Why Keep Section 230? Because People Need To Be Able To Complain About The Police

from the discourse-demands-it dept

The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important – and, as we'll explain here, why Section 230 is as well.

To recap, protester Kevin Alfaro became upset by a police officer's behavior at a recent Black Lives Matter protest in Nutley, NJ. The officer had obscured his identifying information, so Alfaro tweeted a photo asking if anyone could identify the officer "to hold him accountable."

Several people, including Georgana Szisak, retweeted that tweet. The next thing they knew, Alfaro, Sziszak, and several other retweeters found themselves on the receiving end of a felony summons pressing charges of "cyber harassment" of the police officer.

As we've already pointed out, the charges were as pointless as they were spurious, because they themselves directly did the unmasking of the officer's identity, which the charges maintained was somehow a crime to ask for. Over at the Volokh Conspiracy, Eugene Volokh took further issue with the prosecution, and in particular its application of the New Jersey cyber harassment statute against the tweet. Particularly in light of an earlier case, State v. Carroll (N.J. Super. Ct. App. Div. 2018), he took a dim view:

N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person … knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.

According to the criminal complaint, the government's theory is that the post "caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property."

But the Tweet (and the retweet) aren't "lewd, indecent, or obscene." ... [And] if the "lewd, indecent, or obscene" element isn't satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn't apply regardless of whether it was posted with the intent to "caus[e] Det. Sandomenico to fear that harm will come to himself, family and property."

These "cyber harassment" statutes are often problematic, targeting for punishment what should be protected and often socially valuable critical speech. Cases like these, where they get applied to criticism of state power, highlight the Constitutional concern. Being able to speak out against the state is at the heart of why we have the First Amendment, and laws interfering with that ability offend the Constitution. In this case, even if the New Jersey law had been drafted in a sufficiently narrow way to not be unconstitutional on its face by – in theory – only targeting speech beyond the protection of the First Amendment, applying it in this way to speech that should have been protected made it unconstitutional.

But while it's bad enough that the original tweeter had been targeted by the police for his speech, the aspect of the story that is most worrying is that police also targeted for prosecution people who had simply retweeted the original tweet. Section 230 should have barred such prosecutions. And before we so casually chuck out the statute, as so many propose, we need to understand why it should have applied here, and why it is so important to make sure that it still can in the future.

The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it's the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution. Especially online, where speaking requires the facilitation of others, we need both: the First Amendment to make it possible to speak, and Section 230 to make it possible to be heard.

This case illustrates why it is so important to have both, and why Section 230 applies, and must apply, to more than just big companies. Here, someone tweeted protected speech to notify the community of concerning police behavior. Section 230 ensured that the Internet platform – in this case, Twitter – could exist to facilitate that speech. And it's good that Section 230 meant that Twitter could be available to play that role. But Alfaro only had 900 followers; Twitter helped him speak, but it was the retweeters who turned that speech into discourse by helping it reach the community. They had just as important a role to play in facilitating his speech as Twitter did, if not even more so.

It's important to remember that the statutory text of Section 230 in no way limits its protection to big Internet companies, or even to companies at all. It simply differentiates between whoever created the expression at issue (and can thus be held to answer for it) and who facilitated its distribution online (who therefore can't be). Given how important that facilitation role is in having meaningful public discourse, we need to ensure that everyone who performs it is protected. In fact, it may be even more important to ensure that individual facilitators can maintain this protection than the larger and more resourced corporate platforms who can better weather legal challenges.

Think about it: think about how many of us share content online. Many of us may even share far more content created by others than we create ourselves. But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.

And that chilling is not a good thing. One could certainly argue that people should take more care when they share content online and do the best they can in vetting it before sharing it, to the extent it is possible. Of course, it could also be fairly said that many people should use their right to free speech more productively than they necessarily do. But the reason we protect speech, even low-value speech, is because we need to make sure that the good, socially beneficial speech we depend on to keep our democracy healthy can still get expressed too. Which is also why we have Section 230: it is not possible to police all the third-party created content we intermediate, and if we want to make sure that the good, socially beneficial content can get through, to reach the people who need to hear it, then we need to make sure that we don't have to. When we snip away at Section 230's protection, or limit its application, we obstruct that spread and curtail the discourse society needs. We therefore do so at our peril.

Obviously in this case Section 230 did not prevent the attempted prosecution. Nor did the First Amendment, and that the police went after anyone over the tweet was an unacceptable abuse of authority that imposed an enormous cost. Discourse was damaged, and the targeted Twitter users may now think twice before engaging in online discourse at all, much less discourse intending to keep state power in check. These are costs that we, as a society, cannot afford to bear.

But at least by having both of these defenses available, the terrible toll this attempted prosecution took was soon abated. Think about how much worse it would have been had they not been. And ask why that is a future we should be continuing to spend any effort trying to invite. Our sole policy goal should be to enhance our speech protections, to impose costs on those who would undermine public discourse through their attempts at abusive process. The last thing we should be doing is taking steps to whittle away at them and make it any easier to chill discourse than it already is, and cases like this one, where people were trying to speak out against abuses of power, illustrate why.

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Filed Under: criminal charges, georgana sziszak, kevin alfaro, new jersey, nutley, protests, retweets, section 230


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  • This comment has been flagged by the community. Click here to show it
    icon
    Koby (profile), 18 Aug 2020 @ 12:49pm

    Meanwhile In Court

    The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it's the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution.

    In recent court cases, big tech has been citing 230 in order to curtail discourse. With shadow bans, and demonetization, distribution is decreased, not protected.

    But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.

    Many content creators nowadays don't have to imagine it; they have been de-platformed due to cancel culture, even for perceived wrongs not performed on the platform. Section 230 does not assist the politically correct. Instead, it is used as a weapon.

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

    • identicon
      Anonymous Coward, 18 Aug 2020 @ 12:57pm

      Re: Meanwhile In Court

      Oh grow up. Telling the truth won't stunt your growth.

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

    • identicon
      Rocky, 18 Aug 2020 @ 1:01pm

      Re: Meanwhile In Court

      Please provide examples of what people have said that have led to shadow bans, demonetization and de-platforming.

      Also, explain why people should be entitled to use someone else's private property?

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

      • This comment has been flagged by the community. Click here to show it
        icon
        Koby (profile), 18 Aug 2020 @ 1:20pm

        Re: Re: Meanwhile In Court

        Also, explain why people should be entitled to use someone else's private property?

        "When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum or free speech dies."

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

        • icon
          Stephen T. Stone (profile), 18 Aug 2020 @ 1:26pm

          Should Twitter be forced to host the speech of former Ku Klux Klan leader and notorious racist David Duke?

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

        • identicon
          Anonymous Coward, 18 Aug 2020 @ 1:47pm

          Re: Re: Re: Meanwhile In Court

          "When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum or free speech dies."

          You have this in quotation marks, are you referencing something?

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

          • icon
            Stephen T. Stone (profile), 18 Aug 2020 @ 2:05pm

            Google turns up only one result for the first clause of that sentence; it’s Koby’s comment. If he’s quoting somebody, it’s not somebody whose work is found through Google.

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

            • icon
              That One Guy (profile), 18 Aug 2020 @ 2:44pm

              Re:

              It sounds familiar enough that for a bit I thought he was quoting Dennis Prager, as that seems like the sort of rot that idiot would throw out, but I'm not getting any hits searching TD so I'm guessing it's just some laughable quip that Koby thinks is profound and true.

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

            • icon
              PaulT (profile), 18 Aug 2020 @ 11:02pm

              Re:

              In think he's quoting his usual source - half remembered Prager U misinformation.

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

        • identicon
          Rocky, 18 Aug 2020 @ 2:08pm

          Re: Re: Re: Meanwhile In Court

          "When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum or free speech dies."

          Name just one commercial platform that has replaced the public forum.

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

          • icon
            Scary Devil Monastery (profile), 19 Aug 2020 @ 1:15am

            Re: Re: Re: Re: Meanwhile In Court

            "Name just one commercial platform that has replaced the public forum."

            He can't, because what he actually means is that he's upset that Facebook and Twitter are still free to throw out him and his friends for being offensive to the other guests.

            TL;DR?

            "It's not fair that people can refuse to visit Stormfront and American Renaissance."

            • Koby, apparently.

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

            • icon
              Stephen T. Stone (profile), 19 Aug 2020 @ 6:17am

              That take would look more accurate if that “quote” read like this:

              “It’s not fair that people can refuse to let Stormfront take up space outside of Stormfront.”

              Opponents of 230 don’t care if people can refuse to visit other sites. Opponents of 230 care if people can refuse to host certain kinds of speech. For some reason, 230 haters seem all too eager to defend bigoted speech as being “necessary” for “discourse” in a “public forum”. They may not say as much out loud, sure. But they love to imply it.

              After all, why else would people like Koby proudly champion the cause of “tearing down 230”, but refuse to confirm a position on the compelled hosting of racial slurs?

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

              • icon
                That One Guy (profile), 19 Aug 2020 @ 8:03am

                Re:

                After all, why else would people like Koby proudly champion the cause of “tearing down 230”, but refuse to confirm a position on the compelled hosting of racial slurs?

                Oh they wished they'd managed to avoid answering that one, but by their silence they very much have and have made their position crystal clear.

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

                • icon
                  Scary Devil Monastery (profile), 20 Aug 2020 @ 3:22am

                  Re: Re:

                  It's cheap rhetoric 101.
                  Launch the newspeak slogan. If challenged, run away. Wait ten minutes and re-launch the slogan. Repeat it often enough and it might stick with enough people to have some form of effect.

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

                  • icon
                    That One Guy (profile), 20 Aug 2020 @ 7:43am

                    Re: Re: Re:

                    Unfortunately for them while I generally may have no patience for dealing with the dishonest a number of people in the comments section have no problem calling them out any time they try that crap, ensuring that their notable silence for what should be a really easy question will be front and center any time they try.

                    You'd think by now they'd realize that would happen, but I guess ignoring the question means ignoring everything that goes along with it as well.

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

        • icon
          Scary Devil Monastery (profile), 19 Aug 2020 @ 1:07am

          Re: Re: Re: Meanwhile In Court

          ""When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum or free speech dies.""

          Bullshit.

          A commercial platform can not replace the public forum. You and everyone else still have your public forum.

          If what you have to say is so offensive to so many that you are not welcomed in other people's houses then that still means you are free to carry those views in public, or in private places where such views are welcome.

          But what you are saying assumes that Free Speech means every individual is obligated to hear you out. And this is not and has never been the case.

          You have a right to speak. No one is obligated to hear you out. That's how freedom works.
          Your refusal to understand this fundamental principle effectively undercuts your argument.

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

    • icon
      Stephen T. Stone (profile), 18 Aug 2020 @ 1:11pm

      big tech has been citing 230 in order to curtail discourse

      Do you believe Twitter, Facebook, etc. should be forced to host all legally protected speech — including yours?

      With shadow bans, and demonetization, distribution is decreased, not protected.

      Do you believe Twitter, Facebook, etc. should be forced to distribute anyone’s legally protected speech — including yours?

      they have been de-platformed due to cancel culture, even for perceived wrongs not performed on the platform

      Do you believe Twitter, Facebook, etc. should be forced to allow anyone on their services — including you?

      Section 230 does not assist the politically correct. Instead, it is used as a weapon.

      Do you believe Twitter, Facebook, etc. should be forced into legal liability for speech that employees of those services didn’t have a hand in creating or publishing — including yours?

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

    • icon
      Mike Masnick (profile), 18 Aug 2020 @ 1:15pm

      Re: Meanwhile In Court

      In recent court cases, big tech has been citing 230 in order to curtail discourse.

      No. This has been explained to you. Some companies (big and small) have been pointing out that 230 allows them to moderate how they want -- not to "curtail" discourse, but to enable it. They use it to get rid of assholes, trolls, harassers, and the like and to create the kinds of communities they want.

      Without 230 you would not have that option, and most would not even bother. So it is, in fact, increasing discourse. Part of enabling discourse is not allowing EVERYONE including the assholes, but to enable different types of communities.

      That's what 230 does.

      With shadow bans, and demonetization, distribution is decreased, not protected.

      You are living a delusional fever dream spread by idiots. Don't be a gullible sucker.

      Many content creators nowadays don't have to imagine it; they have been de-platformed due to cancel culture, even for perceived wrongs not performed on the platform. Section 230 does not assist the politically correct. Instead, it is used as a weapon.

      Oh you're so full of shit, it's not even funny. 230 has enabled alternative platforms to spring up and allowed them to moderate how they see fit as well.

      Stop being such a fucking snowflake victim, Koby.

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

      • icon
        Stephen T. Stone (profile), 18 Aug 2020 @ 1:18pm

        230 has enabled alternative platforms to spring up and allowed them to moderate how they see fit as well.

        For example: Mastodon instances, whose admins get to choose the instances their specific instance will and won’t federate with (which was really helpful when Gab decided to use the Masto protocol). It’s almost as if Masto admins generally don’t want to put up with trolls, racists, and other such trash people barging their way into the Fediverse like they’ve done on Twitter and Facebook. Imagine that~.

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

    • identicon
      Anonymous Coward, 18 Aug 2020 @ 1:17pm

      Re: Meanwhile In Court

      they have been de-platformed

      But what about Parler, Koby? That bastion of freeze peach that all the conservatives were going to flock to in order to stick it to those libtards in Silicon Valley?

      Why are conservatives continuing to whine about Facebook & Twitter when you can just fuck off and go to Parler? Stop playing the victim card and speak your mind freely on Parler.

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

      • icon
        Stephen T. Stone (profile), 18 Aug 2020 @ 1:25pm

        Koby is, once again, mistaking the platform for the audience.

        Deplatforming a Nazi from Twitter isn’t about robbing them of their right to speak — it’s about denying them a potential audience of at least tens of millions. No other service that operates similarly to Twitter (e.g., Gab, Parler, Masto instances) allows for that kind of potential reach.

        Koby whines about deplatforming without realizing that the garbage people being deplatformed are themselves guilty of deplatforming others — not through moderating speech, but through harassing others. People who might have added to discourse but for the presence of racists, trolls, and other such garbage people are silenced because of said presence. They’d rather stay silent or stay off Twitter and preserve their mental health than stay on Twitter for whatever reason and face harassment all the time.

        But Koby, and critics of 230, doesn’t care about any of that. They’re all about “wE mUsT aLlOw AlL dIsCoUrSe!” no matter the cost, even if that cost is “silencing marginalized voices”. Koby has all but said that he supports forcing Twitter, Facebook, etc. to host all legally protected speech no matter what the admins want on those services. I doubt he ever stopped to think that forcing speech onto platforms would result in less speech that isn’t bigoted bullshit and spam. Somehow, I doubt he ever will.

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

        • icon
          ECA (profile), 18 Aug 2020 @ 3:33pm

          Re:

          good comment..
          Lets add.
          Why are all the people on facebook, STILL on FB?
          Hopefully its more of the idea of Listening to your Crowd.
          The Main problem I see, and I THINK THEY SEE.
          is they demanded we use Our proper names. I wanted to be anonymous. MANY want to be. With real names its not hard for Persons to scan FB, and record the results. And there have been breaks in FB that allowed others to see your private data.

          The OTHER sites are going to have Fun, IF' they dont take certain info. And hold it so the cops/feds can track you.(I never use my phone for any of the chats(GPS)). The less I can give the better I feel. If I need I can create a Dumb mail drop.

          REAL privacy is gone. And some people dont see it happening.

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

        • identicon
          Anonymous Coward, 18 Aug 2020 @ 5:46pm

          Re:

          not through moderating speech

          Parler goes one step further. It literally kicks you off if you fail verification curation or if you're too libtard. The platform set up to be the next Twitter/Facebook, based on criticisms that those platforms were biased and kicking people off for that bias, proceeded to... kick people off for their own bias.

          If conservatives had a brain to share amongst themselves their first instinct would be how to make themselves neurologically pregnant, because that's how mindfucked they are.

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

    • identicon
      TripMN, 18 Aug 2020 @ 3:07pm

      Re: Meanwhile In Court

      Kicking detrimental people and legal but not wanted speech from a website is like pruning the diseased part of a plant. You may be removing part of the plant, but that which is left will be better off and flourish much easier. The option of letting the disease stay to fester and spread is a terrible idea for gardeners and internet companies alike.

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

    • identicon
      Anonymous Coward, 18 Aug 2020 @ 3:31pm

      Re: Meanwhile In Court

      Moderation is required because people like you will ignore the subject matter and/or rules of a forum or thread to push whatever topic they want to push.

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

  • icon
    Vermont IP Lawyer (profile), 18 Aug 2020 @ 2:37pm

    Another Reason Sec. 230 is Needed

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

  • icon
    That One Guy (profile), 18 Aug 2020 @ 2:53pm

    'Why would we want to protect That?'

    Sadly I have little doubt that '230 allows people to speak out against those in authority' will be seen not as a reason to keep it but to get rid of it for more than a few people, specifically the short-sighted fools who cannot grasp that while they may agree with the current authorities it's all but inevitable that power will shift and all too soon those that they don't agree with hold power, and the ability to speak out against authority that they decried before will be no-where to be found when they want it.

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

  • icon
    ECA (profile), 20 Aug 2020 @ 1:39pm

    Lean 1 way or another, or NOT at all.

    How many of those on the top, understand..
    Deciding to SORT, a debate out with 1 side over there, and 1 Someplace else..
    Or putting the all in 1 Large group..And editing the Spam out.
    Or just let them Slug it out and the Oddballs, insert random BS, and comments that have NOTHING to do with the debate..

    If you would support both sides and let them discus things in separate rooms you get a room or YES' Men. Ways to find justification of the subject.
    If you let things ramble on with no editing, random comments here and there, and it will turn into 10 different subjects, and Bitching..
    Getting All sides, into a discussion, and having a Referee..AND RULES to discussion, like Proof, if asked for.. is HARd for the groups to decide WHO/WHAT to use as a proper format to a discussion. Might as well have a bunch of 2 year olds in the middle of a debate of favorite foods.

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


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