Who's Afraid of Josh Hawley?

Berin Szoka and I help the good Senator understand how the First Amendment applies to tech companies

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Today, I debunk Sen. Josh Hawley's purported victim status and First Amendment theories in an op-ed in the St. Louis Post-Dispatch with Berin Szoka, president of TechFreedom.

The First Amendment doesn't give Sen. Hawley the right to force tech platforms to carry the speech of white supremacists and/or those who incite violence, as Berin and I break down both in the op-ed and accompanying Twitter thread.

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  1. Should Comcast be forced to carry the messages of white supremacists and those who incite violence via its network? Why or Why not?

    1. Should Ma Bell have been permitted to shut off the telephones of members of the KKK? It would have prevented a lot of lynchings.

    2. Interesting question!

      See, here’s the thing. Comcast is not a social media platform, is it? In fact, it carries other services, like Facebook, Twitter, Parler (is that still a thing), LinkedIn, Tumblr, Snapchat, Reddit, Stormfront, etc. etc. etc.

      And if you don’t understand why this point is made, then … well, good luck to you!

      Now, if you are saying, “Hey, I think Facebook is SO BIG and SO POWERFUL that I’d like to either break it up or treat it like a utility,” then that’s, well, that’s an argument.

      But it’s a different one. But the problem that we keep having is that people like Hawley, and you, both don’t understand the issues*, and keep lying. Neither of which is helpful in either understanding the problems or solving them.

      *Hawley does understand the issue. You? Eh.

      1. “Comcast is not a social media platform” And? So?

        Why should Comcast have to carry speech through its telecommunication lines that it doesn’t want to?

        Please, present your reasoning.

        1. You … are … truly … a …. moron, aren’t you?

          A social media platform (or any internet website or app), unlike Comcast, is a publisher.

          That means that, absent Section 230 protection, it can be held liable for any violation of local law, or state law.

          To give you a quick explanation:
          VRBO allows you, Moron Not a Lawyer, to rent out your property.
          It happens that this is “carried” on a Comcast network (other networks too, because, duh, the internet).
          Now, you happen to advertise it in a way that violates the law in your locality. Something stupid.

          Under standard law, VRBO would be liable to your locality for what you posted there. Even though they would not know the constantly changing laws in every town, country, state, and jurisdiction.

          Comcast would not.

          The First Amendment has nothing to do with this; just like you have no First Amendment right to post here, on the VC.

          You literally just keep spewing the same, wrong things everywhere.

          This has been explained to you multiple times, in multiple threads. It’s not that it’s hard to understand, you just don’t want to.

          So how about you explain to the rest of us, before asking the same stupid, inane questions – how does the First Amendment apply in this situtation? How is, say, this comment section (which for the law IS THE SAME AS FACEBOOK) different that Comcast?

          Go on! Show your reasoning. Armchair “Lawyer”.

          1. So, there are two points.

            1. We can expand the “Social Media” bit to both Amazon Web Services (which is not a publisher) and Google and Apple, in their webstore contexts (which also would be not a publisher). Important discussions to have.

            2. Section 230 is rather interesting, it that it allows for a “publisher”, without having the legal liabilities that a true publisher has. Specifically in regards to 3rd party advertisements and actions.

            It is a “publisher but not a publisher” because with third party advertisements and comments and actions, the “publisher” has no liability, and typically does very little at all to the published content in question. Certainly no pre-proofing, typically no editing, etc. In many contexts, it acts more as a means of transmission (ala Comcast) rather than a publisher. And these section 230 protections allow it to avoid many types of lawsuits…especially given the examples of Craigslist or Backpage, which avoided all sorts of legal liability for crimes. Indeed, it’s this ability to avoid any liability which allows the scale of these “pseudo”-publishers.

            3. But combining with this section 230 lack of liability AND the ability to selectively edit makes it truly dangerous. Imagine an anonymous 3rd party makes a post, or a series of posts. Can the hosting site edit out the entire series of posts without liability? What about 1 or two posts without liability? What if they selectively edit the 3rd party posts, and in doing so, they change the implied message?

            1. 1. Social media, by definition, does not include AWS and google and Apple. So here’s the thing- different things are different. Which is why people like me get so incredibly angry when people just lump a bunch of things together as being the same. Look at the three examples you just provided and lumped in the same category as expanding on social media! Briefly-
              AWS does not present any of the same issues that “social media” does. Instead, it present the issues of ubiquity and scale. Simply put, it is a common and cheap option for many platforms to use, especially when starting and scaling up. But … you don’t need to use it. There are a lot of great alternatives in terms of cloud infrastructure.

              The issues with Apple and Google (the “Play” store) are completely different as well. First, you can’t even compare those two, given that while you can technically “opt out” of either, Apple’s store is de facto required (you have to jailbreak) while Google’s is not- you can choose to get your apps anywhere, and there are android phones that do not default to the play store. But those are completely different discussions. It’s not just WAH BIG TECH.

              2. Yes, it is interesting. But no, you have never tried to understand what Section 230 really means, or why it is so important to “the internet,” or why it is hardly a coincidence that America has so many great internet tech companies.

              Moreover, it is truly bizarre to me that people have not yet realized that the amount of free speech is so much greater now than it was pre-230 that the things that they are complaining about now are completely laughable in the pre-230 context.

              3. Again, because you don’t understand how 230 works, you have no idea why your hypotheticals are nonsensical. At a certain point, you need to educate yourself instead of relying on the lies you read and re-transmit.

              1. But no, you have never tried to understand what Section 230 really means, or why it is so important to “the internet,” or why it is hardly a coincidence that America has so many great internet tech companies.

                FWIW, I’m not convinced by this (although loki’s legal reasoning appears sound).

                There are plenty of countries with different rules than Section 230. Many of them nonetheless feature discussion boards. In addition, as long as some country somewhere has a Section 230 analogue, servers can be located there.

                In fact, after FOSTA/SESTA passed (creating an exemption to Section 230), plenty of websites that discussed or advocated or advertised sex work set up shop overseas.

                My point isn’t to say that Section 230 isn’t important, or is a bad statute. It’s simply to state that the claim that it is somehow the backbone of the Internet and that online discourse would be destroyed without it, is at the very least underdeveloped.

                1. As someone who has followed this closely, I can say the following things are, at a minimum, fairly obvious:

                  1. American supremacy in the “software” side of the internet (from Web 1.0 through the current app phase) is, at least in part, due to Section 230. Small websites were able to scale up quickly in the US (a large market) without fear of liability due to different rules and regulations based on what was posted and provided by users (content). This ecosystem gradually became reinforcing (through the Venture Capital that began in the 80s, and the growth of tech firms that handled the cloud services, and so on). But at the heart was Section 230. When we complain about “Big Tech,” we are largely complaining about American success stories; of the major players (Google/Alphabet, Amazon, Apple, Microsoft, Facebook), because of the re-invention of MS, arguably one one, Apple, is still primarily a hardware company that doesn’t owe its existence to the internet. If you remember back to the 80s , we were worried about Japan destroying us in this area.

                  2. Section 230 is what allowed for the explosion of free speech that we take for granted. Let’s ignore the apps and the internet services that do everything from let us rent our homes to access information that we know today. From a pure free-speech standpoint, we have more places that we spout off uncensored than we ever imagined, even if most people waste it on youtube comments and FIRST!!11!!! Again, this is because of Section 230. But for that, every company would have to be worried about the liability they would accrue for every single comment posted; instead of the flourishing of free speech, it would be constant takedowns and lawsuits.

                  I’ve followed this from the 90s on (remember the Clipper Chip) and I’m fairly comfortable with this. Yes, there are places that are still the “wild west” and there will always be servers in other countries. But the exemption from publisher liability allowed the early internet to take off in a way that promoted the type of discourse that we now take for granted. It allowed companies to form that would let people post what they wanted to- even hurtful things, even complete nonsense, without fear of liability.

                  So when people are now whining about stuff being taken down, they are doing so in complete denial that the unfettered freedom that they have enjoyed is not in spite of 230, but BECAUSE of it.

                  1. There’s a pretty big logical fallacy in your argument, Loki. It’s a pretty elegant proof that we needed something like Section 230 to develop the modern Internet. It isn’t, however, an argument that establishes that amending Section 230 now would destroy the Internet. Those are two different things.

                    And this issue is not uncommon with business regulation. A great example- we wouldn’t have the amazing freight railroad network we have now without all the land grants and subsidies and sweetheart treatment that the railroad barons received in the 19th Century. But that doesn’t mean that after that network was built, it was wrong to create the Interstate Commerce Commission and to start aggressively regulating the railroads. It’s two different issues.

                    1. Dilan,

                      No, because you misunderstand the issue completely. I honestly can’t tell what happened to the Dilan Esper from the old VC.

                      The issue, as I keep trying to say, IS NOT SECTION 230. That’s the fundamental problem with all of these conversations.

                      It’s not the issue when it comes to “deplatforming.” It’s not the issue when it comes to whether Big Tech is TOO BIG. It’s not the issue when it comes to the ability of people to sue for defamatory comments.

                      So when people (like me) get so incredibly annoyed at these comments, and having to explain the same things over and over again, it’s not just because people don’t understand why Section 230 has been (and continues to be) so important.

                      It’s mostly because they don’t understand WHAT Section 230 does. And because they don’t, and because the accept the lies of people like Hawley, they can’t begin to diagnose the actual issues. Instead, they come up with stupid hypos.

                      But to reiterate-
                      All Section 230 does … is prevent … we will call it a platform (technically, an interactive service provider) from being held liable for the content that someone else puts on there. Period. There’s some more wrinkles, but that’s the main thing.

                      These platforms can still be held liable for what they do. Got that?
                      They can still be regulated.
                      They can still be held accountable.
                      Their customers can still sue them.
                      Other people can still sue them for what the platforms do.

                      If people are worried about extreme hypos (But but but … what if Facebook edits what I say, and makes it seem like I supported Biden!!!!!!!!!!!!!!!!!!) then, amazingly enough, this has already been covered. Roommates.com (and its progeny, which is all of it) stand for the unremarkable proposition that when a platform “creates” the content (does enough editing, blah blah blah) it is liable as the creator of the content.

                      I SWEAR TO GOD THIS HAS BEEN EXPLAINED COUNTLESS TIMES, AND IT SERIOUSLY OBNXIOUS THAT IT CONTINUES TO BE EXPLAINED.

                      At a certain point Dilan, you do realize that every “real attorney” and law professor understands this issue, while you have Hawley and your usully suspects here that keep repeating the same wrong things because they refuse to understand what the law actually is.

                      There’s cases, and stuff. Look it up.

                    2. I’ve litigated Section 230 cases (most notably Hassell v. Bird, which I took all the way up to the Supreme Court). I know what it does.

                      But I think you are engaged in some subject-changing here.

                      Obviously, if anyone claims “remove or amend Section 230 and we’ll have this wonderful Internet and all the bad stuff will stop happening”, that’s wrong.

                      And equally obviously, there are all sorts of things government could do to go after big, powerful, malevolent actors on the Internet that would not involve amending 230, which you intimate.

                      But neither of those things prove either (1) that Section 230, as it is currently written, is necessary to preserve the good aspects of the Internet as we know it; or (2) that imposing more extensive liability on Internet platforms would be destructive of the value of free speech.

                      Now, I realize there are arguments on both these issues. But you haven’t really made them in this thread. You’ve just said (1) Section 230 was necessary way back when (which is very plausible, although I haven’t thought it all the way through) and (2) there are other things we could do besides amend Section 230 to deal with some of the problems (which might be true, but doesn’t show that amending Section 230 is a bad idea or would ruin the Internet).

                    3. And by the way, I am not defending Hawley. Hawley is a fool and a demagogue.

                    4. “(2) that imposing more extensive liability on Internet platforms would be destructive of the value of free speech.”

                      You say I haven’t made this point, yet I have. Both here and repeatedly before.

                      Because, and I cannot stress this enough, the free speech that would be regulated isn’t the “speech” of the platforms. Since you’ve litigated these cases (as have I), then you know that the platform’s speech is already regulated.

                      The speech of users of the platform remains regulated as well.

                      What 230 does is allow the platform to … not have to regulate the speech of its users.

                      I honestly do not know how you cannot follow this if you’ve litigated these cases before.

                      1. X publishes something. Oh, let’s say it’s Rudy, speaking on Fox News.

                      2. That means that Fox News is liable for what Rudy says.

                      3. So, what happens when Fox News has to be seriously concerned about what people say? Are they more likely to allow things through, or not? That is an essential gatekeeping that they will do.

                      4. Now, that’s just a media company. And usually dealing with public figures. On the internet, social media, you have people, billions of posts a day, posting information about private figures, and private concerns.

                      …and this is before getting to the many other places that people “post” things.

                      So yeah, I honestly cannot fathom your lack of understanding.

                      Section 230 has nothing to do with regulating the internet. That’s fine. That’s a separate argument. It has everything to do with the amount of freedom people have had, and continue to have.

                    5. Before amending section 230 to rein in “Big Tech,” let’s try enforcing statutes that have been on the books for more than one hundred years. I’m speaking, of course, of antitrust laws, dormant since the Reagan administration and its courts wrote Bork’s “The Antitrust Paradox” into custom. Don’t target Facebook because you don’t like the way it does or does not regulate speech; target it because it is a monopolist that uses its market power to suppress competition. We understood before Bork that we enacted antitrust laws not simply or even primarily to protect allocative efficiency, but to protect democratic self-government from the corrupting political power of excessive capital achieved and maintained through cartelization and monopolistic predation. Monopolies and cartels don’t just threaten market efficiency; they threaten democracy.

                      After we enforce the Sherman Act and the Clayton Act as they were once understood, we can have a conversation about section 230 and its role in a demonopolized “Big tech.”

                    6. Because, and I cannot stress this enough, the free speech that would be regulated isn’t the “speech” of the platforms. Since you’ve litigated these cases (as have I), then you know that the platform’s speech is already regulated.

                      This is deep in the weeds, and I am not sure it matters to your point, but the platforms certainly do claim a First Amendment right in the speech of others that they publish. E.g., Yelp explicitly made that claim in Hassell v. Bird.

                      What 230 does is allow the platform to … not have to regulate the speech of its users.

                      It actually does two things. It allows them not to regulate, and it precludes treating them as a speaker if they do regulate. (That second part overturned Stratton Oakmont.)

                      As for the rest of what you say, there are other models out there. For instance, there’s distributor liability, like a bookstore faces. A bookstore is not liable for the illegal or tortious content of a book without actual knowledge of it. That’s not speaker liability, but it’s also not service provider immunity like Section 230 provides. Nonetheless, I don’t think people view bookstores as bastions of censorship.

                      Similarly, there’s the DMCA notice and takedown model. Again, that’s not speaker liability, but it’s also not categorical immunity.

                      Mind you, I think that what happens to Section 230 is a complex question. But the notion that if we switched to any somewhat-less-platform-friendly liability rule, that the entire Internet would Collapse As We Know It seems under-supported.

                    7. Dilan – Good summary. Section 230 allows a platform not to have to regulate users’ speech to some extent (though this is sharply limited by other laws and under political attack by Democrats for 5 years now pushing for more political censorship), but also allows a platform great latitude to regulate speech.

                      The latter is more significant and was actually the point of Section 230. It was enacted to make sure platforms could regulate speech without being liable. Otherwise, given the existing court decisions, they would have had to employ no controls at all in order to be nonpublishers under Compuserve. Right? The whole concern was over pornography and the like.

                    8. “Mind you, I think that what happens to Section 230 is a complex question. But the notion that if we switched to any somewhat-less-platform-friendly liability rule, that the entire Internet would Collapse As We Know It seems under-supported.”

                      Oh goodie. Going with the awfulization straw man now, are we?

                      I really do appreciate the pathetic attempt at a lecture on Section 230. You are aware, aren’t you, that I’ve already gone through this history in numerous threads before? But thanks. Stratton? WHAT CASE IS THAT??? DO TELL ME MORE DILAN????? WHY DON’T YOU LEARN ME ALL ABOUT THE STANDARDS USED IN FEDERAL COURT?????

                      Seriously, as I have to keep explaining, the issue is that people like scumbag attorneys Charles Harder and lying politicians like Trump and Hawley don’t bother with tiny issues like … you know, what the CDA actually does. Again, why since you claim this advanced knowledge due to your participation in a single case, why don’t you break down what the California Supreme Court holding was? Here, let me, since I’ve had to quote it recently:

                      Hassell v. Bird, 420 P.3d 776 (Cal. 2018):

                      Reverses court of appeals. Court of appeals incorrectly found that Yelp was bound by a DEFAULT JUDGMENT in a defamation case. Yelp was not named as a defendant in that action.

                      Based on Section 230, the majority of the California Supreme Court found that had Yelp been named in the underlying action (in other words, been treated as the speaker of the information), it would have been immune, including from the injunctive relief. Id. at 540-41.

                      The primary issue to the majority (and correctly) is whether the trial tactic of Plaintiff in not naming an immune party (Yelp) would then allow them to get liability established against them in the form of injunctive relief. Id. at 541. The answer, simply, is no. Id. at 545.

                      The great thing about this case, the one that you are quite familiar with, is that the majority articulates the exact points that are continually reiterated in this context- that 230 is intended to promote online discourse.

                      No one says that entire internet would collapse, Dilan.

                      Instead we make the same banal point as always. That the freedom of online discourse that we currently enjoy is because of Section 230. And that it is those certain people- like “I want more defamation” Trump, and “I want to win the Trump vote” Hawley, and “I am the GOP/Trump/Thiel hitman attorney” Harder that thrive on making people think that 230 does things it does not.

                      So, to repeat the obivious:

                      1. Section 230 is what keeps platforms from censoring people.
                      2. Most people are unaware of the difference it has made over the few decades and take it for granted.
                      3. People thrive on disinformation.

                  2. Again, this is because of Section 230. But for that, every company would have to be worried about the liability they would accrue for every single comment posted; instead of the flourishing of free speech, it would be constant takedowns and lawsuits.

                    Well, that at least does not follow. With publishers worried about liability, the response would be more editing prior to publication, and smaller publishing enterprises to accommodate management of that editing need. Both factors would reduce takedowns and lawsuits, not increase them.

                    That, in turn, would open competitive space for more publishers, because smaller publishers could not each soak up so much of the advertising market as today’s giants do. More publishers would furnish still more editors, and thus broaden choices and opportunities for contributors. Thus, it is by no means clear that the overall explosion of free speech Loki attributes to Section 230 could not have been delivered alike—or perhaps in major part—by multiplying smaller publishers who hired more editors.

                    Loki’s admiration for Section 230 puts me in mind of enthusiasts for capitalism—they have a strong case, but claim more than they can prove. They too often fail to notice that the rise of capitalism ran parallel with a simultaneous explosion in industrialism. Sometimes it’s hard to sort out entangled factors; it’s never wise to pick the one you favor most, and attribute all gains just to that.

                    With free speech and the internet, it wasn’t just Section 230. An additional factor certainly played in. The internet delivered startling reductions in publishing costs. No ink, no paper, no printing presses, no licensed broadcast facilities, all subtracted big numbers from the expense column. For successful publishers, costs of that sort had tended to be more than half the entire budget—sometimes more than 70%.

                    At its peak, the aggregate weight of one Sunday’s edition of the Los Angeles Times approximated the weight of a light cruiser—all of it printed, collated, loaded on trucks, and delivered piecemeal over a vast area. Then same again next week—with six days’ regular editions coming off the same presses in between.

                    The internet discounted those production costs nearly to zero. That giant pile of saved money could have paid for an army of new editors, and still allowed room for big profit increases. Loki is mistaken to assume it was just Section 230 which enabled all that new free speech. Dramatically lower costs could have delivered much or all of it even without Section 230. But of course the impacts on the nation’s publishing economy would have been different. Impacts on public life would have been notably different. Maybe better. The pro-fraud, pro-libel faction among internet fans would disagree that more editing was an improvement—another case of entangled factors.

                    But I have so far only hinted at the most important point Loki got wrong. Here it is. Absent Section 230, there would not be, “constant takedowns and lawsuits.” Just the reverse. Takedowns and lawsuits are what editors prevent. It is no-editing-prior-to-publication which occasions takedowns and lawsuits. Editors are remarkably efficient at preventing them. For the cost and effort of just one takedown, a decent editor can prevent half-a-dozen of them before lunch. For the cost of one libel suit, you can pay an editor to prevent libel suits literally for years.

                    Most folks, including most lawyers, including apparently Loki, do not have day-to-day experience in publishing. It was not generally appreciated (and still is not) that the principal public benefit from making publishers share liability with contributors was not to be found in the damages libel plaintiffs could sometimes recover. That was important, but still small potatoes. Many times larger than the aggregate of courtroom damages was the value the public got from all the libels which editors prevented before they happened.

                    Use of civil liability to compel shared liability was the key. Doing that meant that every would-be libeler had to encounter before publication a private editor with a defensive self-interest, and with power to prevent libel before it happened. Alas, prevented harms tend to go unnoticed.

                    Section 230 specifically targeted that underappreciated editing function, and inadvertently took out the public benefits it had delivered. The impulse was both generous and utopian, but nevertheless it was a blunder—an unusually consequential blunder. It transformed publishing, and delivered the still-rising tide of swill which now plagues the nation’s public life. Along with it has come a defensive response—a widespread clamor to empower government censorship of the press, to hold back the tide.

                    That is far from the end of it, but enough for now. Loki knows the law. He understands less about the publishing activity the law purports to govern. On this topic, what Loki asserts with confidence, readers should receive with skepticism.

                    1. I understand it all fully, SL.

                      I respect your position regarding “publishers,” and have a feeling that if you fully explained this to the people commenting here, they would probably end up deeply disagreeing with you.

                      After all, they hate the “MSM,” and don’t want their opinions silenced by gatekeepers and editors … so it is somewhat ironic (to me, at least) that they don’t actually understand what it is they are attacking. But then again, it’s truly funny to see that you, Armchair Lawyer, ML, and Dr Ed are on the same side. 🙂

                    2. Loki, I think you know we are not on the same side. They don’t need more explanation. They already deeply disagree with me.

                      They want government censorship to rig the internet, to help them take advantage of no-liability publishing on a near-monopolistic scale. They don’t really want Section 230 gone, they just want to be sure it works for them without constraint. They pretend-threaten to take it away unless government will compel Facebook and others to let them do as they please.

                      I want private editing, no government censorship, and no Section 230. I insist that the only safe harbor for press freedom is a private publishing sector sufficiently numerous and diverse that a would-be author with adequate stuff will not likely be excluded entirely. I add that there is an enormous public benefit to be had from private editing, which not only prevents libel before it happens, but also empowers competition among publishers on the basis of content quality.

                      As I said last time, there is a great deal more to say, but enough for now. And, of course, thanks for your reply.

              2. “3. Again, because you don’t understand how 230 works, you have no idea why your hypotheticals are nonsensical”

                You have this bad habit of not actually explaining things, but acting like “It’s true because I say it’s true”.

                Let’s do a clear hypothetical here. I say, on a message board “Joe Bob is a actually a woman”

                Bulletin posting service edits out the letters “wo”

                Can the posting service be held liable in any way?

                1. Let’s do a clear hypothetical here. I say, on a message board “Joe Bob is a actually a woman”

                  Bulletin posting service edits out the letters “wo”

                  Can the posting service be held liable in any way?

                  Yes, assuming for the sake of argument that calling Joe Bob a man is defamatory.

          2. A social media platform (or any internet website or app), unlike Comcast, is a publisher.

            That means that, absent Section 230 protection, it can be held liable for any violation of local law, or state law.

            I sense it’s never going to be possible for you to engage in a discussion about whether Section 230 was the right solution to that problem, and whether there might be better ones. Reiterating what Section 230 does (dripping snark or no) really doesn’t move the ball forward.

            1. “I sense it’s never going to be possible for you to engage in a discussion about whether Section 230 was the right solution to that problem, and whether there might be better ones. Reiterating what Section 230 does (dripping snark or no) really doesn’t move the ball forward.”

              Even morons are occasionally worth having substantive conversations with.

              But trolls like you? Never.

            2. Life of Brian–Thanks for attempting to inject reason and a reasonable tone here!

          3. “A social media platform (or any internet website or app), unlike Comcast, is a publisher.”

            No, they aren’t necessarily.

            “That means that, absent Section 230 protection, it can be held liable for any violation of local law, or state law.”

            If Section 230 were repealed, nothing should necessarily change much.

            1. Oh great, this should be great. M L is here for his trenchant analysis of the law.

              You and Dr. Ed should get together for your own Restatments.

              You know, Restatement of Law as I think I might have heard it one time, and I think it should be. Something something RICO.

              1. Social media platforms are not publishers. See 47 USC 230(c)(1).

                So you’re wrong, but presumably what you meant to say is that they would necessarily be publishers were it not for that law. Wrong again. Compuserve, Prodigy, etc. I think you know this stuff. As the saying goes, it’s not that you’re ignorant, it’s that you know so much that isn’t so. More to the point, you write cringey walls of text that you imagine are clever, at best struggling to get a point across in 100x as many words as necessary, but mostly just consisting of generalized invective and ranting.

                1. “Social media platforms are not publishers. See 47 USC 230(c)(1).”

                  Wow.

                  Do you not understand why no one with any knowledge engages with you?

        2. “Why should Comcast have to carry speech through its telecommunication lines that it doesn’t want to?”

          Ideally speaking, they would not (and, indeed, that is the current position of the US government) because if people wanted to get their KKK content they could just choose a different ISP.

          In many parts of the US, though, people have only a single broadband provider and it’s quite rare to have more than two. There’s a reasonable argument that there’s a natural monopoly for wireline internet service just as there is for cable television in most places, and there’s a strong argument for government regulation of natural monopolies in ways we don’t want to when free market competition will work its magic. Hopefully in the case of Internet access wireless options are going to get good enough that we don’t need to care about what Comcast is doing.

          Now, is Facebook also a monopoly? (If so, what is this market?) Is it a natural monopoly? Some people argue yes, and if so maybe we’d want the government to regulate them more than recipe websites or legal blogs. But certainly Facebook doesn’t have a monopoly on “saying stuff on the Internet” because there are tons of other ways to do that (see, e.g., this whole discussion) so if we were going to regulate it we probably don’t need to worry about forcing them to let people say whatever they want on the Internet and instead might want to be worried about the parts that do lend themselves to the monopoly like the construction of the social network itself or perhaps even the advertising network which doesn’t have as many alternatives.

    3. Should facebook be threatened with section 230 changes if they don’t censor harrassment, as the Democratic candidates fell all over each other about during the debates? Followed swiftly by “and our political opponents’ speech is harrassing. Don’t forget them!”

      Both sides are groteque First Amendment violators who should be removed from the handles of power.

      It is the same issue. Stop trying to force these companies to censor or speak in ways you approve, which may be the opposite ways your opponents want.

      It wasn’t so long ago, the side pushing for direct censorship was all about using “common carrier” status to force companies to broadcast everything, and equally at that.

      Commence to hemming and hawing to thread the needle of flip flopping on your situational ethics.

  2. These companies are of a size that makes them untilities. They reached that size with government forbearance of their massive criminality, billions of crimes by others, millions of crimes by them, on their platforms.

    Should the electric company be allowed to shut off electricity to Republicans?

  3. Irina should disclose the source of the funding for her salary. Isn’t she a lawyer anyway? Nothing she says has the slightest validity. She belongs to the most toxic occupation in the nation, ten times more toxic than organized crime. This occupation must be crushed to save our nation.

  4. Prof. Manta,

    I think you have great posts, and I agree with you. Just warning you- saying something is “debunk[ed]”, correctly noting that Senator Hawley is falsely claiming “victim status,” and pointing out that a lot of the people getting kicked off of social media are “white supremacists and/or those who incite violence” is going to trigger the commenters here because, well, they resemble the folks getting kicked off and they are too busy complaining about squirrels and ANTIFA that they won’t pay attention to your argument.

    Anyway, might want to use language that is less triggering to the special snowflakes that inhabit the comment threads of Reason.

    Good luck!

    1. “a lot of the people getting kicked of social media are white supremacists…”.

      Since Trump, the definition of white supremacist, as well as Nazi and fascist, have been so broadened as to be rendered meaningless.

      Also a lot of the people getting kicked off being white supremacists means that a lot of them, probably the majority, aren’t. But fuck those guys, right? They disagree with Loki, so we don’t want them out there speaking anyway.

      1. Oh, it became pretty much meaningless well before Trump. They’ve been using it to mean, “Anybody we disagree with” for at least a decade now. “White Supremacist”, “racist”, “fascist”, “Nazi”, they’ve all been reduced to content free epithets.

        The only thing that happened recently is that they’ve progressed from using it that way in discussions between ‘progressives’ to trying to force everybody to adopt the new meaning.

        1. Even as a child, people shouting “Nazi” about Reagan seemed pretty unserious. Now it is the “anti-fascists” who don jackboots and seem to enjoy intimidating bystanders.

    2. You are referring to 72 million Trump voters.

      1. “You are referring to 72 million Trump voters.”

        So … either there has been a purge of all Trump Voters from social media (which, you know, would be great in getting rid of all-caps) that I haven’t heard about …

        Or you are saying that all Trump voters are white supremacists?

        Sure? I’d like to think that some of them just voted for lower taxes without really thinking about the fact that he’s a terrible person, but okay, I guess.

    3. In the 1970s, it was conservative middle America that tried to ban Nazi parades, and the ACLU, correctly, defended their free speech.

      I wonder now if that wasn’t just attempting to “stick it to them”, rather than brave defense of principles.

      Would a modern liberal defend their 1990s position to upend, instead of a cross, say, a Muslim blessed item in a jar of urine, paid for by the National Endowment for the Arts, because “they need to see opposing viewpoints on the subject”?

      Or, again, is it just “sticking it to the opposition”?

  5. “But fuck those guys, right?”

    Yep!

    1. Who is the actual fascist? Why, it’s you!!!

      Congratulations. You found one.

      1. Aw! First, you used one F word, and now you used the other!

        Whatever will someone do if they can’t post stupid Trump memes to their grandkids on the Facebook? They’ll probably die, right?

        I mean, that’s what the Founders said. “Give me Facebook or give me death. Because if I can’t use Facebook, there is absolutely no way I can ever have free speech. I mean, it’s not like there exists any way to communicate. Man, I am such a wuss. I should probably complain about Facebook … if only there was some way!”

        1. I mean, that’s what the Founders said. “Give me Facebook or give me death. Because if I can’t use Facebook, there is absolutely no way I can ever have free speech. I mean, it’s not like there exists any way to communicate.”

          Look, kids — it’s the Dance of the Sugar Plum Straw Men!

          1. Look, it’s TROLL BOY!

            Aw, looking for someone to feed you, cutie?

            1. Wow, literally 1 minute between my post and yours. Your sitting there feverishly refreshing the page in between your caustic, prolix rants completes the picture nicely.

              Maybe consider some fresh air every so often — I expect we all would benefit.

              1. I find it necessary, every time you reply to me in any way, to remind you that you are a troll, and I will never ever engage in a substantive conversation with you.

                At a certain point, you might get the hint. But I doubt it.

  6. According to the progressive left, the entire system is racist, so anyone who defends the current system is a white supremacist.

    1. This translates out to “screw them guys…”

      The left only cares because it is not their ox…

      If the religious right were running Big Tech and was censoring lefties we wouldn’t hear the end of how corporations shouldn’t be dictating our free speech norms…

      Need an example? Wait until someone posts something about free speech at a university. Then comes the “what about religious schools” logical fallacy.

      Of course none of this is going to end well. So just enjoy the ride.

    2. Agreed. According to the left, Tom Brady is racist for defeating the (half) black quarterback of the Chiefs during black history month.

      (I’m not making this up!)

      1. Gonna need a cite on that one ’cause I’m pretty sure you’re making it up.

    3. All philosophies are chimeral and transitory, useful only as long as one small group of white people or the other win the election.

      Then their spouses can become investment geniuses and the rest of the world potter along as it always has.

  7. “speech of white supremacists” is the new not so subtle dog whistle of the left when it comes to speech. Of course we can’t have free speech because….insert “speech of white supremacists”….

  8. Hawley’s op-ed is hysterical and absurd.

    He hasn’t been cancelled.

    Read his op-ed and Manta’s response and you’ll see how ridiculous Hawley is.

    1. HA! Like the commenters here are going to read Prof. Manta’s op-ed.

      They already know what they know. Don’t need no “facts” or fancy book learnin’ to keep ’em from it.

  9. Congress could, consistent with the First Amendment, pass a law regulating social media platforms (or at least very large ones) in a manner similar to telephone companies and other public utiltiy common carrriers, including imposing a non-descrimination requirement.

    This seems very straightforward and I don’t understand what the fuss is. It would require Congressional legislation.

    I agree that Senator Hawley can’t get the courts to do it on his own by making some sort of tort or constitutional argument.

    1. Nope, it simply requires some results-oriented policy driven judges and justices to decide that they have had enough, and write a haphazard ill-supported rule that we all have to live with for 50 years. Once people get fed up, “text history and tradition” go out the window in favor of “get er done,” same as it ever was.

    2. A non-discrimination requirement means Twitter could not censor a tweet that promotes terrorism in a manner protected by the First Amendment. Are you sure you that’s what you want?

  10. As I read this two-sentence-long post, it started off intriguing with some potential for interesting First Amendment discussion, then quickly crashed and burned with utterly deranged ranting about “white supremacists” and “inciting violence.”

  11. I might agree, except for the fact that we have an oligopoly on communication openly colluding with people.

    Similarly, people who clearly do not fall into the “white supremacist” label have been attacked both on social media and campaigns to get them fired or even deactivate their bank accounts.

    These include comic book artists, Carl Benjamin, and countless other. The claim that they are white supremacists are often out of the blue, baseless, and boil down to disagreements over policies or even petty disagreement.

  12. The tech companies have the protection of section 230. They simply can’t pretend to be neutral platforms while at the same time editing their content, adding disclaimers, etc. They need to go one way or the other.

    1. They simply can’t pretend to be neutral platforms while at the same time editing their content, adding disclaimers, etc.

      Sigh. Yet another Twitter Law School grad.

      They need to go one way or the other.

      False.

  13. You debunked nothing. Either you don’t understand the term, or you’re betting on your sycophants to just jump on board and go with it.

  14. It also seems to me that Congress can regulate social media platforms in a manner between letting them be the owners of everything posted and complete hands off.

    They could, for example, require them to have written terms of service, terminate service only for violating the terms, and set up an external appeals process for people claiming that they were denied service without violating the terms, so that the conpanies are not the sole judge of whether the terms were violated.

    It could regulate in a number of ways that would impose more order without the government either imposing its own censorship rules or requiring laissez faire.

    1. They could also for example clarify that the users, and not the platform companies, are the owners of the content, and ensure that users don’t lose everything if they get into a dispute.

    2. Can the terms of service include the platforms censoring content they object to in good faith?

    3. Facebook literally has all of those things already.

  15. My concern isn’t that tech can or cannot censor content on their platforms. My concern is that the government is coordinating with tech companies to censor content that runs counter to government preferred positions. The government may not use a private enterprise to conduct actions the government is constitutionally prohibited from doing on its own. This binary argument that tech companies can or cannot censor is an oversimplification of the facts.

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