Daphne Keller, "Amplification and Its Discontents: Why Regulating the Reach of Online Content Is Hard"

Still more from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article (by Daphne Keller, formerly at Google and now at Stanford) here, but here's the abstract [UPDATE: link fixed]:

Discussions about platform regulation increasingly focus on the "reach" or "amplification" that platforms provide for illegal or harmful con­tent posted by users. Some have proposed holding platforms liable for amplified content, even if the platforms are immunized for simply hosting or transmitting the same content. This article discusses the serious challenges of that regulatory approach. It examines legal models that would (1) increase platform liability for amplifying currently illegal content, (2) increase platform liability for amplifying harmful but currently legal content, or (3) create content-neutral restraints on amplification. It suggests, using both U.S. First Amendment precedent and comparison to recent EU legal developments, that the first two approaches would raise serious concerns. It identifies potentially more viable ways forward, however, in content-neutral approaches grounded in privacy or competition law.

Comments

[Brett Bellmore]

Are you certain you've linked to the right article? You've linked to "Eric Goldman & Jess Miers, Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules" with your "here".

[Eugene Volokh]

Sorry, fixed, thanks!

[Brett Bellmore]

I have to admit that, at first reflection, the idea that regulating amplification of speech isn't, trivially, regulation of speech itself, and thus outside the bounds of what the 1st amendment would allow, seems sheer madness. It's like claiming you can't regulate publishing a work, but could distributing it to readers. Exactly like that.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I had never heard the term "amplification" in a legal sense, and it really is scary that any legal minds would even consider the concept. But the cynic in me wonders if any of the proponents argue that because freedom of speech and the press are called out separately, amplification is separate form speech, and therefore can be criminalized without violating the constitution.

It very much reminds me of the several idiot justices who saw nothing wrong with the CDC's eviction moratorium, or the ancient ones who eviscerated the Commerce Clause, or screwed up Slaughterhouse. What is the point of legal limits when the language can be repurposed to do anything you want?

Of course, IANAL and certainly don't understand the finer points of living constitutions and social justice.

[IPLawyer]

Whatever allows Trump back on Twitter, right?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

TDS, bro, get over it. I hope you're happy with Biden.

[Rev. Arthur L. Kirkland]

I am happy with Biden.

Try to enjoy the rest of the (settled but not concluded) culture war, clingers. I know I will.

[IPLawyer]

What does any of that have to do with my point?

[Brett Bellmore]

In this case, it would be more like, "Whatever gives us a pseudo-legal excuse to keep Trump off Gab."

Keller is making excuses for censorship. The real deal, mandated by government. But it's not really censorship, see, because she's not talking about preventing people from speaking, just preventing anybody from hearing them.

Not preventing the book from being in the library, but you can't put it in the index, people will only be able to read it if they stumble across it. And if they leave a note on the spine saying "Good book!" the library has to remove it.

[IPLawyer]

I would take it to serve the thought that if Twitter didn't amplify Trump's tweets, then they'd have no reason to ban him.

[Brett Bellmore]

But Twitter didn't"amplify Trump. If anyth6, they were throttling him.

[Brett Bellmore]

To amplify my own remark, 😉 a great deal of what the author is calling "amplifying" is just making content locatable, and allowing people to share it around.

While Twitter does actively promote some content, (Which would itself be the sort of editorial decision the 1st amendment protects!) they weren't promoting Trump's tweets. They were actively impeding their reach. But he didn't need them promoting him to have a wide reach, he was a controversial President; In what world wouldn't people want to hear what he had to say?

And that's why they ultimately banned him: People wanted to hear what he had to say, and Twitter didn't want them to hear it. TOS violations had nothing to do with it, Twitter routinely leaves violators on the platform, or invents specious violations to remove people they don't like, and the TOS are written to be vague enough to allow this, deliberately.

It was purely a result of their hostility to his politics.

[David Nieporent]

And that’s why they ultimately banned him: People wanted to hear what he had to say, and Twitter didn’t want them to hear it.

Weird that they waited until after he tried to overthrow the government, then, rather than doing it in 2015.

[Brett Bellmore]

Not the slightest bit weird that they waited until the last infinitesimal chance that he'd remain in office was exhausted. They're cowardly as well as censorious.

[rxc]

I have always thought of the freedom of the press as the freedom to distribute (and by its very nature, amplify) speech. If you are only allowed to say something that can only be received by people within hearing distance, then your reach is limited. Freedom of the press allows you to amplify your speech. It is a matter of technology, starting with the simple printing press, and then going on to recordings that can be duplicated (and distributed), to broadcasting, and now the internet. Freedom of speech and the press are all about amplifying ideas that people have in their heads.

[Stephen Lathrop]

On this article I find myself in agreement with Bellmore, and I am sure many others. What a terrible idea. But maybe it is worth reflecting where terrible ideas like this one—and plenty of others—are coming from.

You get ideas like, "amplification," when folks suppose, or maybe want to suppose, they are inventing something brand new, from scratch. Just spitballing, without regard for context. In this case, of course, context is what they are trying to put behind them. That is a motivation actually, one which should not pass unnoticed.

Thus, seemingly from nowhere, the nation got discussions about "platforms." There wasn't much agreement about what the term meant, and still isn't. No legal definition that isn't disputed. Likewise with Section 230, and its unreflective attempt to revolutionize the law of libel.

Brave new world, but we all get to invent it together—that is the tacit premise which underlies so many discussions now about the internet. It has not been a helpful premise.

This whole, "free speech and social media platforms," thing would be a much easier discussion if folks reminded themselves that what has actually been invented mostly involves hardware—and is kind of beside the point of EV's symposium. The part the articles focus on—what is actually interesting—is all about publishing, and its effects on the public life of the nation.

There is a giant context—historical, cultural, and legal— already in place to govern publishing. Some of the symposium articles, like Balkin's, take note of that. Other articles seem written from a point of view of, "What a great opportunity the internet has given us, to put the whole history, tradition, and legal governance of publishing behind us, and start over."

That peculiar dynamic deserves a succinct explanation, I think. Make it point to notice. There has for a long time been a developing tension in the nation, about first amendment law. Folks have begun to think differently about press freedom and speech freedom. Those are not endorsed and accepted alike. Speech freedom gets near-universal support. But many Americans today are quite hostile about press freedom, and open about it.

Comments reflecting that are common on this blog. That hostility tends to get expressed as anti-elitism, or egalitarianism—with publishing and press freedom correspondingly disparaged as elitist and anti-egalitarian.

Speech freedom, on the other hand gets celebrated. One form that takes is conflation—insistence that all expressive rights protected by the 1A are about speech, and nothing else. Folks who advocate that way are loath to agree that press freedom protects any activity distinct from self-expression on the internet. For them, all expressive rights get subsumed under speech, with an eye to assuring maximally egalitarian access to expression. It is an unfortunate tendency. It comes from hostility to press freedom, and it should not pass unremarked in a symposium such as this one—not when so much of what animates this discussion, and others like it, flows from that wellspring.

[Brett Bellmore]

I think this hostility to press freedom may, at least in part, be a product of the effort of the institutional 'press' to persuade the public that they, specifically, are "the press" the 1st amendment refers to. That it isn't the right of every American to freely use the instrumentality, "the press". But instead the right of journalists to be free.

To the extent they've succeeded, they've alienated freedom of the press from the average person, made it look more like a special privilege of the few, and not even a particularly liked or trusted few.

[Stephen Lathrop]

Q.E.D.

[ah....Clem]

test post