Mark Lemley, "The Contradictions of Platform Regulation"

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 Mark Lemley, Stanford) here, but here's the abstract:

Everyone wants to regulate the big tech companies. The desire to regulate the private actors that control so much of our lives is understandable, and some ideas for regulation make sense. But the political consensus around regulating the tech industry is illusory. While everyone wants to regulate big tech, it turns out that they want to do so in very different, indeed contradictory, ways.

These contradictions of platform regulation mean that it will be very hard to turn anti-tech popular sentiment into actual regulation, because the actual regulations some people want are anathema to others. They suggest caution in imposing regulation and an awareness of the difficult tradeoffs that are involved. But they also suggest a way forward: introducing competition to reduce the influence the tech giants have over our lives.

Comments

[Archibald Tuttle]

Government is a blunt instrument. Government can either protect the industry or (heavily) regulate it.

There’s no such thing as a variable, dynamic, fine tuned, adaptable kind of government action.

[Sarcastr0]

Nonsense. Nuance is why agencies exist, and if they don’t always hit their mark, a lot of their rules do so.

Look at the FAA’s regulation of commercial space flight versus the EU’s version of the same – permission versus full licensure. A light touch versus a heavy one.

If anything, agency capture makes the government touch lighter than it should be.

[MatthewSlyfield]

“If anything, agency capture makes the government touch lighter than it should be.”

That depends on the nature of the capture and the nature of the agency. If you have big players vs small players, capture by the big players is more likely and you get heavy handed regulation that the big player can work around but acts as a barrier to smaller players being able to enter the market and/or compete.

[ah....Clem]

Here’s hoping that EV will make a post featuring Jack Balkin’s contribution to the journal, where he opines “…you shouldn’t regulate social media unless you understand why you want to regulate it.”

Lemley seems to be on the same page (disclosure: haven’t read the full article yet, but I have read several others from the journal) – there are thousands of voices calling for regulation, but it’s a cacaphony of differing remedies, most of which would be counterproductive to the stated aims of those advocating them.

I suspect there’s a cynical ploy by the major players to prompt legislation that raises the barriers to entry for social media so they can actually achieve the monopoly on discussion that they are nowhere near close to having now. Want to concentrate “…unchecked censorial power in the hands of a few companies”? Repeal sec 230 and let every small site with user generated content go bankrupt from defending mostly meritless lawsuits.

[TwelveInchPianist]

“Here’s hoping that EV will make a post featuring Jack Balkin’s contribution to the journal…”

I suspect that would be this

[Stephen Lathrop]

Repeal sec 230 and let every small site with user generated content go bankrupt from defending mostly meritless lawsuits.

Currently, the NYT publishes thousands of user-generated comments per day, presumably without much detriment to its editorial budget, let alone legal expenses. Assertions such as yours are popular, partly because they seem plausible to folks whose lack of editorial experience leaves them free to imagine a much worse editorial burden than is actually required, and maybe because there are interested parties who benefit from Section 230 and encourage that kind of thinking.

The fact is that notably more than 90% of current internet commentary is recognizable at a glance as opinion, and not subject to libel law. Whatever small residue an editor might encounter could be either dismissed as not worth the effort of proof, or set aside for further work if relevant factual assertions seemed dubious but interesting.

Actual legal consultation would be something few publishers would need to bother with at all, as long as they learned to recognize opinion, and err on the side of safety. Doing that would not notably change the character of internet commentary as you see it on this blog, or on most others. Note also, that with regard to libel cases, anyway, finding lawyers to bring meritless prosecutions is a pretty bootless task. It is typically research-intensive contingency work, with uncertain prospects of payoff. The possibility of immediate dismissal for a meritless case looms large. Lawyers don’t want to go bankrupt.

[David Nieporent]

Currently, the NYT publishes thousands of user-generated comments per day, presumably without much detriment to its editorial budget, let alone legal expenses.

That’s great. Do you know how many user-generated comments Twitter and Facebook have per day? Many orders of magnitude more than that.

Hell, Reason probably “publishes” thousands of user-generated comments per day, but Reason doesn’t have the budget of the NYT. The Volokh Conspiracy’s subsection of Reason alone “publishes” hundreds of user-generated comments per day, with no editorial budget.

[Voize of Reazon]

Stephen, since you say “thousands per day” I suspect you are talking about the NYT’s online user comments. They are protected from liability for those by §230 like any other website.

[Stephen Lathrop]

Voize of Reason, you make a good point. But so do I. Because despite that protection, the NYT reads every comment before publishing it.

Nieporent’s point above yours would be a good one too, except that he seems tacitly to endorse the giantism of the big platforms, which Lemley opposes, and, blames for many of the discontents now under discussion. If Nieporent wants to endorse that as a whole, he at least ought to say so forthrightly, instead of suggesting tacitly that size is somehow an excuse for not even reading stuff before publishing it worldwide.

[jb]

Your response to Nieporent addresses the large platforms but ignores entities smaller than the Times. Reason is probably not going to be able to hire people to read all of the user comments, nor are any number of even smaller operations on the Internet.

Importantly, though, user-generated content is only incidental to either the Times or Reason. The Times can do it because they generate revenue primarily based on other stuff they do, and the moderating the comments section is way less work than producing or editing the core product, which is the news content. In services, like YouTube or Facebook or Twitter are almost 100% user-generated content that would need to be moderated. The issue isn’t one of tech gigantism, it’s merely that you’re using an example where the user content is an uninteresting part of the overall business model.

Most fundamentally, though, assuming you’re right, removing Section 230 doesn’t actually solve any problem (other than maybe excess profits by the tech platforms). Let’s say you’re right and that it would actually be completely feasible for Facebook to human-moderate every post. So now no potentially libelous content is being published and no one can sue them. Do you think this will stop them from “censoring” vaccine information? No. If anything since they have a human looking at everything they’ll be even more inclined to remove points of view that they don’t like, and at the very least we’ll be more subject to the whims of the particular humans doing the moderation.

[Stephen Lathrop]

jb, excellent. I do not expect a national publishing regime without Section 230 would support internet publishing giantism. If it did, and if it resulted in the behavior you hypothesize, that by itself would deliver new opportunities for competitors to differentiate and compete. Let competition on the basis of content quality wear down the giants, if their lack of a special privilege does not do it first.

But no matter what, you will have to get over your sense that you own some kind of entitlement to have a market created by a private business put at your disposal for whatever you want to do with it. When you endeavor to make a contribution to a publisher’s curated audience, the publisher gets say over what you contribute, as part of the curation. The way around that is to encourage government policies to foster diversity, profusion, and antagonistic points of view among private publishers. That way, you probably won’t be stuck with an unsympathetic publisher when you want to contribute.

[DaivdBehar]

A Republican run electric utility should shut off the electricity to the servers of Facebook.

Reason is the Koch Brothers. They protect their own.

[DaivdBehar]

The Republican doctor should refuse to set the broken arm of the Zuckerberg kid.

Let’s deregulate all utilities.

[Brett Bellmore]

“These contradictions of platform regulation mean that it will be very hard to turn anti-tech popular sentiment into actual regulation, because the actual regulations some people want are anathema to others.”

Famously, Republicans are mad about being censored, and Democrats are mad about Republicans not being completely censored. So, yes, I can’t think of any regulation that would make both sides happy.

[ah....Clem]

Sigh. Republicans are not being “Censored”, despite the daily appearances on Fox, Newsmax, OAN, et al whining about alleged censorship, nobody is being censored at least in the US.

And Democrats are not advocating for Republicans to be “completely censored” by any stretch of the imagination.

Get out of your bubble, Brett. You are starting to sound like Dr Ed.

[Brett Bellmore]

Yes, advocates of censorship generally have denied that what they’re advocating IS censorship, ever since it got a bad name.

What you mean is that it’s not government censorship. And that might even be true, depending on how much pressure from government is driving it.

[ah....Clem]

If one de-Dr-Edifies your statement above, it turns into a quote from TFA, which I think is fairly accurate:

“For Democrats, the problem with section 230 is that it has allowed platforms to let misinformation and hate speech persist on their sites without doing much about it… For Republicans, by contrast, the problem is that the platforms already engage in too much policing on the Internet. ”

It’s a good article and well worth the read.

[David Nieporent]

“de-Dr-Edifies”

LOL.

[Brett Bellmore]

Yes, that sums it up: Democrats object to things they disagree with or object to being permitted to be published; They object to a shortage of censorship. While Republicans object to themselves being censored.

I don’t think anybody ever claimed something they wanted censored was true or desirable, so the fact that you characterize everything you want silenced as hateful or disinformation isn’t really saying anything meaningful, it was a given from the fact you wanted it censored.

[Kevin Smith]

Unfortunately, I think they will “compromise” on repealing section 230 and ostensibly allowing regulation, without passing any actual regulation. Then as soon as one part or the other has control of the government again, all bets are off and responsibility for regulating will be handed off to the FCC or some other agency, and we will see massive swings in enforcement every time the government changes hand

[Krayt]

Everyone wants to regulate the big tech companies. The desire to regulate the private actors that control so much of our lives is understandable, and some ideas for regulation make sense

I want to break the arms of politicians who glibly want to regulate them. We wouldn’t be in this position if a particular faction, realizing opportunity for anti-harrasement brownie points, decided to try to take it from voluntary social sanction arm twisting to legal punisment of companies that don’t actively censor harrassment.

Then, and follow me very carefully, they immediately leaned on them to censor their political opponents, right before an election, because their tweets were harrasing.

Proof? Glad you asked. The head of facebook stated he specifically would not be censoring politicians because it was important the people be able to see what their politicians say. And he caught holy hell for it, from politicians!

Why are people finding this hard to understand? Why are people going along with it as anything other than the raw evil of censorship, the primary tool of tyrants?

The value in the First Amendment isn’t in any particular blabber erupting from some loudmouth’s volcanic opening. It’s in denying the government the power of censorship.

[Greg J]

Dear big tech defenders:

Please stop beating up straw men. It makes you look unserious and stupid.

it also makes your position look pathetically weak, since if you had actual arguments you’d presumably use those, rather than beating up on straw men.

We do not need any regulation of social media companies to fix the problem of them censoring public debate.

We simply need to require that Section 230 only protects those entities that are not engaging in political censorship.

To back that up be give a private right of action to sue in Federal Court to anyone who’s been politically censored by a company that claims Section 230 protections

The affirmative defense against charges of political censorship is the production of objective rules, that were publicly stated at least two weeks before the censored items were published, that the censored post / individual violated

The affirmative defense against that defense is to provide one or more posts from a different political perspective that violated the same rules, but did not produce the same censorship.

A simple example:
I’m suing because you suppressed my posts about Hunter Biden’s laptop
We don’t allow posts about potentially hacked / illegally obtained material
You allowed the NYT to post its stories about Trump’s tax returns, and there’s no possible way it was legal for the NYT to have those

Case closed, social media company loses.

With $100,000 per censoring action, and loser pays (to block spurious suits) on legal fees, the problem completely goes away, no regulation needed

Or, we can just simply dump Section 230 altogether. Again, no regulators need, and no regulations needed.

Gosh, that means every single social media company gets crushed out of existence overnight?
I’m not seeing the problem here

[Rossami]

For someone accusing other of “beating up straw men” and “look[ing] unserious and stupid”, maybe you should look in the mirror first.

Your fallacy consists of glibly wishing away the very hard problem of deciding what is and is not “political” censorship as opposed to controlling phishing, spam or the equally-poorly-defined “misinformation”. In a world where “everything is political”, you just said that every company can get sued for anything always. Maybe you’d be happy seeing “every social media company crushed out of existence overnight” but that’s hardly a liberty-preserving outcome.

[Kevin Smith]

And it could easily backfire on Greg when the left gets to set policy and decides that removing misinformation is acceptable, even if the misinformation is ostensibly political in nature and then lean on companies to remove whatever the government wants anyway

[Brett Bellmore]

Actually, I think that if you give up on the category of “misinformation”, spam and phishing are pretty easy to identify.

[Brett Bellmore]

I don’t think we entirely want to dump Section 230, because lack of liability for content other people posted is pretty critical to the modern internet. It allows for the platforms to be fairly free, rather than consisting entirely of curated content.

The real problems come in with the section having to do with moderation; It turns out most modern platforms are simply unwilling to restrict their moderation to the sort of items immunized by Section 230, and actively want to moderate on political grounds, too. And that’s where the problem is coming from: Moderation on the basis of ideology, not harassment or obscenity.

Now, that section not only has to do with moderation by the platform, but also the availability of third party filtering applications. Which the platforms are supposed to be allowing, but in fact actively try to break.

I’d suggest stripping away the protection for moderation from Section 230, and leaving all moderation in the hands third party filter providers, with the platforms required to cooperate with them, rather than actively thwarting them.

That way you’d still have censorship of a sort, but the users could pick which censor they used, if any.

[ah....Clem]

“Moderation on the basis of ideology”

How sad it is that taking horse medicine, or drinking pool cleaner, or believing that there is a vampire pedophile ring active in the basement of a pizzeria that lacks a basement – to cite just three examples – are now ideological positions, but I suppose this is what a significant portion of the US has become.

Let’s call it the “Six impossible things before breakfast” ideology.

[Brett Bellmore]

How sad it is that once a President the platform hates lauds a medication, any favorable mention of it, even by medical professionals, becomes “disinformation” in desperate need of suppression.

[ah....Clem]

Brett, at the risk of letting reality upset your comfortable world view, the fact is that 70% of recent calls to poison control in Mississippi have been from people taking invermectin, aka horse de-wormer.

Symptoms include a rash, nausea, vomiting, abdominal pain, neurologic disorders, and potentially severe hepatitis requiring hospitalization.

And you think this is all about a “President the platform hates “.

Maybe, just maybe, you might want to consider that this shouldn’t be a partisan, tribal thing.

[Brett Bellmore]

I’m sorry, I wasn’t aware the platforms were only suppressing idiots who suggested you buy invermectin at Tractor Supply, and take a dose sized for a horse.

I thought they were just suppressing everything positive about it, including medical professionals talking about peer reviewed research during Congressional hearings.

[Kevin Smith]

“With $100,000 per censoring action, and loser pays (to block spurious suits) on legal fees, the problem completely goes away, no regulation needed”

And what do you call $100,000 fines per “censoring action” if not a regulation?

[jb]

LOL. You’re missing the whole point of the article. You’re repeating the complaint that conservatives have about Section 230 immunity and ignoring the complaint that liberals have about Section 230s have about it (which is completely the opposite–that they’re not censoring ENOUGH).

Everyone’s grumpy about Section 230, but not for the same reasons and with diametrically opposed solutions, so it’s extremely unlikely anything will change.

[jb]

“The affirmative defense against charges of political censorship is the production of objective rules, that were publicly stated at least two weeks before the censored items were published, that the censored post / individual violated”

Oh, also, here are our terms and conditions publicly stated well in advance of any removal: we reserve the right to remove any post for any reason at all, including that we disagree with its content.

[MatthewSlyfield]

“But they also suggest a way forward: introducing competition to reduce the influence the tech giants have over our lives.”

The problem with introducing competition in the social media sphere is that a big part of the value to users is reach. Even if you could force the creation of a plethora of competing social media platforms, it will quickly collapse back down to a small number of big platforms.

The only way to create sustained competition would be to force back end interoperability between platforms such that If I post on service A, that post will be visible to users on B, C, D, E….

[Brett Bellmore]

Pretty much, like there’s back end interoperability for phones.

Separate the back and from the front end, and the user could pick the provider for each that had the policies they liked.

[apedad]

There’s no right to “reach.”

[MatthewSlyfield]

That is of exactly zero relevance to my comment.

[jb]

FWIW, this sort of remedy has been discussed when it comes to, e.g., breaking Instagram back out of Facebook. You still want people who are on Facebook to see pictures posted by folks on Instagram, at least as a transitional mechanism and maybe permanently.

Having said that, I’m not completely convinced that social media platforms are any sort of natural monopolies. Everyone talks about Facebook and Twitter being monopolies, but also says they’re both crucial to getting out political messages. If so, aren’t they already competing against each other? More generally, if Facebook isn’t allowed to buy TikTok or whatever new platform comes along to grab most teenager’s attention, it won’t hold it’s dominant position for long; it likely would have lost huge amounts of market share to Instagram already if it weren’t allowed to have bought it in the first place, and TikTok is becoming increasingly more mainstream by the month.

[Stephen Lathrop]

The problem with introducing competition in the social media sphere is that a big part of the value to users is reach.

What you mean, without maybe noticing, is unearned reach in what you mistakenly take to be a giant marketplace of ideas. You want, “reach,” supplied for free by what you call a, “platform.” In fact, social media has done the work of assembling a (limited) audience for you, enriched in folks whom you can have little hope to influence, because they already think like you. It is an audience which deliberately omits everyone you might hope to persuade.

Your impulse is to ride piggyback, and not ever suffer your opinions to be tested and perhaps rejected by the actual, much broader and much tougher, marketplace of ideas. However useful that kind of competition might prove for the public life of the nation, or for you, you fear it, as your remark suggests.

You appear to want an unearned (and actually paradoxical) privilege to present your own opinions on a stage inordinately outsized in proportion to what most people have to contribute. That is utopian, because that ambition, shared universally, becomes self-defeating. Only a tiny minority, far less than everyone, can ever achieve—let alone expect, as you seem to do—outsized influence.

Nevertheless, you present yourself as eager to have that ambition sold back to you as illusion, by flim-flam artists. The, “platforms,” you admire stand ready to do that to you, and to your like-minded compatriots. Social media owners and managers will sell you a giant platform, deliver a constricted one, and drink toasts to your confusion.

Haven’t you even noticed the complaints from colleagues who surround you, howling for government to control what is being done to you? They are right to be upset. It is a shame they have no clue how fix their predicament.

Here is one hint. Turning to government to manage online publishing is unwise—extremely unwise. Don’t go that route. Put your faith in private initiative and free markets. Demand government policies which support that.

[MatthewSlyfield]

“What you mean, without maybe noticing, is unearned reach in what you mistakenly take to be a giant marketplace of ideas. You want, “reach,” supplied for free by what you call a, “platform.””

Nope, I meant nothing remotely resembling that.

[Stephen Lathrop]

Want to bring profusion, diversity and competition back to online publishing? It can be done without adding any new regulations at all. In fact, it can be done by subtracting one regulation. Repeal Section 230.

Don’t do repeal conditionally, with a requirement to do this or do that, in exchange for keeping the Section 230 liability-exemption. The notion of conditional privilege under government supervision is exactly what underlies many of the contradictions Lemley rightly cites.

Instead, do it unconditionally. Bring back to online publishing the shared liability among publishers and their contributors which Section 230 suspended. Apply it without exception, online, on paper, on the airwaves, wherever publishing is practiced.

Do that and you will shortly see a multiplicity of diverse smaller publishing firms replace the outsized giants which Lemley has correctly identified as products of Section 230. But contrary to Lemley, there will be no need to start submitting every online submission to lawyers to get approval prior to publishing.

That widespread objection has always been a red herring. Print-on-paper publishing coped successfully with a requirement to avoid libel not only in the materials it chose to publish, but in its letters to the editor, and in its advertising, while hardly ever requiring resort to legal counsel to advise on any particular item. That still happens, in offline publishing. It is not onerous.

For starters, notably more than 90% of current online publishing consists of nothing more than readily recognizable opinion (opinion recognizable to a trained editor, admittedly)—which however mistaken, occasions zero liability to publish. Thus there is no risk that repeal of Section 230 would require stifling internet discourse.

But make it a point to notice—the editorial attention required to read everything before publishing it, to police that small balance of potentially liability-inducing material, does a world of good for the public life of the nation—in fact, restoring that as a requirement for all publishers would resolve most of Lemley’s contradictions.

And while resolving those contradictions, it would restore to online publishing the longstanding practice of traditional publishing, to compete on the basis of content quality. That can never happen in a publishing world where all content gets published before anyone reads it. In that kind of world, even the most vicious libel can get published worldwide, and do its full damage, before the publisher even knows it did it.

With repeal of Section 230, the vast array of perfectly legal, but manifestly deleterious falsehoods, scams, scurrilous personal attacks, election frauds, private animus, hoaxes, anti-vaccination outrages, etc., would be greatly reduced by private editors who decided—on the basis of their own judgments, and by their various standards—whether contributions of that sort enhanced or degraded their publications. Those questions would not be decided by government censors with different agendas.

Even the worst kind of opinions and assertions would still find potential outlet, if for no other reasons than vigorous initiative by the proponents of swill, and the accessibility of the internet. But instead of going worldwide in one of only a few outlets available, those efforts would be brought forth in a genuinely competitive marketplace of ideas, featuring a plethora of private publishers, promoting diverse and antagonistic views, without government interference. Thus, the influence of bad speech would be checked by more speech—with all that activity supervised and managed privately.

For the public life of the nation, it would be a far healthier publishing regime. And it would be a regime freed of the current pressure for government censorship, or day-to-day government management of the publishing process. Disentangling publishing from that rapidly-developing pressure for government management ought to be the most urgent item on the internet-regulation agenda.

It is no accident that almost all of Lemley’s noted contradictions—together with most of the undoubted degradation of public discourse—were unheard of prior to passage of Section 230, and its gratuitously bestowed privilege to let any online publisher libel with impunity. What Congress failed to notice—and what many internet fans today either still do not notice, or sometimes vociferously reject—is that less libel was the smallest part of the benefit generated by the previous requirement to read everything in advance. In the larger context, that required editorial review became the occasion for competition among publishers based on content quality. And that in turn proved a boon for the public life of the nation, and for the quality of day-to-day information available to ordinary people.

Section 230 has been an enormously consequential enactment, and a blunder. It is time to recognize that, and get rid of it. Get rid of it not to promote any particular political agenda, nor to support this partisan objective or that one, but to end this baleful race to control public discourse for private advantage. And to reap once again—and because of the inherent efficiencies of the internet, to expand—the benefit of unfettered discourse which this nation previously enjoyed as an ornament of its civilization.

There will be no safe harbor for press freedom without profusion and diversity among private publishers. Only public policy which promotes that objective ought to be considered. Repeal of Section 230 needs to be the first step down that path.

[Brett Bellmore]

Your suggestion amounts to abolishing platforms with meaningfully user generated content. You’d take us back to the bad days when hardly anybody could actually be heard unless the powers that be approved of what they were saying.

“And that in turn proved a boon for the public life of the nation, and for the quality of day-to-day information available to ordinary people.”

Rather, what it did was assure that lies were consistent, and enable large scale preference falsification, where people who held quite common opinions could be deceived into thinking they were rare outliers whom nobody agreed with.

We’ve seen multiple preference cascades since the internet enabled people to bypass the gatekeepers, and the establishment’s illusion of public agreement on various topics was shattered. And people learned that their opinions on topics such as gun control were actually quite widely held.

You’d rob us of that, and give the establishment back the power to craft an illusion of consensus, and make people afraid to challenge it.

[Stephen Lathrop]

Brett, don’t spout nonsense. You may disagree with what I say, but please stop making up not-my-advocacy, with which you prefer to disagree, and attributing it to me. Here again is part of what I said:

But instead of going worldwide in one of only a few outlets available, those efforts would be brought forth in a genuinely competitive marketplace of ideas, featuring a plethora of private publishers, promoting diverse and antagonistic views, without government interference. Thus, the influence of bad speech would be checked by more speech—with all that activity supervised and managed privately.

Please explain how that view leads to anything like what you assert on my behalf. If you want to assert I am just lying, go ahead and say so.

If you want to suggest that remark expresses an impossible ideal, please explain why (absent Section 230) you yourself couldn’t become a publisher of any views you prefer, attract like-minded others to your cause, sell advertising, and get rich doing it.

[jb]

Hey look–Brett and I agree 100% on something!

[Stephen Lathrop]

jb, which is what? That 1A press freedom is an elitist detriment to the nation, and only unmediated populist speech has value? If I have misunderstood, and that is not what Brett is saying, could you or he please explain what I am missing?

[David Nieporent]

could you or he please explain what I am missing?

I mean, I’ve done so hundreds of times, and you still spout the same technically, economically, and legally ignorant nonsense over and over and over again, so what would be the point?

[Stephen Lathrop]

Nieporent, I concede that you have been monotonously repetitive. But the last time you delivered one of your supercilious chastisements, you came up with something new. You asserted that advertising sales have nothing to do with defining whether a business is a publisher.

Here is a thought experiment for you:

A state government, for some reason—maybe because it is run by right wing politicians hostile to, “mainstream media”—bans advertising sales by newspapers. A newspaper sues, alleging violation of the 1A press freedom clause. Of course, if what you say is correct, and advertising sales have nothing to do with being a publisher, that case should be a loser, right? The baffled judge should be wondering why the newspaper relies for its defense on what you call an irrelevancy, and throw the case out. Do you think that case is a loser? Please try to answer without dodging the question by asserting it ought to be a speech freedom case instead.

More generally, I remind you that the list of criteria I offer to define publishing is not alleged to be comprehensive. I have always conceded, from the first time I offered that list, that not all publishers would be covered by it. What I said instead was that it was a list of characteristics widely applicable to a large class of publishers, and that it would be very hard to find a business which practiced all the activities on that list which was not a publisher. The list was in fact based on a newspaper publishing business model.

I then proceeded to note that internet social media giants practice, point for point, all the activities on the list. Until you can come up with other examples of businesses which practice all those activities, but which are clearly not publishers, the ignorance is all yours.

For bystanders, here again is the list, in its most recent form:*

A publisher is a business which:

1. Offers expressive or informational content to the public at large.

2. Members of the public are at liberty to use the offered content or not, at their pleasure.

3. The publisher curates its public offerings with an eye to attracting an audience which predictably follows the publisher’s offerings, and whose members share characteristics which would-be advertisers hope to see among their customers.

4. The publisher monetizes its offerings by selling advertising to the intended advertisers, and also, often, by selling the curated content to its intended audience members—but some publishers allow the content to be used free of charge, in the interest of increasing the size of the audience advertisers are willing to pay to reach.

5. In the conduct of its business activities, a publisher competes in the market for audience, and by that means competes also for advertising sales. In those markets, competitive gains for one publisher tend to be competitive losses for other publishers. In short, a business which competes among publishers is recognizably a publisher because the class of businesses affected by its business practices tends to be the class which follow similar practices.

Readers are cautioned that Nieporent says that list is bunk. Readers are challenged, however, to identify notable businesses (leaving aside internet platforms, to avoid circularity for the sake of this discussion) which practice all the activities on that list, but which are plainly not publishers. If few or no businesses of that sort can be found, then I insist the list shows that so-called internet platforms are unmistakably publishers, and must be treated as such in any attempts to regulate them.

* Each time I re-write that list, I change it a bit, to account for context, or to add clarity, but it is largely the same list I have offered on this blog repeatedly.

[Brett Bellmore]

I am certainly NOT saying that 1st amendment press freedom is an elitist detriment to the nation.

Keep in mind that Section 230 is not mandated by the 1st amendment. It provides protections which are privileges, not rights. So taking those protections away is not an attack on 1st amendment press freedom. If it were, you’d be attacking them more than I, because I only want to modestly amend Section 230.

Currently, part of Section 230 reads,
“(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).”

My suggested language would be something like,

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider, provided that they do not obstruct third party technical means the user may utilize to restrict their own access to material that the user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

IOW, I would remove protection for platform moderation, and render the protection contingent on not obstructing efforts by users to utilize filtering software. The user should control the filtering, not the platform.

If the platform wants full editorial control, let them have all the liability of a traditional publisher. If they want these special protections, they can leave moderation decisions to the user.

[jb]

So, no photo sharing site is allowed to ban porn without becoming liable for defamatory content? Everyone just has to buy porn filters, and platforms have to all become PornHub so that everyone can post whatever nonsense they want on the Internet. Sounds like a big improvement.