Senators Rubio, Hawley, Loeffler And Cramer Ask The FCC To Reinterpret Section 230 In A Totally Ridiculous Manner

from the oh-come-on dept

It appears that Senators Marco Rubio, Josh Hawley, Kelly Loeffler, and Kevin Cramer don’t mind looking like total fools who don’t understand some fairly basic concepts about the law, so long as they can perform for their ignorant base. The latest is that they have sent a letter to the FCC, picking up on President Trump’s silly executive order and asking FCC chair Ajit Pai to reinterpret Section 230 at direct odds with the plain language of the law and the way that every single court to this day has interpreted it.

The thing is, these Senators know what a silly project this is, but because the Emperor demands fealty, and they know that their own base now depends on bowing down to insanity, they’re playing it up. Everything about this letter is silly. But because some people might take it seriously, let’s go through why it’s silly.

Dear Chairman Pai:

We write regarding the role of the Federal Communication Commission (FCC) in the recently signed Executive Order on Preventing Online Censorship. The unequal treatment of different points of view across social media presents a mounting threat to free speech. This Executive Order is an important step in addressing this form of censorship.

Once again, there is literally no evidence that there is any “unequal treatment” of different points of view, but even if there was the 1st Amendment would protect it. There is no law, anywhere, that says that you have to treat all speech equally, and that if you don’t it somehow leads to you facing liability. And, honestly, Republicans like these Senators should recognize that if that situation were to change, the first ones in trouble would be partisan organizations like Fox News.

But, thankfully, the 1st Amendment says that sites can moderate how they want.

Furthermore, Section 230 is not a “mounting threat to free speech.” Taking it away, however, would very much be a threat to free speech. Again, without Section 230, websites will have strong incentives not to host third party content, because the risks of liability will be huge, meaning that many places that now enable people to speak out will likely scale that back significantly, and in some cases entirely. The threat to free speech is coming from these Senators, not Section 230.

Section 230 of the Communications Decency Act shields social media platforms from the liability imposed on publishers when they act in ?good faith? to restrict access to or remove certain objectionable materials.

This is a blatant misreading of the law. The “good faith” part of the law covers just one part of 230 (Section (c)(2)(A)) and not to the other parts of the law, including (c)(1), which is the part that almost every court decision has depended on, regarding the rights of websites to moderate their content. (c)(1) is the part that says that no website can be held liable for third party content. And courts have (correctly) read that to mean that this also covers any moderation activity. And there is no “good faith” requirement for that.

Also, there is no “good faith” requirement in (c)(2)(B), which says there is no liability for any website for “any action taken to enable… the technical means to restrict access to material.” In other words, the “good faith” requirement does not cover the parts of the law these Senators are pretending it does, and changing the interpretation of “good faith” wouldn’t change the rights of any platform to moderate as they see fit.

Even if they were right in harping on the “good faith” requirement, they’d still be wrong, because forcing a court to determine whether or not a website’s editorial policies were done in “good faith” would be a direct 1st Amendment violation itself. After all, if you could determine whether or not Twitter’s moderation policies are “good faith” or not, you could do the same for the editorial decision making of a news organization like Fox News.

Once again, the only threat to free speech here is coming from Senators Rubio, Hawley, Loeffler, and Cramer.

However, the protections afforded by Section 230 are not absolute or unconditional

It is correct that 230’s protections are not absolute. Which is why one of the most annoying things is that these Senators (Hawley in particular) keep pretending that 230 protections are absolute and that’s why he wants to change them. I’d be happy that he’s finally admitting they’re not absolute if he were doing it in an intellectually honest manner, rather than using it here in a bullshit way to suggest this means it’s okay to ignore the law and reinterpret it in Hawley’s pro-censorship direction.

But the final word of the sentence is incorrect. Section 230 is an immunity that is based on who creates the content. It is not “conditional” like a safe harbor (like the DMCA’s 512, which requires you to meet certain rules to qualify). Section 230 has no such conditions included in it and no court has read it to, because they do not exist. What’s happening here is, again, the Senators want to shove this “good faith” thing into the conversation where it simply does not belong.

While social media companies enjoy their special status under Section 230, it is questionable that they are living up to their obligations when they blur the lines between distributor and publisher by favoring one political point of view over another.

This part is just utter nonsense. Section 230 does not have any “obligations.” And there is no line for them to “blur” between distributor and publisher (and, again, there remains zero evidence of them favoring one political point over another — that’s just a made up concept by Republicans to work the refs and try to get more favorable moderation). Pretending that there are obligations built into Section 230 is dangerous. It’s how you actually stifle free speech, by assuming every company needs to step into line to “get” the liability questions answered properly. It’s literally the opposite of the “small government” line these four politicians have all spewed in the past. They are hypocrites.

The reinterpretation of the law they are pushing for here is literally about them being the speech police.

While the President has the means to push back on unfair treatment, we worry about everyday Americans who are sidelined, silenced, or otherwise censored by these corporations.

No you don’t. This is gaslighting. There are still plenty of platforms out there that will host anyone’s content. Indeed, plenty of platforms have sprung up, in part, because they disliked the way these companies have handled their content moderation. And of course, note that these four Senators don’t explain just who it is they’re talking about. Which “everyday Americans” have been “sidelined, silenced, or otherwise censored” by these platforms? I’d bet good money that there were perfectly normal reasons, not “anti-conservative bias”.

Social media companies, whose protections come from their acting as distributors, not publishers, have increasingly engaged in partisan editorializing, censorship of Chinese dissidents, and a host of politically motivated speech policing.

This is simply laughable. If you took away 230 you’d get even less speech and more policing because of the risk of liability. This has been explained to Josh Hawley numerous times, yet he continues to trot out this nonsense.

While these actions speak for themselves, companies continue to enjoy Section 230 protections due to a lack of clear rules and judicial expansion of the statute.

No, the “rules” are quite clear. And all internet websites enjoy that protection because that’s what the law says and what was intended by Congress when it passed. And it’s simply wrong to say that courts have “expanded” the statute. They read what’s in there, and recognized that it’s silly to hold platforms responsible for the speech of others. These four Senators just don’t like what the law says. And, as such, they have the right to try to pass legislation (including some nonsensical bills that Hawley has proposed). The idea that this is a job for the FCC makes no sense at all. Indeed, in Reno v. ACLU, the case that invalidated the rest of the Communications Decency Act, the Supreme Court made it clear that the FCC has no mandate to regulate speech on websites, because the internet is protected by the 1st Amendment. In that case, in trying to reject the argument that a former case involving the FCC regulating “indecent” speech on radio would make the regulation of such speech on the internet okay, the Supreme Court said “no, the internet is not radio” and thus the FCC has no regulatory power to police speech on it:

Finally, the Commission’s order applied to a medium which as a matter of history had “received the most limited First Amendment protection,” [i.e., radio] in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history.

[…]

In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that “[e]ach medium of expression … may present its own problems.” Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its “invasive” nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).

Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as “invasive” as radio or television.

Indeed, as the case made clear, the FCC could regulate broadcast airwaves, because it was scarce spectrum that the government was handing out to broadcasters. That is not true of the internet:

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

In other words, the FCC has no authority to regulate the internet at all.

Back to the nonsense letter from the Senators.

Social media companies have become involved in a range of editorial and promotional activity; like publishers, they monetize, edit, and otherwise editorialize user content.

They make it sound like this is a new thing. Instead, this is exactly why Section 230 was written in the first place. A ruling in NY said that because the internet service Prodigy tried to create a “family friendly” service (i.e., it editorialized its forums, and monetized it), it suddenly faced liability for those moderation choices. Congress realized how dangerous that was to free speech online and passed 230. These Senators are simply ignoring the real history and trying to gaslight people into believing an entirely false one.

It is time to take a fresh look at Section 230 and to interpret the vague standard of ?good faith? with specific guidelines and direction.

If it is time to take a fresh look at Section 230, then that is Congress’ job, and not the FCC’s. And, again, the good faith part only applies to a very limited segment of 230 (and one that is almost never used in court).

In addition, it appears that courts have granted companies immunity for editing and altering content even though the text of Section 230 prohibits immunity for any content that the company ?in part ? develop[s].? These interpretations also deserve a fresh look.

This is also misleading. The part that says “in part… develop[s]” is the definition of an internet content provider. They’re trying to misinterpret this section to mislead people into believing that content moderation makes a service a “content provider” rather than an “interactive computer service.” In other words, they’re leaning very heavily on the “in part… develop[s]” to try to bring about the mythical “publisher” / “platform” split.

But the only way that can happen is if you take this obvious misread of the definitions of 230, and ignore the direct stated intention and words of the rest of the law. That’s what these Senators are doing. No court has ever bought into this definition. The authors of 230 have said over and over again that this was never the intent or purpose of 230.

And here’s the thing: courts have made it clear that sites that do develop their own content are liable for that content. The Roommates.com case made it clear that sites can be liable for the content they create “in part.” But the content they create is different than the content that is moderated. So, for example, the actual text of Twitter’s now-infamous “fact check” of President Trump’s tweets is not protected by Section 230, because the fact check text itself is content created by Twitter. So it’s not like 230 has any bearing there.

But that content is protected by the 1st Amendment. Because there’s literally nothing at all illegal about saying “hey, check out more information that suggests the President is lying to you.” It’s quintessential 1st Amendment protected speech, responding to a public figure who was spewing propaganda.

If anything, taking away 230 would make Twitter potentially liable for whatever awful, defamatory things the President himself tweets.

We therefore request that the FCC clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.

There is no framework. The law requires no framework. The FCC has no authority to interpret the law here, and any interpretation they make is meaningless and would likely be ignored by courts who, at best, would wonder why the FCC is butting in here in the first place.

And here’s the little secret Marco Rubio, Josh Hawley and the other Senators don’t want you to realize: they know this. They’re performing this kind of thing because the President wants this crew of no-spine Senators to back up his nonsense. And now we know which kind of spineless, hypocritical dolts hop to it when the Emperor orders them to make fools of themselves.

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Comments on “Senators Rubio, Hawley, Loeffler And Cramer Ask The FCC To Reinterpret Section 230 In A Totally Ridiculous Manner”

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Bloof (profile) says:

I’m sure when this fails, they’ll put forward doomed bills with fancy backronyms designed to try and bully internet companies into bending to their will. I await the Americans United Denouncing Internet Erasure of Nonsense from Conservative Extremists Act, because Conservatives feel that free speech entitles them to an AUDIENCE.

It doesn’t, but they sure wish it did.

Anonymous Coward says:

Re: Re:

Conservatives feel that free speech entitles them to an AUDIENCE. It doesn’t, but they sure wish it did.

"Tell me, Mr. Anderson, what good is a phone call when you are unable to speak?"

Speech is pointless without an audience being able to receive the intended message. That’s the whole reason they are making this shtick to begin with, and why it would have any effect if successful. To say otherwise is to ignore the whole point of free speech: The ability to communicate with others sans government interference.

People have always had the ability to communicate with themselves, as the mind is the one place the government cannot reach yet. It’s always been when others are involved, that the government tries to ban speech. That is why the First Amendment exists. To protect both the speaker and those listening to said speaker from the government. That’s the reason for the language of "or the right of the people peaceably to assemble" in the First Amendment.

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nasch (profile) says:

Re: Re: Re:

Speech is pointless without an audience being able to receive the intended message.

Yes, but there is no right to an audience. That would be a right to force others to listen.

That is why the First Amendment exists. To protect both the speaker and those listening to said speaker from the government.

Which of course has nothing to do with Twitter, Facebook, or any other private company.

PaulT (profile) says:

Re: Re: Re:

"Speech is pointless without an audience being able to receive the intended message"

Counterpoint – the audience you want to reach has the right to tell you to GTFO if they don’t want to receive your message.

"The ability to communicate with others sans government interference."

The government isn’t interfering if a private company tells you you’re not welcome to use their property.

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Anonymous Coward says:

Quoting Ron Wyden to show just how wrong these people are about Section 230:

as part of his crusade against social media companies, Trump is proposing to revoke Section 230 of the Communications Decency Act.

Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.

I think we would be vastly worse off in either scenario. Just look at Black Lives Matter and the protests against police violence over the past week as an example. The cellphone video that captured the officer kneeling on George Floyd’s neck spread across social media platforms — and it’s the reason Americans learned about his unjust killing in the first place. So many of these cases of unconscionable use of force against black Americans have come to light as a result of videos posted to social media.

In a world without 230, I cannot imagine that Facebook or Twitter would allow posts about police violence that could possibly be defamatory. These horrible injustices would never get the public attention they deserve. And accountability would be even less likely.

Now what it seems Trump would like is the other scenario — for platforms to be "neutral." Let’s not kid ourselves. Trump’s attempt to abolish Section 230 is essentially a way of bullying social media companies so that he may post what he wants without any challenge.

And so without 230, I think that a lot of sites would choose not to moderate at all, and thus avoid responsibility for anything their users post. It goes without saying that there would be a lot more false, dangerous content out there, from revenge porn to posts supporting white supremacy. The internet would become the cesspool that anti-230 activists claim it is today.

Anonymous Coward says:

Re: Re:

And so without 230, I think that a lot of sites would choose not to moderate at all,

That assumes that without section 230, they would not be sued for what the users post, and there are lots of people who think that without 230, they can sue sites that have posts that offend them. Winning a law suite is expensive, so a site can be bankrupted via the courts, especially if there is no way to get a summary dismissal.

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Anonymous Coward says:

Re: Re: Re:

If 230 was repealed, we’d go back to the decisions of Cubby v. CompuServe and Stratton Oakmont v. Prodigy, which in combination produced the incentive not to moderate that 230 was crafted to remedy. Although neither of those cases have national precedent status, you can be sure they would both be cited in just about any case involving this issue.

It’s also reasonable to assume that as soon as the likes of Facebook or Twitter were sued (which would probably happen the day 230’s repeal went into effect), they’d appeal all the way up to the Supreme Court if they had to, so the question of a site’s level of liability in a non-230 setting, and their ability to move for summary dismissal, would quickly be answered.

Anonymous Coward says:

Re: Re: Re: Re:

That assume that 230 is simply repealed, but the political mood is more to make sites liable for anything that the politicians dislike. Also, while Facebook could survive until the supreme court weighed in to make dismissal simple, how many smaller sites would go under because they could not afford a court fight.

PaulT (profile) says:

Re: Re: Re:2 Re:

"Also, while Facebook could survive until the supreme court weighed in to make dismissal simple, how many smaller sites would go under because they could not afford a court fight."

That’s the fun thing about this kind of idiocy. Those who oppose section 230 and other laws are labouring under the delusion that it’s a way to attack the tech giants and reduce their dominance. In reality, the effect would be to remove their competition.

Anonymous Anonymous Coward (profile) says:

Various Perspectives

There’s a problem with writing this letter to the FCC. The FCC gave up all of its ability to regulate the Internet, and gave it over to the FTC. By all rights the FCC should return this to the post office as having been misaddressed.

/s

Thinking about the political spectrum I imagined a line between each and every distinction. Unfortunately, that created a solid bar as even closely held base ideologies often disagree on some point or another creating yet another subset.

Then there is the idea that a federal agency could step in and regulate where historically there have not been any agencies involved. The contests have always been in the courts, which is a different branch than the legislative or executive. What would the FCC do, sue someone, make a rule that says you can’t do that? The lawsuits would be fast and furious and successful.

"Indeed, as the case made clear, the FCC could regulate broadcast airwaves, because it was scarce spectrum that the government was handing out to broadcasters. That is not true of the internet:"

Yet…and IP maximalists are working very hard to make it so.

And as has been pointed out by both article writers and commenters, §230 is a clarification of the 1st Amendment, not a replacement, not a substitution, not a limitation.

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That One Guy (profile) says:

Re: 'Unless you like looking at mangled bodies, leave 230 alone.'

In that case I would hope that their opponent is even slightly intelligent, because ‘Loeffler is trying to undermine the law that allows you to post freely online and not have your social media accounts riddled with the sort of content that gives moderators PTSD’ is the sort of campaign material that just writes itself.

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That One Guy (profile) says:

And the streak continues unbroken I see

As always, when you have to lie to make your argument you expose that even you know that your arguments are bullshit and incapable of being defended.

If there were any good arguments against 230 they would have been presented by now, the fact that so far all that’s been presented are lies, half-truths and deceptions is most telling both of the argument and the people making it.

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Koby (profile) says:

Not so fast

There is no law, anywhere, that says that you have to treat all speech equally, and that if you don’t it somehow leads to you facing liability.

California state constitution, article 1 section 2:

"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."

This has lead to a case Pruneyard v Robbins, in which all speech became allowed in the public areas of California shopping center parking lots. Owners have been unable to prevent any of the free speech, whether they disagree or not. Instead, the individual becomes responsible for their own speech. It sounds kind of like an agreement with section 230, and especially that the individual speaker is the publisher. And social media platforms seek to avoid liability by NOT being considered a publisher.

Certainly, property owners have engaged in a number of activities and court cases in an attempt to chip away at free speech in a public forum. Manhattan v Halleck dealt with a similar subject regarding public access tv stations. But to say no law exists whatsoever might not be correct.

Anonymous Coward says:

Re: Not so fast

Manhattan disputes your point though, because it found that MNN was not a state actor and therefore was not bound by the First Amendment (i.e., they could regulate the speech on their channel).

Also, It’s my understanding that the scope of Pruneyard has been so limited over time since the original finding that it’s not really useful outside a set of circumstances almost identical to the original facts of the case.

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Mike Masnick (profile) says:

Re: Not so fast

This has lead to a case Pruneyard v Robbins, in which all speech became allowed in the public areas of California shopping center parking lots.

As is your usual position, you have misunderstood and misrepresented Pruneyard. It did not say that. It said that the ONE situation as described in Pruneyard, in which the shopping center WAS the town, and operated the streets and the traffic lights and did basically everything a government would do… THEN it was effectively a state actor.

It has not been applied to all shopping centers, and has been rejected as such multiple times.

Your understanding of these things is not good.

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Koby (profile) says:

Re: Re: Not so fast

It did not say that. It said that the ONE situation as described in Pruneyard, in which the shopping center WAS the town, and operated the streets and the traffic lights and did basically everything a government would do…

I’m a little skeptical. Not only do I not read this as being the basis for the case, but the free speech element has apparently spread to other shopping malls across the state! The Fasion Valley case from San Diego, Costcos all over… I’ve only visited California twice, so I can’t say that I know how things are run out there. But I find it hard to believe that all of these shopping malls across the state are run as government entities such that they all now qualify for Pruneyard protection only on that basis.

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Stephen T. Stone (profile) says:

Re: Re: Re:

I find it hard to believe that all of these shopping malls across the state are run as government entities such that they all now qualify for Pruneyard protection only on that basis.

Mike said:

It has not been applied to all shopping centers, and has been rejected as such multiple times.

You need to read the whole comment, man.

cpt kangarooski says:

Re: Re: Not so fast

Mike, I think you’re confusing Pruneyard with Marsh v. Alabama.

Marsh was the US Supreme Court case involving a company town where the holding was essentially that if you had a town where the land were owned privately by a variety of individuals and the town as a municipal corporation there would be no question that distributing religious literature on the sidewalk would be legal, and that it didn’t matter if a single corporate entity owned all of it.

But it’s a very limited holding and does not apply to malls and such because a mall is not an honest-to-God town.

Pruneyard is really a California Supreme Court case in which that court held that the state constitution of California grants people a greater free speech right than the federal First Amendment protects, including the right to speech in privately owned malls. What the US Supreme Court held was simply that individuals protesting in a privately owned mall without permission, having a right to do so under state law, do not take the property rights of the private owner by doing so. While part of the rights that comprise property includes the right to exclude others, in the context of a shopping mall it is not so diminished as to amount to a taking; regulation of private property is commonplace and normal. Neither does Barnette apply because the individuals’ speech isn’t associated with the owner.

Hardly anyone has followed California’s lead on this and I understand that it’s been getting whittled down even there.

As for its application online… Techdirt covered this a few years ago when Jared Taylor sued Twitter. As far as I know, the courts held that section 230 controls, as federal law is superior to state law. Nothing more will be said on the subject unless section 230 is changed or abolished. Then we’ll see… though I bet it wouldn’t be hard to quickly rejigger the corporate entities involved to move Twitter, Facebook, etc out of CA for legal purposes without having to move the employees, buildings, etc.

Anonymous Coward says:

Re: Not so fast

While your opinion almost seems reasonable you clearly did not read the entirety of the ruling, or have purposely decided to cherry pick a line that benefits the position you are putting forward.

That said, sites like Twitter are not public forums. It is a private company platform that they are allowing speech upon and take reasonable steps to moderate in a way they see best that is enabled by section 230. They are liable for their own tweets/statements and not the users who operate on the platform.

Also Masnick already pointed out how your interpretation of the law has already failed on multiple attempts to use it that way.

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Koby (profile) says:

Re: Re: Not so fast

That said, sites like Twitter are not public forums. It is a private company platform that they are allowing speech upon and…

From Justia.c o m:

"The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in shopping centers even when the center is privately owned".

"…free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner’s property rights…"

I can’t dig through the opinion directly, and I suppose that you can argue that the syllabus summary is completely off base. But the court case sure doesn’t seem like it’s a big nothing burger. Quite the opposite.

Stephen T. Stone (profile) says:

Re: Re: Re:

Excuse me, but I’ve asked you a question about Section 230 multiple times and never gotten an answer out of you, so I’m asking you again in the hopes that you won’t run away like a coward this time:

Should the law force an open-to-the-public service that you own and operate to host racial slurs and anti-queer speech even if you don’t want your service to host that speech under any circumstances?

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Stephen T. Stone (profile) says:

Re: Re: Re:3

I’m asking you, someone who has said before that they have no issue with the law forcing a platform like Twitter — a privately owned open-to-the-public interactive computer service — to host all legally protected speech no matter how offensive or profane, this simple question: How badly would you want the law to force you into doing what you have said it should do to Twitter if you owned and operated such a service?

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Stephen T. Stone (profile) says:

Re: Re: Re:5

I want to be absolutely clear about my understanding of your answer.

Your answer, as I read and understand it, amounts to this: The government should force you to host on an interactive computer service that you own and operate — regardless of the size of that service, the amount of activity on that service, or any preëxisting Terms of Service that say “you can’t post White supremacist propaganda here” — to host White supremacist propaganda even (and especially) if you don’t want to host such content on your service.

I want a final, clear, concise, simple-yes-or-no answer from you on the matter so we have a mutual understanding. Do you believe, sincerely and without any equivocation or qualification, that the government should force your interactive computer service to host speech that you don’t want associated with yourself or your service?

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Koby (profile) says:

Re: Re: Re:6 Re:

You demand a simple answer to a complex question. My concern is that any answer provided gets used as a weapon to demonize my motivation. You might say that if someone argues in favor of free speech that therefore the supporter must want people to be harassed or exposed to vulgar language, when that isn’t the case at all. It is possible to support free speech and open discussion, but not vulgarity and harassment.

Stephen T. Stone (profile) says:

Re: Re: Re:7

You have failed to answer a simple yes-or-no question. I will give you one last chance to prove you’re not a coward and ask that question one more time.

Do you believe that the government should force an open-to-the-public interactive computer service that you personally own and operate to host speech that you don’t want to host/want associated with you and your service?

No more equivocations. No more qualifications. No more cowardly deflections. Either give me an answer (yes or no), or fuck all the way off with your bullshit.

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Scary Devil Monastery (profile) says:

Re: Re: Re:9 Re:

"I think that I’ve explained my position sufficiently."

All we got was that you are desperate to avoid answering a very simple question with very simple ramifications, in a clearcut and concise manner.

So we can take that as tacit acknowledgment that you yourself know damn well that what you are saying is bullshit?

Because what you gave been consistently advocating is that if you start an online service – even just a blog – then as soon as you open the comment field and the first troll posts a racist tirade in your name and/or advocates the use of children as sex toys, then you will be held powerless by law to moderate that post and block his account.

And that’s not a what-if. It’s why facebook moderators today suffer PTSD at a rate which suggests they were soldiers in a high-intensity conflict zone.

That One Guy (profile) says:

Re: Not so fast

If you’re going to go with past court rulings to try to yet again salvage your DOA argument you might want to take a look at a Supreme Court case just last year(MANHATTAN COMMUNITY ACCESS CORPORATION, DANIEL COUGHLIN, JEANETTE SANTIAGO, & CORY BRYCE, v. DEEDEE HALLECK & JESUS PAPOLETO MELENDEZ,) that pretty thoroughly shoots it full of holes, as while it wasn’t directly aimed at social media the comments made in the ruling make it pretty clear that social media most certainly can moderate as they see fit.

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine….

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” … Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.

And social media platforms seek to avoid liability by NOT being considered a publisher.

Koby rule applies here, the platform/publisher distinction does not matter as multiple people have pointed out to you, and social media ‘seek to avoid liability’ by not being held liable for what they themselves don’t post, the exact same rule that applies to every other company and individual.

Certainly, property owners have engaged in a number of activities and court cases in an attempt to chip away at free speech in a public forum

You have no free speech rights on someone else’s property unless it’s government property, so private property owners can not ‘chip away at free speech’ by telling you ‘not on my property‘.

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Anonymous Coward says:

With Trump, and some senators, want, platforms will no longer be able to monitor their users content, if they want section 230 protection.

This could cause problems with the fact that YouTube and others have to obey the European copyright directove.

The way I see it, with what Trump and some senators want, YouTube, and other US based platforms could not deploy copyright filters without losing section 230 protection.

If such a bill is passed, there will need to be a section that says that the USA will not recognize other countries laws, as long as they comply with American laws

Sure, YouTube and others could geoblock Europe, but they could use VPNs outside of Europe. And this does not, contrary to what some people say, does not break any laws in either the US or the EU.

When I drive certain highways close to the Mexico border, my cell phone might connect to towers on the Mexican side of the border, so websites in the USA will think I am in Mexico.’

This can cause problems if I, say, want to listen to iHeart. But I can circumvent that by using the VPN on my home network, so that iHeart or Sirius will not know what I am up to.

Doing this to solve the problem of my phone connecting to cell towers in Mexico and they site thinking I am in Mexico, does not break any laws in the United States. When driving along part of Interstate 8, I am right smack dab next to the border, and my phone does sometimes connect to cell towers in Mexico. So using the VPN to connect to iHeart via my home network, while driving on that part of Interstate 8, does not break any laws in the United States.

The same thing can also happen Texas where I-10 comes close enough to the border, near El Paso, where my phone will sometimes connect to towers in Mexico as well as when I go to San Diego and eat at the Coco’s for breakfast, which is the next to the last exit on I-5 before Mexico. I find that my phone is close enough to connect to cell towers in Mexico and it sometimes does connect when I am about a mile, as the crow flies, from the border

That One Guy (profile) says:

Re: 'You can screen and remove content, just not mine.'

With Trump, and some senators, want, platforms will no longer be able to monitor their users content, if they want section 230 protection.

I don’t think they want no monitoring so much as they want special treatment for them and theirs, special exceptions for speech that they support and/or agree with but that platforms currently don’t want to host.

As multiple stories have made clear several of those trying to undercut or remove 230 have no problem using the tools available to remove content they don’t like, what’s got them throwing tantrums is the fact that the platforms can do that to them.

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