"In the Middle" blog as Facebook spam?

I support Facebook's legal and moral right to censor whoever they like, but why these guys?

Those who follow the culture wars in the medieval studies community may be aware of a blog called In the Middle (though its URL identifies the blog as "In the Medieval Middle", which might have been the blog's previous name). I bring this up because, if you want to link to that blog on Facebook, you won't be able to, because Facebook will tell you that the blog goes against its community standards on spam.

Why? The "community standards on spam" aren't themselves very transparent, and there's no obvious reason why this particular blog should have been flagged in that way. Nor does this fit the popular story of Facebook censoring conservatives, because this blog is more aligned with the far left (critical race theory, etc.) To be clear (because this is a law and policy blog): I absolutely support Facebook's legal and moral right to "censor" whoever they like, left or right; Facebook is a private entity, just as private as when Zuckerberg was working on it in his dorm room many years ago. Facebook's choosing what posts to allow (provided it's consistent with whatever contract they may have made with their users) is just an exercise of their fundamental right of freedom of association. (Nor, as an antitrust scholar, do I favor any antitrust lawsuits against Facebook. I just wish the government would leave Facebook alone.)

Still, all I'm saying is, this particular choice of Facebook's is peculiar; I hope it's just the result of some dumb algorithm, and I hope they reverse that decision as soon as some live person gets around to looking at it.

Now. Suppose you had read, in the journal Medieval Encounters, a review essay of the book The Invention of Race in the European Middle Ages by Geraldine Heng (one of the In the Middle bloggers). And suppose you wanted to post a link to Heng's response to that essay in a Facebook post. Facebook won't allow you to do that. Much as I support Facebook on a political level, there's no particular reason for me to want to facilitate that choice of theirs, so here's the link right here.

Comments

[Rossami]

I agree that Facebook has an absolute legal right to censor whoever they like. As you say, Facebook is and remains a private entity.

They do not, however, have an absolute moral right to censor. Censorship, like bigotry, is wrong and should be called out and shamed even when (maybe, especially when) it is legal.

[jb]

Let's assume that this isn't an algorithmic error (my guess is it probably is), and that for some reason that the blog in question really was spamming people. It seems totally reasonable to me that platforms would want to restrict links to spammers--that's one of the key disincentives to spamming in the first place. Platforms can "censor" on all sorts of bases--some more controversial than others. Restricting spammers has always seemed to me like one of the least controversial types of restriction since spammers are almost always freeloaders that harm everyone else's experience.

[Brett Bellmore]

"Let’s assume that this isn’t an algorithmic error (my guess is it probably is), and that for some reason that the blog in question really was spamming people. "

This hardly exhausts the possibilities. Consider another alternative: The blog in question isn't spamming people, and the banning was manual, not algorithmic.

[Krychek_2]

Rossami, are you seriously arguing that it's immoral to not give platforms to pedophiles, white supremacists, and proponents of human trafficking? If I owned facebook, I might be inclined to give them space just so other people can see for themselves what's being advocated. But I would not say that someone else's decision not to give them air time is immoral.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I argue that. Just as the Catholic church said it's not sinful to be homosexual, only to act on it. If the NAMBYs want to argue their case, they have that moral right.

If you deny that, then who do your propose be the one who decides which nuts get a platform and which are beyond the pale?

[David Nieporent]

They're not deciding which nuts get a platform. They're deciding which nuts get their platform.

[Rossami]

jb and Krycheck, you are both reading more into what I said and, I think, not reading enough into what the original post said. Prof Volokh said there is an absolute legal and moral right for private entities to censor. We all, I think, agree that the legal right is absolute.

And there may be a moral right sometimes. I disagree, however, that the moral right is absolute. The moral right is qualified. It can be justified but, in my mind, only as the lesser wrong.

[Brett Bellmore]

Libertarianism is, primarily, a political philosophy. It's all about understanding the proper limits of applying coercion.

About what you can legitimately force people to do, legitimately force people to refrain from. The moral limits of your own use of force.

It did not originally carry they implication that, because you couldn't properly force a landlord to refrain from evicting a poor widow with children, that it was moral for the landlord to evict them.

It didn't carry the implication that, just because drugs should be legal, it was moral to be a drug dealer.

And it doesn't carry the implication that, just because it must be legal for Facebook to censor on the basis of politics, it is moral for them to do so.

[jb]

LOL.

"I know this doesn't match my political narrative that Facebook picks on conservatives, so actually it's just part of their sinister plot that makes no sense but somehow is still the same thing. The fact it makes no sense just proves my point!"

[jb]

Oops, this got attached to the wrong comment. Intended for Brett's weird seminar on logic and psychology below.

[Brett Bellmore]

What, that was a response to my pointing out that FB uses intermittent reinforcement?

[Dr. Ed 2]

They may have that right BUT THEY ARE A MONOPOLY THAT SHOULD BE BROKEN UP!

I'd like to see a Farcebook for each of the judicial circuits -- able to interconnect with the others (like the "Baby Bells" are) but legally and financially independent -- and having to prove that to the DOJ on a daily basis.

[apedad]

Facebook is not a monopoly because they don't sell anything and therefore can't manipulate prices (the first of the FTC criteria).

https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/single-firm-conduct/monopolization-defined

[Brett Bellmore]

That's funny: If they don't sell anything, how do they recoup costs? Because they do have costs.

[apedad]

Since I can't prove a negative, it's on you to show that Facebook sells something.

We'll wait.

And yes, I know they sell ad spots, but that's not the issue here is it.

[Brett Bellmore]

They sell opportunities to monetize content. Then they ban or throttle content of people who have contracted with them to monetize, if they don't like the politics of it. And when asked to justify doing so, make vague allusions to the TOS, without specifying exactly what the violation is.

[Rossami]

I've gotta agree with Brett. There are lots of good reasons against trust-busting the tech companies but that wasn't one of them. (Though it is a good argument for why Dr Ed almost certainly doesn't have standing to make his complaint.)

[Larvell Blanks]

I'm heartened that even medieval studies has no place for the unwoke. Just a few more to go.

[Sidney r finkel]

"I support Facebook's legal and moral right to censor whoever the like, but why these guys?"

Once you make that statement there is really nothing more to say. That statement is absolutely correct by the way. A privately owned forum (blog, newspape, magazine etc) is free to publish or not publish whatever they wish. It's a shame pseudo conservatives do not understand this and keep crying censorship.

As for the answer to the question, it's the same answer as to the question of why does a dog lick himself. Because he can.

[Don Nico]

Sidney,
You have contributed nothing to the discussion,which of course is your right.

[Kazinski]

Section 230 is a government conferred benefit to private companies that voided a common law right of the people to sue a publisher for defamation.

If the public, thru congress, decides they are getting the worse of that bargain it can be refunded.

[Dr. Ed 2]

The problem is their monopoly...

[KenveeB]

What monopoly? There are plenty of other social media sites. That the majority of people choose Facebook doesn't make it a monopoly.

[Diogenes Radar Gun]

If you think that Facebook cares about logic or consistency or fairness when deciding who or what to censor...I have a bridge in Brooklyn for sale, would you care to buy it?

[Brett Bellmore]

FaceBook is all about being data driven, and exploiting the latest findings in psychology.

And, guess what: Psychology tells us that being arbitrary works when you're trying to control people. If you're absolutely fair and consistent, people know where the line is to a high level of precision, and can and will dance right up to it. They know when they're safe, and use that.

If you're arbitrary and capricious, people DON'T know where the line is, and they stay well clear of it just to be careful. You exercise much more control by being random and unfair.

Facebook is pursuing a rational, rigorously justified strategy to control the speech of its users even when they're not on Facebook.

They care about logic and consistency: They care enough to avoid them.

[David Nieporent]

Brett, I take it back when I said that we've plumbed the depths of your stupidity. You have many more layers to go.

[Jordan Brown]

In general, yes, a publisher has an absolute right to censor content. Freedom of the press belongs to those who own printing presses, and all that.

However, CDA 230 makes the picture murky. Facebook doesn't want to be held liable for the things its users say; it wants to be like the phone company and the postal service, and just carry messages. That claim only works when they don't control the content. Once they start controlling the content, their claim to be a common carrier, not responsible for the message, starts to evaporate.

Suppose for a moment that Facebook started to censor everything *but* libelous material. No cute cat photos, just assertions of truth that are malicious and factually false. As a publisher, that selection process would be completely reasonable (but they'd be up on libel charges). As a common carrier, they're not violating the law by carrying those messages because they're just the messenger (but then they aren't allowed to choose what messages to carry).

IANAL, so I might get details wrong, but the essence is clear to me: we give Facebook CDA 230 protection because it's somebody else speaking, but the more that Facebook edits and selects the more that it is *Facebook* speaking.

[Dr. Ed 2]

EXACTLY!!!!!

[David Nieporent]

IANAL, so I might get details wrong,

This is the only thing that you said that was correct in this entire comment.

§ 230 does not make the picture murky. It makes it 100% clear. Facebook is not liable for any content that someone else publishes. Period. They are liable only for their own content. That means things that they write. Not things that other people do. Facebook is 100% allowed to choose what messages to carry, without any liability whatsoever for so doing.¹ It does not depend on how much of the content on the site they curate. It depends only on whether they're the authors of the content or not. (No, they do not become the authors because they choose to allow it, regardless of what else they've allowed or disallowed.)

(N.B. Facebook is not a common carrier. "Common carrier" is a technical legal term that has nothing in the least to do with § 230 or any social media site.)

¹There are some exceptions not relevant here relating to intellectual property and things illegal under federal law (but not state law).

[Noscitur a sociis]

IANAL, so I might get details wrong /blockquote>

Not only did you get the details wrong, everything you're saying is very close to the opposite of the truth. Section 230 was expressly designed tonenable sites and providers to selectively moderate content without incurring liability, not to discourage it.

[Jordan Brown]

I looked more deeply, and you're right. I understood it to be declaring these services to be common carriers, and indeed it specifically shields them when they make editorial decisions - including the extremely broad category "otherwise objectionable".

Nonetheless, the more that they make editorial decisions, the less I think they'll be able to hide behind that shield - and the less support there will be for that shield.

[Brett Bellmore]

It specifically shields them in making a narrow range of editorial decisions. Remember that "in good faith" language; If you read "otherwise objectionable" as giving platforms the right to moderate on any basis whatsoever, what is that language actually doing? There wouldn't be any such thing as NOT in good faith!

[jb]

Even if you're right (you're not, but let's arguendo this thing), the only implication would be that the people would be able to sue Facebook for this particular editorial decision. I guess the In The Middle people could make a defamation claim that Facebook is calling them spammers when they're actually not. Even your narrow reading of Section 230 doesn't magically oblige Facebook to carry content that they don't want to, though, any more than OAN has to admit that Trump actually lost the election.

[Brett Bellmore]

I think they are potentially liable in two ways.

1) "Fact-checking" isn't user generated content, it's FB solicited content, the producers of the fact checks are acting as FB's agents, and so FB is a publisher, not a platform, in regards to "fact-checks".

2) Bad faith moderation opens them up to liability, not just in the nature of defamation, but also commercial interference where the moderation interferes with monetization or advertising which FB had contracted to permit.

[David Nieporent]

1) “Fact-checking” isn’t user generated content, it’s FB solicited content, the producers of the fact checks are acting as FB’s agents, and so FB is a publisher, not a platform, in regards to “fact-checks”.

That is likely partially correct, but has nothing at all to do with the discussion. Nobody disputes that if FB actually posts, say, a banner with the words, "The contents of this user's post are false," they're subject to possible liability for that banner. (However, if they simply link to someone else's outside factcheck, there would not be any liability anyway. Factcheck.org does not become their 'agent' simply because FB links to them.)

2) Bad faith moderation opens them up to liability, not just in the nature of defamation, but also commercial interference where the moderation interferes with monetization or advertising which FB had contracted to permit.

Assuming that it was a context in which the protections of (c)(2) did not apply, that would be an issue of contract. And, of course, FB's contracts with its users expressly authorize it to delete or restrict content at its discretion.

[Brett Bellmore]

"However, if they simply link to someone else’s outside factcheck, there would not be any liability anyway. Factcheck.org does not become their ‘agent’ simply because FB links to them.)"

I disagree. Factcheck.org DOES become FB's agent because FB chooses to link to them. They exercise editorial control as a publisher. It's not at all like their relationship with regular users.

"And, of course, FB’s contracts with its users expressly authorize it to delete or restrict content at its discretion."

And, of course, FB provides an extensive, albeit not conveniently in one place, guide to what it will delete or restrict.

A guide which they routinely violate on a political basis.

[David Nieporent]

I disagree.

I know you disagree, but you are ignorant of the law, and don't know enough to know that.

I choose to link to the NYT on my Twitter feed; that does not make the NYT my agent.

[David Nieporent]

It specifically shields them in making a narrow range of editorial decisions. Remember that “in good faith” language; If you read “otherwise objectionable” as giving platforms the right to moderate on any basis whatsoever, what is that language actually doing? There wouldn’t be any such thing as NOT in good faith!

You've been told repeatedly that this is wrong, but you're Brett Bellmore so you're going to keep saying it.

Moreover, even if one could characterize a decision they made to moderate content as being in bad faith, there's no cause of action against them for it. Their protection from liability for other people's content is in (c)(1). The "good faith" language is in (c)(2) and does not relate to (c)(1) in any way.

[Michael P]

That is disingenuous. The key part of Section 230 only grants immunity for "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".

Much of what Facebook is doing is in transparently bad faith -- for example, labeling ideological disagreements as fact checks. Their definition of "otherwise objectionable" is also far too broad to fit in with the examples given. (Twitter is worse than Facebook on both counts.)

[Brett Bellmore]

The "fact checks" are outside Section 230's protection anyway, as they're not user generated content in the first place. Once FB solicits content under its own editorial control, it has sailed out of the safe harbor.

It would be different if they just let any user append a "fact-check" to content they didn't like. But they've selected the "fact checkers", they're FB's contractors.

[jb]

I think I agree with this, although it would be interesting to hear the argument from the other side. Importantly, though, it proves why most of the discussion about Section 230 is so dumb: repealing Section 230 would be bad in a lot of ways, but one thing it certainly would not do is prevent private websites from having political opinions.

[David Nieporent]

It would be different if they just let any user append a “fact-check” to content they didn’t like. But they’ve selected the “fact checkers”, they’re FB’s contractors.

No. Brett, why must you try to play lawyer?

[David Nieporent]

Much of what Facebook is doing is in transparently bad faith — for example, labeling ideological disagreements as fact checks. Their definition of “otherwise objectionable” is also far too broad to fit in with the examples given. (Twitter is worse than Facebook on both counts.)

Even if labeling ideological disagreements as fact checks" was "bad faith," so what? Fact checks aren't actionable under (c)(2) anyway.

[Rev. Arthur L. Kirkland]

THE VOLOKH CONSPIRACY

This blog has
operated for
10 DAYS
without gratuitous use
of a vile racial slur and
605 DAYS
without engaging in partisan,
viewpoint-driven censorship.

[Don Nico]

Sidney,
You have contributed nothing to the discussion,which of course is your right.

[Diogenes Radar Gun]

I can't stand [election] riggers. Stupid riggers. Can't have a decent election with them about.

There, does that reset the count, or to subtle?

[Brett Bellmore]

It's as bad as theater. You realize it's all just staged, right?

[apedad]

Maybe somebody posted a pro-Torquemada argument.

[Jimmy the Dane]

The world would be better off if all critical race theory got marked as spam. Maybe this is the beginning of something great.

[ScottK]

As a member of the ABA’s antitrust section, I have to ask: Has the scholar presumed the invalidity of all of the allegations in the complaint against Facebook, or does the scholar believe that the antitrust laws are all b.s. because J.D. Rockefeller is as dead as Hugo Chavez?

(Not wishing to be accused of false dichotomies, the questioner will entertain a range of responses).

[Sasha Volokh]

I don't think anything FB is accused of having done should be illegal.

[Brett Bellmore]

Even including contractual violations such as demonetizing people who aren't actually in violation of TOS, and had a business relationship with FaceBook?

[newshutz]

aren't contract violations torts?

[Brett Bellmore]

Are torts not the sort of thing that could rightfully be illegal?

[David Nieporent]

aren’t contract violations torts?

No.

This has been yet another episode of Simple Answers to Stupid Questions.

[Dr. Ed 2]

🙂

[Kazinski]

I don't want to get all technical on you, but the definition of an antitrust violation is a corporation doing something I don't like.

[Brett Bellmore]

Not liking anti-trust violations doesn't make the definition of anti-trust violation "a corporation doing something you don't like"; You might not like the flower arrangements at the corporate Christmas party, but they're not an anti-trust violation.

[Kazinski]

However woke the people are that run that blog are, it's just screams 'stuff white people like.

Either that or someone connected to the blog once contributed to a republican candidate, even if it were in the distant past.

[ReaderY]

If Facebook wants a right to editorial control over what is published on its platform, it ought to have the responsibilities and liabilities of a publisher.

If Facebook wants to be liability-free, it ought to have the responsibilities of a utility, including no say in what gets published on its platform except in rare instances such as crime-facilitating speech.

[David Nieporent]

Then you should run for Congress and get them to write an entirely new set of laws. But don't confuse an ought for an is.

[DaivdBehar]

Facebook has no right to censor any post. It has become a utility, and is no longer a private corporation.

Should the water or the electric company be able to expel anyone based on viewpoint? If not, then, neither should Facebook.

[Doug Huffman]

I have retreated to study of my Norse culture, language, literature, myths, as a retreat from the woken and 13%-ers.

Yggdrasil: The Cross in the North by G. Ronald Murphy SJ draws many parallels between Yggdrasil and the Rood. The Dream of the Rood is very old English literature.

The ‘Conspiracy’ is about as close to Social Justice networking as I get. YMMV

[Longtobefree]

The claim that Facebook can do whatever it wants is incorrect, as they are theoretically bound by a contract.
Somehow no one ever addresses the issue of Facebook, and "social" media in general, not being able to specify exactly what provision in the TOS was violated; probably because, as even Sasha admits, the TOS is so vague as to be unenforceable as an actual contract.

[David Nieporent]

"Even Sasha" does not "admit" that.

The TOS are broad, but not vague. They say that FB reserves the right in its sole discretion to decide what content to allow.

[Longtobefree]

Perhaps corrective legislation could simply require that under section 230, a carrier must specify what law is violated by each item they refuse to carry.

[Rev. Arthur L. Kirkland]

I would expect the proprietor of the Volokh Conspiracy to dislike a requirement to explain his repeated, partisan, viewpoint-driven censorship.

This blog's censorship record makes it a strange platform for complaints about someone else's censorship.

[David Nieporent]

Perhaps corrective legislation could simply require that under section 230, a carrier must specify what law is violated by each item they refuse to carry.

Perhaps you should read the First Amendment.

[Brett Bellmore]

Perhaps you should notice that Section 230 could be utterly repealed, and not violate the First amendment, it extends platforms privileges, rather than just recognizing constitutional rights.

[David Nieporent]

You continue to Dunning-Kruger this. Yes, 230 could be repealed. But 230 isn't what allows FB to delete content it doesn't want to carry; the First Amendment is.

[Bubba Jones]

Clicking through to the blog gave me a headache.

White woman accuses a chinese woman of anti-semitism because chinese woman used white archives to write a chapter that critiqued white anti-semitism?

White woman received PhD in 2011. Chinese woman has been publishing (in the Medieval Feminist Forum!) since 1988.

I love how Heng referred to "an S.J. Pearce" as if to emphasize, "who the fck is this person"?

Epic.

[David Friedman]

My web page was similarly blocked by FB for a month or two. I went through their procedure to object and never got any response. Eventually they stopped blocking it.

It occurred to me that there might be a legal case based not on censorship but defamation. FB has a right not to permit links to my page. But do they have a right to repeatedly and publicly claim that my page violates their community standards if they can produce no evidence that it is true? Similarly here.

[David Nieporent]

Why do you think they need to prove it's true? (Indeed, why do you think that's something other than opinion?)

[Sasha Volokh]

Yes, except here it's the woke being flagged as spam. Probably a mistake, and I support FB's right to do it regardless who's being canceled. But still, a bit puzzling.

[jb]

So your theory is Facebook is intentionally trying to get rid of woke content?

[Brett Bellmore]

No, I think they're punishing the blog for refusing somebody's essay on gender reassignment surgery in the middle ages, or not censoring a comment that the Lady of the Lake wasn't a dude in drag, or something stupid along those lines. Just because the 'woke' are trying to take over the field doesn't mean that they've already taken this blog over.

[Brett Bellmore]

Reading the blog, they didn't have to take it over, the blog proprietor is so "woke" it's painful. But probably still offended some secret protocol, and had to be punished.