Is antitrust a remedy for Big Tech's suppression of speech?

A minidebate between Congressman Jim Jordan, Reason's Elizabeth Nolan Brown, and me

|

My story about Linkedin suppressing one of my posts has acquired a sequel.

Rep. Jim Jordan, the top Republican on the Judiciary Committee, recently accused Microsoft of being "out to get conservatives." In support of that claim, he pointed to LinkedIn's suppression of a short post of mine. In its entirety, it said, "The social media giants that won't let you say the 2020 election was rigged are the people who did their best to rig it: Hunter Biden laptop was genuine and scandalous—Daily Mail."

Rep. Jordan's complaint is part of his campaign against a half-dozen bipartisan Judiciary Committee antitrust bills aimed at Big Tech. He thinks the bills give Microsoft a free ride and fail to address conservatives' objections to Silicon Valley suppression of their speech. He called on the company to "explain Microsoft's basis for censoring user content about Hunter Biden [and] the origins of COVID-19" and to provide an accounting of LinkedIn content suppression decisions and standards in the last two years.

The letter generated a dissent from Reason's Senior Editor, Elizabeth Nolan Brown, who criticized what she called "Jim Jordan's flimsy crusade against Microsoft." She claimed that Rep. Jordan's examples of LinkedIn content suppression were "not all they seem," pointing out that "while one of Stewart Baker's LinkedIn posts about Hunter Biden was removed, multiple others on the same subject were allowed. 'I'm guessing that a lame algorithm is the real culprit'" writes Baker.)" She goes on to argue that even if Microsoft suppresses conservative speech, "it would have nothing to do with antitrust law," would be protected by section 230 and the first amendment, and that it is unreasonable to ask the company to provide information on its content moderation practices.

Ms. Brown is wrong on two counts. She's right that Microsoft "only" suppressed one of my posts. That's because, after the first suppression, I risked my account to make a series of posts that were titrated in an effort to figure out what the hell Microsoft was upset about. The company left up all of my other posts, only taking down the original for a second time. I concluded then and still suspect that LinkedIn was using some lame and overbroad algorithm that took down posts that used the word "rigged" too close to the word "election." But the fact that Microsoft's censorship was arbitrary and stupid is not really an excuse for the heavy-handed bias shown by adopting such an algorithm; it just makes it worse. What's more, as I said then, a lame algorithm is "the most charitable explanation for what Microsoft did. We don't actually know what standards it was applying, because it never told me; it has neither explained nor apologized. As far as I'm concerned, Jim Jordan's objection to the suppression and his questions about it are entirely on point. I'd still like answers.

Which brings us to Ms. Brown's second error. She's right that the government can't regulate Microsoft's speech. But she's wrong in thinking that we have no choice but to accept the market power that lets Microsoft exercise its own first amendment rights by suppressing the speech of thousands or millions of customers who disagree with Microsoft. If we think the marketplace of ideas is being constrained by a handful of dominant tech companies, as indeed it is, antitrust law is a perfectly appropriate tool to reopen that marketplace to more voices. Bigness may not always be badness, but when tolerating bigness means handing control of the national discourse to a few companies, we'd be foolish to ignore antitrust as a possible remedy.

Similarly, Microsoft's section 230 immunity is expressly dependent on whether the company acted in "good faith" and whether it limited its suppression to speech that is "obscene, lewd, lascivious, filthy, excessively violent, harassing," and the like. Examining how far Microsoft's actual practice has deviated from that legislative standard is exactly the kind of inquiry Congress ought to be conducting. The first amendment does not prohibit Congress from reconsidering a subsidy it conferred on social media twenty-five years ago.

NEXT: CDC Eviction Moratorium Extended Again

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. ENB wrong?! No way! And never twice in the same article.

    1. ENB never directly addresses the difference between the purpose of 230 (allow for user content without legal liability while giving hosts the ability to filter to the bad naughty stuff…for the children) and the current application of 230 (bad naughty stuff = whatever we don’t like).

      Plenty of people have argued for a rewrite of 230 which removes the unlimited filtering option that the tech companies drove a Mack truck through and replacing it with other options (like user driven filtering based on published algorithms). But ENB never wavers from 230 being sacrosanct.

      Well, it’s shitty law. It worked well for a while. Now it doesn’t because of loosey goosey language. Time for a change.

      1. Anti-trust takes a long time. It is a long term lawyer employment program. It has great uncertainty. It is likely unconstitutional.

        These platforms should be seized in civil forfeiture for the billions of federal crimes. They themselves have committed millions of crimes defrauding advertisers with fake viewers. Half their members are not human. Seize them, auction them off like the Ferrari of a drug dealer.

        1. When you have 90% of a market, you are a utilty. The electric company cannot turn off service to Republicans. This has hit the legal mainstream. This is just the beginning. It is as if people read the Comments of this blog for their legal concepts.

          https://www.ohioattorneygeneral.gov/Files/Briefing-Room/News-Releases/Filed-Complaint-(Time-Stamped).aspx

          1. ” The electric company cannot turn off service to Republicans.”

            Unless they can.

            1. Pretty sure that happened in Texas last winter, causing Ted Cruz to flee the state.

          2. If Trump tells his followers not to pay their utility bills (and you just know millions will gladly comply), can the electric company turn off their power?

      2. “Plenty of people have argued for a rewrite of 230 which removes the unlimited filtering option that the tech companies drove a Mack truck through and replacing it with other options”

        Dumbshit, it isn’t section 230 that allows tech companies (or anyone else) to filter your drivel off their platform(s). That power comes from ordinary property law.

      3. “…the difference between the purpose of 230 (allow for user content without legal liability while giving hosts the ability to filter to the bad naughty stuff…for the children) and the current application of 230 (bad naughty stuff = whatever we don’t like).”

        This is revisionist history. Here are the actual sorts of things that Prodigy was screening that turned it into a “publisher” (and resulted in 230):

        promulgation of “content guidelines” (the “Guidelines” found at Plaintiffs’ Exhibit F) in which, inter alia, users are requested to refrain from posting notes that are “insulting” and are advised that “notes that harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community, will be removed when brought to PRODIGY’s attention”; the Guidelines all expressly state that although “Prodigy is committed to open debate and discussion on the bulletin boards, … this doesn’t mean that ‘anything goes’ ”

        Why do you think private parties who host other content should not be allowed to ban anything they “don’t like”?

    2. Yeah, I know. I chuckled reading this blog post. The flaxen-haired harpy was eviscerated.

      1. The last chuckle will belong to the liberal-libertarian mainstream, whose march to victory in the American culture war will defeat essentially every conservative preference. If it takes an enlarged Supreme Court to eviscerate the clingers politically, so be it.

  2. What possible idea gives you the impression that a privately owned company has any obligation to publish your speech, or that any actions of a privately held company can constitutionally suppress speech. Read t.he Constitution, freedom of speech applies to restraint of government

    Speech is speech. You are more than welcome to shout our ideas at the top of your voice in the appropriate public place. But neither you nor anyone else is entitled to cause a private company to present your speech to the public, or even acknowledge it.

    Don’t like what big media is doing? Go ahead, start your own company, invest your own money, take the risks the entrepreneurs took and publish/post whatever you want.

    The attitude of entitlement and arrogance here, that what a person has to say is so important that private actors must be forced by government to publish it is so abhorent to the ideas of freedom and refrain from government control of private media that one wonders at the audacity of the people who even voice such ideas.

    1. The Constitution doesn’t confer on the phone company, FedEx, the cable company, and many others any obligation to carry you or your message either. But Congress has long been considered to have the authority to designate companies central to national communications as common carriers and impose an obligation to do so. Carrying your message, which starts out as your property, is very different from disseminating their own.

      And discrimination laws, while less general than common carrier laws, have long been applied to publishing. The First Amendment doesn’t protect a newspaper’s refusal to publish your ad because you are black and if only publishes white people’s ads. There is a big difference between the newspapaer’s news and editorial columns, where it publishes its own message, and the ads, where it publishes yours.

      Social media posting works much more like phones, FedEx, and newspaper ads than a newspaper editorial section.

      Section 230 is a policy choice, one Congress can revisit. The Constitution in no way requires it.

      1. “Social media posting works much more like phones, FedEx, and newspaper ads than a newspaper editorial section.”

        Why isn’t “Social media posting” more like moderating a message board or comments section like Reason.com? Or like hosting any website? (Social media companies that sell ads are already treated as sellers of ads for antidiscrimination purposes.)

        Section 230 may be a policy choice, but Stratton v. Prodigy was still wrongly decided. Merely removing posts on your server does not make you a publisher for defamation purposes, and if it does than the defamation laws have First Amendment problems.

        1. But they are not “merely removing posts” in a random way, they are editorializing and specifically disallowing certain posts on medicine, politics, government, etc. Therefore they are a publisher now.

          1. Should the proprietors of this blog — who moderate comments, albeit in a partisan, shabby, hypocritical manner — be responsible as publishers for defamatory content and violent threats in comments?

            I think not, but I am not a grievance-consumed clinger.

          2. Your “therefore” does not in fact follow.

          3. Selectively removing posts doesn’t make you a publisher anymore than being a bookstore that only sells books about pets makes them a publisher.

          4. “But they are not “merely removing posts” in a random way, they are editorializing and specifically disallowing certain posts on medicine, politics, government, etc.”

            Mostly, they decline to permit their platforms to be used to spout lies, bigotry, and threats.

            This really seems to bother bigots, liars, and jerks — who, we have learned, tend to be right-wingers.

          5. “But they are not ‘merely removing posts’ in a random way, they are editorializing and specifically disallowing certain posts on medicine, politics, government, etc. Therefore they are a publisher now.”

            I hang up on people who call my phone to sell me something, whether it be vehicle warranties, religion, or politics. This is not random. What kind of a publisher does that make me?

        2. I’m not following how treating a provider that removes posts as a publisher implies defamation laws have First Amendment problems.

          1. Start with the words “Congress shall make no law…” and then reconcile this with the fact that courts have allowed Congress to make some laws.

        3. “Section 230 may be a policy choice, but Stratton v. Prodigy was still wrongly decided. Merely removing posts on your server does not make you a publisher for defamation purposes, and if it does than the defamation laws have First Amendment problems.”

          Those First Amendment problems go away once you realize that the true meaning of “Congress shall make no law…” is “OK, sometimes Congress can make laws…”

        4. “Why isn’t “Social media posting” more like moderating a message board or comments section like Reason.com? Or like hosting any website? (Social media companies that sell ads are already treated as sellers of ads for antidiscrimination purposes.)”

          Go back to the start. Once upon a time shrouded in the mists of time, it was fairly common to have a bulletin board, a physical object, where people could staple or pin pieces of paper with various messages, mostly ads, for other people to see. These were common in employee break rooms, elevator lobbies, and other places where people could be expected to spend some time, possibly involuntarily. To simplify, let’s use an employee break room bulletin board as example. If Joe from the third floor posted an ad for his awesome 67 Mustang convertible, it was Joe’s ad and not the company’s ad. Joe posted it and if Joe forgot to mention that the roof leaks, you wouldn’t be able to sue the company for posting a deceptive ad. Your recourse would be from Joe, if he still had the money when you discovered the leak. Now, imagine that a competitor to the company sneaks into the breakroom and puts up some messages encouraging employees to leave their current employment and come over to work for the competitor. But it doesn’t work, because Stan the man(ager) notices the ads and takes them down before any of the other employees see ’em. Now, if you’re a judge, maybe the fact that the competitor’s messages were taken down and Joe’s message wasn’t taken down implies to you that the company intends to stand behind Joe’s car sale, and take on any liability that results from the car not being as advertised. The analogy you’d use was that the case was similar to the way a newspaper can take letters from readers, select some of them, and print them on their editorial page, thereby adopting the contents of those letters as their own editorial position(s). But that would be wrong. alas, once a judge does it, it becomes precedent for the next time, even if the first judge was wrong.

      2. But Congress has long been considered to have the authority to designate companies central to national communications as common carriers and impose an obligation to do so.

        Love that passive voice. Who’s doing this considering? What is the source of this authority?

        I don’t think Congress has any such authority; you can’t get around the first amendment just by chanting some magic words. Rather, there are certain entities that choose to act in certain ways to make themselves common carriers. But those are nothing at all like social media companies or other websites. Each of those hold themselves out as carrying goods indiscriminately. The social media companies on the other hand carry information, and do exactly the opposite of saying that they will do so indiscriminately.

        1. David,
          “I don’t think Congress has any such authority; ”
          And yet it has done so with no impediment being raised for decades.

          Just be honest. In this instance the media are suppressing speech that you disapprove of.

          1. I think you’ve badly misinterpreted this thread.

          2. “’I don’t think Congress has any such authority; ‘
            And yet it has done so with no impediment being raised for decades.”

            “We got away with it at the time” is a pretty crappy argument for the premise “we didn’t do anything wrong”.

          3. And yet it has done so with no impediment being raised for decades.

            Even if that were a valid form of argument, that’s just not the case. Congress may have designated some companies as common carriers, but that’s not the same thing as saying that Congress has the authority to designate any company a common carrier whenever it feels like, which is what I was saying that they don’t have authority to do. (Again, most common carrier issues relate to the transport of people or freight, for which the 1A isn’t at issue and thus Congress would have regulatory authority over pursuant to the commerce cause.)

            Just be honest. In this instance the media are suppressing speech that you disapprove of.

            That would be literally correct but misleading. I do disapprove of most of this speech. But that does not motivate my stance on the issue of forcing private companies to carry speech, which is about free speech and private property rights. (And indeed on the policy preference, I would prefer that these social media companies not engage in the moderation efforts that all the Trumpkins are having a tantrum about.)

            1. In the middle of the 19th century, Congress had a stronger handle on the railroads, because (many of) the railroads were built on land handed to them by the federal government. Much like the way that when Congress wants to stop people from saying Carlin’s seven words, they can only apply the rule to broadcasters, because broadcasters are using the public radio spectrum.

          4. “Just be honest. In this instance the media are suppressing speech that you disapprove of.”

            Surely, and the argument “and we get to use your stuff because we wanna” is just brilliant.
            Conservatives want to use Facebook because Facebook has a potential audience of millions. Facebook has a potential audience of millions because they put in the effort to build a potential audience of millions by providing a service that millions of people wanted access to.

            If that mean kid from down the block won’t let you use his football on the playground unless he gets to be quarterback, your choices are to either A) let the SOB be quarterback, or B) find another football. Alas, building a functional Facebook replacement would take time and effort, and conservatives can’t be bothered to learn how the tech works. So they whine about how unfair it is that they can’t use somebody else’s computers and software the way they see fit, without having the owners of those things looking over their shoulders and pointing out the things that just aren’t true.

        2. “Love that passive voice. Who’s doing this considering? What is the source of this authority? ”

          In practical terms, the army. As long as they continue to follow Congress’ wishes, Congress can do lots of things. The last attempt to tell Congress they couldn’t do something ended poorly in 1865.

          1. Not counting the attempt in January of this year, obviously.

  3. I’m all for taking an antitrust look at big tech, but no special targeting them based on right-wing whining.

    1. Baker, Jordan, and the like never seem to complain about tech companies such as Facebook adopting policies that lead to suppression of outlets like Mother Jones. I wonder why. And doesn’t Baker look masculine as he makes his way through the TSA line? (Sorry for the callback to a long, long ago Baker post…)

    2. I don’t remember much about my 10th grade report on Theodore Roosevelt other than that he wrote 50,000 letters, a large amount even by yappy presidential standards, and that he was concerned some companies grew so large they wielded power that properly should only be usable by control of democracy.

      There’s a lot I dislike about that position, but I’m not the political party that holds ideas like that and he therefore a heroic pioneer because of it.

      Again, we wouldn’t be here but for a year and a half of Democrats threatening to financially wreck these companies if they don’t censor harrassment, hey, my goodness, coincidentally our political opponents’ tweets are harrassing, will you look at that!

      Someone above mentioned harrassment as an escape clause allowed to be banned. Someone then realized they could threaten the issue if they don’t.

      It should be obvious to all now this, regardless of its intent, was converted to a set up.

      I encourage jailing for politicians who threatened companies with section 230 changes, elimination, or actual breakup, because they didn’t censor harrassment-oooh-our-political-opponents-harrass-quelle-surprise.

      1. You veer off into partisanship quite quickly here.

        That’s a tell you don’t actually care about the principles of antitrust, and are just grudge-settling for your tribe.

        Come up with a broad nonpartisan standard – one that doesn’t look tailored to target companies based on your victimization narrative – and we can talk.

        1. Republicans have had the support of big business for a long time. Trying to cut their taxes to zero buys you a lot of friends. That’s why it’s funny to see how angry they are when a big business doesn’t just automatically take their side. Hint: Once you cut their taxes to zero, the benefit of offering to cut their taxes some more diminishes.

  4. The Democrats screamed during their debates about how to wreck section 230 unless they did something about harrassment. Which translates into threats of hundreds of billions in potential stock losses for these teradollar companies.

    “And start with the harrassing tweets of our political opponents.”

    Which was done.

    So let’s stop the facetious lie these companies are doing this of their own free will.

    The solution is to not threaten them with section 230 changes, or breakup, to begin witb. This is regulating by raised eyebrow their lack of censoring opponents.

    Or would be, if they didn’t flat out state their goals.

    Then we wouldn’t be in this idiotic position of fighting fire with fire, of games of who can threaten to hurt the companies the most for censoring, or not, what elected politicians desire.

    Every candidate on that Democrat stage should be in jail for the temerity of screwing with the First Amendment in so brazen a manner.

    And, IIRC, the winner was Kamala Harris, who threatened additional legislation, if president, to hurt them directly. To heck with mere breakup or section 230 changes.

    And she’s just one fibrillating 80 year old’s heartbeat away from that position.

    America is like a foolish baseball team that lets the tying run get on base in the 9th of game 7 of the World Series.

    1. Finkel is right. Krayt and Baker are wrong. And there is no need for antitrust.

      The results are in. The government’s steroids-for-the-winners policy, courtesy of congress and Section 230, turned out to be incompatible with press freedom. It isn’t a legal problem so much as a practical one. The trouble isn’t in the editorial policies; it is in the business models. But getting those right turns out to be critical for press freedom.

      Take the market for ad sales, re-tailor it the way congress did with Section 230, and you get a surprise. Willy-nilly you create a new business model with power to wipe out a huge fraction of the nation’s news gathering capacity. What the nation did have was a press universe with thousands of publishers, all competing on every every imaginable axis to distinguish themselves. In their place, courtesy of Section 230, the nation gets a few gigantic out-of-control swill generators, competing primarily on the basis of size. Where private editing prior to publication enabled competition on the basis of content quality, gigantic publishing with no editing makes content quality irrelevant at best, and at worst, potentially detrimental to effective business competition.

      Nobody likes that. Everybody starts screaming for the government to jump in and nudge the publishing results this way or that way. Everyone focuses on controversies about editorial decisions. Almost no one notices that what changed everything was not editorial policy. It was that new way of doing publishing business. Congress unwisely enabled it, while trying—with the best will in the world—to vindicate a utopian goal to let everyone with a keyboard publish anything at all, worldwide, at no cost, and with no legal accountability. That goal turns out to be incompatible with press freedom, as the nation is rapidly finding out, but only slowly comprehending.

      There is only one proven safe haven for press freedom. It is a government dedicated to optimizing laws to foster profusion and diversity among private publishers—so many of them that almost any point of view can find an outlet, and compete in the marketplace of ideas. The nation had that, and Section 230—passed with the best will in the world, but with terrible judgement—wrecked it. Start working back toward profusion and diversity among private publishers. Repeal Section 230.

      1. Maybe I’m missing something, but it seems to me you’re elaborating on my point that antitrust is an appropriate remedy for Big Tech conversation dominance.

        1. You are missing the fact that antitrust is the wrong remedy, when the only thing needed is repeal of Section 230.

          With antitrust, it takes forever, and success is dubious. Repeal of section 230 is there for the taking. The time required to do it could as short as a day, and realistically would not take longer than one session of congress. Antitrust would go on for years.

          With antitrust you still have to repeal Section 230, or its baleful effects on publishing generally will continue. Antitrust by itself can’t do anything to stanch many of the publishing abuses which Section 230 enabled, and which are a separate concurrent cause for public demands that government censor publishers. A profuse and diverse internet press which still owned a license to libel with impunity, and to publish without prior editing, would continue as an ongoing cause of public outrage, and would still generate agitation for government censorship.

          1. “You are missing the fact that antitrust is the wrong remedy, when the only thing needed is repeal of Section 230. ”

            Why stop there? Just criminalize Internet usage, and all the problems on the Internet will fade away.

            1. That’s the point. Stephen wants to return to a world where incompetent 20-something journalism majors control all human information.

              1. He’s absolutely got a big ol’ bug up his ass about Section 230, but attempting to shoehorn his twisted logic into something rational doesn’t seem to work. I don’t think you can infer anything about what he wants other than for Section 230 to go away, and that was a freebie. I stand by the premise I wrote elsewhere. The people who want to repeal Section 230 either don’t understand Section 230, or don’t understand tech, or both. I’m going to put Mr. Lathrop’s irrational dread of Section 230 under the first category, of not understanding what that section does or why it does it, and that’s all the analysis needed to resolve that issue.

        2. “Maybe I’m missing something, but it seems to me you’re elaborating on my point that antitrust is an appropriate remedy for Big Tech conversation dominance.”

          Anti-trust is an appropriate remedy for trusts. If Usain Bolt won all those races by convincing the other runners to slow up, then applying anti-trust to sprint races will punish him for arranging for his competitors to underperform. If Usain Bolt won all those races by actually being faster than the other racers, then applying anti-trust to sprint races punishes Usain Bolt for being really fast. (or it correctly and properly has no actual effect) Are we suggesting that we should apply anti-trust to tech companies to produce no actual effect?

          the main source of “we should apply anti-trust to big tech” comes from people who either don’t understand anti-trust, or don’t understand tech, or both.

      2. “Finkel is right. Krayt and Baker are wrong.”
        Thank G_d, that we have a voice ex cathedra.

        1. Don Nico, that is called an “opinion.” In commentary, opinions are customary, even expected. I tried there, as I usually do, to offer my opinions with explanations, which I hope will prove persuasive—or, alternatively, which will elicit counter-arguments or would-be refutations. If that happens, something called a, “discussion,” might ensue. This time, in your case, no luck.

          1. “Don Nico, that is called an “opinion.”
            Opinions are like assholes, everybody has one, and most of them stink.

      3. “Repeal Section 230.”

        Funny how this is always your conclusion, no matter what the setup is. Section 230 does exactly what it was designed to do, what it was supposed to do. It allows Internet sites to use user-generated content without having to run it past the lawyers first. Coincidentally, this makes the cost of using user-generated content much lower, encouraging more businesses to do so. If you want to have the possibility of user-generated content, then S230 good. If you no want possibility of user-generated content, then S230 bad. We know which side you choose, we just don’t know what the stupid reasoning you apply is.

        1. Why isn’t Stewart Baker right that the problem is that courts aren’t conditioning Section 230(c)(1) immunity on compliance with the restrictions on editorial power in Section 230(c)(2)?
          IF social media companies were required to comply with the “good faith” requirement in (c)(2) to enjoy the protections of (c)(1), then Social Media companies would have to (1) inform users whenever they are censored (so no more shadow banning); (2) prove that there censorship rules (which can be whatever they want them to be) were clear enough to give users fair notice; and (3) enforce their clear written rules in a non-arbitrary manner.
          We still retain a form of social media, but social media companies cannot act like newspaper publishers pushing a narrative.

          1. “Why isn’t Stewart Baker right that the problem is that courts aren’t conditioning Section 230(c)(1) immunity on compliance with the restrictions on editorial power in Section 230(c)(2)?”

            Because there aren’t any restrictions on editorial power in Section 230. The “good faith” requirement is not an editorial power requirement. It is a prohibition against exercise of power that has nothing to do with editorializing substance. Banning conservative of liberal ideas on your private platform is not bad faith. That information may be “otherwise objectionable” to the platform’s host, merely for its content.

            But to your interpretive approach, the reason courts don’t treat 230(c)(1) as being dependent on 230(c)(2) is because that’s not how the statute is written. (c)(1) says they aren’t publishers, full stop. (c)(2) says no civil liability, full stop.

            The better question is why we don’t just repeal the “good faith” requirement in (c)(2) so it stops confusing all the fucking idiots.

            1. what is the purpose of (c)(2) (other than the algorithm provision maybe) if it wasn’t intended to be a condition for (c)(1) immunity? Absent (c)(2), you already have a First Amendment right to censor for any reason, in bad faith.
              i agree nothing in (c)(2) would prohibit the censoring of conservatives, but the good faith requirement should require them to adopt a rule first.

              1. (c)(1) relates to defamation law, functionally reversing Prodigy v. Stratton Oakmont, or at least its result.

                (c)(2) expands immunity more broadly to any civil liability, not just for defamation.

                Which makes sense. If there’s any basis for a “good faith” requirement it would only be for liability related to breach of contract between a social media platform (provider) and its users (information content providers). Go sue Facebook for violating the terms and conditions and argue about bad faith. But don’t argue about bad faith to make them a “publisher” for defamation purposes. There’s no reason for the two to be dependent.

                1. Well, there’s one reason. If you want to be able to override Facebook’s decisions about what gets carried on their computer systems, then you need a lot of help.

          2. “We still retain a form of social media, but social media companies cannot act like newspaper publishers pushing a narrative.”

            You wrote two paragraphs in response to my comment without addressing anything I wrote. And you wonder why I don’t think you know what you’re talking about.

          3. “Why isn’t Stewart Baker right that the problem is that courts aren’t conditioning Section 230(c)(1) immunity on compliance with the restrictions on editorial power in Section 230(c)(2)?”

            Best guess is because section 230 doesn’t say that (c)(1) immunity is constrained by (c)(2). The problem isn’t that the courts won’t read restrictions into the law that aren’t already there.

        2. James Pollock, private editors have rarely needed to consult lawyers to make editorial decisions about potential libel. It isn’t that hard. The option to not publish and err on the side of safety is available for close cases. To postpone publication and gather more facts is also a thing.

          Absent Section 230, it would be entirely possible to publish user-generated content online, editing everything prior to publication, and have a larger, more diverse, publishing community than ink-on-paper publishing ever afforded. The comparative economic advantage for the internet is overwhelming—no paper cost, no printing plant cost, no distribution cost. Those savings create a giant budget available to hire editors. But Section 230 makes taking advantage of that with edited publications nearly an impossibility. As you seem to acknowledge, no-editing publishing will almost always be able to out-compete edited publishing.

          Problem is, prior editing does require an editor to read what he is about to publish. What congress failed to think through before passing Section 230 was what the various consequences would be of publishing without prior editing, or how damaging to the nation’s public life. That is another way of saying that neither congress, nor the public at large, was much aware of the contributions to public life that unseen private editors had made continuously for generations.

          For instance, it is a safe bet that congress did not intend to wipe out a giant chunk of the nation’s news gathering capacity. Nor did congress intend to license libel with impunity. Congress had no special interest in promoting financial frauds. Congress did not intend to so concentrate opinion publishing that a few private publishers would become empowered to alter the tone of national political debate to suit their own preferences. Congress seems unlikely to have entertained the notion that Section 230 would enable and facilitate a conspiracy theory so outlandish that some wacko would be motivated to drive hundreds of miles to shoot up a pizza parlor. Congress was not interested in fostering a medium to publish world-wide the private animus expressed by embittered former spouses. Congress was not looking for a means to give unknown foreigners power to participate unaccountably in American elections. Congress did not have an intent to enable widespread acceptance of theories that vaccines might implant microchips in patients receiving them. Congress had no special desire to see unpopular school children publicly bullied in forums with unlimited readership. Congress certainly was not intending to promote among the public an unprecedented wave of demands for press censorship by governments. Looking ahead, I’m guessing congress will not be eager to take credit for the effects on national public life of perfected deep-fake techniques, deployed on purpose to discredit the very notion of public-issue debate among citizens.

          So post-Section 230, stuff is not happening just the way congress intended. Apparently the side you choose is the one that includes all that unexpected stuff, and a great deal more that is just as bad for the nation. Please pardon me for suggesting you are unwise to be calling anyone stupid.

          1. ” Please pardon me for suggesting you are unwise to be calling anyone stupid.”

            Your anti-230 rant is still bass-ackwards, no matter how many times you repeat it. If you don’t like being called stupid, stop saying stupid stuff.

            ” it is a safe bet that congress did not intend to wipe out a giant chunk of the nation’s news gathering capacity. Nor did congress intend to license libel with impunity.”

            They neither intended to do, nor did, either of these things.

            “Absent Section 230, it would be entirely possible to publish user-generated content online, editing everything prior to publication”

            You think editors work for free, and on a deadline measured in nanoseconds? THIS is why nobody pays any attention to your ranting.

          2. ” private editors have rarely needed to consult lawyers to make editorial decisions about potential libel. ”

            Publishers have. Maybe that’s because potential libel awards come from publishers, not editors.

  5. Microsoft’s section 230 immunity is expressly dependent on whether the company acted in “good faith” and whether it limited its suppression to speech that is “obscene, lewd, lascivious, filthy, excessively violent, harassing,” and the like

    “And the like” is doing a lot of work in your argument considering the statute reads “or otherwise objectionable.” Additionally, how else should “good faith” be interpreted except that the provider honestly believes the material to be “obscene, …, or otherwise objectionable”?

    1. Baker’s main point still stands section 230 conferred a benefit, benefits can be revoked.

      Or statutes can be revised to something more precise like say “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. But nothing in this section shall be construed to include topics of public interest and debate.”

      That would certainly have removed any good faith safe harbor for censoring news about Hunter Biden’s laptop, or the Wuhan lab leak, the utility of hydroxycloroquine, or ivermectin.

      1. “Baker’s main point still stands section 230 conferred a benefit, benefits can be revoked.”

        Liability limitation, for example?

        Exemption from taxation?

        Step-up basis?

        Snowflake-level exemption from generally applicable laws?

        This could be a great discussion. I hope we have it during the next couple of decades.

        1. IIRC religions are threatened with removal of tax free status for having the temerity to comment on politics all the time. Some around here no doubt cheer that First Amendment violation “work around”.

          Shut up, when talking about us, Religion. Right. Don’t comment on something We The People set up, democratic government, to control (ever larger and growing) segments of your life. Religion is a quaint lifestyle choice, don’t forget it! Do forget that You The People, though, told us, the power hungry, not to harm religion. Yes. Do forget that.

          I am the most virulent atheist around here. Some of my early works would stun the Good Reverand. But religion and politics aren’t just similar phenomena, not talked about at polite cocktail parties by the genteel. They are the exact same phenomenon.

          And I will give neither, two facets of the same evil, any succor in this debate. No peace until the last priest is strangled with the entrails of the last politician. Or vice versa.

          I can never remember.

          1. Your cult has odd beliefs.

          2. Generally speaking, religious institutions and 501c3 non-profits are free to discuss and promote issues, but not explicitly provide support for political candidates.

      2. There are two problems with that.

        The first is that there is no cause of action for censoring news. § 230 is not what gives websites the right to do so; the first amendment is.

        The second is that if § 230 were modified and somehow such a cause of action were created, that would be retarded. A baseball website has to allow speech on HCQ or face liability? Prof. Volokh has to allow comments that say that neo-nazis are “very fine people” or face liability?

        All Trumpkin idiots should learn about Chesterton’s fence before they start proposing laws they don’t understand to address problems that aren’t, instead of having a petulant fit that their Dear Leader crossed the line one too many times and got himself banned.

        1. David, are you a lawyer? STFU, you don’t know shit.

          1. You misspelled your own name.

        2. As I have said previously, Florida has created a cause of action for censoring material from candidates or journalistic enterprises, neither of which would lead to your hypotheticals. Additionally, whether or not the First Amendment secures a provider’s right to censor material is not settled law (the courts may or may not consider the providers to be common carriers).

          1. I know you’ve said that, but the people here aren’t talking about creating a cause of action; they think that simply repealing § 230 will allow them to sue. And the Florida law is narrowly targeted (which doesn’t mean I think it survives; quite the contrary), but § 230 applies to every website, from hundred-million-user social media sites to your grandmother’s quilting blog.

            1. Nieporent, you really suppose folks who call for repeal of Section 230 think it will let them sue and win if Twitter and Facebook will not publish their stuff? That never occurred to me. I thought it was just spite, like the same folks’ hatred of the mainstream media. But you could be right.

              1. They won’t have to sue. There won’t be Twitter and Facebook anymore. 4chan will survive, however.

              2. I don’t just suppose that; I know it, because they explicitly say it. (Indeed, even without § 230’s repeal, these people have filed numerous suits against these companies for banning content; those suits all failed on § 230 grounds, of course.) Which is one of the many reasons I push back against your claim that a backlash against Internet speech is a reason to end § 230; the primary backlash against § 230 has come from the right and is about demanding more speech, not less.

              3. “Nieporent, you really suppose folks who call for repeal of Section 230 think it will let them sue and win if Twitter and Facebook will not publish their stuff?”

                Why would any rational person attempt to predict what you think? I would actually strongly suggest avoiding following you down any rabbit hole.

            2. I can’t imagine how that law could survive a court challenge. As with so many of DeSantis’ actions, this is just political pandering.

          2. “Florida has created a cause of action for censoring material from candidates or journalistic enterprises”

            No, they haven’t. Unconstitutional statutes are void ab initio.

          3. “whether or not the First Amendment secures a provider’s right to censor material is not settled law”
            This turns out to be a much easier question than you imagine. The 1A does not secure a provider’s right to censor material. A provider’s right to censor material is rooted in property law, not the 1A. “It’s my stuff, so I get to decide who uses it and for what purpose”.

          4. ” Florida has created a cause of action for censoring material from candidates or journalistic enterprises”

            No. They pretended to do this, because this is something they don’t actually have the authority or power to do.

        3. You are steamrolling over obvious distinctions well known to the law. The whole point of antitrust is that it deals with players big enough to exercise control over the entire market.

          Just as an investment club can exclude whoever if wants but a national bank or broker-dealer on a stock exchange can’t, there is an enormous difference between a baseball fan site and an outfit like Facebook or Twitter.

          Facebook and Twitter operate more like telephone companies, airlines, and other common carriers than like a mom-and-pop social club. They are not in fact devoted to any specific subject. Their business is facilitating communications, exactly like a telegraph company, telephone company, cable company, railroad, or airline. They function like common carriers, not in any way like your hypothetical baseball fan club.

          Your argument goes to far, if it’s valid, then there can’t he any common carrier or discrimination laws in any business associeted with speech or communications. Mail carriers should have the right not to accept your mail if thwy don’t like you ‘cause First Amendment.

          This of course happened. There were cases where black families sued to attempt to exercise their rights, and the post office simply stopped taking their mail, completely preventing them from communicating with the court and resulting in their case getting dismissed, and the other colored people in the area being taught yet another lesson about who’s in charge. No fuss, no muss. Do you want a company like Facebook to have the power to do something like that?

          1. Facebook and Twitter operate more like telephone companies, airlines, and other common carriers than like a mom-and-pop social club.

            No, they don’t. They don’t act anything like the first group of things. First — as noted — airlines and most common carriers carry people or freight, not information. Second, telephone companies — even setting aside the fact that unlike Facebook and Twitter they have been granted monopoly status by the government in the past — carry private communications and hold themselves out as being passive, indiscriminate transmitters of such communications. Facebook and Twitter have never claimed to do that. Aside from the fact that they distribute public speech, they have always represented that they curate their content. Always.

            1. More correctly, they act like the phone companies that still publish yellow-pages do. They sell ads which covers the cost of providing a service to consumers. Then they protect their core business of selling ads, by limiting the contents of what they publish. If you don’t like the choices they made in their yellow pages, you are free to stop using their yellow pages, or even start publishing your own.

          2. Mail carriers should have the right not to accept your mail if thwy don’t like you ‘cause First Amendment.

            I mean, that’s pretty obviously wrong since mail carriers are the government and the government doesn’t have first amendment rights, whereas people do have first amendment rights against the government.

          3. Facebook and Twitter operate more like telephone companies, airlines, and other common carriers than like a mom-and-pop social club. They are not in fact devoted to any specific subject. Their business is facilitating communications, exactly like a telegraph company, telephone company, cable company, railroad, or airline.

            Their business only incidentally facilitates communication. Their business actually is assembling an audience, curating it, and selling the attention of that audience to advertisers. Those are things common carriers do not do.

            So Facebook and Twitter are not like common carriers, and are not common carriers. They are, instead, publishers. Publishers are the businesses which do the things with audiences and advertisers which Facebook and Twitter also do. Publishers, not common carriers, are the competitors which stand to be hurt by competition with Facebook and Twitter. If your competitors are publishers, you must be in the publishing business.

            1. Their business only incidentally facilitates communication. Their business actually is assembling an audience, curating it, and selling the attention of that audience to advertisers.

              No.

              1. Your disbelief doesn’t change the fact that this is what Facebook does. They sell your eyeballs to advertisers. YOU are not Facebook’s customer. You are their product.

            2. Stephen,

              Consider this hypothetical. Let’s posit a company that manages telephone communications similarly to a conventional telephone company. But instead of making money through charging subscriptions or per-minute charges per call, it makes money by recording customers’ phone conversations, analyzing the recordings, and selling customer telephone numbers to advertisers who can then make sales calls.

              Exactly as you say, this business model “only incidentally facilitates communication.” Exactly as you say, the company’s real business model, the way it makes money, is assembling and curating audiences for advertizers. Free-seeming communications services are merely a lure to bring those audiences in for curating, not the actual business model.

              Would it be your position that such a company — even if holding monopoly or near-monopoly power over all telephone services — would nonetheless not be a telephone company at all, ‘cause business model? And would it be your position that because this company is not a telephone company, all the various laws that make it illegal for a telephone company to use such a business model – not just common carrier laws, but laws against recording telephone conversations for use outside of the audience the customer designates without consent – simply don’t apply?

              My position is that Congress can completely outlaw Facebook and Twitter’s current business model, just as it has outlawed telephone companies from using such a model. Not only can it pass common carrier laws requiring them to carry all messages. It can pass laws prohibiting them from selling the contents of those messages to advertisers.

              In short, if it wants to, it can require social media companies to use a different buisiness model, e.g. sell subscriptions or charge by the message posted if they want to make any money. Or just go out of business if their current business model actually completely defines what they are, and is as inflexible, as you say. It would be totally within its rights to do so.

              It could regulate them exactly like a phone company if it wants. It could also impose some of the restrictions currently imposed on phone companies but not others. It can mpose any subset of those restrictions it wants.

              The current business model does not define reality. It is not set by or in any way protected by the Constitution. The constitutional rights of these companies does not depend on it. Their legal nature need not depend on it. Congress can require social media companies to completely change their current business model if they want to saurvive.

              1. One could similarly posit a railroad that procides free transportation services in exchange for having to listen to sales pitches along the way.

                Even though that company also makes its money from curating audiences for advertisers, not from providing transportation services, I suspect that if it tried to claim that its business model meant it was an audience-curation company, not a a transportation company, and none of the various laws regulating railroads applied to it, its claim would get laughed out of court.

                So, I think, should Facebook and Twitter’s claims that their business model somehow changes their nature for all legal purposes. These claims strike me as pretty much identical to our hypothetical audience-curation railroad claiming it is not a transportation company.

                1. One could similarly posit a railroad that provides free transportation services in exchange for having to listen to sales pitches along the way.

                  Even though that company also makes its money from curating audiences for advertisers, not from providing transportation services, I suspect that if it tried to claim that its business model meant it was an audience-curation company, not a a transportation company, and none of the various laws regulating railroads applied to it, its claim would get laughed out of court.

                  Not the same thing. The content on FB and Twitter is provided by the audience members, not the companies.

                  If I were tempted to use an analogy it might be an open mike night at a comedy club. Some people like to get on stage, others just want to listen. The owner provides the venue.

                  Still, I’m not convinced that all this reasoning by analogy gets us very far with regard to social media. Instead of arguing about whether the companies are publishers, or common carriers, or whatever, maybe we could apply first principles.

              2. ” Congress can require social media companies to completely change their current business model if they want to saurvive.”

                You’ll get unanticipated (and unwanted) side effects if they try. And minority parties don’t set Congress’ agenda.

              3. My position is that Congress can completely outlaw Facebook and Twitter’s current business model, just as it has outlawed telephone companies from using such a model. Not only can it pass common carrier laws requiring them to carry all messages. It can pass laws prohibiting them from selling the contents of those messages to advertisers.

                In short, if it wants to, it can require social media companies to use a different buisiness model, e.g. sell subscriptions or charge by the message posted if they want to make any money. Or just go out of business if their current business model actually completely defines what they are, and is as inflexible, as you say. It would be totally within its rights to do so.

                Your position is, to use a technical term, loony. I mean, you might be able to pick up Clarence Thomas’s vote for this wholesale evisceration of the 1A, but nobody else on the Court is going to pretend that the last two centuries didn’t happen.

                1. So you accept my hypothetical, that if company providing telephone services uses an audience-curation model than a subscription model, none of the laws regultijg telephone companies, including the ones prohibiting them from using such a model, would apply? Same with the company that has advertisers give sales pitches to passengers rather than charging for tickets, it’s not in the transportation business so transportation regulations can’t apply?

                  If you don’t accept the hypothetical, how can you explain how Congress has the power ro prohibit a telephone company or a railroad from usinf Facebook’s model, but not Facebook? You can’t.

                  The fact that uou didn’t bother trying speaks volume.

                  I think you have have a better answer than simply calling the argument “loony” and hoping your marks are sufficiently gullible to believe you.

                  1. Again, under your interpretation of the 1A, witetapping laws, which prohibit a telephone company from selling the contents of telephone conversations to advertisers, are not only completely prohibited by the 1A, but it’s loony to think that they could be constitutional.

                    Congress could tomorrow pass the equivalent of a witetapping law for the internet flatly prohibitting service providers from listening in on their customer’s messages and posts, with limited specific exceptions similar to the exceptions to wiretapping.

                    Or as a more limited measure, such laws could give users much greater freedom to designate who can and cannot see their posts, including prohibiting use of their posts for reasons they don’t want.

                    You seem to think Facebook owns the posts as a matter of natural law and this is somehow written into thr First Amendment. Not so. Congress can pass a social media user’s bill of right law that starts by saying customers own the posts, and proceeds from there. Surely the First Amendment doesn’t require non-owners to have a right to appropriate owners’ property for their own benefit. I stongly doubt a single justice would think such a law unconstitutional.

                    1. Congress could tomorrow pass the equivalent of a witetapping law for the internet flatly prohibitting service providers from listening in on their customer’s messages and posts, with limited specific exceptions similar to the exceptions to wiretapping.

                      I mean, this very argument — even to the extent that it’s correct — shows why your analogies are nonsensical. Unlike phone conversations, Internet posts are not secret; they are by definition open. Congress can’t pass a law telling Facebook that it can’t see Facebook posts, not because of the 1A, but because that just is gobbledygook.

                      You seem to think Facebook owns the posts as a matter of natural law

                      I don’t know what “owns the posts” means. I think Facebook owns the servers on which the posts are located. As a matter of natural law. Facebook doesn’t own the copyright in the posts, obviously.

                      Surely the First Amendment doesn’t require non-owners to have a right to appropriate owners’ property for their own benefit.

                      Um, yeah, that’s exactly the point. The “non-owner” here is the Facebook user. The owner is Facebook, and the property in question is Facebook’s servers. The First Amendment does not permit the government to force non-owners to have a right to appropriate owners’ property for their own benefit, when that benefit is speech. Miami Herald v. Tornillo.

                    2. “Congress could tomorrow pass the equivalent of a witetapping law for the internet flatly prohibitting service providers from listening in on their customer’s messages and posts, with limited specific exceptions similar to the exceptions to wiretapping”

                      Congress COULD do all sorts of stupid things. The fact that the courts have to periodically correct them about what they have the power to do should have cautioned you from making a “Congress can do it if they want to” argument.

                    3. “Or as a more limited measure, such laws could give users much greater freedom to designate who can and cannot see their posts, including prohibiting use of their posts for reasons they don’t want. ”

                      You might want to pop on over to 17 usc 106 to see what it says there.

                  2. So you accept my hypothetical, that if company providing telephone services uses an audience-curation model than a subscription model, none of the laws regultijg telephone companies, including the ones prohibiting them from using such a model, would apply?

                    I mean, you would have to cite an actual statute for me to analyze it and determine (a) whether it purportedly applies; and (b) whether it is constitutional to apply it. I can’t make a categorical statement about what “none of the laws regulating telephone companies” apply. But speaking generally, no, not in the context of speech you can’t simply force a company to adopt a business model that allows for a particular rule. I mean, seriously, think about what you’re saying:

                    You try to regulate a business in a particular way. The business successfully argues that the constitution forbids that regulation. So you say, “Aha! Well, then, I’ll just forbid the business from operating as it does, so that it can’t use the constitution for protection.”

                    Same with the company that has advertisers give sales pitches to passengers rather than charging for tickets, it’s not in the transportation business so transportation regulations can’t apply?

                    No, I don’t agree with the claim that a company that provides transportation is “not in the transportation business.” (That’s someone else’s claim, perhaps, but not mine.) “Transportation regulations” could indeed apply. But forbidding companies from speaking to customers is not a transportation regulation; it’s a speech regulation. One can’t hide a law forbidding speech in an industry-specific set of regulations and say that it’s just an industry regulation.

                    And I don’t even begin to understand how you can think your argument — “if we can tell a railroad X, how do you explain why we can’t tell something completely unlike a railroad X?” — makes sense.

          4. “The whole point of antitrust is that it deals with players big enough to exercise control over the entire market.”

            Uh, no. Members of a trust join up with other small players to form a trust that can exercise control over the entire market. Trusts can (and do) include both big and small players. The other flaw in your reasoning is that by just redefining “the market” narryowly enough, you can make even small players look big and scary.

            Tech markets tend to have network effects producing market leaders. This means, for example, that people wtill buy Windows even though there is an alternative that is literally free. Game publishers don’t support Linux because few of their customers are using Linux which causes few gamers to use Linux which causes few game publishers to support Linux. This is a homestatic system. Even if a few game publishers take on the expense of supportiing Linux, it won’t cause many gamers to jump to Linux because the rest of their games aren’t supported on Linux. Microsoft had to work an uphill battle to get all those game publishers to support Windows, when all the gamers were still using DOS. “network effects” means there’s a benefit to everyone using the same thing, and it’s a major reason why the United States doesn’t use the metric system like the rest of the world does. The metric system is better, but not ENOUGH better to justify the cost of changing out every tool in the whole economy. LibreOffice is cheaper than Microsoft Office, but not enough cheaper to justify the cost of re-training all the employees who already know MS Office but don’t know LibreOffice. “Network effects” is also why we all have QWERTY keyboards, despite the fact that the QWERTY keyboard was actually designed to slow down typists.

            1. “Network effects” is also why we all have QWERTY keyboards, despite the fact that the QWERTY keyboard was actually designed to slow down typists.

              Actually, that’s a myth.

              1. Which of these true things is a myth?

                1. Which of these true things is a myth?

                  “the QWERTY keyboard was actually designed to slow down typists”

                  1. It was, in the days of mechanical typewriters. Because typing fast on one of those will give you a jam, and nobody likes a jammed typewriter. Clearing jams is slow and tedious. If you were designing for speed, the faster speed would be achieved if keystrokes alternated between hands, and the most-commonly-used letters were under the default placement of the fingertips. The QWERTY layout does neither of these things. The three most commonly-used letters in the English language are all on the left end of the keyboard, and only one of them is located on the home row. Skilled professional typists using QWERTY layout can achieve and maintain speeds as fast as a third of that of typists trained in a more efficient layout.

                    1. You can be pointlessly overliteralist at times, but you don’t seem stupid. So surely you must realize that repeating a myth is not actually a rebuttal of the claim that it’s a myth. (And yes, I’m calling you Shirley.) There is no evidence whatsoever (I mean, you can find the claim everywhere, but not traced to any original source) that the Qwerty keyboard was designed to slow down typists to prevent jamming.

                    2. Apparently, I was wrong that nobody likes a jammed typewriter. There you are.

            2. Trusts are themselves players, and by definition big ones.

              1. In much the same way corporations are people.

          5. “Facebook and Twitter operate more like telephone companies, airlines, and other common carriers than like a mom-and-pop social club.”

            So it’s your conclusion that airlines don’t have the power to kick people off their airplanes? If you get drunk, and grab at one of the cabin attendant’s personal flotation devices, the airline will deplane you, and you will find that any other tickets you had with that airline will not be valid to provide you with travel, even if that particular cabin attendant is not working that particular flight. And there is nothing wrong with that.

            1. Or, if you engage in harassing or threatening speech (even if you are joking).

            2. Common carrier laws limit airlines’ ability to kick people off. Airlines can kick passengers off for specific reasons identified by law. And passengers have recourse if they think the airlines’ reasons were not legally permitted ones. There is no general right to accept whatever passengers one wants.

              1. “There is no general right to accept whatever passengers one wants.”

                Swell. The problem is, you’re using this in an argument over whether an airline can eject people, using force if necessary, from their airplane(s). Which they can, and do.

          6. Your entire analysis is jumbled because you’ve conflated antitrust and common carriers. Antitrust has to do with size. Common carriers can be small. Size has little to do with it. The salient feature of a common carrier is that they offer services to the public under a license/authority provided by a regulatory body.

            You may think that Congress should create an administrative or regulatory structure to manage how people speak. And if it had the power to do so, maybe Congress could transform a geocities website or Twitter into a “common carrier”. But Congress’s power is limited by the 1st Amendment.

            1. Congress creates a regulatory scheme with licensing and regulatory scheme, problem solved.

              A regulatory scheme providing common carrier status for large-scale internet messaging and publishing service no more “regulates speech” than requirements that movie theaters must meet fire codes and can’t serve whites only “regulates speech.” Such regulations have nothing whatsoever to do with speech content. That’s the fundamental flaw ij argumwnt that the First Anendment has anything at all to do with this.

              You don’t think that Congress can’t establish safety codes for messaging services? Security requirements, back-up requirements, bug-testing requirements before releasing new software, etc. etc. etc. similarly, it can require if it wishes that large-scale services meet non-discrimination requirements, includjng commij carrier requirements. It can clarify that measages and posts are the property of the message sender and poster, not the platform, just as it does with telephone services. It can prevent platforms from interfering with the owners’ property, including prohibiting them from selling information about that property to third parties, just as telephone companies are now prohibited from doing. Congress can prohibit social media platforms from ontaining and selling information about the contents of users’ messages to third parties, exactly as it prohibited telephone companies from doing so.

              Using the word “speech” doesn’t establish that any of this has anything to do with the CONTENTS of speech. Congress absolutely can define and protect consumers’ speech property rights if it wants to, and prevent non-owner parties from infringing on them. The idea that just because consumers happen to use a platform to facilitate their speech, the comstitution itself somehow gives the platform owners a right to assert ownership over that speech and use it for any purpose they want, and any laws protecting the platform users are aomehow first amendment violations, is looney.

              In the absence of law, of course platform owners can put anything in contracts they want, including a provision that if you use a platform for speech, the speech becomes ours. But Congress can pass laws making such a transfer of ownership illegal.

              1. “Congress creates a regulatory scheme with licensing and regulatory scheme, problem solved.”

                You’re one of those people who thinks “Congress shall make no law…” means “OK, Congress, make some laws…”, aren’t you.

              2. It’s doubtful that Congress can do to Facebook what it can’t constitutionally do to publishers like the Miami Herald. A requirement that a private company host speech it doesn’t want would run into Tornillo.

                Other regulations might be permissible, but dumb. I’m any event, Congress can’t bypass the First A by just saying “common carrier”.

        4. (c)(2) allows companies to adopt whatever censorship rules they want — but they should be required to enforce those rules in good faith. So if a knitting site wants to adopt a rule that prohibits discussions of Trump, that’s fine — as long as the rule is clear.
          And (c)(1) immunity should be (and I think was intended to be) conditions on companies agreeing to the good-faith limitation on (c)(2).

          1. Why can’t the solution be that companies are required to enforce rules consistent with their agreements with their users? Why do you think the free market is incapable of solving this problem?

            1. One of the neat features of owning things is that you get to exclude others from the property, at your sole whim.
              Over the centuries the law has evolved to imply a good number of exceptions to the rule, particularly for real property, but I think there’s a real reluctance to create any more.

          2. And (c)(1) immunity should be (and I think was intended to be) conditions on companies agreeing to the good-faith limitation on (c)(2).

            It was not. They are entirely separate provisions, with absolutely no linkage between them.

            1. No linkage? If the goal was to allow Prodigy to enjoy the same protections as CompuServe, then the provisions are obviously linked. And what purpose does (c)(2) play given the First Amendment protects the right to censor for any reason.

              1. No linkage. They are two independent provisions. There is, literally, in the text, absolutely no connection between them. Congress knows full well how to condition one thing on another thing. It did not do so with (c)(1) and (c)(2)(a).

                1. Two provisions under same subsection title.
                  (c)PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE MATERIAL

                  Context ought to count for something, however your reading of (c)(1) completely ignores context and instead myopically zooms in on one sentence reading it as though it has nothing to do with the rest of sec230. If the sentence you focus on were meant to be read so broadly as you claim, what purpose does the “good samaritan” text serve?

                  Moreover, how can you align your broad reading of one sentence with the findings and policy objectives that are stated in sec230?

                  (a)(3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

                  (a)(5)Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

                  Your reading of (c)(1) provides protection to ISPs that curate their content to the extent that they no longer offer a forum for a true diversity of political discourse but instead promote a narrow viewpoint. It gives the middle finger to the notion that Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

                  1. Two provisions under same subsection title.
                    (c)PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE MATERIAL

                    Context ought to count for something, however your reading of (c)(1) completely ignores context and instead myopically zooms in on one sentence reading it as though it has nothing to do with the rest of sec230.

                    That’s not how statutory interpretation works. Various canons of judicial interpretation tell judges that they can turn to titles and headings or context to resolve ambiguity. But there’s no ambiguity in (c)(1). It does not say “ICSs shall not be liable for someone else’s content if…” It says that they shall not be treated as the publisher or speaker of someone else’s content. Period.

                    And I like how you say “your reading,” as if this were some obscure or newly enacted law and I was asserting my personal view or prediction about how the law should or would be applied. It’s not my reading; it’s the reading of literally hundreds of courts nearly uniformly for a quarter of a century.

                    Moreover, how can you align your broad reading of one sentence with the findings and policy objectives that are stated in sec230?

                    […]

                    Your reading of (c)(1) provides protection to ISPs that curate their content to the extent that they no longer offer a forum for a true diversity of political discourse but instead promote a narrow viewpoint.

                    Setting aside that purpose does not override text, I align it by pointing out — as have the authors of the section, Wyden and Cox, in recent months¹ — that you misunderstand those findings/policy objectives. The idea was not that each individual website would have a diversity of political discourse, but that the Internet as a whole would. There will be some conservative websites, some liberal ones, some libertarian ones like Reason, some socialist ones.

                    ¹To be clear, like Justice Scalia I believe that text is what matters, not intent. I am bringing it up simply because you raised the issue of intent.

                    1. Mostly you make mostly fair points, and since courts have read it that way they may very well continue to do so . I do take issue with your “intent” argument. The intent in this case is written into the law, not derived merely from statements in Congress. Also I use “your reading” not in some silly pejorative sense, but shorthand for “the reading you subscribe to” and it would be tiresome to write that each time.

                      “The idea was not that each individual website would have a diversity of political discourse, but that the Internet as a whole would. ”
                      That is possible but again you have not explained why the need for “good samaritan” protection should even exist if each ISP was not thought to be a platform rather than a publisher. The protection only makes sense if Congress viewed ISP as naturally being platforms rather than publishers. The very sentence you cite over and over supposes a distinction between ISPs and Publishers.

                      One can also remove the tension between the policy statements and heading on one side and the unqualified nature of (c)(1) by taking into account that ISPs were not thought to be publishers but rather platforms. However it has not turned out that way. ISPs
                      have curated their content to the extent that they are in fact publishers by any other name rather than platforms. By their actions they are publishers and so liable if the curated content they offer defames someone.

                      Hammer: Hey “screwdriver,” how is it that all day long I see you pounding nails?

                      Screwdriver: That is just what I do, but what I am is a screwdriver.

                      “There will be some conservative websites, some liberal ones, some libertarian ones like Reason, some socialist ones.”

                      And each will be free to curate their content to same extent as any publisher while defaming their opponents so long as their heavily curated content is from a third person?

                      Lastly I do not think the commerce clause grants Congress the power to sweep aside the personal protection afforded to individuals by state libel laws. Those are long standing protections which existed prior to the Constitution. Could Congress declare that state laws punishing murder are a drag on commerce and as such no state may punish murder?

          3. Once again, comparing a Facebook or a Twitter to a knitting company web site is like, to use a mid-20th Century metaphor, comparing a couple of kids with walkie-talkees to AT&T at its height. Congress can distinguish the latter two just as easily as it distinguished the former. The knitting web site just isn’t a general communications service analogous to a post office or phone company that large numbers of people use for ordinary conmunications as part of their day-to-day lives. Facebook and Twitter both are. The difference is obvious.

            1. Facebook and Twitter are not communications services in the first place, let alone “general communications services.” Having large numbers of users is not what defines a common carrier. Facebook and Twitter are just bigger versions of the knitting blog. They do not transmit confidential speech for all users indiscriminately. They have never done so, have never held themselves out as doing so, have never promised to do so.

              There is no analogy whatsoever between Facebook and a phone company, other than both are things you seem to have weird ideas about.

        5. “neo-nazis are “very fine people””

          Nice allusion to one of your party’s most blatant lies.

          1. I’m not sure who you think “my party” is, but it’s absolutely correct. Trump expressly described the people on TV — people marching with tiki torches and saying “Jews will not replace us” — as “very fine people.” He subsequently, as incoherent as he is, then tried to walk that back and claim he wasn’t talking about those neo-nazis, but those were in fact the only people he was referring to.

            1. Very mendacious of you to push this particularly asinine hoax. Or maybe you’re just easily duped and don’t pay any attention to knowing what you’re talking about.

              Literally within the same minute of saying “very fine people,” he said “I’m not talking about the neo-Nazis and the white nationalists, because they should be condemned totally. But you had many people in that group other than neo-Nazis and white nationalists, ok? And the press has treated them absolutely unfairly.” So there in the same minute, he articulated very clearly who he was referring to, and who he was not referring to. And within that same minute he also explained that they were “People in that group who were there to protest the taking down of, to them, a very important statue.”

              Here’s the clip. Please, stop lying. https://www.youtube.com/watch?v=JmaZR8E12bs&ab_channel=CNBC

              For good measure, though I’m not sure it will make any difference to you, here’s the NYT’s reporting at the time:

              ““Good people can go to Charlottesville,” said Michelle Piercy, a night shift worker at a Wichita, Kan., retirement home, who drove all night with a conservative group that opposed the planned removal of a statue of the Confederate general Robert E. Lee.

              After listening to Mr. Trump on Tuesday, she said it was as if he had channeled her and her friends — all gun-loving defenders of free speech, she said, who had no interest in standing with Nazis or white supremacists: “It’s almost like he talked to one of our people.”

              Conservatives like Ms. Piercy, who have grown only more emboldened after Charlottesville, believe that the political and media elite hold them and Mr. Trump to a harsh double standard that demands they answer for the sins of a radical, racist fringe. They largely accept Mr. Trump’s contention that these same forces are using Charlottesville as an excuse to undermine his presidency, and by extension, their vote.”

              1. But you had many people in that group other than neo-Nazis and white nationalists, ok?

                Yes, but the problem is that this is not “ok.” It was a lie. The only people there were neo-Nazis and white supremacists (let’s not use euphemisms like “nationalists.”)

                And within that same minute he also explained that they were “People in that group who were there to protest the taking down of, to them, a very important statue.”

                Um, yeah, that’s my point. White supremacists are literally the only people for whom statues of Robert E. Lee are “very important.”

                I’m not sure how you think the NYT quote somehow supports your claim. “Conservatives like Ms. Piercy” are white supremacists. (“Good people” can indeed “go to Charlottesville.” What good people cannot do is go there to join an explicitly white supremacist rally — which this was — in favor of honoring a national traitor who fought in defense of black slavery.)

                For a counter quote:

                https://thebulwark.com/the-charlottesville-hoax-hoax/

                So when he says “very fine people” he is referring to a specific group of protesters, and not only does he keep emphasizing this, but he gets more specific about them.

                […]

                He keeps going back to this idea that there was a separate group of protesters that weekend in Charlottesville, ordinary people who merely opposed the removal of Lee’s statue, and he keeps giving that group a specific time and place: in Charlottesville “the night before,” that is, the night of Friday, August 11.

                Cortes claims that “Trump’s ‘fine people on both sides’ observation clearly related to those on both sides of the Confederate monument debate.” In other words, it was just a vague, general observation that good people can disagree on the issue. But as we’ve just seen, that’s not what Trump was saying. He was referring to a specific group of protesters present in Charlottesville on the night of August 11. And this was the context in which Trump denied that he was talking about white nationalists.

                […]

                All right, so who are these people who were just there to protest the removal of the statues? Who was the group protesting “the night before”?

                […]

                He is denouncing the Nazis out of one side of his mouth, then calling them “very fine people” out of the other. He is saying, in effect, that he condemns the white nationalists but also that the people marching with torches and shouting at the Jews were very fine people. Do you find that a convincing “condemnation”? Would you find it convincing if any other politician said it?

                […]

                What if there really was another group of protesters there that day, and that’s who Trump was referring to? Well, there’s the problem. No such group exists.

                1. No, having statues of Lee, or Washington or Jefferson, is not the same thing as being neo-Nazi.

                  But you know that.

                  1. No, but being a neo-Nazi IS the same thing as being a neo-Nazi. No matter what kind of statues they’re whining about.

              2. “Very mendacious of you to push this particularly asinine hoax. Or maybe you’re just easily duped and don’t pay any attention to knowing what you’re talking about.”

                irony alert.

    2. Given their record, I’d say the big platforms can’t rely on a presumption of good faith. They need to show that they apply their standards faithfully and openly. Let the sun shine in.

      1. As the law stands, I’m inclined to say the burden falls on those who claim a provider is not acting in good faith. On the other hand, I would not object to amending Section 230 to require providers to specify their standards for censoring material and not shield them from liability in cases where they do not meet those standards.

        1. And what if the standard they specify is, “Things we dislike”?

          1. A well-crafted statute could addeess that by stating that vague standards are unenforcible, and cannot be a basis for denying a user access or deleting a post. Judges would determine whether or not the standards were too vague.

            1. Are majority opinions written by Justice Breyer unenforceable under your proposed statute?

            2. “A well-crafted statute could addeess that by stating that vague standards are unenforcible, and cannot be a basis for denying a user access or deleting a post.”

              Sounds like fifth-amendment case waiting to happen. If you want to take private-property for public use, condemn it and pay full market value.

              1. Hate to beeak it, but discrimination laws, which similarly impose limitations on freedom of contract, aren’t takings. Nor are full common carrier laws, which are more general than discrimination laws.

                Same here. Regulating the use of property simply doesn’t deprive property of all economic value. You may take the position any regulation of property requires compensation. But that just isn’t the law.

                1. Taking the property isn’t taking the property. And you wonder why people aren’t taking your side.

            3. Why do you think that standard is vague? I think you mean it is potentially broad, not vague.

            4. Suppose you started a website called “Things ReaderY Likes”. Your policy is that you will allow people to comment on your website but reserve the right to delete any content that “ReaderY does not like”. You can’t enforce that? If you wanted to have such a website, how would you craft the standards?

              Say you started a website called “Knitting by ReaderY”. Your policy is that you will allow people to comment on your website but reserve the right to delete any content that “ReaderY does not think is germane to knitting”. Do you believe it is a good idea for Congress to place a determination as to whether a post is “germane to knitting” into perpetual judicial receivership?

              1. Say you started a website called “Knitting by ReaderY”. Your policy is that you will allow people to comment on your website but reserve the right to delete any content that “ReaderY does not think is germane to knitting”. Do you believe it is a good idea for Congress to place a determination as to whether a post is “germane to knitting” into perpetual judicial receivership?

                Exactly. And then someone posts a lament that Trump’s tariffs have driven up the cost of knitting supplies. ReaderY allows a couple of such comments, but then someone defends Trump’s tariffs by saying that they’re good for the economy and will make it easier for knitters to afford supplies in the long run, and ReaderY deletes this because it’s (a) economically illiterate; and (b) too far afield from knitting. And now a court gets to decide whether ReaderY is liable to the Trump defender either because the standard was too vague or because he was arbitrary in enforcing it? Why would any sane person other than the lawyers who’d be getting paid to litigate this think it was a good idea?

              2. Avain, you are conflating a personal hobby website with a public imterstate business functioning common carrier. It’s like using an example of Congress trying to regulate who I can take with me in my personal car as “proof” it can’t regulate who United Airlines chooses to transport, ignoring the obvious differences between the two which have been long recognized by the law. Antitrust similarly distinguishes between combinations that have wffective market power and those that don’t.

                Facebook is not a “web site” any more than a telephone company is a copper or plastics company. It is a communications carrier, using the internet to carry messages much as a phone company uses copper or plastics to make cables to carry messages.

                The issue here is not the business model, not the technology, not how a company conceives itself. It is its function, the role the business plays in aociety.

                1. We cannot have a productive fight if it’s just you and I arguing back-and-forth over terms. You insist that social media are like “functioning common carrier[s]”. I don’t agree. If you don’t like the personal hobby website, change the hypothetical so that “Things ReaderY Likes” is engaged in interstate commerce and sells advertisements based on traffic generated to your website or platform.

                  The issue, then, is whether Facebook is more like that commercial website or more like a common carrier. You’ve yet to provide a definition of common carrier that would apply to an entity like Facebook. I hope I don’t have to explain how Facebook is similar to the “Things ReaderY Likes” commercial website we’ve just discussed.

                  Why do you think Facebook is not a “web site”? If the answer is because it scales and is large, that does nothing for you since lots of large companies aren’t common carriers (like IBM), and lots of small companies are common carriers (like Southern Airways Express).

                  It seems you want the defining issue to be “the role the business plays in [society]” but you won’t define that precisely enough for us to discuss. Earlier you thought that Facebook moved people or goods generally available to the public, but that’s not true. (Facebook intentionally limits who its customers are.) No need to keep us in suspense, build the argument.

                  1. The rule in play is “I wanna be able to use other peoples’ stuff, even if the other people don’t wan’t me to.”

                    Remember when conservatives believed in private property and not having government take other peoples’ stuff away from them to give it to the conservatives?

                2. ” Antitrust similarly distinguishes between combinations that have wffective market power and those that don’t. ”

                  Which is why it won’t be effective at limiting the Big Tech companies any more than it already has. Big Tech got big because of network effects, not anticompetitive behavior.

                  “Facebook is not a ‘web site'”

                  This revelation will come as a surprise to anyone who knows what a web site is.

          2. Based on how Facebook audited itself over its actions with Trump, I suspect we would most likely see a more detailed policy.

            1. But maybe not one you like any better.
              If you don’t like the way Facebook censors things, build your own social-media network and censor it any way you like. The only thing holding you back is the fact that you don’t really understand how tech works.

          3. “And what if the standard they specify is, ‘Things we dislike’?”

            Or “things our customers don’t like”? or just go directly to the one they actually use “things we think our customers won’t like”.

      2. Whining right-wing authoritarians — especially those who contribute to hypocritical, White, male blogs — are among my favorite culture war casualties.

      3. Social media companies don’t decline to associate with conservatives because they are conservatives. They decline to appease authors of bigoted and dishonest content. This preference tends to affect conservatives disproportionately — not because the authors are right-wingers or Republicans but instead because they are lying liars and bigotty, bigoted bigots (racists, misogynists, gay-bashes, xenophobes).

        Compelling Twitter to host bigoted lies, or punishing Twitter for declining to associate with lying bigots, will not make conservatism more popular in America. Nothing will make right-wing positions more popular in modern America. That is the reality of being on the wrong side of history and the losing side of a settled culture war.

        1. “Social media companies don’t decline to associate with conservatives because they are conservatives”

          Social media companies decline to associate with conservatives, because conservative insist on promoting ideas that normal, decent folk find objectionable.

      4. The “good faith” requirement should encompass basic due process protections — fair notice, protection against arbitrary enforcement. By definition, a rule that says “we can censor you for any reason or no reason” is not a good-faith rule under any possible meaning of good faith.

        1. Why? What “definition” are you referring to?

        2. There is no such “definition.” There’s nothing bad faith about such a rule. It’s the exact rule I maintain for access to my home, for instance.

          And this is just a backdoor way of destroying the statute. There are several hundred million tweets and several hundred million Facebook posts per day. (Googling reveals various possible exact numbers, but the exact number isn’t important.) If these companies delete .01% of those posts, it’s tens of thousands of such deletions daily. If these companies had to provide “due process” for each of those decisions, they would have to take over an entire country’s judicial system first.

          FB has to provide “due process” for

          1. In shorter form, the process due for deciding that someone else isn’t allowed to use your property is approximately zero. Other people get to use your property as your sufferance allows.

          2. absent 230, the social media companies would have a right to censor for any bad-faith reason. 230’s good faith provision has to mean something. And it’s linked to censorship. in context, the only possible meaning is that the good-faith provision is intended to restrict the censorship power of social media companies. If companies could just adopt a rule saying it will censor for any reason, then it makes the good-faith requirement meaningless.

            1. “…absent 230, the social media companies would have a right to censor for any bad-faith reason.”

              If that were true, why would they need (c)(2) immunity in the first place?

              “If companies could just adopt a rule saying it will censor for any reason, then it makes the good-faith requirement meaningless.”

              No, it would just make the rule inapplicable to those companies. If the good faith requirement imposes any obligation, it has to be tied to the provider’s intent. And if their intent is to reserve all rights about what content can remain, that’s their business.

            2. “absent 230, the social media companies would have a right to censor for any bad-faith reason.”

              No. Ordinary property law lets me decide IF anyone else may use my property, and under what conditions, at my sole whim. But other laws impose some limits. Various bad-faith reasons have statutes that forbid or limit them. as an example, suppose a website operator is engaged in a pump-and-dump scheme with a specific penny stock… they allow posts that tend to make the stock look good, and remove posts that accurately describe the stock. This is perfectly fine by ordinary property law, but securities laws don’t allow pump-and-dump operations. Section 230 is entirely immaterial.
              Another example: Suppose I run a website that lets people post ads. Pimps use my website to place ads for prostitutes. I allow the ads from real pimps to stay up but take down the ads the local vice cops post for their sting operations. This is perfectly fine by ordinary property law, but will still let the DA charge me for promoting prostitution. Eventually the feds will knock on my door, too.
              Ordinary property law lets me decide IF anyone else may use my property, and under what conditions, at my sole whim. But other laws impose some limits.

  6. “If we think the marketplace of ideas is being constrained by a handful of dominant tech companies, as indeed it is, antitrust law is a perfectly appropriate tool to reopen that marketplace to more voices.”

    What “antitrust law” remedy did you have in mind? Breaking up Microsoft? To address their speech moderation?

    “Examining how far Microsoft’s actual practice has deviated from that legislative standard is exactly the kind of inquiry Congress ought to be conducting.”

    Why? You didn’t say.

    1. Companies such as these became so large due to networking effects they are basically substituting for the town square and newspapers combined. Antitrust would seem to be the only remedy to reign in such behavior.

      Smaller websites and elsewhere use different techniques to moderate, such as reason.com and Mute User, slashdot with karma and upvoting, etc. Usenet software once let you use killfiles to ignore people.

      There’s a degree of difference between the two. Large multinationals are not beholden much to EU or US ideals (except I note when it comes to autocratic societies where they bend the knee). Our choice is antitrust and legal remedies rather than force.

      1. Yes, I was just saying to myself the other day, “Self, the problem with the United States today is that LinkedIn is just too powerful.”

        1. You probably refuse to believe the election was stolen, that QAnon knows his stuff, and that Obama is a socialist Muslim from Kenya, too.

      2. An alternative remedy would be to regulate them as utilities. Network effects mean a monopoly is sometimes the most economically efficient form of organization, as long as it is regulated so it doesn’t abuse its monopoly power.

        Congress gets to decide which approach to take. The antitrust route is only one option. It could impose rules like common carrier status or viewpoint discrimination laws.

        1. First. Amendment. First. Amendment. First. Amendment. Congress does not get to decide which approach to take.

          1. First. Amendment. First. Amendment. First. Amendment.

            Pink. Elephants. Pink. Elephants. Pink. Elephants.

            1. Speaking of people who missed the point, here’s Vinni.

        2. There are, “viewpoint discrimination laws,” which can be applied against publishers?

          1. Absolutely. For example, try being a publisher who focuses on publishing books of photos of naked teenagers. Or one that focuses on publishing methods of hiding income from taxing agencies. There’s plenty of viewpoints whose publishers face legal suppression.

      3. “Companies such as these became so large due to networking effects they are basically substituting for the town square and newspapers combined. Antitrust would seem to be the only remedy to reign in such behavior.”

        The same network effects that made them big will eventually push them aside. Microsoft got big because, in their early days, they made a clearly superior product that pushed them to the front of the market in the field they then competed in, and this position gave them access to other opportunities. They made a series of correct parlays. They were already big when they started doing anti-competitive things, like using their control of the operating-system market to assist their attempts to capture the office-productivity market. On the other hand, by licensing DOS to IBM’s competitors, Microsoft made much of the modern PC business possible in the first place.

        The history of the tech industry gives plenty of examples of once-leading products that fell by the wayside. CP/M lost out to PC-DOS, which was pushed out by Windows NT. WordStar lost out to WordPerfect, which was itself replaced by Word. Lotus 1-2-3 was pushed out by Excel. Yahoo was pushed aside by Google. Myspace lost out to Facebook. None of these changes was propelled by government action.

      4. “Smaller websites and elsewhere use different techniques to moderate, such as reason.com and Mute User, slashdot with karma and upvoting, etc. Usenet software once let you use killfiles to ignore people.”

        All of which should be protected. For example, Redstate uses the technique where they delete posts of people who are outspokenly supportive of abortion rights. As is Redstate’s right.

        If it’s important to the government to have places where people can speak without filter, those places already exist. (4chan, for instance.) But if they didn’t, the government can create them, rather than improperly applying antitrust law to break up private parties.

        It’s also self-defeating. Because of the “networking effects” larger providers are far more likely to be forgiving of differing viewpoints, since they answer to a larger customer base. Cutting out conservative voices is easier for Mother Jones than it is for LinkedIn. Since there are already alternatives for any viewpoint group, cutting them out decreases the “networking effects” of a social media platform.

    2. There is a good argument that it’s anti-competitive behavior to snap up startups as soon as they start gaining traction and cutting into your market share.

      As examples it would restore some competition to the market to require Facebook to disgorge Instagram and WhatsApp, Google to sell YouTube, and Microsoft IPO LinkedIn and Skype.

      All of those were independent companies providing competition to the tech giants and were mostly bought because they were eating into market share.

      1. There is a good argument that it’s anti-competitive behavior to snap up startups as soon as they start gaining traction and cutting into your market share.

        Well, maybe, if they are making offers these companies can’t refuse. But if the transactions are normal, non-coercive deals, then I’m not sure it’s a problem.

        That said, I don’t really know much about these transactions.

        1. I am no antitrust expert, but not sure that is correct. I don’t think you can just buy up all the competition, even through non-coercive transactions. You occassionally hear that some large merger has to be approved by the DOJ or FTC. I believe for that reason.

          1. Well, that’s a good point, though I can think of two responses.

            First, how are they actually capitalizing on the acquisitions? If the objective is to increase or maintain monopoly power then you are correct. But is this what’s happening, or is it just the case that the acquirer wants to expand into a different market, and decides the acquisition approach is best?

            Second, how hard is it for new competitors to arise? Building a new social media platform is neither cheap nor easy, of course, but it is easier than building a more traditional kind of business.

            IOW, are they just playing whack-a-mole?

          2. ” I don’t think you can just buy up all the competition, even through non-coercive transactions.”

            You CAN buy up companies that form synergies with your existing business(es), unless you’re building vertical monopolies, or there are specific statutory barriers (such as exist for broadcasters.)

      2. There is a good argument that it’s anti-competitive behavior to snap up startups as soon as they start gaining traction and cutting into your market share.

        Agreed! Lets make antitrust a lot more muscular than it is today.

        But the trick is you don’t get to use it just to bash your enemy du jour, you need to apply it across the board.

      3. “There is a good argument that it’s anti-competitive behavior to snap up startups as soon as they start gaining traction and cutting into your market share.”

        You’re verging on anti-capitalist thinking, here. Microsoft earns a big pile of money and spends it on investments. What Microsoft product, exactly, was LinkedIn competing with before Microsoft bought LinkedIn? Having access to Microsoft’s cash reserves allowed LinkedIn to build new data centers to keep their systems operating. Similarly, how does owning YouTube alter Google’s core business, of arranging ad placements? (yes, that’s where Google’s income comes from.)

      4. “As examples it would restore some competition to the market to require Facebook to disgorge Instagram and WhatsApp, Google to sell YouTube, and Microsoft IPO LinkedIn and Skype.”

        Consolidation has pro-consumer effects, too. Traditional antitrust would evaluate whether the combinations lead to any provider having monopoly power. Why is that insufficient? Why do we need to expand antitrust to speech, as opposed to limiting monopolies?

  7. I wouldn’t call it a “remedy” as much as it is a “disincentive”.

    1. What it mostly is, is stupid.

  8. Companies have free speech rights per the Supreme Court, so I do not see how this is a problem to address legally. Change the first amendment if one wants to regulate what a company chooses to allow on their platform. If one does not like how a platform is addressing speech concerns, one is always free to use or start another platform. Isn’t that the libertarian approach to free speech?

    1. I would argue that section 230 is unnecessary because all companies have a free speech right to say or not say whatever they want, excluding first amendment exceptions. Even if it were repealed, they would still have the rights it purports to extend.

      1. Section 230 has nothing to do with the speech rights of a company.

        It protects the company from liability for what you post, not what they say.

        1. It protects the company from liability for what you post, not what they say.

          There are two operative provisions of 230.

          (c)(1) protects ICSs from liability for things other people post.
          (c)(2)(A) protects them from liability for taking down things other people post.

          Now, (c)(2)(A) is largely superfluous, but it does serve to preempt things like Florida’s law, for the avoidance of doubt.

          (Actually, there’s a third provision, (c)(2)(b), which protects people who “provide the technical means” for ICSs to moderate.)

      2. “I would argue that section 230 is unnecessary because […]”

        Because you don’t understand what section 230 does or why it does it.
        Prior to section 230, the default assumption was that an Internet site had total and complete control over everything that appeared on it, that if something was on an Internet site, it was because the site’s owner knew exactly what was on it and stood 100% behind it. This meant that if a site wanted to allow users to generate content, all the users wrote had to be vetted by the legal team before it could be visible to others. This is expensive and slow, and greatly diminishes the value of letting other people create their own content. It can be made workable if there’s already a natural delay, such as a daily newspaper or a monthly magazine. There’s time to receive the user-generated content, review it and make decisions about whether to run it or not. But the Internet is near-instantaneous, and there isn’t really time to review each user submission. Some sites do vet comments before making them visible to others. It’s destructive to the community-building effect when there’s a delay between when something is written and when other people can see it.

        The notion that repealing Section 230 will reduce censorship on the Internet is basically stupid and bass-ackwards. If I can be held liable for anything that’s on my Internet site, even if I didn’t write it, then nothing even vaguely actionable is going on my site.

        1. Prior to section 230, the default assumption was that an Internet site had total and complete control over everything that appeared on it, that if something was on an Internet site, it was because the site’s owner knew exactly what was on it and stood 100% behind it. This meant that if a site wanted to allow users to generate content, all the users wrote had to be vetted by the legal team before it could be visible to others.

          No, this is not an accurate summary. See Cubby v. CompuServe.

          1. Yes, that was an accurate summary.

      3. “I would argue that section 230 is unnecessary because all companies have a free speech right to say or not say whatever they want, excluding first amendment exceptions. Even if it were repealed, they would still have the rights it purports to extend.”

        We’ll just add you to the people who don’t understand what 230 does and why it does it. The core problem comes down to holding people liable for things someone else said. There’s a few (narrow) cases where this is fine. respondeat superior, say. but mostly an injured plaintiff should be suing the person that actually wronged him. Alas, there was a precedential case that got this wrong, and allowed a suit against the information service Prodigy for something a Prodigy user wrote. Section 230 overturns that court decision.

  9. I’d suggest Jim Jordan’s time is better spent continuing to protect and/or cover for child molesters. God knows that nothing he’s done in his role as a politician has contributed anything positive to America.

    1. Jordan really is a piece of shit. A stupid, smirking, lying asshole.

      1. Rep. Jordan is just a standard Republican, these days.

        Which is fine by me, because I enjoy winning the culture war and watching my nation continue to improve against the efforts of conservatives..

      2. “Jordan really is a piece of shit. A stupid, smirking, lying asshole.”

        Let me show you a shorter way of writing that: Jordan(R).

  10. Microsoft HQ is outside Seattle, WA, hundreds of miles from Silicon Valley.

    1. Silicon Valley is ALSO outside Seattle, WA.

  11. I find myself surprised that there aren’t more Section 230-piercing lawsuits, lawsuits claiming social media giants have acted outside the scope of Section 230 and hence are liable.

    Section 230 doesn’t appear to cover suppressing or labeling speech because you think if untrue or you simply don’g like it. If you aren’t within one of Section 230’s specific reasons, you are not shielded from liability.

    Let’s look at the text. “Obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

    The argument would be that just as CDC quarantine authority doesn’t cover any action whatsoever the CDC wishes to do, but only ones similar to the enumerated ones, “otherwise objectionable” doesn’t cover anything whatsoever the provider objects to, but only things similar to the enumerated ones.

    1. “Section 230 doesn’t appear to cover suppressing or labeling speech because you think if untrue or you simply don’g like it. If you aren’t within one of Section 230’s specific reasons, you are not shielded from liability.”

      It’s almost like Section 230 has nothing to do with whether or not tech companies may impose limitations on how their property is used.
      It’s amusing to see alleged “conservatives” arguing that the private property rights of businesses should be suppressed by the government. Because “free speech”!

    2. I find myself surprised that there aren’t more Section 230-piercing lawsuits, lawsuits claiming social media giants have acted outside the scope of Section 230 and hence are liable.

      The fact that something happens that you find surprising should be a big blinking sign indicating that you might be misunderstanding the entire topic.

      Section 230 doesn’t appear to cover suppressing or labeling speech because you think if untrue or you simply don’g like it.

      It does if you think that lies or otherwise distasteful content are objectionable.

      The argument would be that just as CDC quarantine authority doesn’t cover any action whatsoever the CDC wishes to do, but only ones similar to the enumerated ones, “otherwise objectionable” doesn’t cover anything whatsoever the provider objects to, but only things similar to the enumerated ones.

      That argument would be frivolous. The CDC’s authority comes from a statute; if it is not statutorily authorized to do something, it cannot do it. But an ICSs authority to moderate speech on its property does not come from § 230. It comes from the notion of property. So even if a court decided to hold that lies were not objectionable — a rather odd holding — there would be no source of liability for deleting lies.

  12. This is so fucking fundamentally dishonest. When you describe Microsoft’s potential violation of 47 U.S. Code § 230(c)(2)(A) you list every reason they may act in good faith to restrict a particular post except the one that would apply to you. “And the like” has a legal connotation that they are numerous other standards that could be implicitly extrapolated. Using that phrase makes absolutely no sense when it’s a one-for-one substitution of a unique reason, such as “otherwise objectionable” that could not possibly expect people to infer from the preceding list.
    The only reason to word it the way you did would be if you were intentionally trying to obfuscate the relevant facts in such as way as people could still believe you may have been wronged, which, legally speaking, you were not. Why else replace 1 very specific phrase with one intentionally vague phrase that man’s something very different than the actual meaning it had objectively.
    What’s more, it a lie to say that section 230 was extended by Congress as some kind of subsidy. Nor was it a tit-for-that agreement with any conditions as you also imply. You were just one last lie away from using every single dishonest conservative talking point on the matter that we always hear rattled off by people like Josh Hawley, speaking with a kind of ignorant indignation. Had you merely added the

    1. Your post is objectionable, therefore it should be removed.

      What makes it objectionable? I say so.

      Next.

      1. And if this were your blog you would be perfectly within your rights to remove it.

        1. Just ask the Volokh Conspiracy’s Board of Censors.

      2. “Your post is objectionable, therefore it should be removed.

        What makes it objectionable? I say so.”

        Your opinion on the subject is of no concern.
        On the other hand, if the good professor finds it objectionable, he’s perfectly entitled to remove it from the site that bears his name. That’s just another one of the neat features of owning something.
        He could also remove this one, if he chose to, although the irony would be intense.

      3. What’s wrong with that? Do you not think Volokh should be allowed to remove posts for any reason? Do you think you should be allowed to limit speech in your own home?

        1. “Do you not think Volokh should be allowed to remove posts for any reason?”

          I think it’s totally fair to criticize people who claim to be in favor of free speech who engage in censorship when presented an opportunity to do so.

          1. It is totally fair to criticize people who act inconsistently with their stated principles. But claiming to be in favor of free speech, but then moderating someone else’s speech on one’s own property, are not at all inconsistent. The concept of free speech does not include the right to speak anywhere at any time under any circumstance. I certainly claim to be in favor of free speech, but if you wander into my kitchen at 3:00 a.m. and start pontificating, I am going to firmly ask you to take it somewhere else. Somewhere not in my home.

            1. ” The concept of free speech does not include the right to speak anywhere at any time under any circumstance.”

              Unless it does. The speech is either free or it is not free. If it can be constrained by someone who doesn’t want to hear it, then it is not free.
              You make the common practice of confusing the principle of free speech, with first amendment law, as if they were coterminous.

              “I certainly claim to be in favor of free speech, but [not]”

              Yeah.

              1. The speech is either free or it is not free

                Nope.

                1. So you vote not free?

  13. …….As I was saying in my last comment that accidentally posted somehow, had you merely added the extra lie that this “cushy subsidy” extended by Congress to IT was that they received section 230 immunity on a non-existent promise to always use their ability to moderate in a politically neutral way. which, likee nearly the entirety of your post were right wing talking points to explain how you can pretend to give a fuck about individual liberty, free speech, free association and free markets while using the states monopoly on violence to deny those rights to others. You either believe in property rights or you don’t. Individual liberty requires that you respect private property rights when people use their private property in ways you don’t approve of.

    1. ” the extra lie that this ‘cushy subsidy’ extended by Congress to IT was that they received section 230 immunity on a non-existent promise to always use their ability to moderate in a politically neutral way.”

      That IS a lie. You made that up.

  14. That’s because, after the first suppression, I risked my account to make a series of posts that were titrated in an effort to figure out what the hell Microsoft was upset about. The company left up all of my other posts, only taking down the original for a second time. I concluded then and still suspect that LinkedIn was using some lame and overbroad algorithm that took down posts that used the word “rigged” too close to the word “election.”

    Yeah. That’s some real persuasive research there.

  15. It’s amazing how a bunch of people, including commenters here, are trying to deny or downplay the amount of censorship going on. I post very infrequently on social media regarding anything political or controversial, but even I saw half a dozen posts censored. Most of these were purely factual, scientific information relating to COVID. Among those who post frequently from a right-leaning perspective, most routinely get temporary bans. I’ve never heard of a left-leaning voice being censored, though I’m sure there must be a few.

    There’s a constant running joke across the nation about being in “Facebook jail.” If you are not aware of this, it’s simply because your social bubble is isolated.

    Easily millions of Americans have been banned or censored by Facebook et. al. for relatively anodyne and routine political speech. I think they are within their legal rights to do so, although, to be fair, Big Tech has given several billion dollars’ worth of in-kind campaign contributions to Democrats and that should be addressed.

    People can have a fair debate about the policy questions related to these issues. But the wildly irrational, uninformed people who insist on denying reality preclude themselves from reasoned discussion. It’s very peculiar that these people on the one hand maintain that Big Tech should be able to exclude whatever content they wish, but on the other hand start foaming at the mouth when you discuss instances of Big Tech doing just what they say should be no big deal.

    1. “It’s amazing how a bunch of people, including commenters here, are trying to deny or downplay the amount of censorship going on.”

      If you don’t like the way Facebook censors you posts, stop posting to Facebook. problem solved.

      1. Exactly right. So why do people who say the censorship should be no big deal try to deny that the censorship happens?

        1. ” So why do people who say the censorship should be no big deal try to deny that the censorship happens?”

          How the fuck should I know?

          1. You could try asking someone who denies that censorship happens, I guess, but then you’d have to take what they say into consideration, and that’s just not going to happen.

          2. “How the fuck should I know?”

            Why are you replying to my comment then?

            1. I was under the belief that it was addressed to me.

        2. Dimwit, when I say Facebook never censors me, I’m relating a true statement.

    2. “the wildly irrational, uninformed people who insist on denying reality preclude themselves from reasoned discussion.”

      Does the fact that you are such a person affect your opinion on this subject?

      1. Projection. As I recall you are one of those who tries to deny the censorship.

        1. As usual, you recall poorly.

          1. As I recall, you continually regale us with sordid stories of your youth, using newborn sheep and goats for your own sexual gratification.

    3. “It’s amazing how a bunch of people, including commenters here, are trying to deny or downplay the amount of censorship going on.”

      That’s because most of us think private parties should be allowed to censor views on their own property. I didn’t think this was controversial in conservative or libertarian circles, until the last 5 years. Which suggests that the conservative or libertarian outrage at Facebook is results- rather than principle-motivated.

      1. “That’s because most of us think private parties should be allowed to censor views on their own property.”

        As I just explained, but maybe not clearly enough — Believing that private parties should be allowed to censor views on their own property does not explain why one would try furiously to deny it when private parties censor views on their own property. On the contrary, it only makes it all the more bizarre. Capiche?

        1. If you believed that private parties should be allowed to censor views on their own property, what explains your attempts furiously to prove that private parties are engaged in censorship? What can we make of Stewart Baker’s attempts to do the same? If he complains about not getting to post on LinkedIn, how soon before he complains about not getting to shout his views in your living room?

          By the way, literally nobody is denying that social media companies delete content. WTF?

        2. “As I just explained, but maybe not clearly enough — Believing that private parties should be allowed to censor views on their own property does not explain why one would try furiously to deny it when private parties censor views on their own property. On the contrary, it only makes it all the more bizarre. Capiche?”

          These people doing such denying. could you identify just one?

          1. Just one. Any of the multitudes, just point one out.

            1. Funny. it’s been a couple of weeks, and still not one example.

    4. It’s amazing how a bunch of people, including commenters here, are trying to deny or downplay the amount of censorship going on.

      It’s amazing how a bunch of people, including commenters here, are trying to hysterically exaggerate the amount of censorship going on.

      If you think it happens a lot, maybe that says more about you and your circle of friends than about the actual frequency of it happening.

  16. “titrated”

    New word for me I’ll admit.

    1. It’s not pronounced the way you’re imagining.

      1. Nor is it a reference to cup size.

Please to post comments