5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate

from the batshit-crazy dept

As far as I can tell, in the area the 5th Circuit appeals court has jurisdiction, websites no longer have any 1st Amendment editorial rights. That’s the result of what appears to me to be the single dumbest court ruling I’ve seen in a long, long time, and I know we’ve seen some crazy rulings of late. However, thanks to judge Andy Oldham, internet companies no longer have 1st Amendment rights regarding their editorial decision making.

Let’s take a step back. As you’ll recall, last summer, in a fit of censorial rage, the Texas legislature passed HB 20, a dangerously unconstitutional bill that would bar social media websites from moderating as they see fit. As we noted, the bill opens up large websites to a lawsuit over basically every content moderation decision they make (and that’s just one of the problems). Pretty quickly, a district court judge tossed out the entire law as unconstitutional in a careful, thorough ruling that explained why every bit of the law violated websites’ own 1st Amendment rights to put in place their own editorial policies.

On appeal to the 5th Circuit, the court did something bizarre: without giving any reason or explanation at all, it reinstated the law and promised a ruling at some future date. This was procedurally problematic, leading the social media companies (represented by two of their trade groups, NetChoice and CCIA) to ask the Supreme Court to slow things down a bit, which is exactly what the Supreme Court did.

Parallel to all of this, Florida had passed a similar law, and again a district court had found it obviously unconstitutional. That, too, was appealed, yet in the 11th Circuit the court rightly agreed with the lower court that the law was (mostly) unconstitutional. That teed things up for Florida to ask the Supreme Court to review the issue.

However, remember, back in May when Texas initially reinstated the law, it said it would come out with its full ruling later. Over the last few months I’ve occasionally pondered (sometimes on Twitter) whether the 5th Circuit would ever get around to actually releasing an opinion. And that’s what it just did. And, as 1st Amendment lawyer Ken White notes, it’s “the most angrily incoherent First Amendment decision I think I’ve ever read.”

It is difficult to state how completely disconnected from reality this ruling is, and how dangerously incoherent it is. It effectively says that companies no longer have a 1st Amendment right to their own editorial policies. Under this ruling, any state in the 5th Circuit could, in theory, mandate that news organizations must cover certain politicians or certain other content. It could, in theory, allow a state to mandate that any news organization must publish opinion pieces by politicians. It completely flies in the face of the 1st Amendment’s association rights and the right to editorial discretion.

There’s going to be plenty to say about this ruling, which will go down in the annals of history as a complete embarrassment to the judiciary, but let’s hit the lowest points. The crux of the ruling, written by Judge Andy Oldham, is as follows:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one. Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law.

I mean, it’s as if Judge Oldham has never heard of the 1st Amendment’s prohibition on compelled speech.

First, the primary concern of overbreadth doctrine is to avoid chilling speech. But Section 7 does not chill speech; instead, it chills censorship. So there can be no concern that declining to facially invalidate HB 20 will inhibit the marketplace of ideas or discourage commentary on matters of public concern. Perhaps as-applied challenges to speculative, now-hypothetical enforcement actions will delineate boundaries to the law. But in the meantime, HB 20’s prohibitions on censorship will cultivate rather than stifle the marketplace of ideas that justifies the overbreadth doctrine in the first place.

Judge Oldham insists that concerns about forcing websites to post speech from Nazis, terrorist propaganda, and Holocaust denial are purely hypothetical. Really.

The Platforms do not directly engage with any of these concerns. Instead, their primary contention—beginning on page 1 of their brief and repeated throughout and at oral argument—is that we should declare HB 20 facially invalid because it prohibits the Platforms from censoring “pro-Nazi speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.

Far from justifying pre-enforcement facial invalidation, the Platforms’ obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that “[i]n determining whether a law is facially invalid,” we should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a “tendency . . . to summon forth an endless stream of fanciful hypotheticals,” and this case is no exception. United States v. Williams, 553 U.S. 285, 301 (2008). But it’s improper to exercise the Article III judicial power based on “hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. SinenengSmith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension between overbreadth adjudication and the constitutional limits on judicial power).

These are not hypotheticals. This is literally what these websites have to deal with on a daily basis. And which, under Texas’ law, they no longer could do.

Oldham continually focuses (incorrectly and incoherently) on the idea that editorial discretion is censorship. There’s a reason that we’ve spent the last few years explaining how the two are wholly different and part of it was to avoid people like Oldham getting confused. Apparently it didn’t work.

We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.

That paragraph alone is scary. It basically argues that the state can now compel any speech it wants on private property, as it reinterprets the 1st Amendment to mean that the only thing it limits is the power of the state to remove speech, while leaving open the power of the state to foist speech upon private entities. That’s ridiculous.

Oldham then tries to square this by… pulling in wholly unrelated issues around the few rare, limited, fact-specific cases where the courts have allowed compelled speech.

Supreme Court precedent instructs that the freedom of speech includes “the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). So the State may not force a private speaker to speak someone’s else message. See Wooley, 430 U.S. at 714.

But the State can regulate conduct in a way that requires private entities to host, transmit, or otherwise facilitate speech. Were it otherwise, no government could impose nondiscrimination requirements on, say, telephone companies or shipping services. But see 47 U.S.C. § 202(a) (prohibiting telecommunications common carriers from “mak[ing] any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services”). Nor could a State create a right to distribute leaflets at local shopping malls. But see PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the right to pamphleteer in privately owned shopping centers). So First Amendment doctrine permits regulating the conduct of an entity that hosts speech, but it generally forbids forcing the host itself to speak or interfering with the host’s own message.

From there, he argues that forcing websites to host speech they disagree with is not compelled speech.

The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content. And then virtually everything else is just posted to the Platform with zero editorial control or judgment.

Except that’s the whole point. The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use). So, basically, Oldham is simply wrong here. They do exercise editorial control. That they use it sparingly does not mean they give up the right. Yet Oldham thinks otherwise.

From there, Oldham literally argues there is no editorial discretion under the 1st Amendment. Really.

Premise one is faulty because the Supreme Court’s cases do not carve out “editorial discretion” as a special category of First-Amendment-protected expression. Instead, the Court considers editorial discretion as one relevant consideration when deciding whether a challenged regulation impermissibly compels or restricts protected speech.

To back this up, the court cites Turner v. FCC, which has recently become a misleading favorite among those who are attacking Section 230. But the Turner case really turned on some pretty specific facts about cable TV versus broadcast TV which are not at all in play here.

Oldham also states that content moderation isn’t editorial discretion, even though it literally is.

Even assuming “editorial discretion” is a freestanding category of First-Amendment-protected expression, the Platforms’ censorship doesn’t qualify. Curiously, the Platforms never define what they mean by “editorial discretion.” (Perhaps this casts further doubt on the wisdom of recognizing editorial discretion as a separate category of First-Amendment-protected expression.) Instead, they simply assert that they exercise protected editorial discretion because they censor some of the content posted to their Platforms and use sophisticated algorithms to arrange and present the rest of it. But whatever the outer bounds of any protected editorial discretion might be, the Platforms’ censorship falls outside it. That’s for two independent reasons.

And here it gets really stupid. The ruling argues that because of Section 230, internet websites can’t claim editorial discretion. This is a ridiculously confused misreading of 230.

First, an entity that exercises “editorial discretion” accepts reputational and legal responsibility for the content it edits. In the newspaper context, for instance, the Court has explained that the role of “editors and editorial employees” generally includes “determin[ing] the news value of items received” and taking responsibility for the accuracy of the items transmitted. Associated Press v. NLRB, 301 U.S. 103, 127 (1937). And editorial discretion generally comes with concomitant legal responsibility. For example, because of “a newspaper’s editorial judgments in connection with an advertisement,” it may be held liable “when with actual malice it publishes a falsely defamatory” statement in an ad. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels., 413 U.S. 376, 386 (1973). But the Platforms strenuously disclaim any reputational or legal responsibility for the content they host. See supra Part III.C.2.a (quoting the Platforms’ adamant protestations that they have no responsibility for the speech they host); infra Part III.D (discussing the Platforms’ representations pertaining to 47 U.S.C. § 230)

Then, he argues that there’s some sort of fundamental difference between exercising editorial discretion before or after the content is posted:

Second, editorial discretion involves “selection and presentation” of content before that content is hosted, published, or disseminated. See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998); see also Miami Herald, 418 U.S. at 258 (a newspaper exercises editorial discretion when selecting the “choice of material” to print). The Platforms do not choose or select material before transmitting it: They engage in viewpoint-based censorship with respect to a tiny fraction of the expression they have already disseminated. The Platforms offer no Supreme Court case even remotely suggesting that ex post censorship constitutes editorial discretion akin to ex ante selection.17 They instead baldly assert that “it is constitutionally irrelevant at what point in time platforms exercise editorial discretion.” Red Br. at 25. Not only is this assertion unsupported by any authority, but it also illogically equates the Platforms’ ex post censorship with the substantive, discretionary, ex ante review that typifies “editorial discretion” in every other context

So, if I read that correctly, websites can now continue to moderate only if they pre-vet all content they post. Which is also nonsense.

From there, Oldham goes back to Section 230, where he again gets the analysis exactly backwards. He argues that Section 230 alone makes HB 20’s provisions constitutional, because it says that you can’t treat user speech as the platform’s speech:

We have no doubts that Section 7 is constitutional. But even if some were to remain, 47 U.S.C. § 230 would extinguish them. Section 230 provides that the Platforms “shall [not] be treated as the publisher or speaker” of content developed by other users. Id. § 230(c)(1). Section 230 reflects Congress’s judgment that the Platforms do not operate like traditional publishers and are not “speak[ing]” when they host usersubmitted content. Congress’s judgment reinforces our conclusion that the Platforms’ censorship is not speech under the First Amendment.

[….]

Section 230 undercuts both of the Platforms’ arguments for holding that their censorship of users is protected speech. Recall that they rely on two key arguments: first, they suggest the user-submitted content they host is their speech; and second, they argue they are publishers akin to a newspaper. Section 230, however, instructs courts not to treat the Platforms as “the publisher or speaker” of the user-submitted content they host. Id. § 230(c)(1). And those are the exact two categories the Platforms invoke to support their First Amendment argument. So if § 230(c)(1) is constitutional, how can a court recognize the Platforms as First-Amendment-protected speakers or publishers of the content they host?

Oldham misrepresents the arguments of websites that support Section 230, claiming that by using 230 to defend their moderation choices they have claimed in court they are “neutral tools” and “simple conduits of speech.” But that completely misrepresents what has been said and how this plays out.

It’s an upside down and backwards misrepresentation of how Section 230 actually works.

Oldham also rewrites part of Section 230 to make it work the way he wants it to. Again, this reads like some of our trolls, rather than how a jurist is supposed to act:

The Platforms’ only response is that in passing § 230, Congress sought to give them an unqualified right to control the content they host— including through viewpoint-based censorship. They base this argument on § 230(c)(2), which clarifies that the Platforms are immune from defamation liability even if they remove certain categories of “objectionable” content. But the Platforms’ argument finds no support in § 230(c)(2)’s text or context. First, § 230(c)(2) only considers the removal of limited categories of content, like obscene, excessively violent, and similarly objectionable expression. It says nothing about viewpoint-based or geography-based censorship. Second, read in context, § 230(c)(2) neither confers nor contemplates a freestanding right to censor. Instead, it clarifies that censoring limited categories of content does not remove the immunity conferred by § 230(c)(1). So rather than helping the Platforms’ case, § 230(c)(2) further undermines the Platforms’ claim that they are akin to newspapers for First Amendment purposes. That’s because it articulates Congress’s judgment that the Platforms are not like publishers even when they engage in censorship.

Except that Section 230 does not say “similarly objectionable.” It says “otherwise objectionable.” By switching “otherwise objectionable” to “similarly objectionable,” Oldham is insisting that courts like his own get to determine what counts as “similarly objectionable,” and that alone is a clear 1st Amendment problem. The courts cannot decide what content a website finds objectionable. That is, yet again, the state intruding on the editorial discretion of a website.

Also, completely ridiculously, Oldham leaves out that (c)(2) does not just include that list of objectionable categories, but it states: “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” In other words, the law explicitly states that whether or not something falls into that list is up to the provider or user and not the state. To leave that out of his description of (c)(2) is beyond misleading.

Also notable: Oldham completely ignores the fact that Section 230 pre-empts state laws like Texas’s, saying that “no liability may be imposed under any State or local law that is inconsistent with this section.” I guess Oldham is arguing that Texas’s law somehow is not inconsistent with 230, but it certainly is inconsistent with two and a half decades of 230 jurisprudence.

There’s then a long and, again, nonsensical discussion of common carriers, basically saying that the state can magically declare social media websites common carriers. I’m not even going to give that argument the satisfaction of covering it, it is so disconnected from reality. Social media literally meets none of the classifications of traditional common carriers. The fact that Oldham claims, that “the Platforms are no different than Verizon or AT&T” makes me question how anyone could take anything in this ruling seriously.

I’m also going to skip over the arguments for why the “transparency” bits are constitutional according to the 5th Circuit, other than to note that California must be happy, because under this ruling its new social media transparency laws would also be deemed constitutional even if they now conflict with Texas’s (that’ll be fun).

There are a few notable omissions from the ruling. It never mentions ACLU v. Reno, which seems incredibly relevant given its discussion of how the internet and the 1st Amendment work together, and is glaring in its absence. Second, it completely breezes past Justice Kavanaugh’s ruling in the Halleck case, which clearly established that under the First Amendment a “private entity may thus exercise editorial discretion over the speech and speakers in the forum.” The only mention of the ruling is in a single footnote, claiming that ruling only applies to “public forums” and saying it’s distinct from the issue raised here. But, uh, the quote (and much of the ruling) literally says the opposite. It’s talking about private forums. This is ridiculous. Third, as noted, the ruling ignores the pre-emption aspects of Section 230. Fourth, while it discusses the 11th Circuit’s ruling regarding Florida’s law, it tries to distinguish the two (while also highlighting where the two Circuits disagree to set up the inevitable Supreme Court battle). Finally, it never addresses the fact that the Supreme Court put its original “turn the law back on” ruling on hold. Apparently Oldham doesn’t much care.

The other two judges on the panel also provided their own, much shorter opinions, with Judge Edith Jones concurring and just doubling down on Oldham’s nonsense. There is an opinion from Judge Leslie Southwick that is a partial concurrence and partial dissent. It concurs on the transparency stuff, but dissents regarding the 1st Amendment.

The majority frames the case as one dealing with conduct and unfair censorship. The majority’s rejection of First Amendment protections for conduct follows unremarkably. I conclude, though, that the majority is forcing the picture of what the Platforms do into a frame that is too small. The frame must be large enough to fit the wide-ranging, free-wheeling, unlimited variety of expression — ranging from the perfectly fair and reasonable to the impossibly biased and outrageous — that is the picture of the First Amendment as envisioned by those who designed the initial amendments to the Constitution. I do not celebrate the excesses, but the Constitution wisely allows for them.

The majority no doubt could create an image for the First Amendment better than what I just verbalized, but the description would have to be similar. We simply disagree about whether speech is involved in this case. Yes, almost none of what others place on the Platforms is subject to any action by the companies that own them. The First Amendment, though, is what protects the curating, moderating, or whatever else we call the Platforms’ interaction with what others are trying to say. We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant. The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more.

Judge Southwick then dismantles, bit by bit, each of Oldham’s arguments regarding the 1st Amendment and basically highlights how his much younger colleague is clearly misreading a few outlier Supreme Court rulings.

It’s a good read, but this post is long enough already. I’ll just note this point from Southwick’s dissent:

In no manner am I denying the reasonableness of the governmental interest. When these Platforms, that for the moment have gained such dominance, impose their policy choices, the effects are far more powerful and widespread than most other speakers’ choices. The First Amendment, though, is not withdrawn from speech just because speakers are using their available platforms unfairly or when the speech is offensive. The asserted governmental interest supporting this statute is undeniably related to the suppression of free expression. The First Amendment bars the restraints.

This resonated with me quite a bit, and drove home the problem with Oldham’s argument. It is the equivalent of one of Ken White’s famed free speech tropes. Oldham pointed to the outlier cases where some compelled speech was found constitutional, and turned that automatically into “if some compelled speech is constitutional, then it’s okay for this compelled speech to be constitutional.”

But that’s not how any of this works.

Southwick also undermines Oldham’s common carrier arguments and his Section 230 arguments, noting:

Section 230 also does not affect the First Amendment right of the Platforms to exercise their own editorial discretion through content moderation. My colleague suggests that “Congress’s judgment” as expressed in 47 U.S.C. § 230 “reinforces our conclusion that the Platforms’ censorship is not speech under the First Amendment.” Maj. Op. at 39. That opinion refers to this language: “No provider or user of an interactive computer service” — interactive computer service being a defined term encompassing a wide variety of information services, systems, and access software providers — “shall be treated as the publisher or speaker of any information provided by another content provider.” 47 U.S.C. § 230(c)(1). Though I agree that Congressional fact-findings underlying enactments may be considered by courts, the question here is whether the Platforms’ barred activity is an exercise of their First Amendment rights. If it is, Section 230’s characterizations do not transform it into unprotected speech.

The Platforms also are criticized for what my colleague sees as an inconsistent argument: the Platforms analogize their conduct to the exercise of editorial discretion by traditional media outlets, though Section 230 by its terms exempts them from traditional publisher liability. This may be exactly how Section 230 is supposed to work, though. Contrary to the contention about inconsistency, Congress in adopting Section 230 never factually determined that “the Platforms are not ‘publishers.’” Maj. Op. at 41. As one of Section 230’s co-sponsors — former California Congressman Christopher Cox, one of the amici here — stated, Section 230 merely established that the platforms are not to be treated as the publishers of pieces of content when they take up the mantle of content moderation, which was precisely the problem that Section 230 set out to solve: “content moderation . . . is not only consistent with Section 230; its protection is the very raison d’etre of Section 230.” In short, we should not force a false dichotomy on the Platforms. There is no reason “that a platform must be classified for all purposes as either a publisher or a mere conduit.” In any case, as Congressman Cox put it, “because content moderation is a form of editorial speech, the First Amendment more fully protects it beyond the specific safeguards enumerated in § 230(c)(2).” I agree.

Anyway, that’s the quick analysis of this mess. There will be more to come, and I imagine this will be an issue for the Supreme Court to sort out. I wish I had confidence that they would not contradict themselves, but I’m not sure I do.

The future of how the internet works is very much at stake with this one.

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Comments on “5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate”

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That Anonymous Coward (profile) says:

What in the, and I cannot stress this enough, fuck is this?

Again have we tested the water lines in these courthouses for lead?
Perhaps he was hypnotized by paxtons eye…
But ummm the words unfit for the bench leap to the front of my mind…
This is the sort of ruling one would expect in a moot court where the professor was seeing if any students would stand up to an obviously mentally distressed Judge.

We really really need to do something with this whole people rejecting reality and inserting their own like its real… especially when they have power.

Rocky says:

Re:

We really really need to do something with this whole people rejecting reality and inserting their own like its real… especially when they have power.

I’m not so sure that this is about people rejecting reality per se. Consider how long it took for the ruling to be released, I think that time was spent to come up with any kind of rationale (aka taking things out of context, conflation, misinterpretation, misquoting and just plain batshit angry ranting) for the ruling – all fueled by the indignation that some aren’t allowed to metaphorically taking shits on other peoples porches.

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bhull242 (profile) says:

Re: Re: Re:7

Here’s a pretty big difference between the two: Mike has since said that having a license to spectrum is not the same as owning that spectrum; by contrast, you have never once admitted that there is a difference between “public house” and “public housing” and have actually doubled down on your original claim multiple times.

Anonymous Coward says:

Isn’t there some kind of minimum intelligence required to be a Federal judge, perhaps the ability to read at, say, the 9th grade level?

This is an opinion like Dobbs, where the judge first decides on his desired outcome and then hunts around for something, anything, to support his conclusion while disregarding precedent, common sense, and reality. Definitely need term limits for judges; maybe an age limit, too.

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PaulT (profile) says:

Re:

“Isn’t there some kind of minimum intelligence required to be a Federal judge”

Apparently not.

“Definitely need term limits for judges; maybe an age limit, too.”

I’m not sure if you notice this, but Judge Cannon, who is currently obstructing procedures against a certain orange con artist who has been caught hoarding government documents, is young enough for most of her peers to agree that she has no business being there with so little experience. Term limits won’t do anything if the people installing them don’t care about competence. In fact, I presume they prefer younger judges, since their lack of experience makes them more easily controlled.

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Anonymous Coward says:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

I am old enough to remember that during the Net Neutrality debate, many on the right were making statements that it’s an Internet Access Provider’s 1st amendment right to determine how to manager their network and which sites they allowed their customers to view.

Funny how times have changed… or at least the businesses being targeted.

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That One Guy (profile) says:

Re:

‘Companies have a right to run their business without government interference in the form of regulations!’

‘The companies are telling you to bugger off, something about not wanting to be associated with such toxic individuals and groups.’

‘Like I said, companies deserve heavy government interference in the form of regulations!’

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Benjamin Barber says:

Re: Re: Mike Buries the Lede again

Some how the Supreme Court in Pruneyard Shopping allowed the states to deny the right of malls from censoring speech, because the first amendment doesn’t protect speech that doesn’t belong to the mall, and nobody is going to associate the mall itself with the speakers in it, yet he somehow thinks that this appellate court judge is wrong for the same reasons.

Somehow he thinks that it is twitter’s own free speech rights to censor people, yet what section 230 does is to immunize platforms because it clearly isn’t twitters speech.

Well, either its twitters speech and they are responsible for the speech on their platform, or it isn’t their speech and they are not responsible for the speech on their platform, you don’t get the best of both worlds.

Mike is a corporate shill.

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Strawb (profile) says:

Re: Re: Re:

Well, either its twitters speech and they are responsible for the speech on their platform, or it isn’t their speech and they are not responsible for the speech on their platform, you don’t get the best of both worlds.

Tell me you don’t understand the 1st Amendment and Section 230 without telling me you don’t understand the 1st Amendment and Section 230

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That One Guy (profile) says:

Re: Re: Re:3

All 230 really does is protect the first amendment rights of the platform owners/staff by preventing them from being sued for exercising those rights so the only ‘financial models’ that might be undercut are ones based upon first amendment rights like allowing/disallowing speech of their choosing and preventing people from suing them for what users post.

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That One Guy (profile) says:

Re: Re: Re:5

Which might as well be the same thing in practice as a company only having to pay a small amount of legal fees due to a lawsuit versus a massive amount will have a big impact on their choice to engage in the action that triggered/might trigger the lawsuit.

If you know you might have to pay a thousand bucks for doing something you’re much more likely to be willing to do it than if you know you risk paying hundreds of thousands for doing that same thing, so the ability to get a case dismissed early is not an insignificant thing.

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יונתן פֿאליק , عطا الله عفلق (profile) says:

Re: Re: Re:8 Martillo v. Twitter Continues in Court Since July 2, 2021

It is highly likely that in this round of litigation, ridiculous Zeran-based caselaw will at least be identified to be based on the logical fallacy of denial of the antecedent.

In the next round in trial court, I will demonstrate that Section 230 only applies to 1996 (dialup) Internet On-Ramp or 1996 Access Provider technology and has no relevance to a 2022 social medium platform.

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Benjamin Barber says:

Re: Re: Re:2 Public accomidations

The first amendment right to “free association” didn’t protect the rights of restaurants to kick out national socialists, when they were sued under the Unruh Civil Rights act, nor did it protect the rights of other public accommodations to discriminate either on the basis of race or in the instance of Pruneyard Shopping on the basis of viewpoint.

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ThorsProvoni (profile) says:

Re: Re: Re:6 Making the First Amendment a Pretextual Legitimization for Discrimination

Neither a blog host nor a provider of a mass announcement system (e.g, AT&T MANS) has ever considered written or audio narrative,

  1. which was available in a hosted blog or
  2. which was hosted by a mass announcement system,

to be the speech either of the blog host or of the provider of the mass announcement system until now.

This First Amendment claim is purely a pretextual excuse for discrimination against some classes of people because white racists or white elitists

  1. want to deny non-whites, non-Europeans, or conservatives full use of an open forum, which has been established in a government-supported government-designated public forum, or
  2. want to deny non-whites, non-Europeans, or conservatives access to a place of public accommodation for exhibition or for entertainment.

For 40 years I have been writing documents to be filed in the Court of Appeals for the DC Circuit or in the Supreme Court of the United States. I have learned that a lot of Judges and Justices on these two courts really seem to enjoy identifying pretextual efforts to legitimize inequitable or unlawful behavior.

יונתן פֿאליק , عطا الله عفلق (profile) says:

Re: Re: Re:8 How Often the Ignorance of a Dumb White Racist Betrays the Dumb White Racist

While a higher Court may under certain circumstances review an individual order of a lower Court while the case remains before lower Court, a full review of the case is not allowed until the lower Court dismisses the case finally from its adjudication.

My attorney, who died before Martillo v. Twitter was filed, identified a procedural rule which made it possible for a case to be reviewed before the Defendants were even summoned before the lower Court. Thus, I did not have the delay and expense of a trial before putting my case before a higher Court for review.

In most situations, after trial court proceedings that could require a year before final dismissal by the lower Court, six months to a year or slightly more passes before appellate review of a case completes. Because Martillo v. Twitter involves extremely complex issues, the time period of review of Martillo v. Twitter may be on the longer side, but it would be entertaining if a favorable opinion and order issued before the Twitter v. Musk trial because such an opinion and order would render Twitter’s presumptive value less than nothing.

On the whole, McMahon’s strategy has halved the time frame for Martillo v. Twitter to reach SCOTUS by right of appeal and not by petition to SCOTUS for writ of certiorari to the Court of Appeals for the First Circuit. Unlike discretionary grant of certiorari, appellate review by SCOTUS is not discretionary.

So the dumb white racist can giggle all he wants until every depraved racist social platform is bankrupted by the judgment against it.

יונתן פֿאליק , عطا الله عفلق (profile) says:

Re: Re: Re:6 The Ignorance of a Dumb White Racist Continues to Betray the Dumb White Racist

US law distinguishes among speech, publication, distribution, and conduct in numerous ways that often pertain to level of scrutiny and to level of protection under the First Amendment.

Title II of the 1964 CRA pertains to conduct and is Constitutional because the power of the federal government to regulate commerce trumps First Amendment protection that is associated with conduct.

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Chozen (profile) says:

Re: Re: Re:3 1986 Village Inn

Yes. In 1986 the Village Inn in Torrance California refused service to 4 neo-Nazis wearing swastika armbands. The ACLU filed suit under California’s Unruh act for unlawful discrimination. People have claimed that even here on this blog that the “political identification” section of the Unruh act only applies to employment but the courts extended this to all services long long ago. Once the judge let the Unruh complain go forward the Village Inn was forced to settle.

As I have said many many times. You just cant read the law. You have to read the case law as well.

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bhull242 (profile) says:

Re: Re: Re:6

Irrelevant. Private businesses and individuals have the right to not want to associate with speech they disagree with.

It is also worth noting that many activists do criticize businesses for the speech transmitted using their services or that is associated with them even if it wasn’t their own speech.

Finally, you have explicitly stated that you want to hold Twitter responsible for speech it hosts. How that is not treating that speech as its own speech I have no idea.

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Rocky says:

Re: Re: Re:

Every time someone drags Pruneyard into the light they are just signaling that they are fucking idiots and I’ll explain why:

Pruneyard doesn’t allow anyone waltzing into a shopping mall to say what they and how they want. When it’s political speech they need to come to an accommodation with the mall owner or follow the mall’s rules so they don’t disturb other patrons. If they are found to be disruptive they will be escorted from the premises.

Do this sound familiar? I can’t imagine why…

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Chozen (profile) says:

Re: Re: Re:2 Not a 1st Amendment Issue

“If they are found to be disruptive they will be escorted from the premises.”

Which has nothing to do with the 1st Amendment. What Prunyard attempted to argue to the court was that allowing speech would be considered an endorsement of that speech and therefor violate their frist Amendment rights by compelling speech.

The court resoundingly did not agree. No reasonable person would consider speech at a venue that hosts speech as the venues speech.

When people make this argument that hosting is forcing speech they are proving that they are not reasonable persons. They are … you know … morons.

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Stephen T. Stone (profile) says:

Re: Re: Re:

the Supreme Court in Pruneyard Shopping allowed the states to deny the right of malls from censoring speech

Except it didn’t. Current jurisprudence regarding Pruneyard says that shopping malls in California can’t prevent the expression or dissemination of speech in places in malls that are analogous to public spaces elsewhere (e.g., food courts). Spaces for foot traffic and inside stores don’t qualify for that.

the first amendment doesn’t protect speech that doesn’t belong to the mall

…fucking what

he somehow thinks that this appellate court judge is wrong for the same reasons

Tell us you don’t understand freedom of association without telling us you don’t understand freedom of association.

he thinks that it is twitter’s own free speech rights to censor people

Twitter has never censored anyone. To wit: Donald Trump lost his Twitter account and that orange shithead can still dig his hole deeper speak his mind on any platform that will have him⁠—including his own.

what section 230 does is to immunize platforms because it clearly isn’t twitters speech

Yes, that’s right: Section 230 grants immunity from legal liability to platforms for third-party speech so long as no one who works on/for said platform helped create or publish that speech. (That’s how Backpage got in trouble.)

either its twitters speech and they are responsible for the speech on their platform, or it isn’t their speech and they are not responsible for the speech on their platform

There’s a third option, too: Twitter isn’t responsible for third-party speech, but it can still boot that speech (and the speakers thereof) off the platform because Twitter is a privately owned service that can set and enforce the terms of using that service. Nobody has a right to use Twitter. Trump getting booted should’ve taught you that lesson.

Mike is a corporate shill.

[citation needed]

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Stephen T. Stone (profile) says:

Re: Re: Re:3

freedom of association has always been white racist code for racist exclusion

Yeah, no. Freedom of association is about the freedom to associate with a person or group of people without the government telling you “no, you can’t do that”. That applies to religious and political groups as well.

The flipside of freedom of association, much like the flipside of freedom of religion, is the freedom to not associate (or not be associated with) a person or group of people. You can’t be free to associate if you’re not free to say “no thank you”.

Twitter has every right to refuse association with any user that violates its rules. No one has the right to force their speech onto Twitter, which is a privately owned interactive web service. You can spam a bunch of comments all over this website with all kinds of legalese gobbledygook, but you can’t change the fact that you don’t have⁠—and will never have⁠—the right to free reach.

After all, if you were to have that right, so would I⁠—and I don’t think you’d want me compelling you to host my speech on your website.

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Tanner Andrews (profile) says:

Re: Re: Re:

Some how the Supreme Court in Pruneyard Shopping allowed the states to deny the right of malls from censoring speech, because the first amendment doesn’t protect speech that doesn’t belong to the mal

Actually, no. In Prune Yard v. Robins, 447 U.S. 74 (1980), the First Amendment was not at issue. The question was whether state requirements of public access for speech constituted a ``taking” for Fifth Amendment purposes. The Supremes held that it did not. Prune Yard at 83.

The state requirement of public access was limited, and there was no impariment of value. Prune Yard at 83. There was no Federal right to conduct expressive activity in shopping centers. Prune Yard at 80. This is strictly a California state right. Prune Yard at 82.

You may want to read the cases before asserting rubbish about what they say. This is obviously not mandatory, and in fact failure to read the cases may qualify you for a position on the US 5th Circuit.

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Chozen (profile) says:

Re: Re: Re:2

“Actually, no. In Prune Yard v. Robins, 447 U.S. 74 (1980), the First Amendment was not at issue.”

Shut up!!! Just shut up!!! If you get your legal analysis from mike you are a idiot.

“(c) Nor have appellants’ First Amendment rights been infringed by the California Supreme Court’s decision. The shopping center, by choice of its owner, is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner.” Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

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Anonymous Coward says:

It’s become more apparent in the past few years that people’s trust in American institutions was rather naive. But lately it feels more like even the alarmists didn’t see the extent to which it was true.

What do you do even enough people in such positions of power cease to care about precedence? Shaming them is useless as they’re already very open and shameless about what they’re doing.

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That One Guy (profile) says:

'I reject your reality and substitute my own!'

Well that explains why it took so long for the full ruling to come out, it must take some real effort to be that delusional and disconnected from reality and manage to cram all of your insanity and boneheaded stupitity into legal speech.

This isn’t just making up new laws it’s making up new realities for those laws to operate in, one with only the most tenuous connection to the world around them, and while I’d like to think that it will be appealed and the idiots who wrote this get a hearty benchslap at this point I have less than zero trust that the Supreme Court will get it right if it means passing up a chance to stick to to their enemies, so at this point it’s certainly looking like a number of companies need to look into blocking any user unfortunate enough to live in the part of the country overseen by these lunatics.

ML2 (user link) says:

Re: Re: Re: (I really should just set up an account here at this point)

True, but from what I understand Kagan was probably only in the dissent on the injunction for reasons unrelated to the actual merits of the case. It’s extremely unlikely that she will rule differently from the other liberal justices if this actually goes to court.

Assuming Kagan rules sanely, all that is needed is Roberts to rule sanely (very likely) and for either Kavanaugh or Barrett to be consistent with their previous opinions. I suspect the latter to be vastly more likely than not to occur.

So on the one hand I am quite optimistic this will end up sane in the end. On the other hand, the fact that we are even at the point where the probability of a bad SCOTUS ruling on this is even non-negligible is concerning.

LostInLoDOS (profile) says:

Re: Re: Re:2

Many liberals are misunderstanding and over reacting to RvW because they don’t understand legal separations.
RvW granted a right in practice that did not and does not exist in law.

It’s up to the federal congress to set federal law. In the absence of a federal law, the state law is pinnacle. This has nothing to do with current party politics.

As it stands the court has a majority of the court is both strong constitutionalists and pro-separation of power.

That’s a good thing. It is highly unlikely this court will carve out free speech restrictions.
I half-hope a real obscenity case winds up before them before (if) the Democrats expand the court. As an end all be all to speech restrictions in law.

A combined pair of cases that strike down compelled speech AND removes “obscenity” restrictions would clearly and completely open up the ability of artists.

ML2 (profile) says:

Re: Re: Re:4 Regarding RvW.

I disagree with your take on Dobbs, which was a bad ruling even if one thinks RvW was shaky simply on account of how disruptive and damaging it was. That being said, I also don’t think that ruling says much about how this current case will go.

I really hope I’m not wrong here, though. A bad ruling here would be a disaster.

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Chozen (profile) says:

Re: Re: Re:6

Facts you don’t like is not trolling.

After Brown v. Board of Education we had armed US soldiers and federal marshals facing off against armed state troopers.

Are you saying the SCOTUS shouldn’t have ended segregation because it was “disruptive and damaging”?

Forcing you to defend your presuppositions in all circumstances is not trolling. It sucks. It makes you feel awful. But being exposed as a hypocrite makes anyone feel awful.

The shoe on the other foot test isn’t trolling. Its basic logic that exposes your own hypocrisy.

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Chozen (profile) says:

Re: Re: Re:6

Well you are an established idiot so I don’t really care you think I’m saying.

I’m not the one who said the supreme court shouldn’t make a ruling because its ” “disruptive and damaging.” I think I specifically said

“That should never be a concern of the court.”

I’m asking ML2 if he thinks the SCOTUS shouldn’t have ruled as it did in Brown v. Board of Education because that was far more disruptive and damaging by any objective measure.

Hypocrites like you and ML2 don’t like being held to first principles. After all this whole debate in this thread is about a specials set of constitutional interpretations Mike and Mike’s Misfists want specifically for BigTech that do not apply anywhere else.

Stephen T. Stone (profile) says:

Re: Re: Re:7

this whole debate in this thread is about a specials set of constitutional interpretations Mike and Mike’s Misfists want specifically for BigTech that do not apply anywhere else

Again: Everything I’ve argued for in re: protections against compelled speech would apply to all interactive web services regardless of any factors such as size or political affiliation (real or perceived). Just as I believe Twitter shouldn’t be forced to host all legally protected speech, I also believe Truth Social shouldn’t be forced to host all legally protected speech. To say I support one but not the other is bullshit: The law should apply equally to all interactive web services from Twitter to Truth Social to a small-ass Mastodon instance to Techdirt’s comments sections. If one service can be forced to carry speech, all services should be forced to carry speech; to single out Twitter because of its size or Truth Social because of its political leanings would both be bullshit.

Can you say that your desire to make websites host legal speech applies to all interactive web services, or does it only apply to the ones you hate?

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Chozen (profile) says:

Re: Re: Re:8

” The law should apply equally to all interactive web services from Twitter to Truth Social to a small-ass Mastodon instance to Techdirt’s comments sections”

That’s not how regulatory law works at all. Regulatory law has always ramped up with relative size. Small cable providers don’t have to provide any leased access channels. At a certain level they have to provide 1 and it ramps up from their based on their size.

Small employers don’t have to provide health care. Large employers do.

As size ramps up regulatory burden ramps up as well.

Saying ‘If it applies to twitter it should apply to the smallest image board.’ Regulatory law does not and has never worked that way.

Again why are you arguing for some special rules that don’t apply to anyone else?

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Chozen (profile) says:

Re: Re: Re:10 No Dipshit

No dipshit this is regulatory law. The Texas law is a regulation over a public interest. Mike is trying to argue that the law is “Unconstitutional” with a constitutional interpretation the he wants to only apply to tech because if applied to all it would void almost all civil rights and regulatory law.

The issue of the law applying based on size is basic fundamental regulatory law.

Its two separate issues that Mike and Mike’s misfits are trying to conflate.

PaulT (profile) says:

Re: Re: Re:11

It’s almost as if a well sourced argument that explains the subtle issues would be a good retort to what’s already been said.

I won’t expect such a thing from the guy who doesn’t understand the differences between a public house and public property and thought that you need to employ professional bouncers to legally tell someone to leave your private party, but if someone presented a well argued and sourced legal argument against what’s been said I’m sure some would pay attention.

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Chozen (profile) says:

Re: Re: Re:12

“I won’t expect such a thing from the guy who doesn’t understand the differences between a public house and public property and thought that you need to employ professional bouncers to legally tell someone to leave your private party”

FYI inventing a narrative in your head is a sign of a personality disorder.

I never didn’t fail to tell the difference between a public house and public property. I said public houses were early rent controlled public housing. Currently about 1/4 -1/3 of all US “public housing” per HUD’s own reports is privately owned rent controlled housing. But you are stuck on a literal definition that anything that says “public” has to mean government owned.

Much like you morons think monopoly can only be its entomological definition of mono poly.

That begs the question how Mike can call his site “TechDirt.” When he very rarely if every has any threads on what would be the etymological definition of technology.

techne logos -would be more along the lines of popular mechanics. Very little of TechDirt has to do with techne logos if any at all.

So you have no trouble using a word in the common vernacular when it suits you. You only go to literal etymological definitions when it suits your argument. This is called definitional fallacy.

The problem is people like you have a hard time understanding the concept of privately owned public spaces. And the public interest over private property put to the public interest.

You are a mentally ill absolutist. Nothing but black and white thinking which is a sign of extreme mental disorder.

I’m guessing you are a borderline. I doubt you would be violent. You are too much of a pussy to be anti-social.

Stephen T. Stone (profile) says:

Re: Re: Re:13

The problem is people like you have a hard time understanding the concept of privately owned public spaces.

I’m pretty sure that’s your problem, but projection has always been one of your trademarks.

A privately owned open-to-the-public business is under no obligation⁠—ethical, moral, and especially legal⁠—to platform any third-party speech. You have no more right to make a local supermarket put up Klan propaganda than I have to make a white supremacist forum host BLM propaganda. Halleck said as much. In fact, let’s run through the relevant parts:

When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content[.]

tl;dr — The state can’t stop people from speaking in a public forum because the state doesn’t like their speech.

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[.]

tl;dr — A privately owned open-to-the-public forum can stop people from using that forum as a platform because the owners don’t like certain kinds of speech.

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[”.]

The tl;dr for that comes with the next sentence in the ruling: “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 the tl;dr for that is also from the ruling: “A private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor.”

If you can explain why a privately owned social media service doesn’t fit into the logic of Halleck⁠—other than “but the Internet”, that is⁠—feel free to share that argument. But given how all your other arguments have thus far had the credibility of Alex Jones’s “reporting” on the Sandy Hook massacre, I doubt your next one will fare any better.

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ThorsProvoni (profile) says:

Re: Re: Re:11 Yes, Internet Exceptionalism Voids Practically All Antidiscrimination LAW!

I made this point in my petition to SCOTUS for writ of certiorari before judgment of the Court of Appeals for the First Circuit.

Here’s the petition:

Petition for Writ of Certiorari

Here’s the complete document, which I filed in SCOTUS and in the Court of Appeals for the First Circuit.

Petition for Writ of Certiorari + Appendix

Look at the Questions Presented on pp 2-3.

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Anonymous Coward says:

Re: Re: Re:11

with a constitutional interpretation the he wants to only apply to tech because if applied to all it would void almost all civil rights and regulatory law.

You have to address the constitutional questions first, though. The Constitutional question is, Can a privately owned forum for speech be compelled to host speech it doesn’t want to host?

You claim that it’s not a First Amendment question because there’s no confusion about who the hosted speech belongs to. That’s not at issue though. What is at issue is a private entity’s ability to exercise editorial discretion by choosing which of another’s speech is allowed or not allowed to be disseminated on that entity’s property. Editorial Discretion has been stated by Courts to be a form of speech, which means that the First Amendment applies to the government’s ability to restrict it.

All of this is applicable to any private entity, whether online or not.

If the answer is “no, the government cannot arbitrarily restrict editorial discretion,” I don’t see how that adversely impacts civil rights. Not allowing someone to speak because they’re Black doesn’t get 1A protection. Not allowing someone to speak because you find the content of the speech offensive, or even just because it’s beyond the scope of the forum presented, does get 1A protection.

LostInLoDOS (profile) says:

Re: Re: Re:4

…also don’t think that ruling says much about how this current case will go.

One big aspect we see with this court, currently, is a strong support for the constitution.
To be clear I strongly and deeply believe in states’s rights because that level of separation continues down to my own property.

Anything (including rights) not set forth in the constitution and not set by law is open to lower regulation and/or interpretation.

Right to free speech is codified. Clearly. Forced speech is a violation of free expression because it places a requirement to self-express contrary to intent of will.

Not only do I want these state laws before this very court; as I said I’m begging for another Zicari (Black)/XMedia type case to end up there.
I have nearly no concern these cases would would be judged under the constitution and put an end to both compelled speech AND compelled censorship.

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יונתן פֿאליק , عطا الله عفلق (profile) says:

Re: Limiting an Internet Discussion Group is Easy

Here is a typical straw man argument.

Well Judge Andy Oldham, I guess it will be okay when people to go to a church website and discuss the right to abortion? You will not allow that speech to be moderated, correct?

Don’t hold out the website discussion group to the public! Make it a private club or some other type of private organization.

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Stephen T. Stone (profile) says:

Re:

I do: Not everyone in Florida and Texas share the same beliefs as the kinds of shitheads who would absolutely exploit being able to force their speech onto online platforms. Punishing everyone else for the actions of those shitheads isn’t going to do anyone any good.

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Stephen T. Stone (profile) says:

Re: Re: Re:

People who fuck around deserve to find out. But innocent people who didn’t fuck around don’t deserve that. Cutting entire states off from the Internet over the actions of the shitheads in charge is so short-sighted and psychopathic that…well, basically, it sounds like a Republican policy.

Anonymous Coward says:

Re: Re: Re:4

Hence my last sentence.

The only options left are indeed horrific. It would be preferable to not use them if possible.

But these people cannot be talked to or convinced, at least in any appreciable timeframe. I would not be surprised of they also approved of what happened on Jan 6.

You may be right in that they probably do not deserve those things. But then again, Jan 6 happened.

Stephen T. Stone (profile) says:

Re: Re: Re:5

I’m not talking about people who back fascism, racism, etc. I’m talking about people who don’t⁠—they don’t deserve to be punished only because they live in the same state as TRASH people. If I feel like I have to clarify my position again even though it was clear enough the first time I expressed it, I’ll know you’re trying to intentionally misunderstand me.

Anonymous Coward says:

Re: Re: Re:6

I heard you loud and clear.

But 73 million voted for Trump. Misled or not, herd mentality is not something to be trifled with. It is highly likely that they also are aching to trigger a second Civil War.

I’m not talking about those people in those states that didn’t vote Trump or don’t back fascism. I’m talking about the 73 million that DID.

Stephen T. Stone (profile) says:

Re: Re: Re:7

None of that excuses the idea of using preëmptive violence against those people. If anything, attacking them first would help them by making them martyrs for their cause(s). But please, feel free to keep suggesting that someone should assault/kill even a small fraction of those 73 million people. I’m sure that won’t get you on a federal watchlist of some kind~.

Stephen T. Stone (profile) says:

Re: Re: Re:9

There are sick psychos on both sides to the primary political divide.

And yet, you refuse to denounce the one “psycho” who openly encouraged people to attack American democracy⁠—and refused to say or do anything that might’ve stopped their attack until at least two hours later. Curious. 🤨

LostInLoDOS (profile) says:

Re: Re: Re:10

I denounce every person who violated the law on Jan 6.

I equally denounce the reported violent rhetoric of some of trump’s speakers.

I have yet to see anything that would constitute incitement from trump that day.

I do not know what the timeline was between the speech, reaching the capital, and those that forced entry illegally.
Nor do I know the timeline of the president’s location that day.

So I can’t competently comment on the timeframe between him closing with a request and call for peace and his address later regarding the violence that broke out.

LostInLoDOS (profile) says:

Re: Re: Re:12

I don’t know how many other ways I can say trump is a self-centred piece of crap.
As long as the Dems don’t run clinton or another mentally challenged geriatric… or some brains dead moron!
Even then, highly unlikely.

The republican power has shifted into near-militant intolerance. Trump was a better choice for me vs Clinton at the time. Today a Christian rubber stamp… I could fathom
after 22 I’d even, and clearly under duress, vote for the bytch. Immediately vomit, And hope she dies in office.
Because the Republican Party power has become a threat to my family, friends, and self.
Clinton may make the majority of the country (and other countries) die slowly, poor, hungry, … but at least we wouldn’t be tortured.

Stephen T. Stone (profile) says:

Re: Re: Re:13

Because the Republican Party power has become a threat to my family, friends, and self.

Oh, so now you care about what the GOP does? You should’ve cared in 2016 and 2020, but you didn’t, and look what your votes got you: a former president who thinks he’s above the law, a party of fascists waiting to take over the country because that former president emboldened them thanks to a victory that you helped facilitate, and no Wall to show for it.

I held my nose and voted for Clinton and Biden because they were the only viable candidates running against Trump in their respective elections. You let your grievances against Killary Klinton and Her Demonic Acolytes from Super-Hell cloud your judgment, and you twice voted for a man who had no fucking business being in any political office, but especially the Oval Office. And after four years of Republicans doing their best to tear down the country and an insurrection failing to give them another four years to finish the job, now you want to say you’re concerned about the GOP?

No, son, you don’t get to play the concern card here. Trump was your guy⁠—you gotta own that shit first. You gotta own your role in helping the GOP’s fascism get to the point where you’re finally fuckin’ concerned about them. Only when you express sincere regret for what you helped set in motion⁠—no matter the size of your role⁠—will you get an ounce of pity from me. Until then: Congratulations, you fucked around, and now you’re finding out⁠—so don’t expect anyone else to save you from the grave you dug for yourself.

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PaulT (profile) says:

Re: Re: Re:14

“Oh, so now you care about what the GOP does? ”

My observation is that right-wingers only care when they are affected personally. They lack the empathy required to help others until something happens to make it clear that it’s not a personal failing if something happens.

I don’t wish to know what happened to him personally to sway his vote, but I am interested that he’s apparently going against Republicans and not just the ex con artist in chief, and thus might help turn back the voter suppression currently being engaged with.

LostInLoDOS (profile) says:

Re: Re: Re:14

I didn’t ask for pity.

it. I held my nose and voted for Clinton and Biden because they were the only viable candidates

That’s generally what I did in 2020.

now you want to say you’re concerned about the GOP

Yes. Today, 2022/9/18. I am concerned about the new wave of GOP power.

I don’t own an anything in the gop extremes. I voted for one single republican one.

you fucked around

I always do. I don’t believe in monogamy, marriage, etc. not sure what that has to do with republicans, other than people like me Lisa them off.

Anonymous Coward says:

Re: Re: Re:14

You should’ve cared in 2016

Okay, that’s going a bit too far.

Hindsight is 20/20, and very few would have known that Trump was a Neonazi dumpster fire in 2016. Or that the “Southern Strategy” would lead to a NeoNazi Republican Party.

And Hilary did manage to bump Bernie off the Dem ticket, despite being so unlikeable that FREAKIN’ OBAMA beat her… in 2008.

I speak for myself, and I don’t speak for anyone else.

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

Re: Re: Re:13

“Because the Republican Party power has become a threat to my family, friends, and self.”

Well, congrats on catching up with everyone else I suppose. A shame you couldn’t have realised this before voting them into power, but at least you’ve realised the stakes.

“Clinton may make the majority of the country (and other countries) die slowly, poor, hungry, … but at least we wouldn’t be tortured.”*

*offer of “we” not valid for certain demographics currently being tortured.

LostInLoDOS (profile) says:

Re: Re: Re:14

The militant christian power movement in the Republican party is a threat to every person not 100% part of their cult of cloud.

I don’t know of any demographic being tortured today.
I can expect with a far right power train that will change come 24 if the dems can’t get their heads out of the collective arse of a joke.
Because many of these people coming up will bring out racks and balls and kill us all very, very, very slowly.

LostInLoDOS (profile) says:

Re: Re: Re:12

I see trump prep a rally. (Be wild)

Kylie Jane Kremer (maybe, maybe not)

Louie Gohmert (clearly violent)

Ted Cruz (maybe, maybe not)

Eric Trump (political promise)

Don Jr (maybe, maybe not)

Rudy Giuliani (clearly violent)

President Donald Trump (peacefully, patriotically)

Josh Hawley (a sign of solidarity)

Once again, no violence from Trump regarding jan 6th. No incitement to violence. Zero
Two others clearly did incite. They should both be in jail

Stephen T. Stone (profile) says:

Re: Re: Re:13

No incitement to violence

You really don’t think subtext is a thing, do you. Wow.

Here, have a few video primers on the matter:

And after you’re done watching those (especially the last one), I urge you to take another look at how Donald Trump incited a riot-turned-insurrection.

LostInLoDOS (profile) says:

Re: Re: Re:14

No, I do not. There may be rare cases where it happens, but that’s not the general way it works. Most humans are very bad at coming up with an idea and hiding it in a completely different one.

a bunch of conspiracy theorists describing their fantasy’s is not going to change my mind. The idea is in line with the likes of infowars.

And ultimately, anyone who perceives fantastic messages that weren’t stated, or religious idols on their toast, are 100% personally responsible for their own actions.

Hearing secret messages is not a normal thing. It’s a mental deficiency. Usuals acting on secret messages in criminal ways gets you declared legally insane.
Do you really want to go that route?

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LostInLoDOS (profile) says:

Re: Re: Re:16

Given how fractured both principle parties are at the moment we may finally get an independent chance again.
Trump isn’t where my vote is going regardless of your opinion.
There are some very strong social libertarians in our party now. That could take the votes from both parties.

Strong gun rights. Strong gun ownership reviews.
Property rights. National defence
Redirect funding from international‘commitments’ to social projects here. A quality social base for all legal residents.

The party offers a lot of good to both sides

If the dems run a has-been, still a strong possibility, and the youngins runs a counter social Dem…

The Reps will probably run a new far right “alt” type. I don’t really think it will be trump.
Despite your hatred of him he’s not far right. General rubber stamp not withstanding
If trump runs there may be THREE red options.

Honestly though, the way things stand I don’t see 24 being a common election. There’s no agreement in either party.

Anonymous Coward says:

Re: Re: Re:8

After Jan 6 and the FBI “helping” these fucks “to get them arrested”, let’s just say that even though I am not an American citizen, I am legit scared of my life.

In the US, I’d be considered a “colored” minority and be pressured to join the white-worshipping NeoNazis or get shot on sight.

The stuff I’m suggesting isn’t too far removed from what the US Government has done in the past. And they’re ALREADY horrific enough.

Again, Jan 6 happened. They are already screaming about wanting to murder the rest of us online and it’s likely they WANT to start Civil War 2 as well. I am against political violence when the legal options are still keeping them back, but it’s getting more and more apparent that one should at least prepare for war, metaphorically speaking.

And I’m TECHNICALLY on an Interpol watchlist for geting my identity stolen through means that even I don’t fucking know, I should be joking about what’s another watchlist…

williamperry (profile) says:

Re: Re: Re:6 TRASH

While i totally agree with you, i think the adoption of the acronym “TRASH” is unhelpful and only promotes victimhood or polarization into opposition that non-sloganeering terms would not. For example: ” he’s talking about other people who are racists, sexists, transphobes etc, which I am not. What else is he saying?” As opposed to: “that fucking guy thinks anyone that shops at Walmart should be culled to preserve society!”
Don’t give Hannity et al something easily distorted to their own ends, even for the tiny feeling of satisfaction when type it.

Stephen T. Stone (profile) says:

Re: Re: Re:8

…okay that was a bit too harsh, and I recognize that, and I apologize for that. But the thing is, I don’t like the idea of having to change what I say for the comfort of conservatives, the people that the TRASH acronym accurately calls out, or (when those two groups overlap) both. That reeks of the kind of overzealous tone policing people often accuse liberals/progressives in general of doing, accurately or not.

If the TRASH acronym doesn’t describe you, it ain’t about you. If it does describe you…well, sucks to be you. But you’re not going to make me stop using the acronym by name-dropping Sean Hannity⁠—that, I can promise you.

Anonymous Coward says:

Re: Re: Re:9

It’s not comforting conservatives, it’s avoiding enabling them. If you are nasty enough about ALL republicans, you’ll make some of their insane victim rhetoric sound plausible to at least some “independent” types. Which will drive at least a few more votes their way.

So you have a choice. Do you want to defeat the nasty, racist and possibly functionally insane subset of the republican party that is currently driving them and their policies, or do you want to say and write whatever comes into your head on the moment. You can do either, and that is your right, but please stop deluding yourself that you can do both, because in Today’s political climate, you can’t.

Stephen T. Stone (profile) says:

Re: Re: Re:10

Do you want to defeat the nasty, racist and possibly functionally insane subset of the republican party that is currently driving them and their policies, or do you want to say and write whatever comes into your head on the moment.

You can’t and won’t make me choose one at the expense of the other⁠—not even at gunpoint.

Tanner Andrews (profile) says:

Re:

Texas and Florida sized holes in the internet

Florida gave the US 11th Circuit a chance to get essentially the same question right, and the US 11th Circuit mostly did. So hurray for the learning experience provided by Florida.

That does not mean that I would not be willing to let your state have DeSantis, or that I would not even be willing to help pay for the cost of a shipping crate. His campaign is using Salesforce (Exact Target) to send spam promoting his campaign and seeking free legal work

If I could fully block them from my systems, I think I would so so. The problem is they seem to have new netblocks in order to avoid such treatment.

radarmonkey (profile) says:

Possible humous outcome

This whole ruling is a dystopian hell-scape, but something humorous struck me:

IF Elon Musk does eventually own Twitter, he would not be able to remove tweets critical of him or his company. Union organization could happen in the open, posts of his cars driving over people cutouts, etc.

Mind you, It will be much better for SCOTUS to smack down the 5th Circuit for this utter stupidity.

Anonymous Coward says:

The problem is the supreme Court is totally unpredictable it goes from making correct good logical decisions to favoring any groups that are religious or Conservative and its a majority republican court
So there’s no guarantee it will go against the 5th circuit ruling

This is about the worse legal decision I have seen since it ignores the basic law about section. 230 by employing twisted tortuous logic to saw its okay for the government to decide exactly what firms of moderation or good bad or illegal for private company’s can carry out and force them to carry content they do not want to publish

Cat_Daddy (profile) says:

Re:

I don’t know about that. I hate the Roberts court with every fiber in my being, but even I don’t think even the SC would defend one of the most delusional legal decisions ever made. At least I hope.

Damn, with AB 2273 passing, Biden’s renewed witch hunt on section 230, and… whatever the fuck this nonsense is. This has got to be the worst week for the Internet.

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Dave Bradley says:

Texas got it right

Just because Techdirt says something is unconstitutional does not make it so. Techdirt says it’s unconstitutional because they do not like it. I am going to Florida in 2023. Now that this law is the law of the land and Florida is going to be my new home sweet home, you remove any of my post, I have a lawyer you remember that. Anyway the Supreme Court will vote on politics not rule of law techjerks. You do not have to post my comment, but you better start publishing them in the future, because my lawyer will be filing papers for court against Techdirt for $100.000. Sounds good and constitutional.

That Anonymous Coward (profile) says:

Re:

You only have the rights republicans say you can have…
Thats why the party of smaller government is now in every womans uterus on guard that she might make a decision for herself without their approval.
(I mean that have no problem with their mistresses getting abortions but no one else…)

Perhaps instead of giggling when the FB AI couldn’t tell the difference between white supremacists & politicians we should have been way more concerned.

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Greg Roy says:

My boss is happy

Hi Techdirt I work for Rep Gaetz of Florida. First of all do not worry, under section 230 you can ban things like porn and harmful contents, that is already in the 1998 Cox/Wyden section 230 bill so no worries there. However if let’s say you run a fix it blog on Reddit for fixing household appliances. Now Congressman Gaetz can run post by me and others and that site to vote for Rep Gaetz..

The site will not be able to remove that post or Reddit will get a lawsuit from the Matt Gaetz for Congress campaign. We can get are message out and you cannot remove those posts. Remember I work for Rep Gaetz and read Techdirt post so know your information is getting to Rep Gaetz. However Rep Gaetz will want to hire more staff in order to boost his campaign online by writing post on comment lines like Techdirt and Techdirt BETTER NOT remove that post. Just waiting till the Supreme Court clarifies this law and trust me Republicans voted for Supreme Court justices that are fair on this issue.

Bruce C., says:

God is an iron...

So I fully expect the Citizen’s United decision to reflect on this. The context is different, but the underpinning of that decision was that citizens have the right to assemble peacefully and organize into groups, which includes online. And just as people get removed from the premises for heckling speeches, people who disturb the peace of the assembly can be removed from online forums.

Tanner Andrews (profile) says:

Re: Re: not in my living room

Expressing an unpopular political view isn’t disturbing the peace

If you express that view on my property, annoying my other guests, then I may deem you a disturbance and show you the road. Our peace is enhanced by your removal.

So, for instance, if a Jew shows up at a meeting of the Illinois Nazis, and they are meeting on private property, they may take exception. Once he expresses his view that Jews should not be killed, they are likely to run him off for disturbing their peace. He may even be guilty of trespass because his license to be on the premises is revoked by the Nazis in charge.

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LostInLoDOS (profile) says:

Censoring censors

Just out of curiosity, is there a reason OP doesn’t link to case text? The full file and decisions are available at multiple sites.

I still think the the approach of using discretion over censorship is the wrong approach.
The first amendment veto clearly makes it a private right for private censorship.
Ultimately those supporting private censorship will run into those of us who recognise the act for what it is in traditional terms.
The goal should be to show why private censorship is such an important right.

From there the logical progression of discussion would be who, and how, such censorship should be carried out. Be it corporate, as with deletion, or community, as with flagging and tagging, hiding.

Because policy rules that are flexible will create conflict.
Policy rules that are fixed can never work. Criticker is going through this issue right now: https://www.criticker.com/forum/viewtopic.php?f=10&t=693

YouTube and Steam generally has the right idea with poster applied tagging. And user applied ability. Despite the fact that they still outright censor some content.

Stephen T. Stone (profile) says:

Re:

those supporting private censorship will run into those of us who recognise the act for what it is in traditional terms

You mean “moderation” or “editorial discretion”? Because you keep saying “censorship”, but Twitter has never censored anybody with one of its moderation decisions. Your personal godking of a former president is proof enough of that assertion.

The goal should be to show why [moderation] is such an important right.

Someone who can’t grasp the idea of “compelled speech” (or the compelled hosting of speech) has a bigger problem to deal with.

From there the logical progression of discussion would be who, and how, such [moderation] should be carried out.

Every platform’s moderation is going to be different. One size does not fit all in this context⁠—and the government shouldn’t be trying to make one size fit all.

policy rules that are flexible will create conflict

Yes, they will. That’s why flexible rules are good: Being able to adapt to changing situations is a positive thing.

Life is complicated. Get used to it.

LostInLoDOS (profile) says:

Re: Re:

but Twitter has never censored anybody

Was something available that is no longer available? You won’t change my use of the very long standing definition.

Someone who can’t grasp the idea of “compelled speech” (or the compelled hosting of speech) has a bigger problem to deal with.

Does not my statement show I fully understand that private censorship is and should be protected by the first amendment.
Or all my comments about it over the year?

and the government shouldn’t be trying to make one size fit all.

And I said they should? Your doing that invent nonsense thing again.

Yes, they will. That’s why flexible rules are good: Being able to adapt to changing situations is a positive thing.

You totally ignore me point out exactly that.

What are you line item arguing with me for.
Seriously, we’re on the same side here.

Shove your “morality” concerns on things you actually want done.
Sometimes getting it done is more important than why.
Private censorship is protected by the constitution.

Stephen T. Stone (profile) says:

Re: Re: Re:

Was something available that is no longer available?

Irrelevant. If someone’s speech was deleted from Twitter, that someone can repost their speech elsewhere. Twitter can’t stop them from doing that⁠—ergo, Twitter can’t censor anybody. Again, look at Donald Trump as proof.

I fully understand

If it ain’t about you, don’t make it about you.

Private censorship is protected by the constitution.

The more you call it “censorship”, the more you weaken the idea of moderation being a legal (and often necessary) act for platforms like Twitter. When an act of moderation becomes conflated with an act of censorship, moderation will be banned to prevent censorship.

Congratulations, Lodos⁠—whether you realize it or not, you’re on the side of people who want compelled association between their speech and a platform that otherwise wouldn’t host that speech.

LostInLoDOS (profile) says:

Re: Re: Re:2

f someone’s speech was deleted from Twitter, that someone can repost their speech elsewhere.

Exactly. If one company censored you go somewhere else.

ergo, Twitter can’t censor anybody

censorship ‘sensarSHip|
noun
1 the suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security

about you

“ Someone”. I didn’t realise you were referring to someone else

The more you call it “censorship”, the more you weaken the idea of moderation being a legal

No, I don’t. The government Prohibiting private censorship is compelled speech. As such unconstitutional.

you’re on the side of people who want compelled association between their speech and a platform

What part ‘must be protected’ is going over you head.?!!?

Stephen T. Stone (profile) says:

Re: Re: Re:3

suppression or prohibition

When has Twitter suppressed or prohibited anyone from speaking their mind on any platform besides Twitter? If and when that happens, you can say Twitter has censored someone; until that day comes, referring to moderation as “censorship” plays into the hands of the people who absolutely want to have moderation classified as censorship so they can ban moderation altogether.

No, I don’t.

You’re conflating the suppression of one’s First Amendment right to speak freely with someone getting kicked off Twitter for breaking Twitter’s TOS. You’re conflating the act of preventing the publication of speech any- and everywhere with the act of deleting someone’s already-published post from one platform for breaking that platform’s rules. You’re conflating “you can’t say that anywhere” with “we don’t do that here”.

Every time you do that, you push the idea that moderation is censorship no matter what form it takes⁠—even if you take the time to specify that you’re only referring to the deletion of posts. You’re espousing the kind of rhetoric that people who use the “I have been silenced” fallacy can point to as an example of someone agreeing with them.

In short: You implicitly advocate for the forced hosting of speech.

What part [of] ‘must be protected’ is going over you head

The part where you keep referring to moderation as censorship so you can convince other people to call it censorship and associate the term “moderation” with an act of silencing someone’s speech on any and every level possible, thus implying that moderation is a morally heinous act regardless of form or function? Yeah, let’s go with that part.

LostInLoDOS (profile) says:

Re: Re: Re:4

when that happens, you can say Twitter has censored someone;

You intentionally ignore the definition. Nearly identical with minor variations in every dictionary.

people who absolutely want to have moderation classified as censorship

Well, it is. Any you can’t ban that because it’s supported by 1A

conflating

I’m not conflating anything; though you accidentally did. Banning a person is not censorship, it’s denial of service. That’s altogether another right.

Every time you do that, you push the idea that moderation is censorship no matter what form it takes⁠—even if you take the time to specify that you’re only referring to the deletion of posts.

That’s because, factually, by long standing definition, deletion of content is censorship.

You’re espousing the kind of rhetoric that people who use the “I have been silenced” fallacy can point to as an example of someone agreeing with them.

Well, they have been, …at that location. They have every right to go somewhere else, as long as else accepts them.

You implicitly advocate for the forced hosting of speech.

I imply nothing. I’m always direct in my statements. Forced speech is a constitutional violation.

thus implying that moderation is a morally heinous act regardless of form or function? Yeah, let’s go with that part.

At least you got something correct. Censorship is reprehensible.
A proper, upstanding member of public society would allow their private community to decide how visible something is. Or is not.
I applaud services/sites like techdirt that take the proper route to moderation.
Ideally we use the defined fact that a company is censoring to convince them to use non-censoring methods of moderation.
But that is completely different and separate from upholding their right to do so.

We have the right to do lots of things in life. Not all rights are good choices.

Stephen T. Stone (profile) says:

Re: Re: Re:5

You intentionally ignore the definition.

I don’t. What I ignore is the idea that Twitter deleting any post from its service is “prohibiting or suppressing” speech in any way. The only way it would be censorship is if Twitter were to somehow prevent that speech from showing up any- and everywhere else.

Well, it is.

Only in the minds of people like you.

Banning a person is not censorship

Neither is telling them to stop posting stuff that breaks the rules or deleting posts of theirs that break the rules, but you seem to think otherwise.

deletion of content is censorship

Except it isn’t, or else every website that has ever deleted any kind of third-party content⁠—even if said content pops up somewhere else literally a minute after its deletion on the origin site⁠—has engaged in censorship. And since any person or entity that censors someone else is a morally heinous piece of shit…well, you can see where The Implication is going.

Forced speech is a constitutional violation.

And yet, by arguing that moderation is censorship, you’re also arguing against moderation of any kind⁠—and that plays into the hands of people who want to stop platforms from moderating any kind of speech because they, too, think it’s “censorship” for a site to actually enforce its own rules and standards. You are, regardless of whether you like this fact, playing on the same team as people who want to force their speech onto sites that would otherwise refuse to host it.

Then again, you did vote for Trump twice, so that makes perfect sense.

Censorship is reprehensible.

By referring to moderation as censorship, you’re trying to associate the two terms and make an act of moderation seem as “reprehensible” as an act of censorship⁠—regardless of whether that’s your intent. Again, I have to point out that subtext is an actual concept even if you adamantly refuse to believe that.

A proper, upstanding member of public society would allow their private community to decide how visible something is. Or is not.

And yet, because they did that, you would imply that they’re a morally heinous piece of shit. After all, as you keep saying over and over: Moderation is censorship.

I applaud services/sites like techdirt that take the proper route to moderation.

Yes, yes, you think deletion of anything is evil and people should have to suffer through reading hate and bigotry and bullshit instead of having the service’s moderation staff preëmpt the need for users to do that as much as possible by enforcing content bans/deleting content. We get it.

a company is censoring

WHEN IN THE BLOOD-SOAKED SATANIC FUCK DID TWITTER PREVENT DONALD TRUMP FROM SPEAKING HIS MIND?

…anywho. My point: Twitter isn’t “censoring” anyone when they delete posts and ban users. Donald Trump could quite literally repost everything he ever said on Twitter outside of Twitter despite that service shutting down his account⁠—there are plenty of archives of his tweets, after all⁠—and Twitter couldn’t do any-fuckin’-thing to stop him.

We have the right to do lots of things in life.

I’m using my right of free speech to tell you that you’re no better than the people who want to force their speech onto Twitter…

Not all rights are good choices.

…and I’ll keep doing it even if it literally fucking kills me. Which I’m sure would make you happy, since that’d be one less advocate for modera⁠—sorry, censorship in the world.

LostInLoDOS (profile) says:

Re: Re: Re:6 Too much non-stated searching

What I ignore is the idea that Twitter deleting any post from its service is “prohibiting or suppressing” speech in any way

the suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security ~Oxford

Deletion of a post sounds like suppression to me. Maybe you have some personal modification of that word’s definition as well?

Only in the minds of people like you.

People who know what the definition of the word means?

or deleting posts

See above definition

Except it isn’t, or else every website that has ever deleted any kind of third-party content⁠—even if said content pops up somewhere else literally a minute after its deletion on the origin site⁠—has engaged in censorship.

Exactly. Congrats 🥳

well, you can see where The Implication is going.

I didn’t imply I stated my belief: it is my personal opinion that censorship is a reprehensible act and those individuals that do so are either misguided (hopefully twitter) or scum.

And yet, by arguing that moderation is censorship, you’re also arguing against moderation of any kind…

See, this is where you go off the rails. I argue that deletion is censorship. There are many forms of moderation that are possible with reaching that level.
I support lesser levels of moderation quite happily!

You are, regardless of whether you like this fact, playing on the same team …

Actually I’m a nude streaker in this contest flying a banner that corrects the errors of both sides.

…make an act of moderation seem as “reprehensible” as an act of censorship…

Deleting comments is censorship. Flagging, tagging, folding, moving and linking, age gating, collapsing, colour hiding, … etc, none of those options reach censorship. The material itself hasn’t been barred.

And yet, because they did that, you would imply that they’re a morally heinous piece of shit.

See above on misguided

have to suffer through reading hate and bigotry and bullshit
There are plenty of options for moderation that land short of censorship.

WHEN IN THE BLOOD-SOAKED SATANIC FUCK DID TWITTER PREVENT DONALD TRUMP FROM SPEAKING HIS MIND

When (if) they deleted his comments as a user.
Again after he was denied service to the private platform when they deleted his prior comments.

there are plenty of archives of his tweets, after all

Wow, I guess there has never been a banned book, album, game, or film then. If you could go someplace else and get it?

you’re no better than the people who want to force their speech onto Twitter…

You are entitled to believe that, despite the long list of evidence that I am opposed to forced speech and support non-censorial moderation.

and I’ll keep doing it

Ohkay.
some people still believe the world is flat. Or 6000 years old. Or that humans fought dinosaurs. That vaccines contain microchips.

even if it literally fucking kills me

I sure hope not. Nobody else here engages in detailed discussion and debate.
You have even changed my mind on some occasion. Such as 230. Seeing it as necessary in a country where competent legal representation is not a right in practice

And moving me to research wind farm-bird mortality. Seeing the problem not being windmills but the stupidity of their design.

And quite a few others. Hell, you even tempered my view on censorship, seeing being forced to host a preacher on my front lawn as problematic. (The need for an opaque sound proof chamber for him to use and all).

And, despite you’re beliefs, I find you quite educated.
If nothing else, I respect your opinion, even if I disagree completely.

Stephen T. Stone (profile) says:

Re: Re: Re:7

Deletion of a post sounds like suppression to me.

Except it isn’t. As I’ve pointed out numerous times⁠—to no avail, apparently⁠—Donald Trump had posts deleted from Twitter and he could’ve damn well reposted them on any other social media platform or website (including ones he controls). Suppression, in the context of censorship, demands that the person who’s been censored be disallowed from speaking their mind anywhere. Being told “take your shit off our message board” isn’t the same as “you can’t post that shit anywhere” in either cyber- or meatspace.

censorship is a reprehensible act and those individuals that do so are either misguided (hopefully twitter) or scum

Congratulations, you finally confirmed that you believe everyone should think moderation is as morally reprehensible as censorship. Ta-fuckin’-da~.

I argue that deletion is censorship.

But you keep saying “moderation is censorship”. Even if you specify what kind of moderation, it doesn’t get rid of The Implication.

I support lesser levels of moderation quite happily!

Ibid.

The material itself hasn’t been barred.

And deleting the material from Twitter hasn’t barred it, either. An asshole who posts a racist meme that gets deleted from Twitter can go post it on 4chan, too. Barring material from one site does not, in and of itself, bar that material from all other sites. Moderation is not censorship, even if it’s deletion, because that would mean anyone who has ever deleted spam from a message board or a Discord server or a Fediverse instance is a censor⁠—and I don’t think you have the wheelbarrow-sized balls you’d need to go tell all those people “you’re a bunch of evil-ass censors”.

after he was denied service to the private platform when they deleted his prior comments

Y’know, I didn’t think you’d come out and imply (or say) that losing access to a platform was censorship. Then again, I didn’t think Trump would win in 2016, and we all know how that went.

I guess there has never been a banned book, album, game, or film then. If you could go someplace else and get it?

The point of banning materials is to make it as hard as humanly possible for those materials to be seen by interested parties⁠—and for speakers to make those materials available. Censorship is about the suppression of a voice, of speech, of expression.

A community banning a book from a public library⁠—which robs those who lack the means to buy books of the chance to read that book⁠—is censorship. Being booted from Twitter is not censorship. Any argument you can present to the contrary is bullshit and I absolutely will not treat it with any form of credibility or seriousness.

I sure hope not.

Just so you know: I don’t like liars.

Nobody else here engages in detailed discussion and debate.

You’re lucky I’m too fucked up to know better. My mental defects are the only reason this shit is still going.

You have even changed my mind on some occasion.

Lying will get you nowhere with me. Neither will flattery. If you’re going to kiss my ass, don’t.

you even tempered my view on censorship

And yet, here you are, continuing to conflate moderation with censorship so that the negative connotation of censorship⁠—of suppressing voices, of preventing speech from being expressed⁠—attaches to acts of moderation on private services/in private institutions.

I already told you how I feel about liars, Lodos. Don’t make me tap the sign again.

despite you’re beliefs, I find you quite educated

It’s sincerely nice to know that you’d think I was intellectually disabled for thinking moderation isn’t censorship without my comments convincing you otherwise~. Seriously, thank you for the compliment~. Such a lovely sentiment~.

LostInLoDOS (profile) says:

Re: Re: Re:8

Y’know, I didn’t think you’d come out and imply (or say) that losing access to a platform was censorship

I didn’t. Tossing him from the platform is denial of service.
Deleting post my is censorship

Being booted from Twitter is not censorship.

I agree. I didn’t say it was. As I explained there is a major difference between denying service and censoring.

If you’re going to kiss my ass, don’t.

It was more putting a gold star in your shirt

You’re still not going to change my mind on censorship. Deleting content is censorship. Even if it’s available elsewhere. See below list of real world cases of private censorship that Paul hasn’t responded to.
There are methods of moderation that stop short of actually censoring.

I don’t give a fuck about a person’s politics in it. I come at it as a fan of art and entertainment that has seen the results of private censorship.

As soon as you capitulate in one spot they come for more.
Cloudflare banned the storm trooper site the demands to censor multi-use platforms became a public deluge.

Stephen T. Stone (profile) says:

Re: Re: Re:9

It was more putting a gold star in your shirt

You might want to rethink using that phrasing, given your being fascist-adjacent like you are thanks to your votes for Trump.

Deleting content is censorship.

If I tear up, shred, and toss out a copy of a local newspaper inside of my own home, is that censorship? If I do the same thing to a flyer for Jehovah’s Witnesses or some other bullshit that was put in my mailbox, is that censorship?

When someone deletes content from a website/service they own and operate, they’re not censoring the people who made that content; they’re saying “I don’t want this on my property” and getting rid of it. Censorship⁠—as in the kind you should be railing against more than you rail against content moderation⁠—involves the suppression of a voice in a way where they are prevented from speaking their mind. Moderation and editorial discretion don’t do that.

I mean, think about it this way: Under your definition of censorship, literally anybody who has ever deleted a spam message from their email account is a filthy immoral censor what censored an innocent spammer. Is that really the lengths you’re prepared to go for the sake of being able to decry content moderation as an evil that is only surpassed by Killary Clinton?

I don’t give a fuck about a person’s politics in it.

And yet, you show up far more often on articles about content moderation that dings conservatives than you do on articles about censorship that dings everyone else. Curious. 🤨

Cloudflare banned the storm trooper site the demands to censor multi-use platforms became a public deluge.

Two things:

  1. It’s Stormfront, not Storm Trooper.
  2. Yes or no: Should Cloudflare have been forced by law to carry a site made by white supremacists for the sake of disseminating white supremacist propaganda?
LostInLoDOS (profile) says:

Re: Re: Re:10

When did gold stars stop being awarded for good things?

they’re not censoring the people who made that content

No, they’re not. They’re censoring the content.
But there’s a line between private and public facing. Deleting email is an entirely private act.
It’s interesting nobody responded to my examples of actual real censorship in entertainment posted just below this. And telling.

You speak of my indirect vote for trump as enabling the far right. As much as
I don’t like it, there’s a tiny sliver of truth to it, in his rubber stamp to congressional policy.
But the same goes to deletion. As soon as you ok one thing, they come for all things.

Eg:

Two things:

1) nobody with a working brain cares what the duck turds call themselves
But
2) it proves my point. As soon as they bumped one site, the wolves came demanding more. And more. And then some more!

Stephen T. Stone (profile) says:

Re: Re: Re:11

When did gold stars stop being awarded for good things?

Putting a gold⁠—or perhaps yellow⁠—star on someone’s shirt has an Implication. And given how you twice voted for a fascist…well, maybe that’s one Implication you should try harder to avoid.

They’re censoring the content.

Twitter deleted a link to a New York Post story once. Did doing that delete the actual story? If the answer is “no”, fuck off with that line of reasoning. If the answer is “yes”, you’re gonna need to show me the evidence of that happening⁠—and it had better be incredibly fucking convincing.

nobody responded to my examples of actual real censorship in entertainment

Okay, let’s look at those.

Sony is censoring games that are uncensored on other platforms.

Quoting myself: “Nintendo has the right to have its systems associated with specific speech. Any publisher that wants an association with Nintendo must play by Nintendo’s rules. Enforcing a ‘right to publication’ would be akin to the government compelling speech. We shouldn’t want the law to compel Nintendo into allowing (or refusing!) the publication of Doom Eternal on the Switch. That way lies madness.”

Book store choose not to carry titles. Such as Amazon.

That isn’t censorship unless those stores are forced by law to not carry those books. No one has the right to free reach⁠—and that includes having their book stocked in a store that would otherwise refuse to carry it.

Radio stations censor music every day.

Eh, that’s on a thin line between “editorial discretion” and “censorship”⁠—one on which I’m inclined to lean towards the former, even if the “discretion” is essentially a government mandate, if only because the playing of an edited song on the radio doesn’t prevent anyone from finding and listening to the uncut version.

Chain theatres rarely carry NC-17 films.

Again: Free reach isn’t a thing. Theaters have every right to decide what films they will and will not screen. Filmmakers have other avenues for distributing those films, not the least of which is a streaming service like Netflix (as evidenced by its choice to stream Blonde).

Cable companies cut content despite there being no legal reason to do so.

That’s another case of the aforementioned thin line between “editorial discretion” and “censorship”. Cable companies have advertisers (and sometimes investors) to worry about; no one wants to piss off the people paying the bills by running an uncut R-rated film in primetime. (Although, yes, Standards and Practices are generally bullshit.)

my indirect vote for trump

You can shut the absolute fuck up with this “I didn’t vote for Trump, I voted against Clinton” bullshit now. If you marked Donald Trump on your ballot, you directly and knowingly voted for him; no rationalization you can present is going to change that objective fact.

I cast my vote for Joe Biden; that my reasoning was “he’s not Donald Trump” is irrelevant to the fact that I knowingly and directly cast my vote for Biden. They don’t count votes “against [x]”, they count votes “for [x]”. Stop thinking otherwise and accept the responsibility of having voted for Donald Trump, for the love of Christ.

As soon as they bumped one site, the wolves came demanding more. And more. And then some more!

Two. Two more. One was 8kun; the other was Kiwifarms. If you’re seriously going to defend those sites or suggest that Cloudflare should’ve been legally barred from dropping those sites as clients, don’t. I’d rather listen to the most annoying sound in the world on a ten-hour loop.

Also: Cloudflare initially ignored all the requests to drop Kiwifarms until the PR nightmare (and the potential lost income/legal liability) became too much for CF to handle. They didn’t intend to drop Kiwifarms until that breaking point; hell, two or three days prior to that announcement, they put out a whole-ass blog entry that said “we’re not dropping Kiwifarms” without actually saying “we’re not dropping Kiwifarms”.

Whatever “wolves” you think are coming for any site even one inch right-of-center, I can promise you that unless it becomes a serious financial/legal risk, Cloudflare can and will ignore those “demands”. Demanding something is no guarantee that you’ll get it⁠—I mean, I keep demanding that you fuck off, and you still haven’t done it.

LostInLoDOS (profile) says:

Re: Re: Re:12

well, maybe that’s one Implication you should try harder to avoid.

What a world you have that the first thing you think of is that. When nearly every school under high school in the country uses gold stars for awards.

twitter

let me know how that works out when you can’t get access to entertainment you want In uncensored form.

We shouldn’t want the law to compel

I didn’t call for one. I pointed to a well documented case of ongoing censorship, the term used by Sony themselves.

No one has the right to free reach⁠

No. And they shouldn’t. But I will continue to point to censorship. Quite a bit film on prime has been censored. And that censorship isn’t noted ip front before purchase.

Cloudflare

https://torrentfreak.com/?s=Cloudflare.
The MPA etc has extensively increased pressure campaigns since storm people was removed.

should’ve been legally barred from dropping those sites as clients

Again you somehow think opposing censorship and forced hosting are the same thing. They’re not.

even one inch right-of-center

I think the torrent industry is about as far left an idea there could be. And the MPA ideas as far right as it gets.

Stephen T. Stone (profile) says:

Re: Re: Re:13

What a world you have that the first thing you think of is that.

Blame it on the fact that you’re a Trump voter raising the idea of star-on-shirt iconography.

let me know how that works out when you can’t get access to entertainment you want In uncensored form

You let me know when Twitter is responsible for that.

I pointed to a well documented case of ongoing censorship, the term used by Sony themselves.

Can you cite an example of a high-ranking Sony (or a specifically PlayStation) executive calling it “censorship”?

Quite a bit film on prime has been censored.

Can you cite examples of films that have been “censored” on Amazon Prime and how only that “censorship” affects the availability of the uncut versions of those films?

The MPA etc has extensively increased pressure campaigns since storm people was removed.

Gee, it’s almost like asking for the removal of sites that facilitate copyright infringement is an entirely different situation. Imagine that~.

you somehow think opposing censorship and forced hosting are the same thing

I both oppose censorship and support the right of people and private entities to moderate speech on platforms they control however they want. You’re the one who believes they should be unable to delete speech they don’t want to host; you prove that every time you refer to that act as “censorship”.

LostInLoDOS (profile) says:

Re: Re: Re:14

Gold star for you is so common parlance.

I don’t think twitter has games.

The video was deleted: but the story is still here
https://nichegamer.com/new-sony-censorship-policy-is-forcing-even-japanese-developers-to-censor-themselves-in-japan/

Jennifers-Body-Unrated-

Hills-Have-Eyes-UNRATED

https://www.amazon.com/Argentos-Dracula-Rutger-Hauer/dp/B00HAUA6F2

Gee, it’s almost like asking for the removal of sites that facilitate copyright infringement is an entirely different situation.

And yet their stance of we don’t censor, we don’t remove, that was a strong defence. Until they dropped sites. Now they lost that ‘anything’ aspect.

Yes, they are different. That’s exactly my point. When you choose censoring for one reason you open up censoring for all reasons.

Soon you wind up with clean-feed style situations.

You’re the one who believes they should be unable to delete speech they don’t want to host; you prove that every time you refer to that act as “censorship”.

That’s a flat out lie.
My position hasn’t changed as was never supporting of forced speech! The right to private censorship is a fundamental right that must be upheld. Not because the act of censoring is proper, but because the alternative is forced speech.

Platforms must have the right to private censorship. They should be encouraged to use less destructive means.

Your choice to change the definition so you don’t have to fight and argue with forced speech supporters is a short-term benefit. Ignoring the long term consequences of where sidestepping the whole for the immediate opens many future fights.

The Hays Code and Comic Book code are prime examples of feature creep.

Stephen T. Stone (profile) says:

Re: Re: Re:15

Gold star for you is so common parlance.

Then you should’ve said that instead of “gold star on your shirt”, which brings to mind a certain Implication, which isn’t helped by you having twice voted for a fascist.

The video was deleted: but the story is still here

Does that story say a Sony/PlayStation executive explicitly used the term “censorship” to descibe the company’s content policies?

Jennifers-Body-Unrated-

Hills-Have-Eyes-UNRATED

https://www.amazon.com/Argentos-Dracula-Rutger-Hauer/dp/B00HAUA6F2

Okay, and…how does any of that affect the availability of the films through other legal streaming outlets and on physical media?

their stance of we don’t censor, we don’t remove, that was a strong defence. Until they dropped sites.

In case you haven’t noticed, CF hasn’t capitulated on that stance as often as you’re implying it has. While it may drop sites based on Terms of Service violations without much fanfare, the terrible triuumviate of 8kun, Stormfront/Daily Stormer, and Kiwifarms were all dropped because of both TOS violations and massive PR shitstorms surrounding CF’s refusal to drop those sites despite the violations.

Why, it’s almost as if someone in charge at CF⁠—possibly even its CEO!⁠—has some sort of bias for, at a bare minimum, sites that could reasonably be considered right-wing shitpits. Imagine that~.

The right to private censorship is a fundamental right that must be upheld. Not because the act of censoring is proper, but because the alternative is forced speech.

And yet, you keep referring to moderation as censorship, which implies that moderation is as morally reprehensible as censorship. I mean, you want to keep saying “I’m against censorship”, but then you say “I’m in favor of this specific kind of censorship that I still think is morally heinous”. I don’t have that problem because I don’t see moderation as censorship; this problem is yours to fix, and you’ll be doing it alone.

They should be encouraged to use less destructive means.

And what fucking happens when those “less destructive means” don’t accomplish shit and you’ve helped make the “destructive means” either legally impossible to use or too morally repugnant to even consider using?

Your choice to change the definition so you don’t have to fight and argue with forced speech supporters is a short-term benefit.

I’ll fight with those motherfuckers all goddamn day if I have to. Discussions, slapfights, the fucking Cage of Death⁠—you name it, I’m down to clown. What I won’t do is refer to moderation as censorship.

You’re the one who refuses to see the idea that equating moderation (“destructive” or otherwise) with censorship by referring to moderation as censorship is the path to supporting forced speech. You’re the one who refuses to see how making moderation sound evil⁠—and yes, that’s what you’re doing, regardless of how much you say you’re not⁠—puts us on a path to having moderation powers legally curtailed in the name of “stopping censorship”. Your saying “oh but not that kind of censorship” doesn’t change that fact.

The Hays Code and Comic Book code are prime examples of feature creep.

And I don’t support either of those things, in spirit or in deed. If you’re trying to imply that I do, fuck off.

I mean, fuck off in general, but especially if that’s what you’re shooting for.

LostInLoDOS (profile) says:

Re: Re: Re:16

which brings to mind a certain Implication

I’m not sure where your getting the idea from but it’s not normal to jump from a gold sticker put on your shirt by a teacher in regular daily life… to a yellow emblem on an armband.

Does that story say
The vide did. Use the wayback machine

Okay, and
It doesn’t. Which is why it’s private, and localised, censorship.

as often as you’re implying it has

I didn’t imply anything. They have not, as far as I’m aware, given in to any of the calls. But they sure opened the door for more regulation.

moderation as censorship

You refer to the censorious act of deletion as if it was a good thing in moderation.
I refer to content deletion, one form of moderation, by its dictionary definition… censorship.

And what fucking happens when those “less destructive means” don’t accomplish shit

Then either your on the lesser side of the localised population, or the site is doing something wrong.

path to supporting forced speech

The only way that can happen is with a new amendment to the constitution.

If you’re trying to imply

You have a thing for looking for issues that simply don’t exist. “Dog whistles” and implication and subtext and such. It’s make believe.

I gave two very good examples of exactly what happens when discretion and moderation are censorious. What starts with a few tiny bits of material escalates to major content censorship across the board.

Stephen T. Stone (profile) says:

Re: Re: Re:17

The vide[o] did. Use the wayback machine

Did the video show a Sony/PlayStation executive using the word “censorship” in regards to Sony’s PlayStation content practices?

It doesn’t.

Then it isn’t censorship.

they sure opened the door for more regulation.

So what? I don’t see anyone (directly) calling for CF to be forced into protecting sites like Kiwifarms. You’re the one who’s making a huge deal about three shitpits being dropped amid big PR disasters concerning how shitty those pits are/were. Shit, I’m no fan of those three sites, and I’m still not out here calling for CF to drop sites willy-nilly.

You refer to the censorious act of deletion as if it was a good thing in moderation.

It is. You’re the one who apparently thinks deleting offensive speech from a single platform⁠—speech that could easily be reposted somewhere that doesn’t mind hosting it⁠—is a moral crime worthy of some kind of punishment under the law. After all, you keep calling it “censorship”.

the site is doing something wrong

But the site can’t be doing something wrong⁠—it’s not deleting speech, which is apparently the absolute worst thing a website can do.

You have a thing for looking for issues that simply don’t exist.

You have a habit of ignoring the subtext of your own speech. Take a class in communications, goddamn.

What starts with a few tiny bits of material escalates to major content censorship across the board.

Yes, yes, deleting spam eventually leads to banning half of all speech from a globally popular social interaction network. We get it: You think that SIN should be forced into hosting that speech by somehow “hiding” the speech, even if that SIN would otherwise refuse to host that speech.

You claim you’re not on the side of forced hosting of speech. Your entire “moderation is censorship” mindset gives away your true position. Own the truth for once in your life⁠—even if doing so might make you that much less of a shitheaded Trumpist.

Stephen T. Stone (profile) says:

Re: Re: Re:19

supporting the choice to host

You literally keep declaring “deletion is censorship” as if services like Twitter should only ever hide speech without deleting it, no matter how heinous the speech.

I’ve been a moderator/admin on a few different imageboards over the years. I can promise you this: Without being able to delete⁠—sorry, censor⁠—some kinds of speech, no matter how legally protected that speech was, those imageboards would be overrun with that kind of speech. I didn’t have a way to “hide” the offending speech without deleting it; I didn’t have a way to make that functionality, either. And not deleting that speech meant it would still take up space that could otherwise have been used for the speech that people wanted to share on those imageboards.

You’ve clearly never run a website, and it shows every time you say “deletion is censorship”. I’ve had to deal with that shit and yes, deletion is sometimes the best option for content moderation. But you want to take that option away from people…or at least make it seem so morally reprehensible that they refuse to take that option out of the fear that they’ll be seen as censorious bastards on the same level as the conservative assholes who keep banning books in public libraries.

When you can come up with a solution that magically hides offensive speech and restores the space used by that speech so “unoffensive” speech can use said space, you let me know, mm’kay? Until then, you don’t have the right to tell me that “deletion is censorship” unless you’re ready, willing, and able to defend the idea that spam shouldn’t ever be deleted from any interactive web service.

Find the courage to do that or shut the fuck up forever with this “moderation is censorship” crap. Nobody here but the troll brigade is on your side⁠—and that only makes your argument worse.

LostInLoDOS (profile) says:

Re: Re: Re:20

I’ve been a moderator/admin on a few different imageboards over the years

As I have on forums, and earlier on ISPs, including AOL and CompuServe.
There are cases where I can manually move garbage to the sandbox.
Sometimes the only option is censorship or keeping it up. If deletions are my only choice, I do what’s best for the community.

I also push hard to implement less permanent and destructive measures. With them in place, problems tend to solve themselves.

It is because of my time with CompuServe and SB that I know community moderation works better than censorship.

That’s the aspect you are missing. I support less censorship as an option by supporting more methods of moderation.
Sandboxing. Collapsing. These are viable methods. And these methods should be implemented.

Stephen T. Stone (profile) says:

Re: Re: Re:21

There are cases where I can manually move garbage to the sandbox.

Lots of other services don’t have that choice. Do you really want to shit all over them for deleting content that violates their rules?

If deletions are my only choice, I do what’s best for the community.

And yet, you want to shame other people for doing that⁠—as if they should be able to magically sandbox TOS-violating content even if they literally don’t have the option of doing that⁠—without having to face that shame yourself.

I know community moderation works better than censorship

Deletion is part of community moderation. Just because you call it “censorship”⁠—and demonize people who do it as “censors” who deserve nothing less than to be named and shamed forever over a decision on how to best curate their community that you disagree with⁠—doesn’t make it any less of a valid or useful tactic.

Sandboxing. Collapsing. These are viable methods. And these methods should be implemented.

And if they can’t be implemented…well, what then? After all, you’re against delet⁠—sorry, censorship, and you’re going to shame anyone who does it (except for yourself) as being morally reprehensible assholes, so what can you reasonably expect people to do if their choice is being demonized forever by people like you for “censoring” spammers and rulebreakers or letting their site be overrun by bullshit?

LostInLoDOS (profile) says:

Re: Re: Re:22

Lots of other services don’t have that choice. Do you really want to shit all over them for deleting content that violates their rules

As I said before, I always strive to convince the leadership to enable a lessor method. Be that a sandbox, collapsing, community moderation…!

And yet, you want to shame other people for doing that⁠

And have multiple times on this site’s commentary stated I do so with heavy heart. I feel deep shame in doing so. It’s the reason I rarely stay at sites without lessor methods. Today, only one site I moderate at is without any lesser option. That is actually likely to change with new software.

Deletion is part of community moderation

Excluding wiki-like services, no. Deletion is an executive action, not community.

And if they can’t be implemented…

Such a situation doesn’t exist for active sites today. Regardless of format.

Stephen T. Stone (profile) says:

Re: Re: Re:23

I always strive to convince the leadership to enable a lessor method.

Trust me when I say that imageboards don’t tend to have “lesser methods”. What do you expect them to do, let the spam stay up instead of censoring it?

I feel deep shame in doing so.

As someone who has deleted plenty of spam without thinking twice: Bull. Shit.

Deletion is an executive action, not community.

A service like Twitter or imageboards like the ones I modded aren’t democracies⁠—they’re dictatorships. You can ask the community for feedback from time to time, but if you going to leave moderation in the hands of the community, you’ll eventually end up face-to-face with the “Worst People” Problem.

Such a situation doesn’t exist for active sites today.

Tell that to 4chan. Other than /trash/⁠—which is basically a containment board for furry content and other similarly tasteless-for-even-4chan content⁠—its primary method of moderating content is deleting it. But yeah, go try to convince 4chan’s global community that it should be running the show instead of the janitors and mods and such; I imagine that’ll go over real well~.

Anonymous Coward says:

Re: Re: Re:24

Tell that to 4chan.

Didn’t work.

Crossboard raids might be illegal under 4chan’s rules, but they happen with enough regularity that even the mods and janitors can’t do shit.

Sandboxing? Only works if the community agrees to fucking stay in their containment boards. There’s a very damn good reason why /mlp/ was hated (crossboard raids being one of them) and everyone hates /pol/. Even /b/.

How do you get rid of Stormfront when they’ve basically moved in, bolted their furniture and decided to not follow the rules? Even WITH the FBI watching the place?

PaulT (profile) says:

Re: Re: Re:7

“When (if) they deleted his comments as a user.”

If he’s been prevented from speaking his mind, why do I keep hearing his voice and read his raving ignorant lunacy, which is unfortunately still necessary with his remaining a potential candidate in the next presidential election?

Surely if he can’t speak his mind, I shouldn’t be able to hear the barely coherent ramblings from what passes as it?

“Wow, I guess there has never been a banned book, album, game, or film then”

Were those banned by Twitter or the government? The answer to that question is important.

LostInLoDOS (profile) says:

Re: Re: Re:8

If he’s been prevented from speaking his mind, why do I keep hearing his voice and read his raving ignorant lunacy,

Because you choose to? There aren’t many platforms hosting him. It’s quite easy to not have to read his comments.

Were those banned by Twitter or the government?
In some cases by the government. In some cases by private companies.

Sony is censoring games that are uncensored on other platforms.
Book store choose not to carry titles. Such as Amazon.
Radio stations censor music every day.
Chain theatres rarely carry NC-17 films.
Cable companies cut content despite there being no legal reason to do so.
Explain how any of those are government bodies censoring.

Anonymous Coward says:

Re: Re: Re:9

Because you choose to? There aren’t many platforms hosting him. It’s quite easy to not have to read his comments.

“You can choose not to read Reuters or the news”

Hard not to read his commentswhen EVERYONE< including TECHDIRT, report and write about his bullshit because, I dunno, “it will affect the internet”, including you.

“You can choose not to read Techdirt then”

Take your own advice first. I have to due to copyright being an occupational hazard in my chosen line of work.

Naughty Autie says:

Re: Re: Re:9

Sony is censoring games that are uncensored on other platforms.

Their platform, their decision. The fact the games are available on other consoles means this isn’t censorship.

Book stores choose not to carry titles. Such as Amazon.

Some book stores, not all. See my reply above.

Radio stations censor music every day.

Silencing swears in a song makes it available for radio play, thus the opposite of censorship.

Chain theatres rarely carry NC-17 films.

The fact is that NC-17 movies aren’t made as much because they don’t make as much money in the box office. Talk to Hollywood about that instead of having a go at Cineworld or whatever for something they’re not even doing.

Cable companies cut content despite there being no legal reason to do so.

It’s called moderation, shithead. They cut content so they can show movies like Little Man Tate in the early afternoon instead of after nine o’clock (in the UK). But hey, way to prove you’re an anti-Section 230 troll.

LostInLoDOS (profile) says:

Re: Re: Re:10

Sony’s internal documents call it censorship

Yes, some booksellers refuse to carry titles

FCC: “ Since the FCC holds power to shut down any radio station, station managers and program directors act to censor their organizations from the inside. So, it might be said that the FCC doesn’t actually censor any station. Instead, they hold penalties, such as written warnings, fines, and the revocation of broadcast licenses, as a means of getting radio stations to police themselves.”
~ Mitch Levy

Theatre: since companies stopped using the MPAA and went unclassified, theatres regularly bar those as well.

In the UK: is not the US. There’s no legal reason for it in the US.

None of that actual censorship has anything to do with 230 which protects hosts from legal culpability for user generated content. Or: a company can host any thing they want that is legal. And could allow users to post anything they want that os legal. And they are not responsible if they host or don’t host or remove some content and not other content.

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יונתן פֿאליק , عطا الله عفلق (profile) says:

Re: Re: Re:12 In Court Thanks to Open Moderation, an Anti-Racist Like Me Will Prevail Over a Discriminatory Social Medium Platform!

A discriminatory social medium platform will be ordered to pay tens of trillions of dollars in compensation for civil torts, which are associated with criminal group libel.

One hopes that if a state (like Massachusetts) has a statute that enables the arrest of a probable perpetrator of criminal (distributor) group libel, the state attorney general will swiftly indict and try top management of the discriminatory social medium platform.

There is no discretion in the enforcement of criminal law.

Anonymous Coward says:

Re: Re: Re:11

Sony’s internal documents call it censorship

While it’s their choice to cripple their quarterly earnings to appeal to kids and their parents, I would also like to add that Jim Ryan has not shown ANY sign of competence since taking over as head of Sony Interactive.

Him forcing Japanese devs to comply with American law despite said devs having NO intention of making the game available in America… is a red flag itself. Not a good one, I might add.

I can’t tell if it’s a form of virtual signalling, another example of “white man knows best” or something more sinister, but these moves do NOT make me feel confident of Jim Ryan’s leadership.

PaulT (profile) says:

Re: Re: Re:9

“Because you choose to? There aren’t many platforms hosting him. It’s quite easy to not have to read his comments.!”

It’s also easy to read them if you chose to. What’s not happening is people who don’t wish to being exposed anyway.

“Sony is censoring games that are uncensored on other platforms.”

How? If the answer is “because they choose to censor on their own platform”, what’s stopping you from moving to the platforms that don’t censor?

“Book store choose not to carry titles. Such as Amazon.”

As has happened since book stores existed.

“Radio stations censor music every day.”

Radio stations have been set up explicitly to play the music others wouldn’t play in the past.

“Chain theatres rarely carry NC-17 films.”

Which they choose to do so, and doesn’t carry legal weight unlike in some countries.

“Cable companies cut content despite there being no legal reason to do so.”

Content on those channels is usually available uncut elsewhere, and even if not are you saying the people who created content should not have final cut?

“Explain how any of those are government bodies censoring.”

They’re not, but you’re yet to explain how a private platform self-censoring is equal to government censorship. When Blockbuster decided not to carry certain uncut VHS tapes, despite their best efforts you could still legally access the uncut version.

LostInLoDOS (profile) says:

Re: Re: Re:10

What’s not happening is people who don’t wish to being exposed anyway.

Well, don’t doll or like or link or whatever.

what’s stopping you from moving to the platforms that don’t censor?

Well, I already had the platforms, but yes, I dumped Sony when I found out they were charging me money for games that were missing content.

explain how a private platform self-censoring is equal to government censorship.

It’s not. That’s the point I’ve been trying to get across to a few here for a long time. totally separate issues!

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Chozen (profile) says:

Re: Re: Re:10 No Such Right

No reasonable person would consider speech hosted an any social media site as an endorsement of that speech. Therefore, there is no 1st Amendment right to censor that speech.

I’m sick and tired of stupid people arguing about what stupid people might think. You are stupid. We don’t write our laws or moderate or speech based on your stupidity.

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Stephen T. Stone (profile) says:

Re: Re: Re:15

Did the religious organization open up their online website to public posts? If so, you’re arguing that Twitter shouldn’t have the same right to delete rule-breaking posts as the religious group because of religion⁠—which is a favoring of religious interests that the law of the United States cannot abide under the First Amendment.

Stephen T. Stone (profile) says:

Re: Re: Re:9

If Twitter deletes a tweet because they find it objectionable, in what way does that not qualify as censorship?

In the way that Twitter deleting a tweet doesn’t stop that tweet from being reposted⁠—by either the person who posted it or someone else⁠—on any and every other website willing to host the speech what got deleted.

nasch (profile) says:

Re: Re: Re:10

In the way that Twitter deleting a tweet doesn’t stop that tweet from being reposted⁠—by either the person who posted it or someone else⁠—on any and every other website willing to host the speech what got deleted.

“Censor” means “to suppress or delete as objectionable.” It does not mean “to suppress or delete as objectionable and prevent from appearing elsewhere.” Unless you can find a dictionary with that definition. I haven’t seen one.

LostInLoDOS (profile) says:

Re: Re: Re:11

As soon as we get past the common progressive idea that censorship must be complete and total, which no dictionary says, we can focus on the real issue.

That is the question of what makes a site like twitter et al any different than the foyer of a mall.
Because the real debate is about public spaces and pseudo-public spaces.

That’s the difficult question.
Nobody Denys that a mall is private property hosting the public. Nobody Denys that twitter is a private communications space hosting the public.

I have a serious problem with the idea that a mall must host speech. Because where is the difference between the foyer of the mall and the front foyer of a restaurant?
Laws that ban speech slide on just as much as laws that force speech.
I definitely don’t want some preacher standing on my front doorstep. Nor some end of the world greenie screaming cow farts cause ice cap melts.

Stephen T. Stone (profile) says:

Re: Re: Re:12

what makes a site like twitter et al any different than the foyer of a mall

A mall is in physical space; Twitter is in cyberspace. A mall has specific areas for people to gather in addition to areas meant for foot traffic and such; Twitter has no such functional equivalent of which I’m aware. A mall can conceivably be asked to let those spaces which function like public gathering spots be treated as such and allow for free and unfettered expression (to wit: Pruneyard); Twitter can’t be asked to do that without infringing on Twitter’s right of association.

How’s that, that good enough for you, Mr. Deletion Must Be Stopped?

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Chozen (profile) says:

Re: Re: Re:13

“Twitter can’t be asked to do that without infringing on Twitter’s right of association”

There is no such right because no reasonable person will take something posted on Twitter as Twitters public speech. There is no compelled association or speech here.

Stephen you are both stupid and insane. The “No Reasonable Person” standard doesn’t apply to you. Your point of view is not a reasonable persons point of view. You are a nut case.

Stephen T. Stone (profile) says:

Re: Re: Re:14

no reasonable person will take something posted on Twitter as Twitters public speech

Irrelevant. Twitter has the right to choose what speech it will and won’t associate with/host. You show me a law or binding legal precedent that says otherwise and I’ll concede the point⁠. Good luck in finding one, though.

You are a nut case.

Do something about it. 🖕

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bhull242 (profile) says:

Re: Re: Re:14

Twitter can’t be asked to do that without infringing on Twitter’s right of association

There is no such right because no reasonable person will take something posted on Twitter as Twitters public speech. There is no compelled association or speech here.

Even taking your assertion that “no reasonable person would take something posted on Twitter as Twitter’s public speech” as true, that doesn’t say anything at all about whether or not forcing Twitter to host such speech infringes on Twitter’s right of association or prove that that isn’t compelled association. You’re conflating “speech” and “association”.

Additionally, that is not the full test regarding compelled speech; it’s no dispositive of the issue.

Finally, that doesn’t stand for the assertion that “there is no such right” for free association.

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Chozen (profile) says:

Re: Re: Re:15

“Even taking your assertion that “no reasonable person would take something posted on Twitter as Twitter’s public speech” as true, that doesn’t say anything at all about whether or not forcing Twitter to host such speech infringes on Twitter’s right of association or prove that that isn’t compelled association. You’re conflating “speech” and “association””

They are on in the same because there is no First Amendment right to association. Its an implied right from freedom of speech and freedom of association. No reasonable person would interpret a Tweet as twitters speech so there is no association. This was all asked and answered in Prunyard. The ruling Mike and Mike’s misfits hate.

Stephen T. Stone (profile) says:

Re: Re: Re:16

there is no First Amendment right to association

The First Amendment literally guarantees the right of free association⁠; to be free to associate, one must also be free to not associate.

No reasonable person would interpret a Tweet as twitters speech so there is no association.

Even if that’s true⁠—and I don’t grant that it is⁠—Twitter still has the same right as any other website owner to choose what speech will be allowed on the site/service. You haven’t offered any citation of law or legal precedent that says Twitter must host all legally protected speech.

This was all asked and answered in Prun[e]yard.

Pruneyard doesn’t apply to Twitter in any way.

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