Raging Ignorantly At The Internet Fixes Nothing

Free Speech

from the old-men-of-media dept

Jann Wenner, the creator of Rolling Stone magazine, was certainly an early supporter of free speech. But he seems to have reached grumpy old man status, that allows him to whine about free speech online, mostly by not knowing shit about anything.

Writing for Air Mail, a publication by Graydon Carter (another Grumpy Old Man of Media™), Wenner has a facts-optional screed about Section 230, which has done more for free speech than Wenner ever did.

First off, Wenner gets the purpose and history of Section 230 backwards. Like exactly 100% backwards. This is the kind of thing any fact checker would catch, but who needs fact checkers here?

The original conceit behind Section 230 was that tech companies were not publishers of content but merely providers of “pipes”—innocent high-tech plumbers!—and so should be treated like Con Edison or the telephone company. In reality, they are pipes, publishers, monopoly capitalists, spy networks, and a whole lot more all bundled together.

This is literally the opposite of the “conceit behind Section 230.” The entire conceit was that they are publishers, but because they’re publishers that allow anyone to publish and (mostly) only do ex post moderation, it made no sense at all to hold them liable as traditional publishers, who review everything ex ante.

It has never meant that the service providers were intended to be mere “pipes” or neutral conduits. Indeed, it was always intended to be the exact opposite. The whole intent of Section 230, in the words of its authors, was to enable sites to moderate more easily, by knowing they wouldn’t be liable for what they missed.

This is well known to anyone (i.e., not Wenner or anyone who edited his work at Air Mail) who understands the history of Section 230, which is that it was in response to the ruling in Stratton Oakmont v. Prodigy. In that case, a judge found that, because Prodigy moderated (in an effort to keep its forums “family friendly”), it could be held liable for anything that remained up.

Reps. Chris Cox and Ron Wyden realized what a mess that would be for free speech. What internet service would be willing to freely host speech if they could get sued for anything they allowed to be posted, even if no one reviewed it? Thus, Section 230 was written to enable websites to (1) host content freely without having to carefully review each and every piece of content and (2) moderate freely, without facing liability for both the decisions and non-decisions.

Note that nothing in there has anything to do with being a “pipe.”

This is why Section 230 has been such a boon for actual free speech. It makes it possible for internet services to host third-party speech without having to review every bit of content for legal liability, while still retaining the necessary editorial control to remove what they dislike, without facing liability.

To be fair, Wenner is not the only one to make this false assumption. Starting about six years ago, it became common in mostly ignorant MAGA circles to assume that this was what Section 230 meant. I believe Senator Ted Cruz was the first to make this category error, but it has been repeated many times since then.

That’s no excuse for Wenner to repeat the mistake, though.

Unfortunately, the rest of the article is almost entirely based off of this false premise, and thus makes no sense at all.

Wenner uses this framing to suggest that Section 230 unfairly benefited the internet over magazines. He claims that magazines were bastions of free speech because they could be liable for defamation.

Under the banner of the First Amendment, I sent out my warriors—Hunter S. Thompson, Richard N. Goodwin, P. J .O’Rourke, William Greider, and Matt Taibbi, among others—to cover national affairs and a dozen presidential elections. They took wild liberties in their prose, but we diligently observed the rules about truth and malice—the price of free speech.

In my 50 years leading Rolling Stone, I had one major journalistic failure, when we neglected to rigorously vet a story about an alleged sexual assault at a University of Virginia fraternity house in a long investigative piece on the broader epidemic of rape on college campuses. It was singularly my worst moment as an editor.

Around this time, the rapidly declining profitability of Rolling Stone and the magazine industry as a whole made it clear that the Internet platforms had become a threat, against which we were helpless. They had limitless resources, technical skills beyond our understanding—and governmental exemption from obeying the libel laws.

But again, Wenner is fundamentally confused. The issue on the internet is not that defamation law no longer applies, it’s just a question of who it applies to. The law for both the internet and for a paper publication is that the party actually responsible for the violative statement is responsible.

No one sued a library that carried Rolling Stone for the defamatory UVA rape story. They sued Rolling Stone itself. If someone defames someone on the internet, it’s the person who actually is responsible for the speech who gets sued, rather than the “library” that hosts the content. And a physical library is not a “pipe” either. They still retain their editorial freedom of determining which works to allow and not allow on their shelves.

Wenner then bizarrely and legally illiterately tries to discuss the NetChoice cases before the Supreme Court. He notes that with the laws in Texas and Florida limiting moderation, the folks in those states fear that platforms will “disproportionately squelch conservative speech,” and claims that this is true (even though studies actually have shown the reverse — who needs facts?).

Wenner suggests that Section 230 “must now be thrown out,” without realizing how massively this would attack free speech online. He implicitly seems to recognize that social media would die under this plan, but doesn’t understand what would actually happen:

So how can we keep the social-media pipes open while enforcing rules against libel and willful disregard of the truth? Let people publish their sickest fantasy or The Protocols of the Elders of Zion on their own blogs and Web pages. (They can’t hide behind Section 230.)

I mean, sure, it would be great if more people posted content to their own blogs and websites, but without 230 who will host those blogs and websites, Jann? Because the only reason we have web hosting companies and cloud services is because the hosters of that content know they’re protected thanks to Section 230. They’re “the library” in this scenario.

So if you do away with Section 230, hosting companies will also disappear, and it will be a lot harder to have your own blog or website.

Wenner seems to think he’s got the path around that idea, but again, he doesn’t seem to understand what he’s talking about. He suggests that maybe 230 should disappear only for algorithmically recommended content:

But when commercial public platforms decide to recirculate, amplify, and empower such stuff by algorithm or human selection, then they must obey the law, whatever the cost, like every other publisher in the U.S.

This idea is often raised by people who have never actually had to think through the details and tradeoffs of these solutions. First, it would make search engines ridiculously dangerous to run. Any algorithmic recommendation could face liability? Search engines are recommendation algorithms.

Similarly, the main purpose of these algorithms these days is to diminish the reach of the people posting “their sickest fantasy or The Protocols of the Elders of Zion.” Without algorithmic recommendations, people see more disinformation and more false information. Rather than improving access to truthful information, getting rid of the algorithm makes that more difficult.

Section 230’s theoretical purpose—to shelter the Internet in its infancy—was served long ago. Today, the Captains of the Internet hardly need shelter.

Again, that’s not its purpose, theoretical or otherwise. Its purpose was to make sure that companies would be willing to host speech at all. And we still need that today or else we end up with way less speech.

(Along with the gun industry, tech is one of the few businesses in America that has immunity from product-safety laws.)

This is just false. Tech remains very, very much liable under product safety laws. The only area where internet (not “tech”) sites are immune is for liability based on third-party speech. Wenners problem (among many other misunderstandings) is not understanding the difference between first party and third-party speech.

Just as magazine publishers for years have absorbed proportionately higher expenses for research, fact-checking, and libel review in their operating budgets, the tech companies can foot the bill to monitor their legal risk.

But, Jann, you just said that without 230 everyone would be forced to publish on their own blogs and web pages. They wouldn’t be posting on social media any more because without Section 230, social media companies aren’t going to be open to hosting such content anymore.

Also, Section 230 protects all websites for third-party content, not just Google and Meta. Perhaps they can afford the expenses described here, but every other website and service provider could not. Smaller communities would immediately shut down. If anything, it would give more power to the largest tech companies and make it impossible for smaller ones to crop up.

And maybe, just maybe, a fact checker would have caught this bit of nonsense as well:

The F.C.C. was established in part to allocate what were once thought to be finite broadcast wavelengths (a purpose long since made moot by technological innovation), and for decades the government has overseen the broadcast industry, issuing renewable licenses and requiring public-affairs content. It’s time for the F.T.C., which supposedly regulates Silicon Valley, to catch up with the 21st century.

It’s not even clear what he’s asking the FTC to do here. Yes, the FCC was established to handle the licensing of scarce public spectrum. But, as Wenner notes, that doesn’t apply to the internet, where there isn’t a limit on space. So what does he want the FTC to do here? Create licenses? That would violate the First Amendment he claims to hold so dear at the opening of the article.

This just seems to be blind rage at successful internet companies for being successful.

He makes that clear in the very next paragraph:

But the press has been decimated by the tech companies. They essentially stole the intellectual property we created with little in the way of compensation, re-purposing it as free giveaway content and selling it at massive discounts to our advertisers.

I often hear this from media folks, but it’s utter nonsense. What was “stolen”? The content was not taken or repurposed in any way. Media orgs chose themselves (for good reason!) to move online, and all that the successful internet companies did was provide free distribution. They provided links, which drove traffic. If Wenner was so bad at running a media org that he couldn’t take that free distribution and free circulation and make money off of it, that’s on him. Not the internet companies.

If you misdiagnose the problem, you come up with dumb solutions. This whole piece is just misguided, mistargeted rage from a media old-timer, past his prime, who is mad at the new thing without understanding why.

I get that there are many reasons to be mad about elements of the internet. But Wenner is raging ignorantly, mistaking the underlying factors, misstating the nature of the law, and therefore offering “solutions” that make matters worse, not better.

For all his glorified nostalgia for the “heydays of American Journalism” through “spirited, sane, and fact-based” journalism, his column here is none of those.

Filed Under: 1st amendment, defamation, free speech, jann wenner, liability, section 230