Congress Overrides Trump Veto of Defense Bill that Includes Tight Constraints on Use of "Emergency" Powers to Divert Military Construction Funds to the Border Wall and Other Projects

This would prevent repetition of some of the shenanigans Trump has used to divert funds for his border wall project.

Earlier today, the Senate overwhelmingly voted to override President Trump's veto of the National Defense Authorization Act, thus handing Trump the first veto override of of his term. Section 2801 of the Act  limits the president's ability to use "emergency" declarations to divert military construction funds to no more than $100 million per year for construction within the United States. This largely closes the loophole Trump tried to use to fund parts of his border wall project, using an emergency declaration he issued in 2019, thereby laying claim to some $3.6 billion.

In my view, this part of Trump's border wall funding diversion was already illegal for reasons described in a recent Ninth Circuit decision ruling against the administration on this issue. I also wrote about these issues here. The new law just makes this point more clear going forward.

The new NDAA doesn't affect the ongoing litigation over Trump's previous diversion of funds, because it only applies to newly appropriated funds, not those Trump has laid claim to from the previous NDAA. In addition, much of the funding Trump has tried to use does not rely on his emergency declaration, but rather on dubious manipulation of Section 8005 of the 2019 NDAA. Lower courts have ruled against Trump on that diversion, as well, but the case is currently before the Supreme Court (though the litigation might not continue of President-elect Biden keeps his promise to immediately terminate the funding diversions and associated wall construction). Section 1001 of  the new NDAA  does, unfortunately, include language similar to that of Section 8005 in the 2019 one.

As a practical matter, this limitation in the new NDAA probaby won't have much, if any, effect on Trump's border wall project, because Biden is likely to terminate it soon, anyway. But it will make it harder for Biden - or another future president - to usurp Congress' spending power and use "emergency" declarations to convert the military construction budget into a piggy bank for his personal pet projects.

More needs to be done to curb presidential abuse of "emergency" declarations, and usurpation of the spending power. Both have been serious problems under Trump, who declared a dubious emergency at the border in order to secure funding Congress had denied for his wall, repeatedly tried to circumvent Congress' power of the purse for such purposes as attacking sanctuary cities and pressuring Ukraine to launch an investigation of Joe Biden and his son. It would be naive to imagine that future presidents won't engage in similar shenanigans, if the opportunity arises. But though it is not a complete solution to these problems, Section 2801 of the new NDAA is at least a step in the right direction.

Obviously, the NDAA includes many other provisions. As with any large spending bill, there are many that I am not a fan of. But I'm still happy Congress overruled Trump's veto, because his proposed changes - adding a repeal of Section 230 protection for website providers and subtracting a provision changing the names of military bases named after Confederate generals - would have made the bill worse, not better.

Section 230 repeal (an idea backed by many on both left and right) is a terrible idea for reasons well-summarized by Hannah Cox here. Eliminating monuments (and base names) honoring Confederate leaders is desirable for reasons I outlined here and here. It especially makes no sense for the US military to have major bases named after men who fought to break up the US for the profoundly evil purpose of perpetuating slavery.

That said, perhaps the soon-to-be-renamed Fort Bragg should still include some sort of commemoration of General Braxton Bragg, widely considered to be one of the worst generals of the Civil War. His incompetence made a major contribution to the Union cause! He did more to bring about Union victory in the West than any other general on either side, with the possible exceptions of Grant and Sherman. That, arguably, deserves some recognition.

UPDATE: I have made a few minor additions to this post.

 

Comments

[Dr. Ed 2]

"With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations>"

Thus concludes Lincoln's Second Inaugural Address -- and there was a larger purpose in naming southern military bases after southern military heroes -- reconciliation. Do not forget that the south had a very negative view of the US Army because of Reconstruction, so when these bases were being established with people with a living memory of Reconstruction living next to them, there was a very real need to demonstrate that this wasn't an army of occupation anymore.

To the best of my knowledge, none of Ilya's relatives fought in the Civil War -- two of my Great-Great-Grandfathers did -- one coming home without his foot and the other not coming home at all. And they were farmers from Maine who fought for the union.

And I don't have problems with forts named after Confederate Generals. "With malice toward none, with charity for all."

And how does Ilya even get standing to comment on this? His family shed no blood for this country while I also have a great uncle who fought in WW-I, two uncles who fought in WW-II, and an (older than I) cousin who fought in Vietnam.

(This, as an aside, is something that Ilya neglects to mention in his discussions of immigration...)

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Ilya gets a say because he lives here, now, in the same universe which has those names.

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[StellaLink_the dog]

"And how does Ilya even get standing to comment on this? "

People say there's no such thing as a stupid question.

You seem to think that being descended from people who served and being related to people who served gives you some rights of citizenship that others lack. It's not so. We all are allowed opinions about whether or not traitors and murderers are venerated and we're all allowed to express those opinions. We all have standing.

[Dr. Ed 2]

I disagree -- on multiple levels including a knowledge of how, in 1860, one's loyalty was to one's state and not the USA. Much like in Europe today, one is French or German, not EU.

But what price has Ilya's family paid for the country which Ilya enjoys today -- none. That's why we've always given citizenship to those who have served in our military -- and I think that there should be some burden of public service expected of all immigrants.

[StellaLink_the dog]

"[I]n 1860, one’s loyalty was to one’s state and not the USA. " You're wrong. Indeed, there was a war fought on that very question.

"But what price has Ilya’s family paid . . ."

As Americans, we receive no extra citizenship rights because our ancestors or relatives served in the military. Nor do we owe any extra debt because they didn't. If there are any rights to be gained through service, they are personal rights to the one who renders the service and not rights that are inherited or denied by lack of inheritance. Unless you are a duke or viscount or something.

I can't believe I'm having this discussion with an actual American who claims to be well educated.

[Dr. Ed 2]

Technically, the war started over the question of ownership of Federal property (Fort Sumter) located in a state that had seceded. The larger question was the right of a state to secede from a voluntary union of states -- and this had come up earlier at the Hartford Convention. Think Brexit...

As late as 1920 a law requiring the teaching of "US History" in K-12 was interpreted to require the teaching of state history -- there wasn't the distinction that there is today. And remember that prior to the 16th Amendment, people were taxed by the state.

And as to immigrant rights, if Ilya has the right to articulate what he thinks the policies should be, I have an equal right to do likewise. If he wants to talk about ethical burdens, then I get to talk about ethical burdens as well.

[StellaLink_the dog]

Sure, you get to talk about any damned fool thing you want to and get criticized for being a gormless gobshite besides.

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[ah....Clem]

"I can’t believe I’m having this discussion with an actual American who claims to be well educated."

Classical liberalism rejects the notion of hereditary privilege. That's enough to make some of the regulars here embrace it.

[Rev. Arthur L. Kirkland]

This blog features disaffected, resentful, whining, vanquished clingers from top to bottom.

[bernard11]

I think that there should be some burden of public service expected of all immigrants.

Why? Do you favor mandatory national service for everyone, or are you exempt because two of your great-great-grandfathers fought in the Civil War?

What did the other six do?

[bevis the lumberjack]

Yeah. Do I get a special due to the Cherokee arm of my ancestry? The great Cherokee chief Doublehead was my 7x great uncle.

Unlike Liz, this has been documented with all kinds of records.

Seems like that trumps your white bread stuff since we were here first.

[Sarcastr0]

Ed's monstrous second class citizen thesis aside, I'd be down with a burden of public service to all citizens.

[Dan Schiavetta]

Yes, me too. At least for young people. It's one way to get them to work with kids they otherwise would never meet.

[Aktenberg78]

Ahh, yes the propositional nation theory, where American citizenship is all that it means to be American.

[Vince Smith]

How is that not slavery?

[Noscitur a sociis]

What did the other six do?

We're talking about Dr. Ed here, so I think you may be overcounting.

[Rev. Arthur L. Kirkland]

Has he ever claimed to be from West Virginia, Alabama, Mississippi, or Utah?

[Noscitur a sociis]

and there was a larger purpose in naming southern military bases after southern military heroes — reconciliation.

Fort Bragg was named in 1918, you pusillanimous imbecile.

[Dr. Ed 2]

1918 - 65 = 1853

The children of Reconstruction were the respected Senior Citizens in 1918, and I have no doubt that what they didn't personally remember they had been told about by their parents.

[StellaLink_the dog]

"they had been told about by their parents."

More likely the Lost Cause mythology promulgated by the likes of Lee, Jubal Early and LaSalle Pickett, widow of the murdering greased dandy George.

[Dr. Ed 2]

All Robert E. Lee had to say was "OK, Boys" and the war would have continued until at least 1870, possibly longer, as it turned into a very nasty quagmire like Vietnam. The south might actually have won because the war was increasingly unpopular in the north, which wished to be done with it. George McClellan had run against Lincoln in 1864 and likely would have ended it had he won. By 1868, it would be like the US in 1974, the war would have ended the way Vietnam did.

Lee's army could have continued as guerillas, much like the Viet Cong did, with the Union Army having the same vulnerabilities that the US Army did in Vietnam. It would have gotten very ugly, and Lee knew this, and Lee put the good of the country ahead of that of the Confederacy.

When he surrendered, it forced everyone else to do likewise.

And it wasn't the "Lost Cause mythology" as much as "I was raped by a drunken union soldier" -- there was a *lot* of that happening after the war. Lots of that happening without anyone really inclined to stop it -- and Lincoln's assassination didn't help things.

[StellaLink_the dog]

You're nuts.

[Rev. Arthur L. Kirkland]

He is a Volokh Conspiracy-class conservative.

[ohlookMarketthugs]

Look, an ignorant person trying to be Ken, lol. You’re not entitled to force anything on people no matter where they came from.

[Kenneth Almquist]

Robert E. Lee doesn't belong on your list of people who promoted the Lost Cause mythology. Jubal Early and LaSalle Pickett both contributed to the mythology, but the first name on your list should have been Edward Pollard, who published The Lost Cause in 1866.

It seems to me that by 1918, we should have gotten past the point where we had to pussy foot around to spare the feelings of the losers of the war. And, if not by 1918, definitely by 2021.

[bernard11]

Many of the others were also named around WWI.

[MoreCurious]

As a descendent of Confederate soldiers, including an officer who is well known for his actions at Gettysburg and who has been "honored" with monuments, I am very much in favor of renaming forts and bases and removing statues and monuments to traitors. Because that's what they were, and quoting Lincoln is not going to change that fact.

[M L]

"As a descendent of Confederate soldiers"

Sure you are.

[ah....Clem]

What makes you think he or she isn't? Go back four or five generations and if any of your 16 or 32 male ancestors lived in the US south it's likely he was a confederate soldier.

My mother is from Georgia so it's very likely I have ancestors who were confederate soldiers. Don't know for sure, and can't say I really care. But I do think it's high time to get rid of the monuments to traitors.

[MoreCurious]

That's a stupid thing to say, even for an amazingly stupid person. My roots are in the deep South, and I can identify most of my great, great, great, great, grandparents plus their siblings and children. One side of my family has been in America since the mid-18th Century, and the other side has been here since the early 19th Century. And -- perhaps unlike your family -- they were educated, they could write, and they kept amazing family records. In fact, my Gettysburg ancestor has had books written about him, which describe not just his military record, but the family history. So, in answer to your snarky, moronic comment, I am descended from Confederate soldiers. Recognizing and understanding my family history does not prevent me from acknowledging that those who took up arms against the United States were traitors.

[M L]

And all of the founders were traitors as well, who by your logic should not be honored.

[Vince Smith]

But they won. The Confederates didn't.

[David Nieporent]

Thus concludes Lincoln’s Second Inaugural Address — and there was a larger purpose in naming southern military bases after southern military heroes — reconciliation. Do not forget that the south had a very negative view of the US Army because of Reconstruction, so when these bases were being established with people with a living memory of Reconstruction living next to them, there was a very real need to demonstrate that this wasn’t an army of occupation anymore.

We've already covered this stupidity from you, Ed. Even if that were a good reason to name bases after traitors who murdered hundreds of thousands of Americans — and it most certainly is not — your claim is simply a lie. These bases were established at least 50 years after the civil war. Some much later than that.

[M L]

Lincoln was the worst mass murderer of the bunch, for starters by not listening to those in the North who opposed going to war, and instead disallowing all attempts at peaceful resolution. And the States, when they ratified the Constitution, certainly considered themselves to be sovereign and signing up for a federation among sovereign states, so who betrayed the agreement is not so clear.

[Noscitur a sociis]

Guess you and BLM are on the same page, then.

[StellaLink_the dog]

"And the States, when they ratified the Constitution, certainly considered themselves to be sovereign and signing up for a federation among sovereign states, so who betrayed the agreement is not so clear."
Please explain federal actions during the Whiskey Rebellion in that context. If it is true, as you seem to assert, that the US was a federation of sovereign states when the Constitution was ratified, that fact had already been forgotten by 1794.

[M L]

No State seceded in the Whiskey Rebellion. They did seem to have a legitimate gripe, and the whiskey tax not collected in the end and then was repealed. Nobody was punished, only two convictions followed by pardons from George Washington. Jefferson remarked that it was a "good thing" and "medicine necessary for the sound health of government."

[MoreCurious]

You just can't stop yourself, can you? Have you figured out yet that every comment you make simply confirms your stupidity?

[David Nieporent]

Lincoln was the worst mass murderer of the bunch, for starters by not listening to those in the North who opposed going to war, and instead disallowing all attempts at peaceful resolution.

In much the same way that FDR disallowed all attempts at peaceful resolution with Japan after 12/7/41. The southern traitors started a war. It was Lincoln's job to win it, not to surrender.

And the States, when they ratified the Constitution, certainly considered themselves to be sovereign and signing up for a federation among sovereign states, so who betrayed the agreement is not so clear.

Not only is that not true, but it's not even applicable to at least six of the eleven states of the confederacy. Arkansas, Louisiana, Tennessee, Mississippi, Alabama, and Florida were never sovereign by any definition, and did not "sign up for" anything. They were simply territories of the United States before being admitted as states.

[M L]

"The southern traitors started a war."

The CSA sought peaceful resolution. They sent delegates and Lincoln refused them. Lincoln would not entertain negotiations but only wanted war, which he began by provoking acts of self-defense at Sumter. If you want to put a different spin on it and say that declaring independence and taking steps accordingly is an act of war in itself, sure, but the founders were even moreso traitors who started a war.

"It was Lincoln’s job to win it, not to surrender." Sure, same as King George.

"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." -- Federalist 39

[Noscitur a sociis]

If you want to put a different spin on it and say that declaring independence and taking steps accordingly is an act of war in itself, sure

Is there any possible argument that that isn't a quintessential example of an act of war?

but the founders were even moreso traitors who started a war.

Yes, the founders started the Revolutionary War, and yes, they did so with full knowledge that they would very likely be executed as traitors to the crown if they lost.

The difference, of course, is that they went to war for a good cause (freeing themselves from an oppressive monarchy and establishing a republic based on principles of liberty and equality), while the confederates did so for an evil cause (fighting against that free republic to preserve their opportunity to keep a race of people enslaved). The fact that you're trying to carry water for them tells decent people pretty much everything they need to know about your humanity and moral development.

[David Nieporent]

Is there any possible argument that that isn’t a quintessential example of an act of war?

I like how he says "taking steps accordingly" to elide the fact that said "steps" included attacking and seizing American military bases and firing on American supply ships.

[M L]

The distortion of history (whether overly idealizing or demonizing or otherwise) has bad consequences and serves bad modern day agendas. There is nothing new under the sun, as certain modern agendas simply mirror the same ancient forms of tyranny and imperialism that have existed for millennia. I'm not "trying to carry water for them" (what good would that do when they've been dead for 150 years?) I'm just interested in the truth.

I am glad that you are talking about good and evil and the real differences between these two, as opposed to the mindless bleating about who is a "traitor." I join with those who condemn and feel badly about things their ancestors did, such as participating in slave ownership or advocating slavery.

However, there were several emancipation proclamations during the revolutionary war as well. If the British had won, the slaves would have been freed. And right now you would be denouncing the "founders," who would not be known as such. On the other side of the coin, unfair taxes were a prominent objection of the South as well, and so was the degradation of local government by a centralized power (contrary to the Constitution). Lincoln thrice offered to preserve slavery in the southern states if they would give up on independence, and it was rejected each time. The average Confederate soldier was merely defending their family and their homeland; the state was their "country" to which they were loyal. All of this is to say that the history, it seems to me, is not quite as black and white, pure good vs pure evil, as you suggest.

Granted, the cause of the south was morally tainted, on the whole, due to slavery, seemingly more so than that of the founders. But in the arc of history, it seems to me, the salient defeat in the War Between the States was not that of slavery, which would have ended shortly anyway, but that of decentralized government, federalism, and self-government. That is why today, the Chinese Communist Party invokes Abraham Lincoln to justify their actions toward Taiwan.

[Vince Smith]

Amen!

[AuBricker]

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[Armchair Lawyer]

There are two points to make.

1. This is actually how Congress should act, when a president oversteps in a grey area of the law. Pass legislation that makes it explicit what is allowed, and what isn't.

2. Unfortunately, part of this requires that the President obey explicit laws like this, and that there be consequences for breaking the law. The clearest violation of such was when Obama violated the ADA during the Bergdahl prisoner swap. The law was VERY clear. ""Section 8111 prohibits the use of 'funds appropriated or otherwise made available' in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity' except in accordance" with the law.

Obama and the Pentagon broke the law here. And there were zero consequences.

[Dr. Ed 2]

NDAA?
ADA involves disabilities. 🙂

[Armchair Lawyer]

ADA. Anti-Deficiency Act

[Voize of Reazon]

Yes, and the House passed a resolution condemning the administration's failure to notify Congress 30 days in advance as the law required, a vote joined by 22 Democrats. I suspect they didn't go any farther at the time because the circumstances of Bergdahl's capture didn't emerge until later, and the public would be sympathetic to the administration bending the rules to bring a soldier home. What consequences do you think there should have been?

[Armchair Lawyer]

Firing of the defense officials who carried out the order, in violation of the law.

[Jason Cavanaugh]

Seems relatively common when Government officials break the law, that they are not punished in the manner that laypeople would be.

Clapper committed perjury and suffered no consequences.

[Commenter_XY]

And there were zero consequences.

More than anything, that is what sticks in my craw (and others, I suspect).

[Ben_]

It’s cool when the people’s representatives get to decide things instead of the Ninth Circuit making up excuses to issue dictatorial edicts.

[Jimmy the Dane]

Attention Clingers - now that confederate military base names are banned all of our diversity work is done. Racism is now gone. We can all rest good tonight.

[Ben_]

As long as the race grievance industry pays, there will always be another grievance to be addressed.

Does every military base name everywhere unambiguously celebrate diversity? No.

[Jimmy the Dane]

Hence why my post was in jest....

[Rev. Arthur L. Kirkland]

Whining, grievance-consumed bigots are among my favorite culture war casualties -- and a sure sign of continuing progress shaped by America's liberal-libertarian winners at the expense of conservatives.

[Dr. Ed 2]

You're also wrong about Section 230 -- It's purpose was to enable ISPs and outfits like America OnLine to comply with the larger "Communications Decency Act", notably the provisions that SCOTUS ruled unconstitutional. (And remember that this was Section 5 of the larger 1996 Telecom Act, but I digress...)

In other words, an ISP (including universities, who were major players at the time) would have the power to remove the obscene items which it found without being *criminally* liable for any that they didn't know about. I was in the field at the time and attended conferences where purported experts (some with JDs) explained this to us.

Ilya, it was CRIMINAL liability that the ISPs were worried about. It was CRIMINAL responsibility that was shifted to the person who posted the "obscene" item. The ACLU sued -- and won -- and most of the CDA was thrown out, with Section 230 remaining as a chunk of a demolished edifice -- serving as an example of why entire statutes should be thrown out, and not just portions of them.

Section 230 was never intended to be used as it is now, nor really to mean what it does. There were unwritten rules that anyone could say anything on the internet and that was largely a result of a lot of the early internet people coming out of the telecom field where anyone could say anything on a telephone. (Remember that unix was initially developed to switch telephone calls.)

Ilya can argue for the merits of a law like Section 230, but that's a different story. Once _ACLU v Reno_ was decided, there was no content based censorship on the internet -- and Section 230 was moot. And then about 15 years ago, Big Tech decided to get involved in politics....

[Dr. Ed 2]

Remember too that the CDA was largely directed at preventing minors from viewing obscene content -- this was in the era of Tipper Gore (AlGore's wife) crusading against obscene music albums and which led to some having to have warning labels.

(To those under age 35, music once consisted of analog grooves pressed into plastic disks, with a needle vibrating in said grooves producing the music. These were called "record albums.")

Hence, the CDA would have had criminal penalties for, say, Verizon (and I believe it's executives personally) if a 17-year-old were to access any of the porn hub sites. My response -- then and now -- is that it is a parental responsibility to supervise said 17-year-old and not that of society.

The CDA and related stuff was viscerally opposed to women with breast cancer because they had what they thought was a legitimate reason for using the word "breast" in their searches and postings -- they were interested in learning about and discussing breast cancer...

[ah....Clem]

See https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml

and pay attention to the last item, Sec 230 is most certainly not "moot".

[Dr. Ed 2]

"Indeed, this is one key reason why Section 230 was written in the first place. It was done in response to a ruling in the Stratton Oakmont v. Prodigy lawsuit, in which Prodigy, in an effort to provide a "family friendly" environment, did some moderation of its message boards. The judge in that case rules that since Prodigy did moderate the boards, that meant it would be liable for anything it left up. "

I argue that was a negligence lawsuit and the actually relevant one was "Cubby, Inc. v. CompuServe Inc." which went the other way. And civil liability could be dealt with via user agreements (much as Parlar does today) -- but criminal penalties were something else entirely.

Section 230 was intended to protect from criminal liability.

"The law does distinguish between "interactive computer services" and "information content providers" -- both of which, I argue, must be viewed in terms of what they were in 1996.

[Noscitur a sociis]

“The law does distinguish between “interactive computer services” and “information content providers” — both of which, I argue, must be viewed in terms of what they were in 1996.

Those terms are both defined in the statute, you ignorant buffoon.

[StellaLink_the dog]

Section 230 was inserted in the CDA in response to a New York case, Stratton Oakmont, Inc. v. Prodigy Servs. Co. , which found that because Prodigy moderated its message boards it could be held liable for defamatory content posted by its users. If Section 230 were repealed, Volokh and Reason could be held liable for the content that you and I post here, if defamatory. Not, I suggest, a salubrious result.

[ah....Clem]

Moreover, only the players with deep pockets (e.g. Facebook, Google, Microsoft, et al) would be able to continue to host discussion boards due to the avalanche of litigation. Also insalubrious.

[Stephen Lathrop]

Clem, that is mistaken. Previously, before Section 230 enabled monopolistic business models based on publishing without editing, the nation supported a myriad of small publishers which did edit. Their ongoing disappearance is a direct result of Section 230. Get rid of Section 230, and the publishing business would once again afford resources for broad competition among edited publications.

If you doubt that, consider the implications of the frequently-heard claim that without Section 230, publishers like Facebook would have to go out of business, because they couldn't manage the editing required. First, yeah, there is something to that.

Second—and this is a point too often overlooked—that means Facebook and the few other businesses like it did not—as so often claimed—invent a better business model for delivering advertising than the legacy media afforded. It means instead that Facebook and its compatriots could not compete on a level field with the legacy media, and required a targeted government privilege to enable their business model. Extending that privilege came with an actually existential cost for most of the legacy media. And it came with an enormous collateral cost to the public life of the nation, which has lost an enormous fraction of its news gathering capacity.

[ah....Clem]

I assume by "small publishers" you mean local newspapers and similar publications. While it is true that local papers had their business model destroyed around the same time sec 230 was passed, sec 230 had little or nothing to do with it.

Once national news sources started putting their (edited) content on line for free, there was no longer any reason to purchase the local fishwrap. Add in how Craig's list destroyed their classified ad revenue, and the result was that local newspapers are a shell of their former selves. Neither had much if anything to do with sec 230, and repealing sec 230 will not bring the local parers back. That's fantasy.

Repeating the myth that sec 230 primarily benefits large actors like Facebook doesn't make it true. Again, see See https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml

[Stephen Lathrop]

Once national news sources started putting their (edited) content on line for free, there was no longer any reason to purchase the local fishwrap. Add in how Craig’s list destroyed their classified ad revenue, and the result was that local newspapers are a shell of their former selves. Neither had much if anything to do with sec 230,

Section 230 created in the first place the entire impetus to put edited content on line for free. After Section 230 passed, everywhere they looked, newspaper publishers were barraged by MBAs and IT mavens telling them they were doomed, unless they could figure out how to make money by giving all their content away for free. Because, that's what the competition would be doing online—giving everything away for free. So if you, Mr. Legacy Publisher, don't do it too, just shut the door tomorrow.

That all happened because of Section 230. Unfortunately, the no-liability business model which works for no-editing publishing, spells doom for an edited publication. In an edited publication, increased ad sales go hand-in-hand with increased editorial costs. In an unedited publication, you get growth without limit, and no proportionately increasing costs. It is not a level playing field. Section 230 is all about arbitrarily privileging unedited publishing.

Responding rationally to that fundamental business insight, the very next step the management geniuses demanded—and largely got from their flailing legacy media charges—was to get rid of everything edited, including their news departments. And here we are.

As for your link, it says:

Really, this is the simplest, most basic understanding of Section 230: it is about placing the liability for content online on whoever created that content, and not on whoever is hosting it. If you understand that one thing, you'll understand most of the most important things about Section 230.

That is laughable. Nobody who understands publishing could offer that in good faith. It suggests that a world-turned-upside-down revolution in defamation law is . . . merely trivial. Of course, it gets great mileage among internet fans who know zip about publishing. To them, it sounds plausible and fair. They don't know it discards entirely the lynch pin of pre-internet defamation law.

Liability shared alike by publishers and contributors is the only way possible—even in legacy publishing—let alone on the anonymous internet—to make defamation liability mean anything. And especially, it is the only way to make liability have meaningful effect on what gets published. Shared liability means publishers prevent defamation before it happens, before it can do irreparable damage.

Unshared liability—liability for online contributors only—means every defamation, every bullying attack on a middle schooler, every fraud, every calumny to besmirch a local office holder, every copyright infringement, every hostile rant from a marriage gone bad, every Nigerian scam, every private-animus scurrilous attack on a neighbor, and every election disruption, must get published world-wide, and do its full damage, before anyone can even beg for a correction, let alone try to get compensation.

That happens because no liability for the publisher means no one reads any of that stuff before it gets published. Not only does meaningful liability go overboard, so too does all competition based on the quality of published content—because nobody sees the content before it gets published.

That is why the internet is what it is. It is why edited publishing is in shambles. It is why over the last two decades the nation has lost most of its news gathering capacity. It is why there is snowballing political pressure for government censorship of private publishing, as even the egregious Mike Masnick saw fit to mention.

I'm not saying Mike Masnick is in bad faith. More likely, he is just ignorant about publishing. Almost nothing else he says in that link is particularly insightful—he doesn't think to analyze the business side at all, and sounds like he would be at sea if he tried. Quite a bit of the rest is just as wrong as Masnick's take on liability.

In that respect, Masnick is much like almost all the Section 230 commenters on the VC. None of them seems to suspect that stuff they don't know about could be disrupted by a law they think they understand. As it happens, like Masnick, they understand what the words say, but like almost everyone, they have little experience with the real-world publishing activity the words are talking about. Of course, congress didn't understand that either, when it passed Section 230.

[ah....Clem]

>Section 230 created in the first place the entire impetus to put edited content on line for free.

Section 230 is orthogonal to the act of a publisher putting their own edited content on line, free or otherwise.

You've now confirmed that you really don't understand section 230 at all.

[Stephen Lathrop]

Section 230 is orthogonal to the act of a publisher putting their own edited content on line, free or otherwise.

Whatever that is supposed to mean, just ignoring the discussion of the effects of liability shared by publishers and contributors, vs. the different (and baleful) effects of assigning liability only to contributors, does not make those differences go away.

Nor is there any factual basis for presuming online businesses which in fact publish contributions are not publishers, no matter what you think the wording of Section 230 means. If what you do is publish stuff, then you are a publisher in fact, even if not before the law.

In any discussion of what the law should be—or why the existing law is a bad one—you can't reasonably exclude an opposing argument by repeating, "But this is what the law is. You don't know what the law is."

I know what the law is. The problem is that the congress which wrote the law—and the people who support the law—don't know what publishing is. So, by accident, and/or through ignorance, they wrote and support a bad law which is harmful to publishing, and harmful to the public life of the nation to the extent the nation depends on publishing. The public life of the nation has always depended critically on publishing. It still does.

Do you suppose you could try to join this conversation on the basis of what the effects of Section 230 on publishing have been, and make your case that way?

[Dr. Ed 2]

Kenneth Zeran (Zeran v. AOL) might disagree -- see https://web.archive.org/web/20081223131341/http://legal.web.aol.com/decisions/dldefam/zeranopi.html

That is a textbook example of what should *not* be protected -- and remembering what I do of AOL circa 1995, they probably took a very nonchalant approach to addressing his concerns. Zeran sued for negligence, and I don't think they ought to have gotten away with what they did.

[StellaLink_the dog]

From your link:
"Zeran's alleged cause of action is pursuant to a duty he claims state law imposes on distributors to refrain from distributing material they knew or should have known was defamatory. "

[Noscitur a sociis]

I was in the field at the time

No, you weren't.

and attended conferences where purported experts (some with JDs) explained this to us.

No, you didn't.

Ilya, it was CRIMINAL liability that the ISPs were worried about. It was CRIMINAL responsibility that was shifted to the person who posted the “obscene” item.

No, it wasn't.

[Dr. Ed 2]

Bullshite.

[Noscitur a sociis]

That paraphrase is also acceptable, you cretinous liar.

[Stephen Lathrop]

There were unwritten rules that anyone could say anything on the internet and that was largely a result of a lot of the early internet people coming out of the telecom field where anyone could say anything on a telephone.

Maybe so. There were written rules, about defamation, that said the contrary. The written rules made sense, because the internet invites use as a publishing medium, which a telephone is not.

Nieporent recently accused me, falsely, of, "Dr. Edding," a conversation. Absent Section 230, in a just world, I could have sued him for libel per se.

[ah....Clem]

Is that why you want to repeal sec 230? So you can sue Nieporent?

My reading is that sec 230 doesn't protect him here, only Reason and EV. And, well, anyone who responded by quoting his post.

Are you sure you even understand the law you want so badly to repeal?

[StellaLink_the dog]

"Are you sure you even understand the law you want so badly to repeal?"

God, I love the internet.

[David Nieporent]

????.

[David Nieporent]

Ugh. I was not questioning Clem's comment; I was trying to figure out some way to upvote it. But apparently no emojis work here. Reason really needs a better comment engine.

(Clem is of course correct as to the law and facts; § 230 does not in any way protect me from suit here. (Truth does, though.) And Lathrop does not understand the law. Or insects.)

[Stephen Lathrop]

Nieporent, did you miss the news about the mass die-off of insect-eating birds, trying to migrate through the Southwest this fall. Came out after my comments on the subject. Investigation showed they died by thousands, of starvation, across multiple states.

[David Nieporent]

You can't cite something that happened "this fall" as evidence of something that you've been claiming has been happening for years. (Which you do, because you've made the bizarre claim on several occasions here over the years.)

[Stephen Lathrop]

Nieporent, why not? I said it was an ongoing process. Then, lo and behold, a signal example of exactly what I described turns up shortly afterward in the news, on the front page of the NYT, and I mention it. What's wrong with that?

[Stephen Lathrop]

Actually, Clem, if you understood defamation liability, you would know there is no way saying someone is, "Dr. Edding," could be libel per se. So my comment was—threefold and all at once—acknowledgment of Nieporent's humor (rare for him, but good in this instance), a piggy-back repeat of Nieporent's richly-deserved shot at Dr. Ed, and my own (possibly lame, but I don't think so) humorous shot at Dr. Ed—which was humor by way of extra-broad overstatement, which ought to have been so obvious to someone who understood the subject that they would not take it straight. Apparently you took it straight.

[WJack]

Uncontrolled immigration worked out great for “Native Americans.” Wonder if Somin and Soras are trying to duplicate the result for the “Americans?”

[ah....Clem]

Regardless of your view on sec 230, repealing or modifying it has no place in this piece of legislation.

There are reasonable arguments to be made regarding modifying sec 230, but these are not being made by Trump (who seems to be pushing for a straight repeal, which is a very bad idea with no good arguments in favor), and "because Trump says so" is probably the worst reason of all.

Cheers for the representatives and senators who voted to override the veto.

[Dr. Ed 2]

This has always been done.

The only reason we have Title IX and women's sports was that a group of Southern Senators were attempting to kill the larger Civil Rights Act and never believed it would pass with a provision that women were considered equal to men in athletics.

FERPA, the Buckley Amendment, was tacked onto I believe the Appropriations bill. And don't get me going about all of the stuff in the recent Covid bailout bill.

[ah....Clem]

I know. Extraneous crap has often been added to bills, especially appropriations bills that are "must pass". That doesn't make it right.

[Stephen Lathrop]

Disagree with you on one point, agree on another.

I think outright repeal of 230 is not only a good idea, but will eventually be recognized as necessary for the protection of free speech and other values, and will actually happen. Section 230 creates ever-increasing pressure for government censorship, to manage the myriad distortions which publishing without editing creates. Section 230 also undermines catastrophically the business models which supported edited publications, reducing their profusion and diversity, and over time defaulting from mediocre, to dubious, to outright swill the de facto standard for published information. Absent repeal of Section 230, the predictable next step in that progression is, "malevolent."

Agree that repealing Section 230 this way would be wrong. Until more folks get better perspective on the damage Section 230 inflicts, repealing it would cause avoidable problems which would also prove lasting and troublesome.

[Noscitur a sociis]

I never made the connection before, but your "if I don't get my way, the silent majority will make things even worse" schtick actually is quite reminiscent of Dr. Ed.

Have you spent much time in western Massachusetts lately?

[Stephen Lathrop]

Noscitur, your comment is typical of too many critics on this subject. You, like so many others, stay far clear of anything substantive. If you think I'm wrong, make the case that folks aren't demanding censorship. Or that censorship would be okay. Or that news gathering has not suffered. Or that the nation can do without news gathering. Or that defamation is not in the increase. Or that defamation without consequence doesn't matter. Try to find something to talk about. Your comment above is just a sneer.

[David Nieporent]

make the case that folks aren’t demanding censorship.

Folks aren't demanding censorship. The loudest voices against § 230 — other than yours, I mean — are from people who (mistakenly) think that § 230 is what allows social media companies to censor them, and believe that if it's repealed there will be more speech.

[Titus PUllo]

Again poor reasoning from Ilya..if you are given immunity on content you post from 3rd party individuals you can't have the right to censor. Rather the Bill of Rights requires FB or Twitter or Google or any of the "woke" social media platforms to be prohibited from censoring. If they want immunity then they have to print what their customers post...and given their service is just an electronic bulletin board they can't discriminate per the Civil Rights Act of 1964 in treating their customer's differently. The solution is easy...just extend 230 to include NO censorship of any kind. What is funny is the left libertarians love "edgy" social stuff. Using tax payers monies to put a cross in urine..hey that is "edgy" it drives innovation and "change." Ok what is the issue with free speech on the internet?

Its sad to see left "cosmo" libertarians so hypocritical but expected. Cultural marxists have become "left libertarians" in the States...at times reading Reason is like reading some bolshevik newspaper in Vienna circa 1924.

[MollyGodiva]

The Bill of Rights does not apply to private businesses. And the Civil Rights Act only applies to protected classes, so if they censored all posts from Hispanics, but allowed all posts from Asians, then that would be illegal.
And also a site has a right to maintain their own standards on what content is posted. If someone does not like those standards they are free to go to a site that they like better. The example that I like is a site for cute pics of snake should be able to remove political or pics of mammals. Or sites for children should be able to remove anything not child friendly.
Section 230 is fine just the way it is.

[Stephen Lathrop]

MollyGodiva, you have a law which enables consequence-free defamation, encourages publishing monopoly, punishes edited publishing, and now inspires wild-fire spread of demands for government censorship of the private press (Ed, above, for instance, but in plentiful, and increasingly influential company), and you think it's just fine? Really? Please take a moment to reconsider.

The examples you like are imaginary and utopian. Under Section 230 there is no business model which can support their survival in competition with government-protected publishing monopolies, which would would simply steal their content, and steal their income.

[MollyGodiva]

No consequence free, those making the statements are still fully liable. Section 230 protects against government censorship.

[StellaLink_the dog]

Pity the poor Twitter. The Republicans are pissed with them because they are mean to Trump (and others) and the Democrats want to be able to sue them for the stupid shit that Trump (and others) post on the platform. I'm not sure what the Republicans would gain if 230 were repealed as the incentive would be for Twitter to be more censorious .

Yes, pity the poor Twitter, al the way to the bank.

[Stephen Lathrop]

Molly, you misunderstand. Anonymous, judgment-proof commenters on the internet are not meaningfully liable. Plus which—and this is the most important part—shared liability of publishers and contributors meant there was a party with self-interest—the publisher—on guard to prevent the publication of defamation before it happened, instead of just cleaning up afterward. The aggregate benefit of that, measured in damage never done, was far greater than the benefit delivered by suing for damages afterward.

What a huge difference that makes is easy to see. Previously, defamation cases which went to court were not common. Publishers turned down potentially defamatory material, keeping the really scurrilous stuff almost completely out of the legal system. Pre-internet, not many cases of vengeful defamation by an aggrieved ex-spouse got published. Not many hateful attacks by children, against middle school classmates got published. Not many baseless election fraud allegations got published. Not many bizarre conspiracy theories about vaccines which track your whereabouts got published. The list could go on and on, of harmful kinds of publication which publisher liability kept to a tiny minimum.

Thanks to Section 230, it's all different now. Contributor liability stops nothing. That's why demands for government censorship have become a growing and politically potent issue. Full-on government censorship can no longer be ruled out as a genuine threat to press freedom—not while many in Congress, from both parties, are calling for it.

[David Nieporent]

What a huge difference that makes is easy to see. Previously, defamation cases which went to court were not common.

[Citation, as always, needed]

Publishers turned down potentially defamatory material, keeping the really scurrilous stuff almost completely out of the legal system. Pre-internet, not many cases of vengeful defamation by an aggrieved ex-spouse got published. Not many hateful attacks by children, against middle school classmates got published. Not many baseless election fraud allegations got published. Not many bizarre conspiracy theories about vaccines which track your whereabouts got published. The list could go on and on, of harmful kinds of publication which publisher liability kept to a tiny minimum.

In other words, you want less speech.

[Rev. Arthur L. Kirkland]

Getting tired of winning, bigot?

Open wider, clingers.

[David Nieporent]

if you are given immunity on content you post from 3rd party individuals you can’t have the right to censor.

Assuming for the sake of argument that censor is the right word, you can, and do.

Rather the Bill of Rights requires FB or Twitter or Google

Nope. You can stop there, because you're wrong.

If they want immunity then they have to print what their customers post…

I suppose someone could pass a law like that, but they have not done so.

and given their service is just an electronic bulletin board they can’t discriminate per the Civil Rights Act of 1964 in treating their customer’s differently.

The CRA does not ban "treating customers differently." It bans discrimination by certain public accommodations (of which FB and Twitter are not) on the basis of race and a few other categories.

[ah....Clem]

Reminds me of something...
https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149

[StellaLink_the dog]

Jesus, this is too funny. Within an hour of your posting, Kyle Mortensen responds.

[Titus PUllo]

I love it when "woke" libertarians get upset. Oh where to start. First the hypocrisy of "libertarians" who demand (rightly so in my opinion) no censorship of say porn on the internet yet are weak kneed when it come to free speech. I was attempting to show the hypocrisy of the position that 230 is good for liberty. One of the basic principals stated (in the DOI) and implied in the Constitution/Bill of Rights is Govt cannot discriminate. 230 gives immunity to a specific "industry" and then allows the market players to discriminate. Now let's talk about the CRA....and the failure of that piece of legislation..how can govt decide on specific "groups" as needing "extra protection"? This idea that buyers can discriminate all they want but sellers can't under certain conditions should strike any libertarian as idiotic. "Protected classes" where the hell does govt think they have the power to decide who is protected and who isn't? We all have the same natural rights....

The issue here is govt dispensing privilege when it simply doesn't have the power to do so. I do think I know why "cosmo" libertarians are so in favor of 230....you are deeply afraid of "Salt of the Earth" Libertarians...those they don't agree with cultural marxism, open borders and abortion...they are "white supremacists" to you all (despite the fact such garbage probably in total in the US would be hard pressed to fill a single A baseball stadium)...you get quesy when we point out that "woke" narratives are false. You get angry when we point out how the Fed needs to be shut down, foreign wars ended, return to sound money and govt NOT doing anything about inequalities other than not running deficits, propping up failed sectors, and not treating anyone differently. You are afraid your urban "prog" friends won't invite you to their swank Antifa praising parties...

I find "cosmo" libertarians to lack the fire in the belly to take on the left. Most have liberal art degrees/lawyer (unlike "salt of the earth" libertarians who I find to have technical degrees and often MBA's). You all are scared to really fight the threat...marxism...easier to try and win their affection by smearing the Pro Liberty Movement...as Trump would say...sad..sad..sad..

[Noscitur a sociis]

I agree. I really wish David Nieporent would give it a rest with his constant water-carrying for cultural marxism and foreign wars. David, those swank Antifa praising parties aren't worth it!

[David Nieporent]

David, those swank Antifa praising parties aren’t worth it!

Where else would I get to show off my giant collection of AOC memorabilia?

[Rev. Arthur L. Kirkland]

Trump's final few months in office have constituted quite the loser's lap. He is as weak as hot water soup, as lame as a one-legged dog, and as pathetic as the gullible dopes who apparently were dumb enough to believe Trump would build a wall, have Mexico pay for it, lock her up, and bring back the coal industry.

Meanwhile, yet another other spirited meeting of Libertarians For Authoritarian, Bigoted, And Cruel Immigration Policies And Practices is convened at the Volokh Conspiracy by this White, male, conservative blog's carefully cultivated collection of followers.

[spyglass]

Ilya, when Trump leaves office, what are you going to write about?

[eyeroller]

Biden.

[spyglass]

Yeah, right. We'll see . . . .

[Flagrown]

Although I agree that our military bases should not be named in honor of people who actually fought against U.S. soliders in defense of slavery, I would make an exception in the case of Fort Hood (Texas). Confederate general, John Bell Hood, through his inept command of troops, as exemplified by the battles of Franklin and Nashville, probably made a geater contribution to the victory of Union forces than did many northern generals.

[StellaLink_the dog]

And we need more monuments to Wade Hampton who helped Sherman along by torching Columbia, SC.

[Noscitur a sociis]

I was surprised to learn that the 20,000 square miles of Alaska formerly named for him was redesignated in 2015.

[StellaLink_the dog]

I didn't know any of this. Hampton's son-in-law, a territorial judge, named an Alaska mining district for Hampton in 1913 and it later became a census area.