Blatant Hypocrite Ajit Pai Decides To Move Forward With Bogus, Unconstitutional Rulemaking On Section 230

from the that's-not-how-any-of-this-works dept

For years, FCC Chair Ajit Pai has insisted that the thing that was most important to him was to have a “light touch” regulatory regime regarding the internet. He insisted that net neutrality (which put in place a few limited rules to make sure internet access was fair) was clearly a bridge too far, and had to be wiped out or it would destroy investment into internet infrastructure (he was wrong about that). But now that Section 230 is under attack, he’s apparently done a complete reversal. He is now happy to open a proceeding to reinterpret Section 230 to place a regulatory burden on the internet. This is because Ajit Pai is a hypocrite with no backbone, and no willingness to stand up to a grandstanding President.

The key parts of his statement:

?Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act. There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ?clarify ambiguities in section 230.? And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ?policy and purpose arguments to grant sweeping protections to Internet platforms? that appear to go far beyond the actual text of the provision.

?As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230. The Commission?s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.

?Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.?

This is bullshit. And what’s worse is that Pai knows it’s bullshit. And he’s still doing it. Because he’s a coward. He saw what happened when his fellow Commissioner Mike O’Rielly — who was effectively fired for daring to point out that the 1st Amendment blocked forcing internet websites to carry his propaganda — and Pai folded like a cheap suit.

Pai is wrong in almost everything he says above. The FCC has no jurisdiction over internet websites. Previous lawsuits have already held that. Furthermore, the FCC has no jurisdiction over Section 230, which was explicitly written to deny the FCC any authority over websites. The FCC has no power to reinterpret the law.

The final paragraph is the most ridiculous of all. He is correct that social media companies have a 1st Amendment right to free speech. And Section 230 as was written and properly and regularly interpreted by dozens of court decisions — none of which the FCC has ever said a word about — helps guarantee that right is not diminished through frivolous, bogus, and mis-directed litigation. That Pai would ignore all of that to keep a whiny President happy should tarnish Pai’s legacy much more than his dismantling of net neutrality. The fact that he now goes back on everything he has ever said in the past about the FCC and regulations on the internet is just the fetid, rotten cherry on top of a giant pile of bullshit that he has created over the years.

Also, the claim that the immunity is “denied to other media outlets” is straight up wrong. ANY outlet is protected from liability for 3rd party content on their websites. It’s why Fox News and Breitbart can have comments on their websites. It’s why things like Parler and Gab can exist. Pai knows this. He’s just being disingenuous.

In terms of actual impact, all this will serve to do is rile people up, waste a ton of time, and not actually change anything. Because it can’t. But it will create a huge mess in the meantime, distracting everybody, and wasting a ton of resources.

As a final note: we’ve long disagreed with Pai about his stances on many issues, regarding net neutrality, the digital divide, municipal broadband and more. But at least he was consistent. I’d previously believed that he was misguided, but stuck true to his principles. That is clearly no longer the case. He’s a lying hypocrite with no principles, no backbone, and should be regarded as a complete joke. No one can even say that his stance on net neutrality was a principled “small government, fewer regulations” stance any more, because this moves proves it was not. He has no problem moving for regulating the internet when it’s politically convenient. And that’s just pathetic.

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Comments on “Blatant Hypocrite Ajit Pai Decides To Move Forward With Bogus, Unconstitutional Rulemaking On Section 230”

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178 Comments
Anonymous Rex says:

Facebook and Twitter suppressing news stories doesn’t help

People are very protective of the First Amendment. Even if what they did is perfectly legal it will not stand if enough people don’t like the way they censor. Do not be surprised that if they continue censoring that people will be in favor or restricting their Section 230 rights.

In a conflict of free speech rights between corporations and ordinary citizens the citizens should have more rights.

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Stephen T. Stone (profile) says:

Re:

Even if what they did is perfectly legal it will not stand if enough people don’t like the way they [moderate].

I wonder if people will enjoy not having those services when those services decide, after a repeal of 230, that they’d rather shut down or severely hamstring posting to the point where they may as well have shut down instead of dealing with endless lawsuits over someone else’s speech.

????

Anonymous Coward says:

Re: Re: Re: Re:

Doesn’t matter what one does, it will adversely affect a conservative voice somewhere, and some are getting a bit crazy.

Yep, and that’s the point. Conservatives think that they are supposed to be allowed to do whatever the fuck they want, and everyone else is to grab their ankles and cry "Please Master, may I have another?"

It’s the reason why when I saw the initial backlash against Twitter and Facebook my first thought was: "Welp, what bullshit did Conservatives push this time?" After all it’s not like this "story" is new. It’s been around in one shape or form since Conservatives started targeting Social Media, with repeats on the uptick since Social Media platforms caved and started making their moderation practices more known.

And before anyone rushes in and says Democrats would be better "Vote blue no matter who": The Democrats would just as gladly silence the public given the chance. I’m sure in a few years we’ll be making comments about how Democrats want Section 230 gone because of Identity Politics or some other PC crap. If nothing else, we’ll definitely be making comments because of all of the CP on the internet and how getting Section 230 removed would "magically make all of it go away."

Crap like this is the reason why the US is about to implode. Too many idiots willing to do anything to "beat teh libz!", which is just idiot speak for "people I disagree with", even if it means shooting themselves in the head to do it.

Anonymous Coward says:

Re: Re: Re: Re:

Its not just the fringes can reach the masses, but also the fringes can find each other. It used to be that the fringes knew they were the odd one out because no one else shared their "thing". But with the internet these fringes can find each other and it encourages them to stand out and/or do things they wouldn’t have before. When the fringe "thing" is something harmless like knitting socks out of dog fur, it’s no big deal, but when it’s holocaust denial and white supremacy it’s a much bigger deal.

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Anonymous Coward says:

Re: Facebook and Twitter suppressing news stories doesn’t help

In a conflict of free speech rights between corporations and ordinary citizens the citizens should have more rights.

The problem is that free speech rights for corporations can often be the same as the free speech rights for ordinary citizens.

I can tell Twitter it can’t post on my personal website as much it can tell me I can’t post on its corporate website. That’s the same free speech right. You can’t differentiate it as two different rights.

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Prometheus's son Amateurmetheus says:

Re: Re: Facebook and Twitter suppressing news stories doesn&rsqu

I can tell Twitter it can’t post on my personal website as much it can tell me I can’t post on its corporate website.

You’re misunderstanding that the whole of Twitter is NOT its "corporate website". It offers a PERSONAL websites to each user. Twitter is no different than other HOSTS, except facilitates communication between those personal sites.

Problem is that Twitter (and the rest of the globalist corporations) asserts control over USERS speech.

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Stephen T. Stone (profile) says:

Re: Re: Re:

Problem is that Twitter (and the rest of the globalist corporations) asserts control over USERS speech.

Mastodon instances assert their right to moderate speech however they see fit, and I’m hard pressed to find a corporate-owned Masto instance (or one that’s widely known, at any rate). You gonna tell them that they can’t moderate speech, either?

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Anonymous Coward says:

Re: Re: Re: Facebook and Twitter suppressing news stories doesn&

It offers a PERSONAL websites to each user.

Even if that is true, and Twitter and Facebook are more than that, they can still refuse service to anybody, especially as they are paying the bills.

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Rocky says:

Re: Re: Re: Facebook and Twitter suppressing news stories doesn&

You’re misunderstanding that the whole of Twitter is NOT its "corporate website". It offers a PERSONAL websites to each user.

Not really, they allow the use of their service AFTER you agreed to the TOS. You wouldn’t violate a contract, right?

Problem is that Twitter (and the rest of the globalist corporations) asserts control over USERS speech.

No, they do not. You agreed to their TOS, so if you post something they don’t like you are out. Or do you regularly violate contracts and scream about your imaginary rights to use property you don’t own?

The solution is very simple, take your speech somewhere where it’s welcome. Nobody is forcing you to use Twitter, Facebook or whatever – it’s entirely your choice.

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Samuel Abram (profile) says:

Re: Re: Re:2 Facebook and Twitter suppressing news stories do

The solution is very simple, take your speech somewhere where it’s welcome. Nobody is forcing you to use Twitter, Facebook or whatever – it’s entirely your choice.

Pretty much this. Leaving Twitter and Facebook was always an option, and those wishing to amend or repeal §230 either don’t realize this or refuse to do so.

That One Guy (profile) says:

Re: Re: Re:3 Facebook and Twitter suppressing news storie

I imagine there are a few who honestly do not know that there are other options, but for most they almost certainly do know that there are other options but also know that no-one uses those other options such that switching to them would requiring giving up the large audience that current platforms have, not to mention involve swapping to a platform with nothing but people like them, and all that would involve.

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PaulT (profile) says:

Re: Re: Re:4 Facebook and Twitter suppressing news st

In actual fact, I’m not sure I know anyone who only uses one social network exclusively, so the claim they don’t know about competition is laughable. Sure, they tend to gravitate to the same handful of platforms but that’s where the people are.. TikTok demonstrated that a new network can gain popularity today as much as Facebook did when it started, so the main problem seems to be that people just don’t want to go to sites like Gab, rather than there being any actual block.

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Anonymous Coward says:

Re: Re: Re: Facebook and Twitter suppressing news stories doesn&

No, you’re misunderstanding. By personal site and corporate site, I was differentiating ownership. You own your personal site. Twitter owns twitter.com.

Twitter owns all of Twitter’s "sites," whether you think they’re personal to the users or whatever. What you call personal sites still belong to Twitter. The platform is all Twitter. And it’s the same legally as your personal blog if you self-host. The only thing Twitter doesn’t own is other people’s speech, but it can moderate and choose not to host the speech of others on their site. The same way that if you host a WordPress installation on your own site, you get to moderate the comments that others make on it. You can make up your own TOS and enforce it as you please.

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PaulT (profile) says:

Re: Re: Re: Facebook and Twitter suppressing news stories doesn&

" It offers a PERSONAL websites to each user"

No, it really doesn’t. Again, you have to invent an alternative reality to complain about, because the one the rest of us live in doesn’t agree with your fantasies.

"Problem is that Twitter (and the rest of the globalist corporations) asserts control over USERS speech."

Nope, Twitter can’t do jack shit about your speech. But, they have the right to control their own private property. Those right include the ability to tell you to go elsewhere to exercise your speech, and use their many, many competitors or even your own property.

When your local bar kicks you out for being a belligerent asshole (as I suspect is a regular occurance), they haven’t stopped you drinking, they’ve just told you not to do it on their property. Why do you have problem with private property rights?

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Anonymous Coward says:

Re: Facebook and Twitter suppressing news stories doesn’t help

In a conflict of free speech rights between corporations and ordinary citizens the citizens should have more rights.

Citizens have never had the right to force a corporation to carry their words. Indeed the newspapers and traditional publishers place even more restriction on what they will publish that Internet sites that allow user generated content.

Your problem is that people do not want to listen to you, so you want the government to force them to listen. You will not succeed in that, as people will find other ways of communicating where they can avoid the likes of you.

mattfwood (profile) says:

Re: Facebook and Twitter suppressing news stories doesn’t help

A private website can’t censor the president. The 1st Amendment protects Twitter and its users from the government; it doesn’t protect the government from Twitter.

And the notion that a single social media platform tamping down on a particular piece of propaganda somehow curtails the president’s ability to say it and to distribute it widely is laughable.

What do you want next, a law that says every newspaper has to carry the Russian I mean NY Post story on Hunter Biden, or else that is censorship too?

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Anonymous Coward says:

Re: Facebook and Twitter suppressing news stories doesn’t help

In a conflict of free speech rights between corporations and ordinary citizens the citizens should have more rights.

Then why can’t the gov’t force a corporation to bake a cake for a gay couple?

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Anonymous Coward says:

Re: Re:

Book publishers/sellers, print media, and broadcast media enjoy the same type 3rd Party Liability Immunity as websites have under 230 ?

Book publishers / sellers, print media and broadcast media enjoy the same 3rd party liability immunity on their websites as with all websites under 230.

BernardoVerda (profile) says:

Re: Re: Re:2 Re:

My question was actually about how much difference curation makes.

My understanding was that the more involved some party is, in deciding what gets published, the more likely they are to be held responsible or found to share responsibility for that material.

(So, for example, book publishers and newspapers are considered more involved — and more at risk — than an online comment board or social media platform, as they may be considered participants in the process, rather than merely the medium of communication.)

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Anonymous Coward says:

Re: Re: Re:3 Re:

Curation makes no difference, that’s the entire point of Section 230. Its intent is to remove any liability for user content so websites can be free to moderate it as they see fit. That was seen as desirable because if the level of curation determines liability then companies will simply moderate nothing to be legally safe.

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PaulT (profile) says:

Re: Re: Re:3 Re:

"My understanding was that the more involved some party is, in deciding what gets published, the more likely they are to be held responsible or found to share responsibility for that material."

You may be confused. All that section 230 does is protect a platform from the consequences of actions over which it had no control. It does not protect them if they post the content itself.

So, for example, if you go a newspaper’s website and read a story posted by a journalist, editor or contractor for the newspaper, they would be liable for the content since the newspaper posted the content themselves. However, they would not be held liable for any comments posted by the general public on that page, since they had no control over that speech (although they would be held liable for any responses made by newspaper staff in the same section). The level of curation is irrelevant, it’s all about who posted it and their relationship to the platform used.

This is all section 230 is – if somebody did or said something objectionable, you have to go after the person who actually did that thing, rather than suing whoever owns the property it happened on, or the nearest cash-rich innocent. bystander.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

My question was actually about how much difference curation makes.

None whatsoever. Every interactive web service has a right to decide what speech is and isn’t acceptable on that service. To say otherwise is to say that the government doesn’t allow services to moderate speech — and we all know that’s not true.

My understanding was that the more involved some party is, in deciding what gets published, the more likely they are to be held responsible or found to share responsibility for that material.

Not quite true, but you’re on the right track: Legal liability for speech falls upon those who make that speech. A service such as Twitter holds no responsibility for the speech of third parties (e.g., Donald Trump). But if a Twitter employee were to, through direct action, help craft that speech (in part or in whole) or aid in its publication, the law would put Twitter on the hook for that speech. This is why the Backpage case happened: Backpage employees were found to have helped in the crafting/publishing of the content that got Backpage in trouble.

Moderating speech is not an act for which services can be punished. Twitter admins have the absolute legal right to decide what speech Twitter will and will not host. Without 230, that right would not exist — or not in the way it currently exists, at any rate.

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Anonymous Coward says:

Re: Re: Re:4 Re:

" Twitter admins have the absolute legal right to decide what speech Twitter will and will not host. Without 230, that right would not exist — or not in the way it currently exists, at any rate."

No

Twitter distributes an edited/curated media product and is subject to longstanding Common Law & statute liability for defamation, etc.

However, S230 granted Twitter and internet media SPECIAL IMMUNITY from laws that still apply to everyone else.
That’s why S230 is so controversial !

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Anonymous Coward says:

Re: Re: Re:5 Re:

Make Twitter liable for every and any tweet published by its service, and twitter shuts it doors. If you get what you are demanding, you will find that you have returned the world to the pre-internet state, where corporations decide what speech can be published, and leave the majority with no realistic way of getting their words published.

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PaulT (profile) says:

Re: Re: Re:5 Re:

"However, S230 granted Twitter and internet media SPECIAL IMMUNITY from laws that still apply to everyone else."

No, it hasn’t. They have the same rights as everybody else. You’re just bitter because that means they can choose not to associate with you in the same way that the bar you get kicked out of every Wednesday morning can choose not to.

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Stephen T. Stone (profile) says:

Re: Re: Re:5

Section 230 protects Twitter from legal liability for the speech of third parties. You can’t sue Twitter for defamation over a tweet someone else posted unless you can prove Twitter employees helped either write or publish that tweet through direct and knowing action. That law applies to all other interactive web services, no matter how small.

And by the by, you can’t sue an offline business for third party speech, either. If someone slaps a flier that defames you on the window of a local Dollar Tree, you can’t sue Dollar Tree unless you can prove a Dollar Tree employee either wrote or “published” the flier (i.e., put the flier on the window).

230 does not grant a “special right” to any company. It codifies the law surrounding liability for third-party speech as it relates to web services. Without that law, the Prodigy ruling might have become the precedent that governs the Internet — and as much as you seem to hate Twitter being legally allowed to moderate speech, I bet you’d hate even more an Internet that is far less interactive.

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Anonymous Coward says:

Re: Re: Re:5 Re:

I think you misunderstand how the internet works.

Twitter is a computer tool company with a platform. They create and host a tool that gives people the necessary items to write a digital sign and hold it up where others can see. Twitter should no more be held liable for what you write on your sign than the grocery store should be held liable if you stand on their property with an offensive picket sign you created. Just because Twitter provided the sign and the markers also doesn’t mean they can’t tell you to get off their property and never come back when you start drawing swastikas or spreading conspiracy theories.

techflaws (profile) says:

Re: Re: Re:3 Re:

My question was actually about how much difference curation makes.

You could by now have read

Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act.

which should be prominently linked to from any article covering this subject (it’s in the trending posts on the right though).

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Rocky says:

Re: Re: Re: immunity law

well then, what law grants these other types of media the very same immunity as internet media ?

The first amendment.

And why doesn’t THAT law also grant same immunity to internet media, thus eliminating any need for Section 230 ??

It does (first amendment), but the amount of content generated on the internet doesn’t lend itself to be curated like news-print or other traditional media.

To explain the problem, imagine if an internet service could be liable for all content they moderated. Now imagine that the same internet service could also be liable for all content they didn’t moderate. That was the untenable situation before Section 230 clarified who really was liable.

Rocky says:

Re: Re: Re:3 immunity law

so you have determined that 1st Amendment protections vanish if some large amount of free speech content is produced

No, that’s you jumping to conclusions by taking something out of context.

You specifically asked And why doesn’t THAT law also grant same immunity to internet media, thus eliminating any need for Section 230 ??, and I said that the first amendment still applies. The "but" I added is for the need of Section 230 to clarify WHO is liable for content posted.

It’s almost like you didn’t read the entirety of my post. Do yourself a service, go and read Section 230 (it’s short) and come back if you have any questions: https://www.law.cornell.edu/uscode/text/47/230

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PaulT (profile) says:

Re: Re: Re:3 immunity law

"…. so you have determined that 1st Amendment protections vanish if some large amount of free speech content is produced ???"

No, since we’re not talking about the government.

"Nobody else in history has ever before asserted such nonsense."

I agree that we’re dealing with historical amount of ignorance, but not in the way your fevered imagination is projecting it.

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Anonymous Coward says:

Re: Re: Re:3 immunity law

Section 230 codifies something that should be blatantly obvious (and is for those in the industry) given the 1st amendment, personal liability, and how the internet works. The problem was back in the 1990s (and seems to continue based on your responses) that there is a very limited understanding by the average person how internet tools and platforms work. Since there was a famous case involving CompuServe where a platform was held liable for their user’s content, a few legislatures decided to make it absolutely clear in the law that just because a platform creates tools and hosts other people’s speech, its the speakers of the speech and not the platform who should get the blame.

Just as you shouting "fuck the police" while riding past a cop in my car

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Anonymous Coward says:

Re: Re: Re:4 immunity law

Oops — got cut off.

Just as you shouting "fuck the police" while riding past a cop in my car should be protected by free speech, the state should not be allowed to penalize or harass me just because I was there with you and gave you a way to make your comment.

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Anonymous Coward says:

Re: Re:

They do.

If I take a copy of a book and write something actually defamatory on the book jacket, you don’t get to sue the publisher or the author of the book.

If I hang signs that imply false things about the president with actual malice on the notice board in the local Panera Bread, he doesn’t get to sue Panera.

If I somehow splice into the local TV broadcast and inject porn into the ABC Local News reports, you don’t sue ABC Local 4.

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Uriel-238 (profile) says:

It's on brand for Pai

I suspect this is less about Pai caring about the integrity of section 230 and more that it’s in vogue to throw shade on it, especially because the conservatives don’t like it when people notice they conflate conservatism with racial bigotry and supremacist rhetoric (and overly permissive use of racial slurs).

That’s what Pai’s superiors are harrumphing about so Pai, being a master line-toer shall harrumph also.

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Atkray (profile) says:

Sorry Mike, Santa is not real.

Mike,
Your statement:

" I’d previously believed that he was misguided, but stuck true to his principles. "

Is because even though you spend most of your time in a cesspool, you (as demonstrated by your end of year posts) try to see the good in people.

It is what makes the site readable and often infuriating but keeps it from becoming overwhelmingly depressing.

Many of the rest of us have long felt that Pai would sell his dying mother’s hospital bed out from under her.

That said,

Thank you for being a lighthouse in the storm that is 2020.

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Scary Devil Monastery (profile) says:

Re: Sorry Mike, Santa is not real.

"Many of the rest of us have long felt that Pai would sell his dying mother’s hospital bed out from under her. "

Pai would go further than that. He’d be on the phone with doctors, at her death bed, negotiating a good price for her kidneys. And claim with pride that her last lucid moments in life would be of her son being successful at his business.

Most rational people believe there’s common ground with even the worst adversaries. A bottom line to be found. Lines that if crossed should provoke shock and outrage.

When it comes to republican top posts it’s pretty clear that anyone with even a shred of decency, ethics and morality has been carefully and painstakingly vetted out, leaving only people so absent of positive traits they could be reasonably compared to Heinrich, Himmler and Hess.

Scary Devil Monastery (profile) says:

Re: Re: Re: Sorry Mike, Santa is not real.

"godwin’d at 1:05AM"

That rule does not apply when the people in question do, in fact, possess the relevant qualities. Heinrich, Himmler and Hess have been the field of very extensive psychological scrutiny – and as it turns out their particular profiles aren’t rare.

Ajit Pai and a number of other people in recent times, such as Shkreli, fit the profile perfectly.

But hey, I’m game. I’ll just talk about the Very Fine People instead, if you think that’s better.

ECA (profile) says:

I can see it now.

An advertiser, sends 3rd party data to sponsored sites.
Its a stupid one that says stupid things, and should be banned for just being stupid.

But who is liable?
Lets not go after the Advert agency, nor the group who bought and paid for it to be Broadcast around the net.
LETS SUE THE SITE CREATOR, and why not add the Server owners?
Someone has to be responsible for Checking a 3rd party advert, before its displayed on THEIR own site?

What newspaper/TV channel/Radio is held responsible for Adverts?
At this point, anyone creating a Internet site would need to become an LLC. To protect themselves.

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Prometheus's son Amateurmetheus says:

Nor do corporations have right to control the speech of "users"

But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.

S230 made an exception to ALL prior law and left a loophole so that hosts get to claim are publishers, not mere hosts, and thereby control speech of The Public, and while IMMUNE too.

Tell ya, Maz, that immunity and control are not going to be allowed to continue. Was never the intent — CANNOT be in American Law — that hosts get to control Public Forums.

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Anonymous Coward says:

Re: Nor do corporations have right to control the speech of "use

Was never the intent — CANNOT be in American Law — that hosts get to control Public Forums.

I guess it’s a good thing that Twitter and Facebook aren’t Public Forums then.

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Rocky says:

Re: Re: Re: Nor do corporations have right to control the speech

You didn’t really read the opinion from the judge in that case it seems. The case touched upon the subject of government censorship and since Trump et al said that his twitter account was used as an official government communication channel they are then not allowed to block people on his account for which they where sued.

That doesn’t translate into Twitter becoming a public forum, because if that where the case any service that the government uses in an official capacity would then become a "public". For example, if the government buys a page in a news-paper to inform people of something that’s official government communication – do you really then believe the news-paper then becomes a "public forum"?

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Anonymous Coward says:

Re: Re: Re:2 Nor do corporations have right to control the sp

"Opening an instrumentality of communication “for indiscriminate use by the general public”creates a public forum. The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum."

So. sayeth the 2nd Circuit.

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Rocky says:

Re: Re: Re:3 Nor do corporations have right to control th

I see you don’t understand the context. I’m not surprised since it’s the normal MO of someone who thinks they are right because they just read one paragraph that fit their narrative without even reflecting on what they read.

Let me explain the context (which is blatantly obvious in the quote from the 2nd circuit): When the judge says that the conduct created a public forum, he is actually referring to the specific account in question.

Here’s a quote from the opinion:

President Trump established his account, with the handle @realDonaldTrump,(the "Account") in March 2009. No one disputes that before he became President the Account was a purely private one or that once he leaves office the Account will presumably revert to its private status. This litigation concerns what the Account is now.

See, the judge is talking about the public/private nature of the account, not Twitter.

And here’s another where the Judge affirms the earlier decision:

The United States District Court for the Southern District of New York (Buchwald, J.) found that the "interactive space" in the account is a public forum and that the exclusion from that space was unconstitutional viewpoint discrimination. We agree, and, accordingly, we affirm the judgment of the District Court.

See, here the judge says it’s the "interactive space" in the account that is a public forum, not Twitter.

Here’s a tip: If you are going to prove someone wrong, don’t try to be an smart-ass when you haven’t done the due diligence, it only makes you look like a fool.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re: Re: Nor do corporations have right to control the speech

"Actually twitter IS a public forum, and has been ruled so by the Courts. "

No, it hasn’t. They have ruled that, since Trump was using his personal Twitter account to broadcast official White House communication, his personal account would have to be included as an official White House communications outlet and thus be subject to retention rules that cover all White House comms. But, this did not affect any other account on the platform.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re: Re:

I do remember that ruling.

It was about whether Trump could block American Twitter users from viewing his personal Twitter account since he used it for government business so often that it became a de facto government account. That case had nothing to do with the government forcing Twitter to become a public forum where all speech must be hosted and treated equally. You’re probably thinking of Manhattan Community Access Corp v. Halleck — which didn’t directly deal with the idea of “social network services are public forums”, but did address the idea in both the ruling (written by Trump appointee Brett Kavanaugh) and in Sonia Sotomayor’s dissent.

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TFG says:

Re: Nor do corporations have right to control the speech of "use

I see you haven’t read and understood the actual language of section 230 nor paid any attention to what the creators to the law have said about it.

Nor have you paid any attention to the fact that the Supreme Court already ruled it constitutional when the rest of the CDA (that section 230 was never really intended to accompany) was struck down.

It is, perhaps, the most American law there is, when you’re looking at laws that exemplify the actual virtues that the country is supposed to stand for.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

230 does not use the “publisher”/“platform” distinction anywhere in its text. Neither does the First Amendment, the protections of which are afforded to sites like Twitter by way of 230.

We get that you want to force your speech onto services like Twitter and force those services to give you an audience. You could at least show a little honesty and admit to it.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Nor do corporations have right to control the speech of "use

"Was never the intent — CANNOT be in American Law — that hosts get to control Public Forums."

Just like a bar, a private home, or the local mom-and-pop store a privately owned platform is still not a public forum.

I’m pretty sure that actual communism where the state seizes control over the means of production – private enterprise and property – was even less American Law or Intent…but apparently that’s how you see it.

Neither Facebook nor Twitter are public forums. They are private platforms and no more public than your own living room or the wal-mart next block is. The rules by which you are allowed entry is clearly described on the door and if you don’t follow the rules set by the home owner, out you go.
Yet here you are, arguing like a soviet commissar that private property is a lie and must be curtailed by the glorious state.

Honestly, I shouldn’t be surprised by now that "alt-right" appears to mean "extreme left" – by european standards, at that.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Nor do corporations have right to control the speech of

I’m pretty sure that actual communism where the state seizes control over the means of production

Actually that is socialism, while communism is when the workers own the means of production. Communist parties adopted the theory that they needed to implement socialism, as a step on the way to the communist heaven, but having achieved that objective, they decided not to work on the next step which involved them giving up power.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Re: Re:2 No one is, by definition, communist

That’s correct. China is, and the Soviet Union was, a provisionary pre-Communist authoritarian regime. People put in such positions tend to try to king it that is, they consolidate power and try to hold onto it.

Even Lenin couldn’t follow through, and we’re not sure Lennon could either.

Scary Devil Monastery (profile) says:

Re: Re: Re: Nor do corporations have right to control the speech

"…but having achieved that objective, they decided not to work on the next step which involved them giving up power."

I stand corrected. Although for most semantic purposes I doubt the alt-right would recognize the difference anyway. I mean, a not insignificant proportion of the alt-right actively wants to abolish government in favor of complete county-owned principalities, which ironically renders many of them dictionary-definition communist.

This comment has been deemed insightful by the community.
nasch (profile) says:

Re: Re: Re:2 Nor do corporations have right to control the sp

Although for most semantic purposes I doubt the alt-right would recognize the difference anyway.

Forget alt-right, mainstream Republicans think regulated privately owned for-profit health insurance is socialism, so they definitely don’t know the difference between socialism and communism.

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This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re: Re:

The Courts have said so.

The Supreme Court, the highest judicial authority in the United States, said otherwise. Now, who do you think I’m going to trust: the Supreme Court or some rando schmuck who makes a claim of fact without presenting the evidence to back it up?

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Re: Re:2 Nor do corporations have right to control the sp

Not true.

"Opening an instrumentality of communication “for indiscriminate use by the general public”creates a public forum. The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum."

The "we hold" language establishes that.

So. sayeth the 2nd Circuit.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re: Re:3

And the ruling was strictly limited to Donald Trump’s personal Twitter account — because if Trump were using that account for government business (which he is), the American public would have every right to either tell him off or suck him off in equal measure with their own accounts. The court didn’t rule that Twitter itself is a public forum. It ruled that Donald Trump’s account on Twitter is a public forum, subject to the same rules as public forums in meatspace, so long as he remains part of the government.

Scary Devil Monastery (profile) says:

Re: Re: Re: Nor do corporations have right to control the speech

"Yes they are. The Courts have said so."

If that was the case the whole GOP would have launched suits the very second the ruling came out. Your claim is self-evidently false.

What the courts have said is that the personal comment section of POTUS is covered by the rules around official government publication.

Meaning that Trump’s tweet history will be retained for as long as the US exists and must be publicly available for all that time, to any who asks.
The rest of twitter, not so much.

This should be a pretty easy exercise in logic. If POTUS holds a public address at a stadium then for the duration of his rally that stadium is covered by government publication rules.

It is not so before or after the rally.
It is not so for any other stadium owned by whoever owns the stadium POTUS is talking in.
It is not so for any other stadium anywhere.

Your logic is…as childish and broken as what we’ve normally come to expect from the alt-right.

PaulT (profile) says:

Re: Re: Re:2 Nor do corporations have right to control the sp

"What the courts have said is that the personal comment section of POTUS is covered by the rules around official government publication."

…and that the specific reason for this is that he was using it for official government communication instead of using the already publicly used @POTUS Twitter account. If he’d have done that, as Obama did, then no such decision would have been necessary. But, instead, he used his personal account to such a degree that his Twitter feed was finding about policy decisions before his own staffers were, and there’s a public need to retain that information and to stop Trump from blocking people from knowing about what’s communicated.

These guys are taking a decision to stop Trump from bypassing the public need to record the official communications made on behalf of the White House, and pretending that the decision means that the government seized all private property in that location… which is apparently a good thing despite them hating communism and hating Hillary for trying to bypass official communications channels.

Anonymous Coward says:

they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

I’ll take this as "denied to offline media outlets". Obviously the online comments section of the newspaper, if they still have one, gets this immunity too.

But anyway, I agree. They don’t have a First Amendment right to special immunity denied to print newspapers. They have the exact same First Amendment rights as everyone else.

What they DO have is a special statutory immunity, known as Section 230. Statutes trump regulations, generally.

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This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

Any repeal of Section 230 will also apply to “right-wing” websites. I’d worry less about “liberal tears” and more about your own when your favorite conservative social media network gets shut down because you were too invested in the suffering and pain of others to realize how much you were hurting yourself.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Is that all that US conservatism has become?

By 2017 the right wing has only become a dark reflection of the left, the republican agenda dissolved to nothing except to decide to undo all things that the black president did. Everything on the table is acceptable so long as it makes the libtards hurt.

If it weren’t for liberal tears, the right wing would die of dehydration, and once they massacre / deport all the immigrants, they’ll start in on the black and browns, then the lower class whites.

And they’ll not stop. Are you on a first name basis with a billionaire? Do you have an uncle who’s a billionaire? If neither of these things, you’re on the list, once they’re done with the trade unionists and communists and Jews. It’s a long list, and the hatred fuels the movement.

It’s terrifying to me that people would define themselves as an antithesis to an enemy.

But that’s the greatest trick that Satan ever pulled, isn’t it? By giving mortals a paintbrush by which to label others as evil we then have license to do whatever we want. Torture them. Rape them. Enslave them. Suck the scream out of them. It doesn’t matter because they’re diabolic by fiat. Witches are such a convenience!

So long as someone else is themonster we can rest assured that we’re not the real monsters. Right?

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Re: Is that all that US conservatism has become?

"…the republican agenda dissolved to nothing except to decide to undo all things that the black president did."

Naturally. By the time Trump stood for candidacy the republicans were in a pretty bad state. Their power base old and dying, the last shreds of rationale and reason dropping off with McCain, and their whole new base centered around the entitled misfits who thought equal rights for women, the HBTQ-folks, the nonreligious and, of course, the non-whites and "ze jews" meant taking away that very last thing they had to feel good about.

US liberals had better realize they’re in a war, because the "alt-right" certainly sees it that way. There’s no longer a "two sides of the aisle" or a "difference of opinion". There’s just one side which believes in reason, science, and humanitarian ideals to at least some extent…and the other side, composed of a savage death cult rejecting science, education, and equal rights as tools of the devil, standing ad portas with battering rams.

"…once they’re done with the trade unionists and communists and Jews. It’s a long list, and the hatred fuels the movement."

And it never has any purpose beyond that hatred. No actual positive or constructive cause. It’s just a persistent drug trip where the biochemical high of hate fuels the search for more people to hate. The DHS – ironically – has a published paper; "Addicted to Hate: Identity Residual among Former White Supremacists" which describes how disengaging from a lifestyle of hate causes withdrawal symptoms.

"It’s terrifying to me that people would define themselves as an antithesis to an enemy."

And yet defining yourself entirely by what you hate is easy and makes you feel good. So it’s always a popular choice which can only be fought by persistent efforts of intervention and deprogramming.

"But that’s the greatest trick that Satan ever pulled, isn’t it?"

Leave the hypothetical devil out of it. Even assuming we could give scripture credibility the "Devil" only emerges as the chosen scapegoat by which human beings eager to push the blame on anyone other than themselves can stand up and claim "the devil made me do it" rather than have to face the fact that they themselves chose to be monsters.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Re: Re: Witches, Other Witches, Wiccans and Witchcraft

The criminalization or demonization of magic is a fascination of mine. Still active as I recently learned the Roman Catholic Church still endorses Ouija Boards as a channel for talking to demons rather than subconsciouses of the participants. Mostly in their warnings not to try to talk to dead loved-ones. I wonder if the RCC accepts ghosts as a valid phenomenon.

But the term witchcraft has a long history of being the term for criminalized magical practices, much the way sorcery was (still is) used in the east. The Islamic Golden Age came to a close in the 14th century largely due to a rise in religion, in which previous scientific and mathematical methods were criminalized as sorcery. Algebraists, chemists and astronomers disappeared into the woodwork, and astrologers (who were somehow still legal) hung shingles in record numbers.

But the Satan and the Witches in my rhetoric are an old literary device. They’re a label we give to those we other to justify the horrible things we do to them. When Hansel and Gretel are found dead in the woods (from exposure), Someone Must Pay and usually it is the most marginalized among the known folk who get lynched for it.

And for some reason, once someone is the enemy, we’re allowed to do anything to them, which is how the CIA Extrajudicial Detention and Enhanced Interrogation program was pulled together by two devoted members of the Church of Jesus Christ of Latter Day Saints. You’d think such guys would know better than found a program that tortures innocent people without even due process.

But yes, in the twenty-first century, there is a wide gamut of (generally benign or even benevolent) witches and witchcraft. And in the meanwhile, the more religious institutions betray their own principles to preserve institutional power, it reveals that old Scratch may have a valid point.

I certainly approve of The Dark One’s long line of products.

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Appreciative user says:

I think you are obviously right when it comes SPECIFICALLY to section 230. But then you are just addressing the poor arguments of "that" side and not the steelman argument of what the government CAN do to effectively get the same outcome. The broader picture is that they can likely reclassify platforms like Twitter/Facebook as public squares. Even Mark Zuckerberg has come out and said similar (and saying they SHOULD provide more regulation). You can argue all you want about the 1st amendment, but we have long ago ruled that

  1. At a certain level of public good/need
  2. At a certain level of a companies power over the public and/or public discourse

a private company can be treated as a govt entity when it comes to protecting the rights of people it interacts with.

This is a well litigated fields, just not specifically when it comes to virtual things like online platforms. It hasn’t got there yet.

The need for protections given to people from the government (by the amendments) isn’t for some random reason. The reason is that government has overbearing power on you as an individual. At a certain point, because of their size, many corporations are getting close to having this power. I’m not making an argument of exactly when that would be. Maybe not today. But maybe today.

You can no more create a social network that hosts billions of users, than creating your own parallel phone line. So "make your own" isn’t a good faith argument. It is maybe a good argument when talking to other large corporations or someone with political reach like a politician. But not to the every day man. Even more to the point, the fact that solar power is affordable and many people have been able to get "off the grid", doesn’t invalidate the need for the electric company to be classified as a utility.

This is NOT a left vs right debate. IT doesn’t matter who is currently benefiting or at odds with it. You want to make laws that you would be confident giving your enemy to work with.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re:

"You can no more create a social network that hosts billions of users, than creating your own parallel phone line."

Why do you believe that your speech is only valid if it reaches billions of users?

What you’re saying essentially is that the government should seize Wal Mart’s entire property portfolio because the small craft store you would prefer to visit won’t be available in as many locations.

This comment has been deemed insightful by the community.
nasch (profile) says:

Re: Re:

but we have long ago ruled that

  1. At a certain level of public good/need
  2. At a certain level of a companies power over the public and/or public discourse

a private company can be treated as a govt entity when it comes to protecting the rights of people it interacts with.

No, we have ruled that when a private company substantially takes over the functions of government, it can be treated as a government. Think of a mining company town, where the company runs the police, the post office, the utilities – everything. No resemblance whatsoever to Twitter.

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DS says:

Pai is just playing for time

I agree that this move cowardly, but I think Pai is just trying to take the heat off the FCC while they run out the clock on the Trump administration.

Even if they were to publish a draft rule today, there is not way that they could complete the rulemaking process before January 21 — and that’s assuming that they are exempt from OMB limitations on rulemaking just prior to a presidential election.

DS says:

Pai is just playing for time

I agree that this move cowardly, but I think Pai is just trying to take the heat off the FCC while they run out the clock on the Trump administration.

Even if they were to publish a draft rule today, there is not way that they could complete the rulemaking process before January 21 — and that’s assuming that they are exempt from OMB limitations on rulemaking just prior to a presidential election.

Joe Johnson says:

Law of Unintended Consequences my friends...

The part I don’t understand about all this from conservatives is that stripping Twitter and Facebook of their liability protection will simply mean these services will start banning the very conservatives who were calling for their protections to be stripped. Why would Facebook and Twitter put up with hosting Trump’s content if they are going to be held liable in court for his speech? The only reason why they host such speech is they don’t have to potentially spend millions in court defending libel and slander lawsuits.

*facepalm*

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Joe Johnson says:

Law of Unintended Consequences my friends...

The part I don’t understand about all this from conservatives is that stripping Twitter and Facebook of their liability protection will simply mean these services will start banning the very conservatives who were calling for their protections to be stripped. Why would Facebook and Twitter put up with hosting Trump’s content if they are going to be held liable in court for his speech? The only reason why they host such speech is they don’t have to potentially spend millions in court defending libel and slander lawsuits.

*facepalm*

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That One Guy (profile) says:

Re: Law of Unintended Consequences my friends...

The one’s calling for the destructing of 230, well, they’re not the brightest. They see platforms taking down content and when challenged in court the platforms are able to dismiss the case early by invoking 230, and they think that this means that it’s 230 that allows them to engage in moderation, and as such removing 230 would remove that ability.

They’re dead wrong, to put it mildly.

What would actually happen is exactly what you noted, in that without 230 to act as a legal shield against liability platforms would be taking down content much quicker and in much greater number, assuming they allowed user posts at all, resulting in the same people whining that they’re being ‘moderated’ today losing what’s left of their minds as they get moderated into oblivion, since social media would now risk liability if they kept something legally questionable up.

plank says:

Please tell me if I'm being naive

I’ve been thinking about this a lot lately and reading nearly all of the articles TD puts out about this issue, and I had an idea for how to proceed with this kind of regulation that, while it might not make everyone happy, it would at least make most parties less miserable.

It seems to me one of the biggest problems with removing or altering Section 230 is that any changes would unequally affect small platforms such as this who want to have comment sections and the behemoth corps that are required to use ML algos to make any attempt at content moderation at all.

So why not make that division explicit in the law? Come up with some threshold or tiered system where there would be different requirements on content moderation depending on the size of the platform the content is hosted on. This could be based on revenue, page hits, market share, take your pick (this a question to be hashed out later by relevant stakeholders).

Now, I know that in the current state of things this could never happen due to the outsized lobbying influence of the megacorps, but perhaps a rule(s) like this could be included in any upcoming antitrust push? It certainly seems like some traction is beginning to be made on that front what with the recent Cicilline antitrust report.

Just some thoughts, I’d love it if anyone could point out what I’m missing here because I must be missing something.

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Stephen T. Stone (profile) says:

Re:

Once you decide what arbitrary threshold will be used to determine when a specific service (let’s say Twitter) qualifies as “too big” or whatever, you have to figure out a few things:

  • How many other services would qualify under this threshold?
  • If a service is not quite the same kind of service as Twitter (e.g., Instagram), how would that threshold translate to those services?
  • How much control over moderation efforts on qualifying services should the government have?
  • For that matter, how can the government control moderation efforts on qualifying services without violating the First Amendment?
  • What must a smaller service do to adapt itself to the legal realities of its new situation if, in the future, it qualifies under your arbitrary threshold?
  • Plenty of sites that aren’t what we think of when we think “social media” have systems in place for users to socialize. (For example: DeviantArt has comment sections on userpages and submissions and gallery pages, and it also has forums and private messaging.) So the last question here is obviously the most important: What qualifies as a “social media service”?

Your idea is like the proposition of a “flat” tax: It sounds nice when you hear the basic idea, but a minute’s worth of digging into the details will destroy any appeal it might have had.

plank (profile) says:

Re: Re: Re:

These are all good questions to be directed at congress, whose job it is to hash out tough and unpleasant questions — at least that’s what they’re supposed to do.

But without a framework for regulation, none of these questions that ought to be posed will be posed and we’ll continue down this road of bad legislation being proposed while all of the smart people who know better shoot it down without suggesting any workable alternative.

Perhaps it is in the best interests of society to let things go on as they have been with the large platforms fumbling around trying to figure out how to do content moderation at scale, as they have been. But perhaps it would make sense to bring government into the process. That’s all I suggest.

Anonymous Coward says:

Re: Re: Re: Re:

Content moderation at scale rune into the big problem, people will never be in total agreement as to what should or should not be moderated. The solution to that problem also exists, alternative platforms with different moderation policies. However that does not deal with the real root of the calls for changing section 230, and that is a very vocal minority who which to force their views down the throats of those who disagree with them.

When, as they have, discover that most people avoid the forums where that are allowed to say what they want, they want the law changed so that they can force their way onto platforms where the most people are.

Stephen T. Stone (profile) says:

Re: Re: Re:

perhaps it would make sense to bring government into the process

Do you want me to repeat all those questions to you? Because I can do that.

If you’re going to suggest that the government should somehow regulate the moderation practices of Twitter and Facebook, you’ll need to answer those questions. To act as if you can ignore them and still think you can reasonably justify a government takeover of moderation practices is…foolish, to say the least.

PaulT (profile) says:

Re: Re: Re: Re:

"But perhaps it would make sense to bring government into the process."

So… You’re saying that because a private entity is exercising their speech in a way you dislike, the government should be brought in to control said speech?

Think about that for a minute…

Also, content moderation at scale is hard because reality is hard. Forcing a bureaucracy to sit in top of that won’t magically make reality change to make it easier.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Please tell me if I'm being naive

You are being naive, as it involves governments telling companies what speech they can and cannot carry. It also fails in that when a company establishes a popular moderated platform, success mean they have to give up the moderation that made them popular.

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06:27 Clarence Thomas Regrets Brand X Decision That Paved Way For The Net Neutrality Wars (11)
06:17 The FCC To Field More Comments On Net Neutrality. Maybe They'll Stop Identity Theft And Fraud This Time? (79)
08:56 AT&T, Comcast Dramatically Cut Network Spending Despite Net Neutrality Repeal (16)
06:18 Ajit Pai Hits CES... To Make Up Some Shit About Net Neutrality (24)
06:24 Mozilla, Consumer Groups Petition For Rehearing of Net Neutrality Case (22)
06:49 AT&T Exec Insists That No Broadband Company Is Violating Net Neutrality Even Though AT&T Is Absolutely Violating Net Neutrality (19)
06:45 Shocker: ISPs Cut Back 2020 Investment Despite Tax Breaks, Death Of Net Neutrality (61)
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