyers also think a lot about subjects most people don't. Does that make lawyers peculiar?

  • Absaroka||

    Funny that all those journalists are keeping so very quiet about the subject. I mean, you think they'd be writing the odd editorial or something.

  • Stephen Lathrop||

    Nonsense. For instance, Morning Edition, on NPR. Google it and listen to Kyle Pope, of Columbia Journalism Review, in an interview aired this morning. His back story focus, (front story, he's talking about the collapse of journalism at the New York Daily News, under new management), is the loss of advertising support for legacy media, and the inability of the internet to come up with a business model to replace the journalism lost in consequence. It's the internet giantism which Section 230 enabled that is largely creating that problem, by stripping legacy media of advertisers, while doing nothing next to nothing to support news gathering.

    This has been a huge, ongoing, topic. In journalism circles, nobody is being quiet about it. Even Joe Average would have to have bananas in his ears to keep from hearing about it constantly. Or maybe not, in low information regions. Maybe that's part of the problem.

  • Stephen Lathrop||

    Yes, it did. Could you publish whatever you wanted in the Washington Post, or in Reason magazine? Heck, forget about whether the content passed muster; even if it would have been unobjectionable, could the vast majority of people ever publish anything in the Washington Post or in Reason magazine? And yet, for the past four years or so, you personally have been able to do those things, as have scores of others of us.

    What an embarrassment. You have hung an elaborate case on insisting that publishing on an internet site is crucially different from legacy publishing, and there you are, conflating them.

    But leaving that aside, free speech was never interpreted by anyone (except you, now) to mean freedom to publish in a journal of your choice. Or even freedom to publish in any journal. It was freedom to publish somewhere, if you could get published, or to publish yourself, if you could swing it yourself. That freedom you would have—enhanced, not impaired—in an internet populated with a profusion of journals, all subject to private editing.

    Better yet, if it came to the last alternative, self-publishing, the internet is a far more economical and amenable alternative than ink-on-paper. No press costs. Negligible distribution costs. And no pesky editor. Just you and your liability. Ain't progress grand?

  • David Nieporent||

    What an embarrassment. You have hung an elaborate case on insisting that publishing on an internet site is crucially different from legacy publishing, and there you are, conflating them.

    No, I'm contrasting them.

    But leaving that aside, free speech was never interpreted by anyone (except you, now) to mean freedom to publish in a journal of your choice.

    Speaking of conflating. Free speech as a legal doctrine was not, and still is not, interpreted to mean anything like that, of course. But free speech as a concept is broader than the first amendment.

    Before the Internet (and still, outside the internet), there were significant financial & technological limitations on who could speak and what they could say; most things had to go through a gatekeeper. Technological/financial limitations on speech are understood by most people as limitations on free speech.

    The Internet unshackles us from those limitations. Instead of celebrating, as most people do, the fact that those limitations are now gone and we have more ability to speak, you are trying, for some inexplicable reason – did someone once say something mean about you online? – to use the legal system to recreate those restrictions online.

  • David Nieporent||

    Better yet, if it came to the last alternative, self-publishing, the internet is a far more economical and amenable alternative than ink-on-paper. No press costs. Negligible distribution costs. And no pesky editor. Just you and your liability. Ain't progress grand?

    You are talking out of both sides of your mouth here. You've been whining – as you just did above – about that very notion, describing that as eliminating any practical remedy for defamation. And now you want to proffer that as an alternative?

  • Stephen Lathrop||

    Yeah, I do proffer that as a practical remedy for defamation. You know why? Because if you are publishing just to a small audience you gather yourself—instead of borrowing audience from a powerful established publisher with world-wide reach—your defamation, however reckless, isn't likely to hurt much. And it probably won't be too hard to find you if it does.

    If you get successful enough to really hurt anyone, your corporation will probably have the assets to satisfy a judgment. Best of all, your knowledge of your own responsibility and potential loss will condition your approach, and infuse it with care.

    None of that is true when you are just a judgment proof author borrowing Facebook's giant audience, and Facebook is immune. See the difference?

  • NToJ||

    You don't understand how the internet works.

  • NToJ||

    "Better yet, if it came to the last alternative, self-publishing, the internet is a far more economical and amenable alternative than ink-on-paper."

    That's what Facebook is. It's a platform that allows people to publish their work on a website.

    If I opened a store that sold Facebook posts, do you think I'd become a publisher?

  • Stephen Lathrop||

    The question isn't whether you would become a publisher. It's whether Facebook is a publisher. Its own lawyers say it is, at least when they think it tactically convenient to say so.

    There is no point continuing this. You will keep arguing, and ignoring anything I say, because you don't really care about issues I discuss. You care that posting on the internet never gets subjected to defamation lawsuits with remedies.

    It may go too far to suggest you actually favor defamation. I think you, and Nieporent, and plenty of others, just think the internet ought to revolutionize publishing, because you all want publishing revolutionized. You don't much like publishing the way it was before the internet. You think that as a matter of politics, publishing had fallen into the wrong hands. You want the internet to put publishing into hands like your own—and that with few or no restraints—and certainly without restraints imposed by defamation law. If defamation law gets in the way, you are willing to get rid of defamation law to have your revolution. You won't say that, because you think it would sound bad. And it would.

    Whether that would so widely undermine respect for speech freedom as to bring it into disrepute, and make it indefensible, is a problem you haven't considered. Nor do you want it considered. You want your revolution, and damn the consequences.

  • Stephen Lathrop||

    NToJ, if you post on Facebook, you are a writer availing himself of the audience your publisher, Facebook, has assembled for its own business convenience. That's how publishing has always worked. Because it's such a clear-cut example of time-honored publishing practice, it's foolish to insist it isn't publishing.

  • NToJ||

    "It wouldn't kill free speech on the internet."

    Do you understand that you and I would not be having this online discussion in the universe you imagine? If Reason was your publisher, they'd just stop publishing your work.

  • Stephen Lathrop||

    Do you understand that you and I would not be having this online discussion in the universe you imagine? If Reason was your publisher, they'd just stop publishing your work.

    Suits me. As a private publisher, that would be Reason's prerogative. Or, who knows, maybe they would find us both congenial, sufficiently careful about the truth, and capable of writing well enough to encourage audience and ad sales.

    If not, in the universe I suggest—which is merely the universe of legacy publishing updated to take advantage of electronics' lower costs and other efficiencies—we could host this discussion on my own publication, or on yours.

    I know what I am talking about. I have done that before, more than once, using straight legacy media back in the old days. A newspaper I founded in the 1970s is still thriving today. Given a market for advertising sales, the out-of-pocket cost of getting started was trivial then, and less now. Admittedly, sweat equity costs are another matter.

    The problem is the market. Present trends help giants like Facebook monopolize ad sales. That's a stifling effect on all media. It's big part of what I object to. You should too.

  • NToJ||

    Yes yes, the newspaper you founded was super successful. That's why you're arguing with me on someone else's website that you want to destroy. If Reason was liable for you or I's defamation, it wouldn't distribute our comments at all.

  • Stephen Lathrop||

  • jph12||

    "You can't save free speech by killing it."

    Spoken like the movement conservative (insert scary music) you are. Will it be tough to let your friends and family know that you are a movement conservative (insert scary music), or do you think they secretly suspected it all along?

  • Stephen Lathrop||

    Above, Nieporent succinctly sets out a utopian vision of internet press freedom. It posits unshackling from the ever-hated "gatekeeper." But it leaves out consideration of what that "gatekeeper" accomplished. It ignores society's customary reliance on those accomplishments.

    With private gatekeeping, society came to impute to published speech more truthfulness than to common speech. Much discord now loose in the nation owes its existence to continuation of that imputation of truth, by habit, past its expiration date, when the internet bypassed the gatekeepers.

    Beyond that turmoil, a graver issue looms. It is the strongly held value against published defamation. With exceptions, private gatekeeping mostly prevented that. Publishing without gatekeeping has loosed defamation in a flood.

    Internet utopians suppose society will ride the flood. The utopians' mistake is to suppose defamation is experienced collectively, with slight damage, instead of individually, with extreme damage. The usual response is uncommon rage, which society finds unjust, doesn't want, and is unwilling to contain.

    To redress such challenges to its equanimity, society will be content to accomplish with laws the protections customary gatekeeping used to deliver privately. The result will be dangerous government attacks on press freedom. They are already happening.

    To prevent that, utopians will have to abandon their vision of revolutionized publishing, absent all gatekeepers.

  • David Nieporent||

    "We need to impose censorship to avoid censorship."

    That village won't destroy itself, I guess.

  • Stephen Lathrop||

    Note: Nieporent's remark in quotation marks is not mine.

  • Naaman Brown||

    I have read too many complaints from an abusive Facebook user on their private blog about being "in Facebook jail", suspended from posting on Facebook, even on his Facebook page for a month for abusive posting, to believe that Facebook does not monitor serious abuse.

    A traditional publisher has a limited number of contributors, narrow set of interests, and can afford to have dedicated editors assigned to read everything contributed before it is published.

    Facebook has millions of contributors, supports worldwide interests, and would need a staff of thousands of editors to read everything and approve it before publication.

    I suspect that if you applied the model of traditional publisher to Facebook, it would be impossible for Facebook to exist (or for any worldwide internet forum to exist for that matter).

  • Stephen Lathrop||

    Yes, Facebook's business model would be unwieldy, and maybe prove impossible, if it had to read everything it published. That would be a good thing. As comments show, pretty much everyone worries that Facebook's enormous size makes it at least as much a choke-point for speech freedom, as a means of promoting it. Why anyone who values free markets would endorse Facebook's monopolistic giantism is mysterious to me.

    There can be little assurance that even the worst of the paranoid fears voiced above by right-wing commenters will not eventually come true. As a not-right-wing commenter, that gives me no comfort, only alarm. My access to the internet is no more secure, nor free, than that of any of them.

    Whatever happens in the U.S., it will certainly happen in other nations that Facebook's business model will force the company into cahoots with government censors, and greatly convenience the censors in the process.

    Publication on the basis of private editing is harder to control. Given the internet's economic advantages for publishing—and absent Facebook's (and other near-monopolists') baleful effect on rival publishers' economics—you could expect alternatives to become yet more numerous, and more various, than during the predecessor regime using ink on paper.

    Positing an identity between the internet and Facebook is simply a mistake. The longer persisted in, the more costly that mistake will prove.

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