Cybertoonz explains Netchoice v. Paxton

One of the biggest Supreme Court cases this year will be a Big Tech challenge to Texas and Florida laws that seek to impose limits and transparency on social media content regulation.  Silicon Valley argues that these laws interfere with Big Tech's first amendment right to "cull and curate" what other people say on their platforms. The Biden administration agrees, arguing in its brief that deciding what users can and cannot say is not censorship but the constitutionally protected exercise of editorial judgment: "The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users."

As a public service, Cybertoonz has boiled the argument down even further:

Comments

[Kazinski]

Not a bad distillation of the tech giants position.

[Mr. Bumble]

Picture worth a thousand words.

[Commenter_XY]

Concur. Very much on point.

[Nige]

Using atrociously bad big-tech AI art to show a big-tech guy with a megaphone growing out of his mouth, speaking to someone off-screen, his back to a bunch of people who have put tape over their mouths for some reason, while way at the back there's a section for people with congenital birth defects. It certainly does.

[Krayt]

Picture is missing a politician with a string tied to hundreds of billions of dollars in the company pockets, ready to yank, if these “free, private people” don’t play ball and censor “of their own free will” in ways the politician wants.

[Nige]

Also missing: any women.

[Mr. Bumble]

...and you know this because of their appearance?

[Nige]

Yeah. It’s AI. It ain’t subtle.

[Mr. Bumble]

No, you are assuming no women are depicted based on their appearance.

[Nige]

No, I'm assuming AI art is crap and Baker forgot women exist and are perfectly capable of performatively putting tape over their mouths to claim they've been silenced.

[Mr. Bumble]

What is a woman?

[Nige]

'When Mr Bumble enters a bar, whoever puts their hand over their glass is a woman. '

[Mr. Bumble]

By the way, you forgot to mention the lack of POCs.

[Nige]

Even you spotted that.

[Kazinski]

Because women aren’t Nazi’s.

But actually I see several figures that look like women to me including the figure directly to the right of the speakers elbow.

In any case any bias was Bings, because as Baker says in his later post his prompt was:
"Low angle shot of a male authority figure in a black t-shirt who stands and speaks into a loudspeaker in a large group of seated people wearing gags or tape over their mouths. Digital art lo-fi".

While he does specify the sex of the speaker, the rest was up to bing.

[Nige]

So Baker and Bing are equally at fault.

[Jerry B.]

Biden administration: Censorship is bad if we’re not doing it.

[Nige]

Does anyone happen to know if Truth Social has a moderation policy?

[Mr. Bumble]

Afraid ti visit the site and find out for yourself?

[Nige]

Prefer to just ask.

[Rev. Arthur L. Kirkland]

Biden administration: Censorship is bad if we’re not doing it.

The Volokh Conspiracy: Censorship is bad (and please disregard our blog's viewpoint-driven censorship).

[AmosArch]

The Left might have a better argument defending a laissez faire policy toward tech giant censorship if they didn’t oppose laissez faire in practically every other circumstance where they don’t benefit from it. And turn around the next day and demand even more censorship than even the far left tech giants themselves want.

[jb]

The right would be better off demanding regulation on this topic if they weren't so laissez-faire on everything else.

Almost all the time if you accuse someone of being hypocritical but yet you have the exact opposite set of views, you're a hypocrite too!

[Michael P]

That argument probably sounded clever in your head, but you might want to consider what it says about your position that you think government-driven abuse of civil rights should inspire more government regulation across the board.

[jb]

Weird take. I didn't propose any government regulation across the board, and this case (even as presented in the cartoon) has nothing to do with government-driven abuse of civil rights. But keep having a fun argument with yourself, I guess.

[David Nieporent]

The MAGA right might have a better argument defending these laws if these laws weren't so incredibly fucking stupid that nobody except Andrew Oldham actually thinks that they have anything to do with "censorship."

[Reallynotbob]

So when the local newspaper doesn't publish my letter to the editor, that's censorship?

[The Margrave of Azilia]

The U. S. government isn't partnering with the social media companies to practice censorship.

In an unrelated story, the U. S. government is in court to defend social media companies' right to practice censorship.

[Noscitur a sociis]

I remember when conservatives thought the government defending citizens’ civil rights was a good thing!

[The Margrave of Azilia]

The right to comply with the censorship "requests" of the federal government.

And of course the governments of Germany, India, and...am I leaving anyone out, oh, yes, China.

[Randal]

Is calling every editorial decision “censorship” the right’s version of calling every reference to race (by white people) “racism”?

Mom, my teacher censored my spelling of “wetahded”!

[Noscitur a sociis]

You don’t think the first amendment protects the right to agree with any of those governments?

[Davy C]

You think they *actually* agree with those governments?

[The Margrave of Azilia]

They're perfectly free to post an image of a rippling red flag over which the face of Xi is superimposed, with the caption "we totally love China!"

But should China be able to get dissidents' accounts closed, or get criticism of their regime censored?

[Josh R]

The cartoon begs the question (whose speech is it), and as such is not persuasive. You would do better to argue why the speech is not the provider's rather than assuming it is.

[ConservativeProfessor]

It’s a cartoon that contains an assertion. It is thus not an argument, and thus it cannot be question begging, a type of fallacy that can only be had by arguments.

If platforms are exempt from liability under sec. 203, since they are not responsible for content created by others on their platform, then they are not the speakers. Fair enough. On the other hand, once they shape, form, edit, change, direct any content, they now have a causal relationship to that content and sec. 203 should not exempt them anymore.

So, once platforms exert editorial control, they become de facto publishers, even for content that they allow, since by allowing some and disallowing others they are in fact editing.

This will, of course, have a devastating effect upon platforms and their business models. But that’s good. The world would be a much bettter and humane place where editorial discretion and care accompanies content creation. Right now they are artifically severed so that platforms get all the benefits of control with none of the liabilities. That has to change.

[Josh R]

Quoting from the OP (my emphasis):

As a public service, Cybertoonz has boiled the argument down even further

I have sympathy for the idea that Section 230's liability protections should be lessened if providers can take down content, but not for the idea of complete exposure to liability. There are too many posts the providers cannot be aware of.

[David Nieporent]

I have sympathy for the idea that Section 230’s liability protections should be lessened if providers can take down content,

That is utterly nonsensical. The entire point of Section 230 is to protect providers taking down content. It's like saying, "I think judges should be immune from suit for their rulings unless they make bad rulings."

[Josh R]

Of course that's (full liability protection) the point of Section 230. I am merely expressing sympathy for the argument "the point" goes too far. Perhaps, exposing providers to liability for things they know about, while maintaining liability protection for things they don't is a better policy. Perhaps not. But, the idea is not nonsensical.

[David Nieporent]

the idea is not nonsensical.

That's what the law is without § 230! So it's pretty nonsensical to say that 230 should be interpreted or rewritten to make it have no effect at all.

[jb]

Eh. That’s arguably what the law was supposed to be about before Section 230, but Stratton Oakmont vs. Prodigy turned that assumption on its head.

But I agree that Section 230 says what it says, and literally the whole point of 230(c)(2) is that you don’t become liable for some content by taking other content down. So everyone arguing that the platforms should lose 230(c)(1) publisher immunity by taking content down apparently hasn’t bothered to read the next paragraph in the law.

[Jonathan Affleck]

The technology has changed. Section 230 is dead letter law for all but an ISP. A 2023 social medium platform unlike a 1996 ICS is purely a common carrier. Section 230 did no more than extend common carrier rules to the non-common carriage services of a 1996 ICS. A 2023 social medium platform is not an ICS but is purely a communications common carrier. It does not need Section 230. It can remove unfit bailment in a POV-neutral fashion but is completely subject to Section 202, 206, 207, 208, 209 and other Title 47 statutes that address a communications common carrier even if the 2023 social medium platform is not an FCC-regulated telecommunications carrier.

[Josh R]

I thought the law without 230 was providers which modify third-party content are liable for any and all content they host, even content they are unaware of (publisher model of liability). 230 treats providers as platforms (no liability). My thought was to modify 230 so providers are treated as distributors (notice and takedown liability).

[Noscitur a sociis]

If platforms are exempt from liability under sec. 203, since they are not responsible for content created by others on their platform, then they are not the speakers. Fair enough. On the other hand, once they shape, form, edit, change, direct any content, they now have a causal relationship to that content and sec. 203 should not exempt them anymore.

The whole point of what you’re calling “sec. 203” is to allow websites to engage in this moderation without assuming that liability.

[Randal]

At least you acknowledge that the alternative is no Facebook or Twitter (or Reason), not some impossible fantasy where there's no moderation but social media still somehow remains viable.

[jb]

And the result, of course, is much more explicit gatekeeping than the platforms are providing today.

[ObviouslyNotSpam]

In other words, more censorship.

[bacchys]

The publisher or platform distinction isn't relevant. It's a red herring pushed by liars like Ted Cruz because Congress enacted Sec. 230 in order to encourage internet companies to censor user-contributed content.

[Jonathan Affleck]

Congress merely extended traditional common carriage rules to the non-common-carriage services of a 1996 ICS.

Here is the list, which describes materials that can be removed according to Section 230: "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

"Otherwise objectionable" is a catchall phrase and by the principle of ejusdem generis must be POV-neutral like all the preceding adjectives. The list does not enable editorial discretion, which a common carrier of messages does not have.

A 2023 social medium platform does not meet the Section 230 definition of an ICS because a 2023 social medium platform does not "[include] specifically a service or system that provides access to the Internet," but it is a common carrier of messages -- Section 153 (11) even if Section 153 (51) does not apply.

Section 230 is irrelevant, but Sections 202, 206, or 207 make a social medium platform liable for the damages that the social medium platform causes by discrimination against "any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality."

[cjcoats]

Then false claims of “obscene, lewd, lascivious, filthy..." should be actionable as libel.

[Jonathan Affleck]

If a common carrier of messages refuses to carry a message, the customer can file a complaint for denial of common carriage.

The Court (or the jury) would determine whether the message is unfit according to the standards that the common carrier applies to another customers.

The issue is not libel but denial of common carriage.

[Randal]

Nobody thinks Section 230 turned Internet publishers into common carriers except you.

[Jonathan Affleck]

Section 230 does not define a common carrier. The FCC does not define a common carrier. Common law identifies a common carrier.

The definition is straightforward. A 2023 social medium platform meets the definition of common carrier of messages just like an email service or a telegraph service. Many legal scholars agree with me, and if the question is presented to SCOTUS and if SCOTUS grants cert, it is highly likely that SCOTUS will hold that a 2023 social medium platform is a common carrier just as it held in 1901 that a telegraph system is a common carrier.

A 2023 social medium platform is not an ICS under the definition of ICS in Section 230 because a 2023 social medium platform does not "[include] specifically a service or system that provides access to the Internet." In 2023 only an ISP meets the definition of ICS. An ISP is a common carrier, and according to the whim of the president, an ISP can be a telecommunications carrier.

[David Nieporent]

A 2023 social medium platform is not an ICS under the definition of ICS in Section 230 because a 2023 social medium platform does not “[include] specifically a service or system that provides access to the Internet.”

You use brackets to rewrite the statute, because the actual statute is the opposite of what you say.

[Jonathan Affleck]

I used brackets to deal with English grammar requirements.

[David Nieporent]

No; you used them to change the meaning.

"An ICS is something which includes X" is not the same thing as "An ICS is something which does Y, including something that does X."

[Jonathan Affleck]

Nieporent loves to mislead in order to justify rape of the public in the government-designated public forum of the Internet. What about the word "specifically"? No word in a statute can be ignored.

[ObviouslyNotSpam]

A social media platform is not even purportedly a common carrier. Everything they do is moderated and controlled. That's why so many people prefer to use them, rather than the wild west.

Otherwise, they'd be as fantastically popular as the Reason comments section, which (by last count) included approximately a dozen different users manipulating 100 or so "sock puppets" (for reasons unknown).

[David Nieporent]

Martillo is an anti-semitic kook and liar.

[Drewski]

It's the user's speech unless that provider has fewer than 50,000 subscribers, is run by a church, or was created in association with a political party. In those cases it's the providers' speech to moderate as they see fit.

[Jonathan Affleck]

The messages, which a common carrier of messages carries, do not constitute speech of the common carrier.

[Josh R]

You just restated the question begging by assuming the provider is a common carrier.

[Jonathan Affleck]

A social medium platform is by definition a common carrier of messages. The bailment, which a common carrier of messages carries, is by law not the speech of the common carrier.

[Josh R]

Repeating the question begging is not remotely persuasive.

[Lee Moore]

Josh raises a question : The cartoon begs the question (whose speech is it)

Josh answers it : There are too many posts the providers cannot be aware of.

Speech you are not even aware of is not your speech.

This is not at all like a newspaper or magazine paying someone to write an article, subjecting it to pre-publication review by their editor, so that the finished article incorporates the publisher's editor's amendment. It's a noticeboard on which anyone can pin up a message, subject to ex post facto censorship by the owner of the noticeboard, if the owner spots a message he disapproves of.

So it's unarguably the poster's speech. The tech co has no role in its creation whatsoever.

By way of analogy. The Colorado cake guy actually does hs own icing doodles on his cakes. He's the creator. When he is asked by a same sex couple to make a cake for the wedding, he is talking. But if he was just a regular cake guy, selling cookie cutter cakes supplied by Megacakes Corp, then he's not talking. He's just selling a cake. Sure he may not want to be associated in any way with a same sex wedding, even to the extent of supplying a cake, but with "public accommodation" laws as they are that's just tough noogies.

The tech companies' objection is an objection to being associated with the poster's speech, by having him post on their noticeboard. They're like the regular cake guy. They have no role in the creation of the speech, and as you point out, they're usually not even aware of it, unless someone brings it to their attention.

A libertarian, contemptuous of public accommodation laws, might well say that it's their noticeboard and they should not be required to host the poster's message. Fair enough.

But you have answered your own question.

[Josh R]

it’s unarguably the poster’s speech.

The Biden administration makes a reasonable argument that “The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.” I appreciate that analogies to a publisher aren’t a good fit for the reasons you provided. But neither are the analogies to store malls (Pruneyard) because malls aren’t providing speech products. This is a different beast.

I would also suggest you substitute the baker with the website designer because the latter clearly provides a speech product. I think we likely agree that being forced to customize websites implicates the provider’s speech while being forced to provide off-the-shelf templates does not. The hard question, and what makes this a different beast, is whether “culling and curating” fits better with customization or off-the-shelf templates.

A libertarian, contemptuous of public accommodation laws, might well say that it’s their noticeboard and they should not be required to host the poster’s message. Fair enough.

Is it your position that the Texas and Florida laws are wrong on policy but constitutionally permissible?

[Lee Moore]

“The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”

The distinction, Shirley, is that when a traditional editor culls and curates the written material that is to be printed in his magazine or newspaper, the speech is only work in progress. it is clearly understood by the original writer and the editor/publication that the finished article will not be published until both writer and editor have done their piece.

Whereas post production "culling and curating", while it might be a second expressive act in itself, by the editor/publisher/common carrier/whatev, it does not form any part of the first, and entirely complete expressive act - the first person' speech as originally posted.

All sorts of things are expressive acts. My silencing a communist agitator by bringing down a heavy item on his head might well be said to convey my disapproval of the agitator, and/or of communism generally. But if I am a policeman, my act - in silencing the agitator - implicates the 1st Amendment, notwithstanding its expressve value.

I think we likely agree that being forced to customize websites implicates the provider’s speech while being forced to provide off-the-shelf templates does not.

I don't see the analogy. Such a custom website designer has to do something, and something with an expressive value, in order for the completed website to be created. But social media platforms don't have to do anything for the user's speech to be created. It's already there, complete and on view. The social media platform is only "required" to act by its own desire to make the pre-existing speech disappear. Nobody is requiring any action by the social media platform. As is the case for the custom website designer.

Is it your position that the Texas and Florida laws are wrong on policy but constitutionally permissible?

I don't have a firm view on the constitutional permissibility since I have not paid sufficient attention to the details. But my vague understanding is that they both apply some sort of public accommodation / common carrier rule to the biggest social media platforms. Except to the extent that they prevent these platforms offering their own speech, as opposed to censoring other people's, I don't see a constitutional problem. Though as I say, I hold that view tentatively since I have not examined the detail.

As to the policy, I am not a libertarian. I am (moderately) conservative with strong (classical) liberal sympathies. The regulation of these tech giants in favor of a free exchange of views and against censorship does not offend me. I would be more concerned about the regulation of small players.

The larger the behemoth and the greater market control it has, the more comfortable I am with regulation. Particularly if the behemoth is a successful lobbyist. The purity of free market doctrine is restricted when Big Business (or Big Union or Big China) can purchase legislators, judges and officials.

Thus the regulation of large banks which are "too big to fail" irks me much less than the regulation of cake makers, whatever their opinions.

[Randal]

Culling and curating is speech, not merely an "expressive act."

Compare to putting together an anthology, or a calendar with 12 photos of coastlines. Or a mix tape.

[Davy C]

More like you own a mural where anyone can paint a section, but you reserve the right to paint over a section you don't like.

[Nige]

‘“The act of culling and curating the content that users see is inherently expressive,’

It’s a terrible argument, but then the whole framing is terrible. Moderation is the management of posts that breach TOS. By posting, you agree to the TOS. The owners or their agents are thereby empowered to respnd in the manner they deem appropriate, whether cautioning, deleting or banning. It’s how you stop sites being over-run with spambots, racists, Nazis, cranks, misogynists, fraudsters, etc (assuming the site isn’t specifically catering to spambots, racists etc in which case have at it) and ensure a pleasant experience for their users. Generally sites are worth using in proportion to the even-handedness of their moderation. When sites get massive and hugely popular they get away with more erratic moderation, but not with none. The less interested in users a site becomes, the less of a priority moderation is, even shifting to anti-moderation, especially when you’re pushing ads, selling fee-based gimicks, cutting staff because you’ve saddled the site with the debt you incurred buying it, and generally stripping features that make the site usable.

[Lee Moore]

I think this is broadly right.

But the point is - there's nothing that prevents the government from imposing statutory limitations on those Terms of Service....unless you can dredge up some constitutional right, or federal law overriding state law - that nixes the attempted regulation.

Hence the scrabble to argue that the social media platforms TOS contractual rights to "cull and curate" are really, honestly Officer, the 1A protected speech of the social media platforms.

[Josh R]

Perhaps echoing Lee Moore, don't the Texas and Florida laws prohibit some TOS conditions?

[Randal]

Please don't echo Lee Moore.

But anyways yes, that's why they were found unconstitutional. If somebody wants to have a social media site that only publishes right-wing comments, that's allowed in this country.

At least for now.

[Jonathan Affleck]

It's easy to escape common carrier obligations by scrupulously making sure the service does not qualify to be common carriage.

[Randal]

Oh! And how does one go about doing that?

[Jonathan Affleck]

Easy -- eliminate all site monetizing.

If a social medium platform makes money from common carriage, it should obey the laws of common carriage.

If a social medium platform does not want to obey the laws of common carriage, it need only give up its income from its operation.

[Randal]

Hahaha so if someone wants to have a business around right-wing social media, you think that should be illegal.

Look. You’re a loon. I know it’s hard to give up this thing you believe in so hard, but you’re just wrong. Social media sites are not common carriers.

Think of Star Wars Kid, who posted a video that’s now been seen billions of times. He didn’t send that video to billions of people himself, like in your bulk mail example. Social media did that by deciding to publish it to lots of people.

If social media were a common carrier, it would have to publish everyone’s video to billions of people. It could be Urinating Off a Roof Kid. You have to watch it because, common carrier!

The ability for everyone on earth to publish anything they want to everyone else on earth is a relatively new situation, just 25 years old or so. We can expect some novel legal situations to turn up. But one thing that’s obvious is there’s a lot of value in having someone, i.e. a social media company, curate all this material that the whole world is creating.

You sound like you want every new YouTube video to show up in your inbox. That’s just nonsensical.

[Jonathan Affleck]

You continue to show incomprehension of web service operation. Notifications of email, posts, or videos show up on the a web page when you log into the service. A user has to request the whole email, post, or video in order to see it. In all cases, a user can filter out the notifications from another user.

A telegraph service often provided a notification of a telegram for a customer to pick up at the telegraph office. The customer did not have to pick up the message. A phone customer can block phone calls from an incoming number. It is illegal for a telegraph service or phone company to refuse to serve a specific user. A social medium platform is a common carrier of messages by wire or by wireless means just like a telegraph. Voice is a little different but not much. If a telegraph or phone company can obey the law, a social medium platform can obey the law.

[Jonathan Affleck]

Facebook does not have to be exactly like USPS, a telegraph service, or a phone service to be a common carrier. Common carriage comes in many shapes and sizes.

It's common carriage if a common carriage holds out service to the public for a fee under standard terms. Nothing else is needed.

[Randal]

Notifications of email, posts, or videos show up on the a web page when you log into the service.

Yes, but out of the millions of messages available to you, which "notifications" does social media site choose to show each individual? That's a problem not faced by your other common carriers, where the set of messages addresses "to you" is well-defined, even if it's multi-destination or bulk.

You are the one refusing to understand the nature of social media.

[Jonathan Affleck]

So what? I receive lots of email from an email service. I only receive one screenful of notifications and search for others. I have set up some filters/triggers so that I always receive notifications from certain sender.

None of Randal's BS gives a social medium platform a license to violate common carriage law.

[Jonathan Affleck]

A social medium platform has no notice board. The apparent notice board is a virtual reality construct that is created by the social medium platform's frontend software that runs on a user's computing device.

A social medium platform is a common carrier of messages. User messages constitute bailment in a backend server of the social medium platform.

Discriminatory denial of common carriage to user messages is an obvious violation of federal and state common carriage law. The abuses of a major social medium platform are so egregious that the social medium platform must be severely punished for its violations.

[JasonT20]

I don't think that social media platforms fit the common carrier model. Common carriers facilitate communication between a limited number of users and that communication remains private and limited to just those senders and the intended recipients. Social media platforms usually do have ways of sending direct messages, but the main purpose of them is to make the communication available to a wide audience. Anyone can read these comments we are posting. They are not limited to people that we choose.

[Michael P]

To summarize, your argument is: "Social media companies are more like the post office than like telegram companies, so they should be allowed to censor communications like the post office does"?

[JasonT20]

Uh, no. Maybe for junk mail the post office analogy would be relevant, but it is definitely not like social media in any other way.

[Michael P]

That doesn't leave much to your argument, then. Special pleading and arbitrary line-drawing.

[JasonT20]

Please explain your complaint in more detail. I am not seeing what you are.

[Michael P]

Your original comment was that social media aren't like common carriers because they're used for one-to-many communications. Now you say that they're not like the post office because you don't like mass mailings. You're arguing that different rules should apply to social media because you found some differences that you claim are important. You're not making a general claim or pointing to actual similarities in substance. That's pretty much the definition of special pleading.

[ObviouslyNotSpam]

He was clearly humoring your "post office" analogy, not agreeing with it.

[Jonathan Affleck]

A telegraph company would send a telegram to multiple destinations if multidestination service were requested.

[Randal]

But not to the public at large.

[Jonathan Affleck]

In fact, almost every telegraph system offered multidestination service to the public, but one had to visit a telegraph office or phone the message to a telegraph office.

In the last years before the WWW got rolling, it was possible to send an email to a telegraph service, which would be carried in telegram to the destination.

Many businesses had terminals for the related telex service installed in their offices.

[Randal]

No, dork, they don't offer a service to "publish this message to the public at large," like a broadcaster.

That's a key element of social media and why it's "social" and how things go viral. 600 million views and all that.

[Jonathan Affleck]

A social medium platform does not broadcast. If you see content on your screen, you made an HTTP request to receive the content.

[Jonathan Affleck]

You don't understand the common law definition of common carriage.

A carrier holds out carriage to the public according to standard terms for a fee.

The number and explicitness of the destinations is not part of the definition.

Have you ever heard of a mass mailing?

[JasonT20]

Yes. And it is possible to remove your address from allowed destinations for mass mailings, isn't it, and still receive mail sent directly to you or a smaller number of people? Email and "snail mail" are directly analogous. The Post Office is not anything like facebook.

[Jonathan Affleck]

Email and Facebook are identical except for the niftier user interface that Facebook has.

On his screen, the Email user receives notification of a message that he might wish to view. On his screen, the Facebook user receives notification of a message that he might wish to view.

If the user wishes to view the message, he uses service provider frontend software to request the message to be delivered to his screen.

An Email service and Facebook have different rules for distribution of notification, but in either case, the procedure is similar to the post office' procedure of leaving a notification that says there is some item, which can be picked up at the post office.

[Randal]

Again, on Facebook, posts are public.

[Jonathan Affleck]

So what? Mass mailings are public too. The message on a post card while not exactly public is not private.

A carrier offers common carriage to public for a fee under standard terms. Nothing more is required to identify common carriage.

Randal is so desperate to enable a social medium platform to rape and to rob the public that he shovels also sorts of crap into the discussion.

[Randal]

I feel like you've never actually used Facebook. Try it!

[Jonathan Affleck]

The Wow! Factor does not confer immunity to the law.

[Randal]

Your description of Facebook above as being like email is not at all what Facebook is like, which you would know if you tried it.

[Jonathan Affleck]

I have written frontend code for a number of social medium platforms. I know exactly how they work. Randal shows no evidence of any understanding of the technology.

[JasonT20]

A carrier holds out carriage to the public according to standard terms for a fee.

What if there is no fee? What if the business model of the carrier is to attract a large number of users that will then be exposed to advertisers that be the ones actually providing the carrier with revenue? If they can't moderate the communications of its users to provide the kind of atmosphere that will attract and maintain a large audience, then how can they operate a successful business?

[Jonathan Affleck]

In some jurisdictions the fee may be $0.

In all jurisdictions, the fee may be money, work, or barter.

"Eyes-on-a-page" is extremely valuable to a social medium platform. If the social medium platform has no eyes on a page, its add revenue goes to zero.

The social medium platform extracts information from a user's account. The social medium platform trades in this information.

The messages, which become bailment of the social medium platform, are valuable to the social medium platform because they attract eyes to a page.

Some social medium platforms like LinkedIn, Twitter/X, and Facebook charge a monetary fee for some tiers of service.

It's time for a rational person to stop denying that a social medium platform is a common carrier of messages.

[Nige]

It absolutely doesn’t, and it doesn’t fit the newspaper model either. We’re talking primarily about social spaces where people are interacting. They’re more like a bar. Imagine if it was made illegal for barpeople or bouncers to tell some customer to keep it down, to stop harassing that table full of women, to stop selling dodgy pills down the back, to stop picking customers pockets, to stop standing on a stool and preaching about the end times, and to eject people who persist in the bad behaviour.

[Jonathan Affleck]

Nige confuses virtual reality with physical reality. In terms of public accommodation law, he would be confusing a movie with a movie theater.

[Randal]

Sorry Jonathan but Nige is exactly right.

[Jonathan Affleck]

And where exactly is the social space? I only see a computing device in my hand or on my desk. Randal also confuses the movie with the movie theater.

[Randal]

The social space is on the Internet. Your problem is that you deny the speech element of anthologies.

[Jonathan Affleck]

Section 230 (a) and (b) tells us that the Internet is a government-designated public forum. If a social medium platform created its own public forum within the Internet by some means besides common carriage, it might be possible to escape non-discriminatory obligation.

See Hurley v. Irish-American Gay, Lesbian Bisexual Group, 515 U.S. 557, 115 S. Ct. 2338 (1995). South Boston Allied War Veterans Council did not offer common carriage, and SBAWVC pre-vetted participation more in the way a newspaper editor might choose a letter for publication. A social medium platform does not publish it only transports just as the USPS transports New Yorker magazine to a subscriber.

[Randal]

False. Social media is much more like The New Yorker in that example.

USPS : Internet
The New Yorker : Facebook
Articles : Posts

Granted, the relationships between the parties is pretty different in the two cases, so this isn't an analogy I would normally use, but it's better than your analogy.

[Randal]

If a social medium platform created its own public forum within the Internet by some means besides common carriage, it might be possible to escape non-discriminatory obligation.

This is what everyone, including the courts, realized has already happened, except you.

[Jonathan Affleck]

There is only one litigation in progress in which the common carrier status of a social medium platform is at issue.

The questions accepted for cert in the Netchoice cases do not address the common carrier status of a social medium platform.

[Randal]

A social medium platform has no notice board. The apparent notice board is a virtual reality construct that is created by the social medium platform’s frontend software that runs on a user’s computing device.

That's all nonsense of course.

The social media site decides which posts to show to which users. The users don't decide. In some cases they request specific content, but the defining characteristic of social media is that the social media sites control the flow of content that each user sees.

It's not even possible to show you all the Facebook posts that are available to you. Or Tweets or TikToks. They aren't messages to you at all. They're submissions from content creators for the social media sites to publish.

You are totally able to self-publish your content on the Internet if you want to. The purpose of social media is to do the publishing for you, including getting the content to the right audience.

[Nige]

'Speech you are not even aware of is not your speech.'

Presumably along with all forms of moderation, channels for user complaints would also be banned. Can't moderate rape threats/death threats etc if the targets can't draw attention to them!

[Jonathan Affleck]

The correct meaning of “Good Samaritan” blocking and screening of offensive material. Of course, a common carrier can always refuse common carriage of an item or of property that is unfit.

In 1996 Congress extended standard common carrier rules to the non-common carriage service of an ICS like 1996 AOL, Prodigy, or Compuserve. A 2023 social medium platform is not an ICS but is a common carrier of messages.

[Lee Moore]

I don't follow your point, Nige. I assume that you are not disputing that "speech you are not even aware of is not your speech" since the rest of your comment has nothing to do with that claim.

Moving on :

"Presumably along with all forms of moderation, channels for user complaints would also be banned. "

Er, what ? The question at issue is whether the government can or cannot prevent social media platforms deleting or editing users' speech after it has been posted, using the argument that their "culling and curating" is their own 1st Amendment protected speech.

A law banning social media platforms from having channels for user complaints would obviously be against 1A, because it would be a government attempt to stop complainers speaking. Nothing whatever to do with the social media platforms own 1A rights.

Can’t moderate rape threats/death threats etc if the targets can’t draw attention to them!

Skipping past your strange notion that denying that social media platforms ex post facto "culling and curating" implicates their own 1A rights, let's look at the business of moderating rape/death threats.

A law that seeks to prevent social media platforms from culling such threats from their platforms - if such a law existed - still doesn't implicate those platforms 1A rights. Because the threats are not their speech. The question is then - does any other superior law allow the platforms to cull in defiance of the first law ? I don't know. All 1A precedent has to say on the subject is that it's OK for the government to have a law requiring such true threats to be taken down, without infringing the 1A rights of the threateners. It doesn't say the government is required to have such a law.

There is then the question of whether the social media platfrom could be held liable for any such threats being converted into action. I presume their lawyers would say that their hands were tied by the law preventing them from culling, and so it's not their fault.

[Nige]

I meant if people bring certain examples of speech to the owner's attenton, then it is no longer unaware of it, therefore the slightly ludicrous logical end point would be making that impossible. Plus if you can't moderate, complaints procedures would be pointless.

[Lee Moore]

Plus if you can’t moderate, complaints procedures would be pointless.

Speech is its own point. I say something you disagree with, you say something to the contrary. That's how these threads work. The fact that your comment has failed to obliterate mine and make it invisible does not make your comment pointless. You have your refutation on record, for passers by to be impressed, amazed and persuaded by.

[Nige]

This isn't really about speech, this is about moderating behaviour in a social space. Most of that behaviour is in the form of speech, yes. Your simplified description is ignoring a lot of other elements.

[David Nieporent]

So it’s unarguably the poster’s speech. The tech co has no role in its creation whatsoever.

Of course something written by a poster is the poster's speech. The decision whether to distribute that speech is the tech company's speech.

The books in your local Barnes & Noble are the speech of the authors and publishing companies. The decision whether to carry those books is the speech of Barnes & Noble. And it would unquestionably violate the first amendment for the state of Texas to tell Barnes & Noble what books it must sell.

[Lee Moore]

Got a receipt for that ?

The fact that a bookseller trades in books does not make its choices of stock to carry “speech” any more than a supermarket’s choice of produce.
Telling a book store what books it may NOT sell would offend the 1A rights of the authors, but I’d like to see your reference for why compelled stocking of Anne of Green Gables is any different from compelled stocking of say contraceptive inclusive health insurance.

[Jonathan Affleck]

Barnes and Noble is a distributor. A social medium platform is a common carrier like the USPS.

It's worth mentioning that while Section 230 immunizes an ICS to publisher and to speaker libel, it does not immunize an ICS to distributor libel. Section 230 seems implicitly to discourage an ICS from doing anything that might cause the ICS to be like a distributor.

[Jonathan Affleck]

A common carrier is a person who holds himself out as willing to serve any shipper who offers him a reasonable fee to transport the kinds of goods he professes to carry to a place he professes to serve, provided they were not unfit and his conveyance was not already full. See Lovett v. Hobbs, 2 Show. K.B. 127, 89 Eng. Rep. 836 (K.B. 1680); Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

By definition, a common carrier has to serve all comers. If he wrongfully refuses to accept a consignment, he is suable in tort. See Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

Denial of common carriage is a self-evidencing violation and deserves draconian penalties because common carriage law is the root and beginning of anti-discrimination law, without which modern civil society does not function.

[JasonT20]

That cartoon is fairly apt, but that isn't to say that I agree with the conclusion.

What the supporters of these laws want is for people to be able to demand the use of someone else's megaphone, and they then claim that it would be censorship to deny it to them. It would only become censorship if there were no other megaphones for someone to use.

[Jonathan Affleck]

The question is not right versus left. Facebook admits that it silences Palestinians. All the other major social medium platforms do the same.

I am motivated to stop social medium platform discrimination against a Palestine advocate and his content because I was outside the Mosque of Abraham when Baruch Goldstein celebrated Purim by murdering 29 men in the mosque. I thought his presence there was strange, and if I had been more confident of my spoken Hebrew, I might have asked him what he was doing. It might have given him pause and saved lives. I would prefer that people talked with each other and not shoot at each other. Hence my obsession with the First Amendment.

If we had an open and rational discussion of the genocide that Zionist colonial settlers have perpetrated against Palestinians since the start of the Nakba in Dec 1947, the rebellion against Zionist occupation might not be taking place today.

[Jonathan Affleck]

Not only is the Internet according to Section 230 a government-designated public forum as well as a common carrier of messages by common law, but the Internet also belongs to the class of “Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation.” The preceding clause does not require the Internet to be a place of public accommodation but only requires the Internet to be like or as a place of public accommodation. The same logic desegregated a public drinking fountain, which is an establishment supported by state action as a place of public accommodation for drinking water. A public drinking fountain is a device (a valve on a water pipe) and not a place that one can enter. A 2023 social medium platform is located within the Internet because it is located by connection and by IP address within the premises of the Internet. Premises includes grounds and appurtenances, which include wiring.

A social medium platform routinely discriminates against anyone that rejects the religious belief, which asserts that Jews have a claim to Palestine on the basis of scripture. A social medium platform arbitrarily determines such rejection is hate speech because the rejection violates undefined community standards. Such discrimination is discrimination on the ground of religion and violates the Civil Rights Act of 1964.

[Jonathan Affleck]

Title 47 defines both 47 U.S. Code § 153 (11) Common carrier and also 47 U.S. Code § 153 (51) Telecommunications carrier.

The FCC does not define a service to be a common carriage service. The common law definition of common carriage determines whether a service is common carriage.

The FCC decides whether a communications-related common carriage service is a telecommunications service that the FCC should regulate.

[Jonathan Affleck]

An ordinary Internet email service like Gmail and a 2023 social medium platform both meet the traditional definition of a telegraph service: a service that transmits a message electrically by wire or by wireless means. In 1901 the Supreme Court reversed itself and ruled that a telegraph is a common carrier. The transmission error problem, which worried the Supreme Court in the 19th century, does not exist in the context of the Internet.

[Jonathan Affleck]

Until SCOTUS provides negativing guidance, in order to deny service to blacks, a restaurant could require a reservation by means of a discriminatory social medium platform, which excluded blacks. No one has filed a complaint against such a practice because the practice is hard to detect.

[JasonT20]

I feel like the problem with figuring out whether social media platforms have a right to editorial discretion is that analogies to situations that don't involve the internet fit poorly.

The comments section here and at other blogs, news media and commentary sites, and public message boards serve users by providing a public forum to discuss specific topics or whatever they feel like. Instagram is a visual medium for sharing pictures and short videos. Facebook started by being mostly about connecting people that know each other or that might be connected through common friends. But now it is also about communicating with people that might share a common interest. Twitter was the platform that most represented users posting their thoughts and ideas out to the ether for everyone to see.

Notice that for all of these platforms, they have a business interest in maintaining an atmosphere that will satisfy the widest possible audience. Although, in some cases, the platform specifically enables users to create communities with a specific focus and yet still remain open to the public. In either case, the platform has an interest in keeping the platform welcoming to its users.

Businesses that are open to the public can't discriminate on many bases, but one way that they can manage who can be on their property is to make sure that the general public is not disturbed in their ability to seek and receive the services or products that the business provides. That is what moderating does on social media platforms. A blogger that writes about food certainly should be able to moderate the comments on his posts and remove ones that aren't on topic. He should also be free to moderate the level of civility that he thinks would benefit his audience.

The arguments in courts over government regulation of social media platforms need to keep that in mind. A blanket rule that social media platforms can't censor user content could end up destroying the ability of a platform to tailor its environment to provide what most of its users want. And that would directly harm them as businesses. A loud and obnoxious patron at a restaurant might try and claim that he was being thrown out because he was expressing a particular political view, but the restaurant should still be able to throw him out if other patrons are being disturbed. Not being able to do so could result in the restaurant losing business as people don't want to pay money for a meal where they'd have to listen to someone they don't know rant about the political topic of the day.

[Jonathan Affleck]

A common carrier of messages has no right to editorial discretion.

Purpose or business model is completely irrelevant to determining whether a service is common carriage.

A trash hauler often provides a common carriage service.

[JasonT20]

If you are correct, then perhaps the problem is the definition of common carrier, then. That is because every example I've seen brought up here of a common carrier has a very different business model than social media. Models that aren't harmed by having to carry all messages without moderation.

A social medium platform routinely discriminates against anyone that rejects the religious belief, which asserts that Jews have a claim to Palestine on the basis of scripture. A social medium platform arbitrarily determines such rejection is hate speech because the rejection violates undefined community standards. Such discrimination is discrimination on the ground of religion and violates the Civil Rights Act of 1964.

What if someone was posting such messages in a public forum about dirt bike racing? Would it still violate the Civil Rights Act to take those messages down?

If a social media platform takes those messages down and tells the sender that it did so because it was hate speech, then that would be evidence that could be used in a lawsuit, I imagine. But what if they only say that it violates some vague standard of user guidelines?

This is what I'm getting at. If a social media platform has no ability at all to moderate content to provide the largest part of its user base with the kind of service that those users want, then it can't operate as a business. Well, a social media platform that wants to be a free-for-all, could still operate, but that's all.

[Jonathan Affleck]

A social medium platform has no exemption from the law. Duh!

42 U.S. Code § 2000a is very specific.

(a)Equal access

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

[David Nieporent]

And, of course, a social media company doesn't need an exemption because it isn't covered in the first place, as the courts already explained to you when you humiliatingly lost your frivolous lawsuit. It's not a place of public accommodation.

[Randal]

Oh you (Jonathan) were the guy with the lawsuit! I forgot about that. How'd that go? Laughed out of court?

And yet you still refuse to listen. Your brain is really stuck in a rut on this one.

[Jonathan Affleck]

About to be refiled with a new and better complaint.

[Jonathan Affleck]

I did not loose. The complaint was dismissed without prejudice before service. I am refiling with a new complaint.

The Internet also belongs to the class of “Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation.” The preceding clause does not require the Internet to be a place of public accommodation but only requires the Internet to be like or as a place of public accommodation. The same logic desegregated a public drinking fountain, which is an establishment supported by state action as a place of public accommodation for drinking water. A public drinking fountain is a device (a valve on a water pipe) and not a place that one can enter. A 2023 social medium platform is located within the Internet because it is located by connection and by IP address within the premises of the Internet. Premises includes grounds and appurtenances, which include wiring.

[ObviouslyNotSpam]

It must have been pretty badly drafted, then...

Better luck next time?

[David Nieporent]

I did not loose. The complaint was dismissed without prejudice before service.

You did lose. And the complaint was dismissed with prejudice.

The Internet also belongs to the class of “Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation.”

It is not, for many reasons. As you have been told. But also, you're not suing "the Internet," so it's irrelevant.

The same logic desegregated a public drinking fountain, which is an establishment

It is not.

A public drinking fountain is a device (a valve on a water pipe) and not a place that one can enter.

Which is why it is not an establishment! Congrats on managing to contradict yourself within one sentence!

A 2023 social medium platform is located within the Internet

It is not. You are really really ignorant of technology. And the English language. Nothing is "located within the Internet." The Internet is not a place.

[Jonathan Affleck]

JasonT20 has a problem with the concept of obedience to the law. A social medium platform does not receive immunity to the law because it wants immunity from the law.

Internet exceptionalism is senseless. Common carriage has evolved to cover common carriers as diverse as ferries, barges, stagecoaches, railroads, telegraphs, telephony, the US Postal Service, FedEx, Amazon delivery, bicycle couriers, taxi or limo service (including Lyft, etc.), DoorDash (or similar common carriers), grocery common carriage service, pneumatic mail, trucker common carriers, some escalators, some elevators, a Ferris wheel, a roller coaster (or similar amusement park rides), air common carriers, telex, pager service, email service, SMS, MMS, container ships, pony express, etc. The list is endless.

There is no reason a social medium platform cannot fit into this eclectic group.

[JasonT20]

"...without discrimination or segregation on the ground of race, color, religion, or national origin."

Does any of that apply to someone harassing others online? Does it apply to whether a forum could be moderated to keep posts on topic? Does it apply to the operators of a forum wanting to keep discussions civil? Does it apply to political points of view or whether someone's comment is a true or false factual claim?

Everything you just said has no relevance to core of the controversy over social media moderation. It doesn't address the platforms' interest in moderating to keep the platform attractive to a wide range of users, and it doesn't address the concerns of people that are claiming they are being censored for their political points of view.

[Michael Ejercito]

As a matter of ethics, it partly depends on how the social media web site advertises itself.

As an example, a platform that advertises itself as a publish-it-yourself-wedding-web-site may not ethically (and in some cases, may not legally) remove a post merely because the owner or proprietor disapproves of the couple.

[Jonathan Affleck]

The issues of common carriage, public forum, and public accommodation are distinct even if they are intertwined in the case of a social medium platform.

A common carrier could specify that it will only carry items under a certain weight and reject a heavier item because it is unfit.

A public forum might be limited to discussions of musicals and exclude someone that wanted to discuss politics, which is unrelated to musicals.

A place of public accommodation like a play area at IKEA might be restricted to children under a certain height.

[David Nieporent]

The vast majority of those are not common carriers.

[Jonathan Affleck]

Except for some of the most recent examples, I just extracted types of common carriers from legal databases.

[Drewski]

He isn't correct, and has already (according to him) been shot down by courts at every level. He's just vamping here because of a weird obsession with Professor Volokh.

[Noscitur a sociis]

If you are correct,

Not a possibility you have to spend much time worrying about with Martillo.

[David Nieporent]

A common carrier of messages has no right to editorial discretion.

Says who?

[Jonathan Affleck]

Other people's property becomes bailment to a common carrier. A common carrier has a heightened duty (a) to care for property, which is bailment, and (b) to deliver bailment to its destination.

[Mr. Bumble]

AFLAC!

[Longtobefree]

"Silicon Valley argues that these laws interfere with Big Tech's first amendment right to "cull and curate" what other people say on their platforms."

Absolutely. As long as they admit this voids section 230 protections, because this makes them a publisher, not a conduit.

[Jonathan Affleck]

A 2023 social medium platform does not meet the definition of ICS in Section 230. Except for an ISP, which "[includes] specifically a service or system that provides access to the Internet, Section 230 is dead-letter law. Lawyers need to start to argue this fact correctly.

An ISP meets the common law definition of a common carrier -- Section 153(11). From one administration to the next the FCC may decide that an ISP is or is not a telecommunications carrier -- Section 153(51).

[David Nieporent]

A 2023 social medium platform does not meet the definition of ICS in Section 230. Except for an ISP, which “[includes] specifically a service or system that provides access to the Internet, Section 230 is dead-letter law. Lawyers need to start to argue this fact correctly.

It meets the definition of ICS, which does not say one damn thing about having to provide access to the Internet.

[Jonathan Affleck]

If Internet isn't a requirement in the definition of ICS, a telephone network would qualify to be an ICS. Does a telephone service have the editorial discretion to remove a user?

[David Nieporent]

An ISP meets the common law definition of a common carrier — Section 153(11).

More gibberish. 153(11) is a statute, not the common law.

[Jonathan Affleck]

Section 153(11) is a definition within the statute. Please read it.

The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

The definition tells us to read communications common carrier when we see the phrase common carrier in Title 47. Section 153(11) does not define common carrier, which is defined in common law.

The first common carrier case on record in English common law is of a ferryman in 1348. [Y.B. 22 Ass. 94, pl. 41 (1348).]

[Michael P]

Section 230 has several operative parts. People usually think of 230(c)(1), and that's what s lot of people quote, sometimes even implying it's the whole of section 230:

(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.

The part that allows online platforms to remove information without liability is section 230(c)(2)(A):

(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).

The crux of the problem is that the censorship maximalists pretend that noscitur a sociis doesn't apply to the phrase "otherwise objectionable".

(There's also section 230(d), which is only related to the above insofar as it mandates informing customers about ways for them to avoid even conditionally objectionable material, while some people want to pretend that only social media censorship can save us from such horrors as nekkid people.)

[Noscitur a sociis]

Leave me out of this please!

[David Nieporent]

The crux of the problem is that the censorship maximalists pretend that noscitur a sociis doesn’t apply to the phrase “otherwise objectionable”.

That's because it doesn't, as the 9th circuit already explained, and as the dictionary explains. "Otherwise" means "in a different way." Your ilk wants to pretend it says "similarly objectionable," but "otherwise" is the opposite of "similarly."

[Jonathan Affleck]

Which decision?

Under the doctrine of ejusdem generis, applicable to both constitutional and statutory provisions, the provision of section 1, Article VII, Constitution, empowering the Governor to fill certain state offices, including that of the Attorney General, if the office "shall be vacated by death, resignation or otherwise," held that the words "or otherwise" import circumstances of the same permanent nature as "death" and "resignation" modifying the word "vacated" which itself imports finality or permanency, and therefore do not relate to situations in the nature of leave of absence, suspension or relief from duty resulting in temporary vacancies.

Gullickson v. Mitchell, 113 Mont. 359, 360 (Mont. 1942)

[Randal]

It's important there that "vacated" already "itself imports finality or permanency." If there were ambiguity about what meaning of "vacated" was being used, you could look at "death" and "resignation" to help resolve it, but still, "otherwise" means "different to" death and resignation, within the meaning of "vacated."

The analogous word to "vacated" is "objectionable," the meaning of which is usually "a subjective distaste." Are you suggesting that there's another meaning of "objectionable" which is an objective category of stuff like what's listed explicitly there? I've never heard of that usage of "objectionable." If that's what they meant they would've said "or otherwise illicit."

[Jonathan Affleck]

More BS. The list is "death, resignation or otherwise." Otherwise extends the list but under the rule of ejusdem generis.

In Section 230 the list is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." Otherwise objectionable extends the list under the rule of ejusdem generis.

Guess what! This list is POV-neutral. Conservatives and Palestinian advocates both have a case that a 2023 social medium platform discriminates illegally against their POVs even if a 2023 social medium platform were an ICS -- it isn't.

[jb]

This is actually a reasonable argument and I'd even agree that some courts have probably taken their interpretation of Section 230 too far*, but the vast majority of the commentary of the topic is of the form of "since providers are engaging in content moderation, they lose their Section 230 protection" which makes it hard to get into nuanced conversations about what the scope of 230(c)(2) is supposed to be. "Otherwise objectionable" reads pretty broadly to me, and it seems super hard to define any sort of bright line since the enumerated types of objectionable content don't all fit neatly into one category that you could say the rest has to as well.

* Although most of the right-wing parade of horribles around Section 230 immunity come from situations that haven't actually been meaningfully decided, like whether posting a fact check would count as the provider engaging in speech not protected by Section 230. (I tend to think that they should be if the platform's moderation team decides on the fact check, and probably not if it's done by the community but it's an interesting issue.)

[Josh R]

Assuming that providers have a First Amendment right to cull and curate does not imply that Congress is required to void 230 liability protection. As I said above:

I have sympathy for the idea that Section 230’s liability protections should be lessened if providers can take down content, but not for the idea of complete exposure to liability. There are too many posts the providers cannot be aware of.

[SRG2]

I must have missed that part of the US Constitution which recognises that citizens have enforceable rights against private companies.

[Jonathan Affleck]

Ninth Amendment. The right of the public to non-discriminatory common carriage was well established at the time of ratification. The right to sue a speaker, publisher, or distributor for libel was also well established at the time of ratification. Otherwise, the 1st Amendment would protect a speaker, publisher, or distributor from practically every accusation of libel.

[JasonT20]

The right of the public to non-discriminatory common carriage was well established at the time of ratification.

Was that rooted as being a right that the people held, or was it a power of government to regulate commerce that enabled it to make laws that demand common carriage?

[JasonT20]

And this matters because a fundamental right to common carriage would be on equal terms with a business owner's 1st Amendment rights. But if common carriage is a power of government, it could not violate the business owner's 1st Amendment rights.

[Jonathan Affleck]

JasonT20 poses a bogus question. The messages, which become bailment in a social medium platform's backend server, are not speech of the social medium platform anymore than letters at a post office constitute speech of the post office. The demand for a social medium platform to obey common carriage law is not an abridgment of 1st Amendment rights of the social medium platform because the bailment is not speech of the social medium platform.

[JasonT20]

If it isn't their speech, then the limitation of liability for what is posted on their platforms is non-existent regardless of Section 230. They'd have no legal obligation to remove items that violate copyright either, correct? Were ISPs ever implicated with liability over copyright in the Napster era? I didn't think so at the time.

[Jonathan Affleck]

JasonT20 does not understand law of either common carriage or warehousing. ISPs don’t have bailment. Copyright is not an issue for an ISP.

If an common carrier like a social medium platform is with knowledge holding bailment that violates copyright law, the common carrier should neither transport nor warehouse it because a common carrier is not allowed to violate copyright law with knowledge.

Common carriage law has been around for a long time. All these issues were worked out long ago.

The first common carrier case on record in English common law is of a ferryman in 1348. [Y.B. 22 Ass. 94, pl. 41 (1348).]

[David Nieporent]

It's not bailment.

[David Nieporent]

The right of the public to non-discriminatory common carriage was well established at the time of ratification./blockquote>There was never any such "right."

(And even if there were, the 9th amendment doesn't say that all rights in existence continue to exist!)

[Michael Ejercito]

They do not.

Absent anti-discrimination laws, public establishments were still free to exclude service to the Lovings because they were in an interracial marriage, even after Loving v. Virginia was decided.

The question to the court is whether or not this particular anti-discrimination law, as applied to social media companies, violates the First Amendment.

[Kazinski]

Did you miss the part where States can regulate consumer affairs?

[Frank Drackman]

Wow, sounds like a complicated Legal topic with lots of nuances, I’ll sit this one out, with the other non-shysters here. (I noticed “The Reverend” Kirtland hasn’t Opined yet)

Frank “I-ANAL but would be willing to learn”

[Kevin Carson]

I take it that's Elon Musk, and the people with duct taped mouths are JUNlPER, Chad Loder, Vishal Singh, and all the other people he's silenced on orders from Andy Ngo?