Politics

by Mike Masnick


Filed Under:
cda 230, censorship, free speech, josh hawley

Companies:
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Missouri's Newest Senator Apparently Can't Read The Law, Pushing For Greater Censorship

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

Missouri's incoming Senator, Josh Hawley, has been getting some attention as being a "fierce critic" of big internet companies. Specifically, in his role as Missouri State Attorney General, he famously launched an investigation into Google, sending a subpoena that had many of the same hallmarks found in the subpoena Mississippi's Attorney General Jim Hood sent to Google years earlier, that was later revealed to have been drafted by MPAA lawyers as part of their Project Goliath, in which the MPAA deliberately used a NY Times article about using state AGs to attack competitors to do just that. As a reminder, a judge eventually found that subpoena to be in bad faith and Hood withdrew it.

Still, given that Hawley specifically campaigned on being willing to "stand up to big tech", it's really no surprise that he's now going around yelling about Twitter temporarily suspending a user (who happens to play on the same red/blue team as Hawley). The problem is that Hawley -- who as a lawyer, Attorney General, and incoming Senator should be expected to know the law -- actually gets its entirely backwards.

Hawley here is not just misreading CDA 230, he's literally getting the law backwards. The key part of CDA 230 says:

(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.


(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

There is nothing in the law, whatsoever, that says you only get CDA 230 immunity if you are "a forum for a true diversity of political discourse." Nothing at all. If that were the law, then it would exclude CDA 230 protections from... almost every site. Including tons that Hawley probably supports.

And as a detailed article at the Verge highlights, removing CDA 230's protections will lead to significantly more censorship. People are so confused about CDA 230, and it's unfortunate because the law is not hard to understand. It's almost as if many are deliberately misrepresenting what's in the law. CDA 230 says that interactive computer services are not liable for what 3rd parties write on their platforms and that they cannot be made liable based on their moderation choices.

Without that protection, companies would have the incentive to censor much more broadly, because if they left content up that potentially violated the law, the platforms themselves could be held liable for it. So it is utterly bizarre that Hawley (or his soon to be colleague Ted Cruz) continue to get this aspect of the law so wrong.

They continue to insist the law says the exact opposite of what it does, and what they support would create the world they are currently complaining about (even though it doesn't currently exist). As Reason points out, if Hawley were to get his own wish, it would actually lead to more purges of conservatives on social media.

The whole situation is so perplexing. Either it's all grandstanding, to give their base some "anti-big-tech" messaging, or they're literally ignorant. Neither is a good look.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Doug Diggs, 29 Nov 2018 @ 10:54am

    Nothing in Section 230 empowers arbitrary corporate censorship.

    DOES REQUIRE "taken in good faith" (and by common law standards), which of course attacking political opponents could never be.

    There's more possible, but bottom lines is that you are a corporatist partisan and WRONG AS USUAL, Masnick. Just doing your tiny bit to attack anyone that sees the dangers of Google / Facebook / Twitter becoming totally unaccountable censors.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 29 Nov 2018 @ 11:00am

      Re: Nothing in Section 230 empowers arbitrary corporate censorship.

      I was unaware the twitter account in question in this article was a political opponent of the twitter coproration. What office are they running for?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Nov 2018 @ 11:46am

        Re: Re: Nothing in Section 230 empowers arbitrary corporate censorship.

        Twitter is represented by a bird. One of the most famous birds is the Albratross. The Albatross is known in myth to be important to sailers. Who is in charge of sailers? ADMIRALS. Thus Twitter is beholden to admiralty court and needs to listen to Doug's superior arguments.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Nov 2018 @ 11:14am

      Re: What’s good for the goose...

      I hold you to your common law promise to leave forever.



      Now piss off

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Nov 2018 @ 11:26am

      Re: Nothing in Section 230 empowers arbitrary corporate censorship.

      I see that if you do not like the law as written, you invent common law to make the law say what you want. That makes you a form of anarchist.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Nov 2018 @ 11:56am

      Re: Nothing in Section 230 empowers arbitrary corporate censorship.

      Which part of "good faith" is it when you lie repeatedly?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Nov 2018 @ 12:09pm

        Re: Re: Nothing in Section 230 empowers arbitrary corporate censorship.

        I have "good faith" that I will do whatever it takes to win every argument I enter, no matter how much I must debase myself to do so.

        reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 29 Nov 2018 @ 12:16pm

      Re:

      Nothing in Section 230 empowers arbitrary corporate censorship.

      Since you love common law so much, what about the Right to Refuse Service? In the US, a private business can refuse service to anyone as long as the refusal isn't based on race, color, religion, or national origin.

      Once again, I invite you show me any law that states any business HAS to host your speech if they don't want to.

       

      DOES REQUIRE "taken in good faith" (and by common law standards), which of course attacking political opponents could never be.

      Those "common law standards" you are talking about only means that the service provider belives that thier action is legal and within the terms of any contract between the parties. Not sure what "attacking political opponents" has to do with anything here.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 29 Nov 2018 @ 1:15pm

        Re: Re:

        Twitter shut down a conservative profile, and therefore is a communist liberal organisation that performs crimes worse than Hitler and therefore all conservatives are Twitter's political opponents. That's what the term means, right?

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 29 Nov 2018 @ 12:31pm

      You, who wants an expanded copyright law that corporations could (and would) abuse to silence speech that is currently protected under the law. You, who wants copyright law expanded and Section 230 weakened to a point where the Internet would become a broadcast device rather than a global telecommunications tool. You, who hates specific corporations with a zeal that borders on deranged, but is more than willing to look the other way when other corporations abuse copyright law for the sake of “stopping piracy” (read: silencing speech they don’t like).

      You have the nerve to call anyone else a corporatist who wants unaccountable censors when you have literally called for corporations to have more unaccountable powers of censorship via copyright.

      And you wonder why your posts get flagged.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 29 Nov 2018 @ 1:02pm

      Re: Nothing in Section 230 empowers arbitrary corporate censorship.

      DOES REQUIRE "taken in good faith" (and by common law standards), which of course attacking political opponents could never be.

      Hi. Can you cite a single court ruling that agrees with you on this? No? Well, that's a shame.

      reply to this | link to this | view in chronology ]

    • icon
      Matthew Cline (profile), 29 Nov 2018 @ 6:48pm

      What parts of common law?

      It will be impossible to have a fruitful conversation with you until you start naming the portions of common law which you think apply to the situation.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 29 Nov 2018 @ 7:00pm

        Re: What parts of common law?

        Good luck with that, as far as I can tell they believe that 'Common Law' is code for 'I win the argument'. It's been explained time and time again that this is not the case of course, they're just too dishonest to admit it and too lazy/unimaginative to try another argument.

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 29 Nov 2018 @ 7:47pm

          Re: Re: What parts of common law?

          I believe that Blue uses the archaic, pre-20th century definition of the term "common law" which was:

          From the earliest times through the late 19th century, the dominant theory was that the common law was a pre-existent law or system of rules, a social standard of justice that existed in the habits, customs, and thoughts of the people. Under this older view, the legal profession considered it no part of a judge's duty to make new or change existing law, but only to expound and apply the old. Source

          It would be nice if he used the same, modern definition that the rest of us use, but I think he enjoys being misunderstood so he can make himself feel superior.

          reply to this | link to this | view in chronology ]

          • icon
            Gwiz (profile), 30 Nov 2018 @ 1:53pm

            Re: Re: Re: What parts of common law?

            Just in case anyone new to Techdirt is reading this, I use the moniker "Blue" in reference to the person commenting above as "Doug Diggs" who used to use the moniker "out_of_the_blue" for the first couple of years they commented here.

            That person no longer uses out_of_the_blue (and now uses various lame, cutesy names) but they can still be identified by their writing style, certain turns of phrases, word usage, sentence structure and a weird fetish for the horizontal divider line.

            reply to this | link to this | view in chronology ]

          • icon
            Gwiz (profile), 4 Dec 2018 @ 10:17am

            Re: Re: Re: What parts of common law?

            Hmmm, in between the time I wrote that comment and now Wikipedia has removed the section I quoted.

            reply to this | link to this | view in chronology ]

    • icon
      DeComposer (profile), 30 Nov 2018 @ 1:00pm

      Re: Nothing in Section 230 empowers arbitrary corporate censorship.

      Oh, Doug...

      1.) Google/Facebook/Twitter are free to moderate the platforms that they built however they like; they're business entities, not government agencies.
      2.) You're expositing, not writing code or poetry. Learn how to use the solidus correctly.
      3.) Stop digging. Seriously. Stop.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2018 @ 11:24am

    he'll just ignore the law anyway. unless everyone is missing what's going on and has been for years, the whole aim of every government 1st world or other, is to stop the people from getting the information on those members, politicians in general, the rich, the famous and the powerful, while they can get whatever information on every person on the planet without any problems. add in the punishments brought in mainly at the behest of the USA entertainment industries and we have a serious problem, one that is almost over because those people and industries mentioned have very nearly got everything they wanted, with the help from security forces, police, courts and judges. we only have to wait at most another year and the Internet will be something that we wont be able to use anyway mainly because we have sat back and continuously told ourselves 'that wont happen' only to find that everyday another 'right' has been taken from us to aid their cause!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2018 @ 11:31am

    "Either it's all grandstanding, to give their base some "anti-big-tech" messaging, or they're literally ignorant."

    Come on Mike, you already know the answer to that. When has politics ever NOT been an intellectually sleazy business? After all, it's mostly composed of lawyers, a profession in which appearing to be "literally ignorant" is a large part of their job.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Nov 2018 @ 12:58pm

    The problem is that Hawley -- who as a lawyer, Attorney General, and incoming Senator should be expected to know the law -- actually gets its entirely backwards.

    Does he? Or, as a lawyer, is he simply practicing his art, bending and breaking the truth to support his position, hoping nobody will question him because he's a lawyer, former AG and now Senator so "he must know what he's doing"?

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 29 Nov 2018 @ 1:24pm

    Common 230

    Just in case anyone new is tuning in - Someone here like to make false claims about common law. Common law is the law developed by legislation and precedent:

    https://en.wikipedia.org/wiki/Common_law

    And since the words "Section 230" were repeated three times, Smith is about to jump in with false claims about what that does and doesn't do. So remember that Mike just did a pretty clear job of explaining it. So unless you have abysmal reading comprehension or a truly novel legal argument, making false claims about 230 is just plain lying.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 29 Nov 2018 @ 1:47pm

    If we remove 230..

    Then can we go to the newspapers and TV channels and SUE them?>????

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 29 Nov 2018 @ 7:21pm

    If I wasn't also on the bridge they're trying to bring down...

    Either it's all grandstanding, to give their base some "anti-big-tech" messaging, or they're literally ignorant. Neither is a good look.

    'Both' I'd say. The politicians are grandstanding, which is to say being dishonest, and they're doing it to score points with the ignorant, banking on the idea that if you tell a lie often enough people will accept it as the truth.

    Of course the ultimate punchline to their buffoonery is that if they do manage to get what they think they want, no more Section 230, it's not going to go the way they think it is, as noted in the Reason article and multiple times here on TD.

    If they think the 'persecution' they are facing is bad now, what they stand to face when sites are liable for user content stands to make it look positively insignificant by comparison, to the point where if I and many others who aren't so foolish wouldn't be impacted as well I'd almost hope that they did get their way, just to enjoy the resulting guilt-free schadenfreude that would result.

    reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 30 Nov 2018 @ 8:36am

    Their base is ignorant, so they have to feign ignorance in order to be accepted by their base. It really is that simple.

    reply to this | link to this | view in chronology ]

  • identicon
    GEMont, 30 Nov 2018 @ 10:06am

    Malice VS Incompetence

    As with so many other old truisms, this one is long overdue for an overhaul.

    In today's fake news media, official misinformation and pure bullshit political forum, this is now the reality.

    "Never attribute to stupidity, incompetence, or ignorance, that which can be better explained by malice, and attempted deception."

    In fact, the only truism that still rings absolutely true, is the one so few actually utilize.

    "Follow the money trail."

    ---

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 30 Nov 2018 @ 11:31am

      Re: Malice VS Incompetence

      "Follow the money trail."

      Which is getting harder and harder..
      As the banks are going to Card services and NO MONEY is ever used, it can all be changed in an instant, swapped, moved, Laundered, renamed.. It just a computer away..

      You also setup a fund/agency/business and run all your money thru it, before you ever get near it. You are then an employee, and the Company gets to write you off..and pay your bills, and get a tax deduction for ALL of it..

      But Proving J. Doe is Ronald Swartz, is NOT EASY..
      We really need to assist the IRS, and give them abit more power.. Chasing the poor, isnt worth the money..

      reply to this | link to this | view in chronology ]

  • icon
    Rukbat (profile), 30 Nov 2018 @ 10:46pm

    CDA 230 and the people reading it

    Remember to whom Hawley's remarks are aimed - not to the courts (the case may go before the courts, but his comments ...) They're aimed at the same people who would rather shoot themselves in both feet by voting for Trump because realizing that voting for Trump is shooting yourself in both feet is "elite", and they're not "elite". (For "elite" read "have figured out how thinking works".)

    Hawley's sycophants may drool at what he says, but anyone who can just read CDA 230 (and understand what they're reading) isn't fooled. The only problem is that most of Hawley's "people" aren't among the "elite".

    reply to this | link to this | view in chronology ]

  • icon
    Rukbat (profile), 30 Nov 2018 @ 10:46pm

    CDA 230 and the people reading it

    Remember to whom Hawley's remarks are aimed - not to the courts (the case may go before the courts, but his comments ...) They're aimed at the same people who would rather shoot themselves in both feet by voting for Trump because realizing that voting for Trump is shooting yourself in both feet is "elite", and they're not "elite". (For "elite" read "have figured out how thinking works".)

    Hawley's sycophants may drool at what he says, but anyone who can just read CDA 230 (and understand what they're reading) isn't fooled. The only problem is that most of Hawley's "people" aren't among the "elite".

    reply to this | link to this | view in chronology ]

  • icon
    fairuse (profile), 2 Dec 2018 @ 1:59am

    Senator is telling the old boy club he is open

    The south political machine at work.

    Put on proper headgear, hook thumbs in suspenders, say some pompous things about monsters that need to be slain. Folks with $ and hate said monster stop by for drinks or lunch.

    I am not a writer but what part of this makes any sense;
    "(..) a forum for a true diversity of political discourse."?

    Right.

    0. Twitter is not a forum.
    1. "a true diversity" -- there is false diversity?
    2. "political discourse" -- wait -- item 1 & 2 are Mutually Exclusive.

    Makes good headline or moment on local TV which loves this crap.
    Don't forget all politics is local - ask how that 2MW solar farm grew out of the green space next to your public park? SSDD and works for lots of fun stuff like monsters AKA social media.

    Maybe I did not read right.

    reply to this | link to this | view in chronology ]

  • icon
    fairuse (profile), 2 Dec 2018 @ 3:00am

    The only tweet that made sense out of 1000+

    yes, the comments here are better but ...

    https://twitter.com/GAcrimappeals/status/1068144363711209474

    good 'ol boys club.

    reply to this | link to this | view in chronology ]


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