Former Time Warner CEO Calls for "Private Accountability for Hate Speech"

From Jeff Bewkes, "former chairman and CEO of Time Warner," and Jeffrey Sonnenfeld, "senior associate dean and professor of management practice at the Yale School of Management, where he is president of the Chief Executive Leadership Institute," writing in Fortune:

[M]ore closely regulating social media companies is a good idea…. The regulation of technology is considered by many on the left and on the right to be a taboo, a bureaucratic assault on entrepreneurship, and a neo-Luddite undermining of U.S. competitiveness. However, screening of Internet communications is common around the world. It is completely possible to require private accountability for hate speech and inciting violence without curtailing the First Amendment. No constitutional rights are limitless—and the repeal of Section 230 has nothing to do with freedom of speech….

Repealing Section 230 is not a threat to the First Amendment. As long as anyone is free to launch their own platform, they must also shoulder the obligation to keep it safe and respectful.

The bulk of the article is indeed about repealing or modifying § 230, and there are perfectly plausible arguments to be had around that. Should Internet platforms be potentially liable for defamatory material posted on them, the way newspapers are potentially liable for defamation in letters to the editor or in advertisements? Should they be liable just on a notice-and-takedown basis, much as bookstores and libraries are (i.e., they would be liable if they keep material up once they're on notice that it's allegedly defamatory)? Or should they be entirely immune, the way they are now, and the way telephone companies have long been? (See this post for more on these three options.) I think that on balance the current § 230 regime is the least bad of the alternatives, but there are reasonable arguments for at least a notice-and-takedown position (and reasonable counterarguments).

But that debate is about platform liability for speech that fits within a First Amendment exception, such as libel, or one of a few other categories (such as solicitation of crime, true threats of crime, and the like). There is no First Amendment exception for hate speech. The government can't make people legally "accountab[le] for hate speech"—whether by imposing liability on them for their own speech, or for third parties' speech—any more than it can make people legally accountable for "[dis]respectful" speech or unpatriotic speech or rude speech or blasphemous speech or the like.

And this is so, of course, regardless of § 230. Section 230 doesn't keep posters from being sued or prosecuted for their own speech; but the First Amendment protects them from being held "accountab[le]" for their own "hate speech." Likewise, with or without § 230, platforms can't be held accountable for their users' "hate speech" (whatever that means), either. If what's driving the calls to repeal or modify § 230 is a broader agenda to suppress people's expression of supposedly "hate[ful]" ideas, that is all the more reason to resist such calls.

Comments

[Noscitur a sociis]

Does it give the conservative cheerleaders for repealing Section 230 any pause that people like this guy (and Joe Biden, and Richard Blumenthal, and Stephen Lathrop) are on your side, precisely because it will give the government more opportunity to engage in censorship?

[I Callahan]

Are they on our side? Because no one on the conservative side is asking for free speech to be taken away. In fact, we're asking for the opposite: stop censoring us based on our views.

Whether repealing section 230 does that or not is a different argument.

[Rev. Arthur L. Kirkland]

"stop censoring us based on our views"

You seem to like this blog, which engages in repeated, partisan, viewpoint-driven censorship.

[Bored Lawyer]

And yet you come back again and again, mostly serving the same drivel. Why don't you try some self-censorship?

[Rev. Arthur L. Kirkland]

May the better ideas win, clingers.

Of course, that's easy for me to say. My ideas are better, and in America they prevail.

[Don Nico]

RAK clings to his drivel like flies cling on sh*t.

[DaivdBehar]

Artie. Say something in lawyer language. I cannot believe you attended law school. I used the word, utterance. No one else uses that except the lawyer. I am not a lawyer. Can you say something in lawyer?

[Krayt]

You, like everyone else, are free to walk away.

It's when there is no place else to walk to, because they are all enforcing censorship desired by politicians, harrassment currently, or section 230 will be changed or cancelled, that we have a first amendment problem. Oh, did the politicians forget to immediately mention their political opponents tweets are harrassment, so please silence them?

[Josh R]

"Stop censoring us [Twitter] based on our views" may sound like the opposite of "[Twitter] you must censor hate speech on the basis of its viewpoint," but they are two sides of the same coin: viewpoint discrimination. If Twitter were owned by the government, both regulations would violate the First Amendment. And if section 230 conditions liability protection on either 1) not censoring speech because of its conservative viewpoint, or 2) censoring speech because of its hateful viewpoint, that too would violate the First Amendment.

[Krayt]

The correct solution is to jail politicians threatening 230 unless companies censor harrassment-oh-and-that-includes-our-political-opponents. Start with every single candidate in the Democratic primary, who all one upped each other on how much to hurt companies unless they comply.

Then raid Congress and the Senate.

[Dr. Ed 2]

I suspect that the Left likes to get 128 ounces when they buy a gallon of milk, as well. Sometimes we can all agree on things.

[WuzYoungOnceToo]

precisely because it will give the government more opportunity to engage in censorship?

Section 230 protects against civil liability. How would the absence of such protection facilitate government censorship?

[Brett Bellmore]

Wrong:

"(1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. "

That's a protection against civil AND criminal liability. Somebody posts child porn in a comment thread, the platform isn't treated as the publisher of it, for instance. It's not limited to protection from defamation lawsuits.

You're thinking of section C 2 of the law, which IS about civil liability, but has to do with not losing it over good faith moderation decisions or provision of screening software.

That's where the real problem has come: The courts have read that "good faith" requirement right out of the law, and protect ALL moderation decisions, whether made in good faith or not.

[David Nieporent]

Once again, Brett pretends he knows better how to interpret statutes than courts do, despite his lack of any training in interpreting statutes.

Worse, he simply makes stuff up. He hasn't read, for example, (e)(1) of § 230.

[Brett Bellmore]

This is really absurd: I've linked to and quoted Section 230 multiple times at Reason, and you think I haven't read it just because I disagree with you?

Section 230 doesn't prevent enforcement of laws against child porn, but it does specify that, in regards to such posted by the users, the platform isn't the publisher. So it's the poster who's on the hook.

Which probably explains this trend, no? Are YOU familar with the Backpage cases? I guess not.

Now, it's true that FOSTA-SESTA altered that, but FOSTA-SESTA wouldn't have been needed if Section 230 hadn't protected against criminal liability for user posts, now, would it?

Anyway, this is a minor issue in the context we're discussing, because the current complaints aren't about porn, they're about rampant political censorship.

[David Nieporent]

I think you haven't read it because you're ignoring what it says and making claims that aren't true. Read (e)(1) of § 230.

FOSTA-SESTA increased liability for providers by allowing the application of civil and state criminal law. But, no, hosting child porn was not protected in any way by § 230.

[WuzYoungOnceToo]

Somebody posts child porn in a comment thread, the platform isn’t treated as the publisher of it, for instance. It’s not limited to protection from defamation lawsuits.

Even if that's true (and I'm not convinced that it is...though I'm also not arguing that it isn't), how does that answer my question about "government censorship"?

[TwelveInchPianist]

"Does it give the conservative cheerleaders for repealing Section 230 any pause that people like this guy (and Joe Biden, and Richard Blumenthal, and Stephen Lathrop) are on your side..."

I was for repealing 230. Then I found out Biden was for it, and I'm like, well, stopped clock. When I found out Blumenthal was for it, that gave me a little pause. But once I found out Lathrop was for it, that changed everything.

[Krayt]

They donate megabucks. They censor the political opponents of the government officials under the sophistry of "harrassment".

But what have you done for me lately. "How many yachts can you water ski behind?" Imagine the lawsuits dragging down the wealth of trillions of dollars, and the thank you donations from law firms and lawyers.

[Stephen Lathrop]

Noscitur, with regard to my views, views explicitly stated on this blog again and again, that is a lie. Objection to government censorship—and the political pressure Section 230 has mobilized for government censorship—has been my principal argument for repealing Section 230.

I have treated your comments with courtesy. I gave you more credit than I should have.

[Brett Bellmore]

But on current interpretation of Section 230, nothing is really stopping the platforms from shutting down "hate speech" on their own platforms, not even if they define "hate speech" as nothing more than supporting conservative politics. What's proposed here is removing protection so that any new, alternative platforms that arise in response to 'mainstream' platforms' censorship could be forced to similarly censor.

A concern is growing that, without some comprehensive censorship regime, the sort of censorship platforms like Twitter and Facebook have lately been experimenting with might be circumvented.

It's becoming a cliche: The left and the right complain about internet censorship: The right that they're being censored, and the left that the right aren't being censored enough. The left's old concern about censorship really was just because they expected somebody else to be the censor, now that they expect to have that role for themselves, they're all for it.

I'm all for most of Section 230. The only problem with it has been that the safe harbor for good faith moderation has been treated as a safe harbor for ALL moderation. Section (c)2(A) needs serious clarification or simple repeal.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That's pretty much my take too, at least minus any fine legal details (IANAL!). AIUI, some courts ruled that moderating a forum to remove spam and blatantly illegal comments (obscenity, court-ruled defamation) constituted publishing similar to newspapers, which is a stupid interpretation. Section 230 removed that liability, so removing the blatantly illegal comments left them as a platform.

The forums took advantage of that to censor everything they didn't like. While this is their right as forum owner, it also made them true publishers, again AIUI.

The only way they could be neutral is to ONLY remove spam and court-ordered blatantly illegal posts. They don't like that, and with reason, because they'd have to leave the crude R-rated stuff which offends a lot of people. It's also hard to define spam.

But as it is, Google, Facebook, Twitter, and all the others have seemingly all adopted a woke attitude towards what they delete. They've certainly gone way beyond just spam and illegal posts. I myself am well fed up with them and ignore most as much as possible, keeping a Facebook account only to keep in touch with relatives and friends and neighbors. It would be better for them to actually be neutral and not be broken up or lose Section 230, but if they are going to ally themselves with the woke and against liberty, they will be getting just what they have literally asked for, and I will eagerly await their successors who just might learn a lesson for a while.

[David Nieporent]

YANAL.

The "platform vs. publisher" thing is something made up on right wing twitter. It has nothing to do with § 230. § 230 does not require neutrality. It was not intended to require neutrality. It has nothing to do with neutrality.

[DaivdBehar]

David. Does Section 230 have anything to do with neutrality?

[jdgalt1]

I still believe a much smarter regime than now would be to modify Section 230 so that it no longer immunizes forum owners who don't live up to their published Terms of Service or who lie about the reason for deleting your post. While we're at it, the practice of shadowbanning should be banned as a form of fraud, and the deceptive ways in which companies like Facebook and Google gather and sell your private information needs to be regulated in a way that makes them transparent to the end user.

And media that knowingly lie about or conceal news from the user should be liable for fraud as well. That was done a lot during the 2020 campaign season.

[Longtobefree]

They really don't lie about the reason; they just give one so fuzzy you can't know why they did what they did.
If they are truly the open forums intended by 230, they would have to give a specific citation of a law violation for each item removed, and "fact checking" flags would not be permitted.

[Dr. Ed 2]

They don't te;; you that you are shadowbanned, though.

[Bored Lawyer]

Good point. I think the way to deal with that is to require particular disclosures, and then if they don't live up to that, they lose their immunity.

About 25 years ago, NJ passed a law that regulated the selling of food as "kosher." Some govt. agency drew up a list of rules that more or less codified the Orthodox view of Judaism about food. Someone sued, and the NJ Supreme Court struck down the law as violating the Establishment Clause.

However, the court suggested that instead the State require a detailed disclosure of the basis of the vendor for claiming the food is kosher. And such has been the law in NJ since -- every kosher establishment has a state mandated disclosure sign.

The vendor can adopt his/her own quirky version of what is kosher. If they claim that God came to them in a dream and told them that pork is now kosher, that is fine. But that has to be disclosed to the public if the vendor claims his/her food is "kosher."

You could do the same thing here. "Do you use a political test to determine what posts will be removed? What is the basis for your test?" The website can adopt any policy it wants, but has to be above-board about it.

[Dr. Ed 2]

Exactly. And shadowbanning clearly is not above board.

[David Nieporent]

There are no "open forums intended by 230."

[jdgalt1]

By the way, this site will no longer display on Google Chrome. Someone has let an SSL certificate expire.

[I Callahan]

Strange - I'm reading it in Chrome now and not getting that problem.

[Dr. Ed 2]

jdgalt1 -- check your own machine's clock -- date in particular.
If that is wrong, it will give you bad certificate errors.

And if your clock is messed up, it's often a warning of bigger problems coming.

[Dr. Ed 2]

Overheating will also do it. With laptops, tablecloths are notorious for that because the fan is on the bottom.

[Pavel Petrovich]

Oi vey, the jews are at it again. If it were not for 'hate speech' there would be no First Amendment, no Constitution, no USA. The colonials hated the British and would rather kill their soldiers than live under a King....hate dat!! Hate speech today is just as important to liberty as it was in the later 1700's. Green Dragon was an example of a forum for hate speech.

Note that 'hate speech' is a jewish invention, cuz over history, a lot of folks learned to hate them. USA is the only entity keeping Israel alive, so if patriots start hating the little religious duchy of kikes, it would quickly be wiped off the map. Can't have speech that hates Israel!!!!

This clown needs to go back to the Ukraine. He is a fish out of water here. Better yet, move to Israel.

[Squire Al]

Is this your trolling attempt to demonstrate why there are some that feel that hate speech should be stopped?

[Dr. Ed 2]

You know, that is both more effective and likely more accurate than what I was going to say....

[Cal Cetín]

"Oi vey, the jews are at it again."

Sounds like bona fide hate speech to me, which isn't the same as saying I'd trust the sjw crowd to properly censor you. They'd probably censor you while privileging speech against groups *they* hate.

[Longtobefree]

So when will the democratic party platform be taken down for hate speech?

[Rev. Arthur L. Kirkland]

That's an interesting joke, advanced at a site that engages in partisan censorship from the hard right.

[VinniUSMC]

Artie Ray ass-licker Kirkland being banned (years ago) is indicative of partisan censorship from the hard right?

You are even parody of yourself at this point.

[rsteinmetz]

"As long as anyone is free to launch their own platform,"
Except anyone isn't because of the cost of building one now.

For much of the second half of the 20th century we had 3 dominant television networks only in the 1980s did additional broadcast networks begin backed by other large media companies and aided by the rise of many independent television stations.

Facebook and Twitter we both launched for little of nothing and grew to become what they are today. To launch a similar platform with anything like the reach of Twitter or Facebook would cost billions or require the baking of one of the other tech giants.

That platforms support a specific viewpoint would tend to fragment society even more and isolate people in various walled gardens, where everything is according to their own perspective.

[Dr. Ed 2]

We need ISOs -- the electric utilities are independent islands, the Independent System Operators regulate the connections between them and how electricity goes from one utility to another.

[Brett Bellmore]

It's a bit more than the cost and network problems. If you look like you're building a platform that won't censor, you're going to have to fight your way past a lot of organized opposition from hosting services, financial services, you name it.

[Dr. Ed 2]

Maybe those are the folk needing to be restrained.

[Brett Bellmore]

Arguably, yes, if anyone is going to be actively restrained. While it took government action to get Choke Point going, it developed a life of its own, and removing the government pressure didn't really shut it down.

[Squire Al]

§230 provides that posting sites like Facebook and Twitter but also 4chan and Parler cannot be held responsible for libelous statements made by its posters. They also, as private companies, can choose to post or delete or warn about untrue to libelous statements made on their site. It is this last provision that bothers Trumpy so much since he doesn't like Twitter and Facebook in particular calling out his BS.
Whether or not you think this is a good idea, consider what would happen if it was deleted. As of now, most of the responsible sites have finally gotten around to policing the most ridiculous comments in some way. It is not like they were particularly interested for years because they knew they were protected.
If they were not protected insofar as passing on libel on their sites, they would either limit all postings or be even more aggressive in marking or deleting the BS. More of Trumpy's lies would be blocked, and the libels put out by Lin Wood or Sydney Powell on these sites would be blocked completely or the sites would risk libel actions against them. The right wing sites like 4chan and parler could well be sued out of existence if they were not protected.
So, in effect, Trumpy's plan based on his own pique at being called out would actually make things far worse for him than we now have. But, since no on dares explain this to the stable genius, we only get his incoherent rumblings on an ongoing basis.

[Krayt]

It's a gambit. Whether you modify 230, or repeal it, it will cost them many billions in value. It doesn't matter if it hurts the politician in the long run because they are silenced even more, though the lawyer lawsuit donation politician cycle will become even more profitable, and remember, that's why they went into politics to befin with.

[Dr. Ed 2]

"Or should they be entirely immune, the way they are now, and the way telephone companies have long been."

Not exactly. They have long been required to assist people who are being harassed by telephone. 40 years ago, they had to put a pen writer on your line if you were having problems. Burner cell phones and voip has made things a lot worse, but they were responsible for landlines being used for harassment.

There's FCC regs on robocalls, they're not completely immune.

[KevinP]

I find Jeff Bewkes' comments to be hateful and demand that they be shut down.

[DaivdBehar]

Past a certain big size, these platforms become public utilities. They may no more shut speech down based on viewpoint, than the electric company may shut off service based on viewpoint.

[vaadu]

This. What if Verizon or ATT or T-Mobile cut off your phone call or blocked your text message because they didn't like what you had to say? Would that be legal?

I understand the difference of you paying for the phone services, but other than that ...

[Stephen Lathrop]

Other than that, your phone call isn't published speech.

With narrow exceptions, speech freedom requires leaving private publishers alone to decide at their pleasure what to publish, and what not.

[DaivdBehar]

What if I put a huge neon sign with the N word in front of the KKK headquarters plhouse? Is it the place of th electric company to cut off the electricity? These huge platforms are monopoly utilities. In exchange for their monopoly advantages, they must accept government oversight, and be subject to the constitution.

[gormadoc]

What monopoly? I don't use Facebook or Twitter and if I wanted to use something similar it's pretty damn easy to find something else to use in their place.

It strikes me that the people bitching about Facebook/Twitter monopolies are relatively old. Young people don't use them much anymore and Facebook is openly derided. Kids are still using social media extensively even without those two so there clearly isn't a monopoly.

[Stephen Lathrop]

gormadoc, stop with the focus on the users. It's a distraction. Users are the commodity for sale. What is being monopolized is the marketplace where would-be advertisers go to buy access to users.

Of course, even with ad sales, nobody sells them all, so technically, no monopoly, I suppose. But compare the national distribution of ad sales pre-Facebook, pre-Twitter, or perhaps pre-internet. If you will permit me to guess (I don't think reliable numbers are publicly available), I would say where previously perhaps tens of thousands of sellers competed for the prize of national advertising accounts, now the number seems to be down to dozens-to-hundreds.

There is no need to guess about the effects on legacy sellers of advertising. That marketplace looks just as you would expect it to look if it had been blighted by monopoly competition—thinner ranks, weaker budgets, and continuously declining activity among the survivors. The nation's news gathering capacity has been devastated.

None of that is about what readers do, or prefer. It is all about monopoly-trending business models for ad sales, made newly possible by a special government-ordained privilege (Section 230) which enabled publishing without prior editing.

That privilege decoupled ad sales gross from editorial costs. Previously those values had gone up and down in rough proportion. Suddenly, a business model became available which enabled unlimited sales growth, without proportionate cost increases. Add to that networking effects on the internet, and here we are.

I am curious. If you had your choice to be served by a few tens of publishers which do little news gathering, or to be served instead by a few thousands of publishers which concentrate on news gathering, which case do you think would better support the public life of a great nation?

[DRM]

If they're a private publisher, let them be as legally liable as any newspaper or other publisher for what they choose to publish.

If they're a distributor stocking material published by others, let them be as legally liable as any newsstand, bookstore, or other distributor for what they distribute.

If they want the legal immunity of a common carrier regarding the content they carry, let them be required to obey the neutrality rules of any other common carrier.

[Milhouse]

They are liable like bookstores. That's what Section 230 does for them.

[Stephen Lathrop]

Prior to the internet and Section 230 it was generally difficult for an ordinary hateful person to find a publisher. There was no sense of emergency, or even urgency about that. No one thought a hate speech deficiency showed a weakness in the 1A; few if any were campaigning to shore up press freedom by getting more hate speech published.

Please explain what changed to make the publication of hate speech either more worthy, or more urgently necessary, now than previously.

I should add that the activity of edited publishing does not need constraint by a private cause of action against hate speech. It requires only an obligation to read everything before publishing it, with an eye to excluding actionable defamation.

With that in place, published hate speech tends to diminish, because for most audiences it is poor quality material. An editor reading for defamation who instead encounters hate speech will be inclined to ask, "Why publish this?"

Publishers and editors who must read what they publish take advantage of their time investment, using it also as an opportunity to compete on the basis of content quality. Usually, that means hate speech is out, no cause of action needed.

Of course, audiences who want hate speech to read ought to remain free to publish it to each other, or to anyone else who chooses to consume it. As with other considerations against speech restraint, that is not because there is any inherent value in bad speech, but because it is too dangerous to let government decide which speech is bad.

[Cal Cetín]

"Prior to the internet and Section 230 it was generally difficult for an ordinary hateful person to find a publisher. There was no sense of emergency, or even urgency about that. No one thought a hate speech deficiency showed a weakness in the 1A; few if any were campaigning to shore up press freedom by getting more hate speech published....

"Publishers and editors who must read what they publish take advantage of their time investment, using it also as an opportunity to compete on the basis of content quality."

Let's look at some examples of hate speech published in the traditional way [cont]

[Cal Cetín]

"Watson was most influential through his various publications, including the People's Party Paper (1891-98), The Jeffersonian (1907-1917), and Watson's Magazine (1905-06, 1912-17). In muckraking editorials, he espoused populist causes that included antitrust legislation, railroad regulation, and monetary policies favorable to agrarian interests, including coinage of silver. He fought to maintain the broad-based reformist and independent goals of the Populist Party against those who favored fusion with the major parties and a narrow focus on the silver issue. Initially a supporter of the inclusion of blacks in the agrarian movement, he later turned to race baiting, advocating black disfranchisement, and to virulent anti-Jewish and anti-Catholic diatribes. His lurid crusade against Catholicism led to his trial on charges of sending obscene material through the mail."

https://docsouth.unc.edu/highlights/watson.html

See Fred D. Ragan, "Obscenity or Politics? Tom Watson, Anti-Catholicism, and the Department of Justice," he Georgia Historical Quarterly
Vol. 70, No. 1 (Spring, 1986), pp. 17-46.

[Cal Cetín]

"The Secret Relationship Between Blacks and Jews is a three-volume work published by the Nation of Islam. The first volume, which was released in 1991, asserts that Jews dominated the Atlantic slave trade."

https://en.wikipedia.org/wiki/The_Secret_Relationship_Between_Blacks_and_Jews

[Cal Cetín]

"The New York City Fire Department will rename its most prestigious award, the James Gordon Bennett Medal, because Bennett, a 19th century newspaper publisher, supported slavey and published racist views, marking the latest instance of an American institution coming to terms with racist historical figures."

https://www.forbes.com/sites/rachelsandler/2020/09/08/new-york-city-fire-department-to-rename-prestigious-medal-over-racist-namesake/?sh=267886092b0f

[Dr. Ed 2]

Bullshite -- the Turner Diaries dates back to 1978.

There were photocopiers and before that mimeograph machines -- the only difference now is that sane people now (a) are aware of this stuff and have the ability to debate it.

[Stephen Lathrop]

Ed, "difficult," does not mean, "impossible," or even, "extremely rare." It means publication of hate speech was notably hampered by private editing. Which it was.

Cal Cetin, and you, I guess, have somewhat illustrated my point. None of your examples really shows defamation based on pure private animus. Go far enough back in history, and the kinds of writings cited by Cal Cetín would have been read by many editors and much of the public as opinions about public policy, not about hate speech. Some people still think that way. But those are not the kinds of defamation cases I was talking about.

Cases of pure private animus, with subject matter encompassing no public implications, were the kinds of cases private editing screened most efficiently. That is still true, but not online. Had you been able to cite numerous pre-internet examples of some publicly-unknown ex-spouse defaming the marriage partner—a kind of publishing now commonplace, formerly almost unheard of—you would have made a better point.

[Sigivald]

An obligation to keep speech "safe and respectful" (according to a few experts or the government or "public opinion") is exactly anathema to free speech.

[DRM]

As long as they're completely immune like telephone companies, they should be required to not discriminate like telephone companies.

If they want the right of bookstores to curate what they make available, they should be liable like bookstores.

Let each service choose for itself which regime it prefers, but make them choose.

[David Nieporent]

Or, counterproposal: don't make them choose, because that's stupid.

[Milhouse]

Section 230 does make them liable like bookstores.