Section 230 Isn't A Subsidy; It's A Rule Of Civil Procedure

from the make-section-230-boring-again dept

The other day Senator Schatz tweeted, "Ask every Senator what Section 230 is. Don’t ask them if they want to repeal it. Ask them to describe it."

It's a very fair point. Most of the political demands to repeal Section 230 betray a profound ignorance of what Section 230 does, why, or how. That disconnect between policy understanding and policy demands means that those demands to repeal the law will only create more problems while not actually solving any of the problems currently being complained about.

Unfortunately, however, Senator Schatz's next tweet revealed his own misunderstanding. [Update: per this tweet, it wasn't his misunderstanding his next tweet revealed but rather the misunderstanding of other Senators who have proposed other sorts of "reforms" he was taking issue with. Apologies to Senator Schatz for misstating.] "I have a bipartisan bill that proposes changes to 230, but repeal is absurd. The platforms are irresponsible, but we should not have a government panel handing out immunity like it's a hunting license. We must rein in big tech via 230 reform and antitrust law, not lazy stunts."

There's a lot to unpack in that tweet, including the bit about antitrust law, but commenting on that suggestion is for another post. The issue here is that no, Section 230 is nothing like the government "handing out immunity like a hunting license," and misstatements like that matter because they egg on "reform" efforts that will ruin rather than "reform" the statute, and in the process ruin plenty more that the Constitution – and our better policy judgment – requires us to protect.

The point of this post is to thus try to dispel all such misunderstandings that tend to regard Section 230's statutory protection as some sort of tangible prize the government hands out selectively, when in reality it is nothing of the sort. On the contrary, it reads like a rule of civil procedure that, like any rule of civil procedure, is applicable to any potential defendant that meets its broadly-articulated criteria.

For non-lawyers "rules of civil procedure" may sound arcane and technical, but the basic concept is simple. When people want to sue other people, these are the rules that govern how those lawsuits can proceed so that they can proceed fairly, for everyone. They speak to such things as who can sue whom, where someone can be sued, and, if a lawsuit is filed, whether and how it can go forward. They are the rules of the road for litigation, but they often serve as more than a general roadmap. In many cases they are the basis upon which courts may dispense with cases entirely. Lawsuits only sometimes end with rulings on the merits after both parties have fully presented their cases; just as often, if not more often, courts will evaluate whether the rules of civil procedure even allow a case to continue at all, and litigation frequently ends when courts decide that they don't.

Which is important because litigation is expensive, and the longer it goes on the more cost-prohibitive it becomes. And that's a huge problem, especially for defendants with good defenses, because even if those defenses should mean that they would eventually win the case, the crippling cost involved in staying in the litigation long enough for that defense to prevail might bankrupt them long before it ever could.

Such a result hardly seems fair, and we want our courts to be fair. They are supposed to be about administering justice, but there's nothing just about letting courts being used as tools to obliterate innocent defendants. One reason we have rules of civil procedure is to help lessen the danger that innocent defendants can be drained dry by unmeritorious litigation against them. And that is exactly what Section 230 is designed to do as well.

An important thing to remember is that most of what people complain about when they complain about Section 230 are things that the First Amendment allows to happen. The First Amendment is likely to insulate platforms from liability in their users' content, and it's also likely to insulate them from liability for their moderation decisions. Section 230 helps drive those points home explicitly for providers of "interactive computer services" (which, it should be noted, include far more than just "big tech" platforms; they also include much smaller and non-commercial ICS providers as well, and even individual people), but even if there were no Section 230 the First Amendment would still be there to do the job of protecting platforms in this way. At least in theory.

In practice, however, defendant platforms would first have to endure an onslaught of litigation and all its incumbent costs before the First Amendment could provide any useful benefit, which will likely be too little, too late for most if not all of them. The purpose of Section 230 is therefore to make sure those First Amendment rights can be real, and meaningful, and something that every sort of interactive computer service provider can be confident in exercising without having to fear being crushed by unconstitutional litigation if they do.

What people calling for any change to Section 230 need to realize is how these changes will do nothing but open the floodgates to this sort of crushing litigation against so much that the Constitution is otherwise supposed to protect. It is a flood that will inevitably chill platforms by effectively denying them the protection their First Amendment rights were supposed to afford, and in the process also chill all the expressive user activity they currently feel safe to enable. It is not an outcome that any policymaker should be so eager to tempt; rather, it is something to studiously avoid. And the first step to avoiding it is to understand how these proposed changes will do nothing but invite it.

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Filed Under: brian schatz, civil procedure, section 230, subsidy


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  • icon
    Samuel Abram (profile), 29 Dec 2020 @ 3:43pm

    §230 == an anti-SLAPP mechanism?

    Could §230 be considered akin to anti-SLAPP laws in that they both get frivolous lawsuits tossed out quicker? The only thing that I know of that doesn't make §230 a true anti-SLAPP law is that it doesn't make the plaintiff pay the defendant's fees should the plaintiff lose (I'm sure there are a lot more, but IANAL).

    (I guess I just undermined my own argument there, so I definitely am not a lawyer. 😉)

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

    • icon
      That One Guy (profile), 29 Dec 2020 @ 4:03pm

      Re: §230 == an anti-SLAPP mechanism?

      It would seem to be rather similar, as in both cases the point of the respective laws are to head off bogus lawsuits before they get too expensive for the defendant, such that they are more free to speak and/or host content that otherwise might be deemed 'too risky' despite being entirely legal.

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

    • icon
      Mike Masnick (profile), 29 Dec 2020 @ 5:13pm

      Re: §230 == an anti-SLAPP mechanism?

      There are some similarities, and a few differences. But, to the extent that both help protect speech and kill off nuisance lawsuits designed to stifle speech, then there is some common themes.

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

  • icon
    That One Guy (profile), 29 Dec 2020 @ 4:01pm

    'Answer this question. No seriously, I don't know the answer.'

    Sounds like had someone asked them their own question they likely would have gotten it wrong, as 230 provides platforms for 'immunity' in the same way me not being able to sue a newspaper because someone bought a copy and scribbled something defamatory in it would be 'immunity', something which I feel rather safe in saying most people would consider entirely reasonable.

    Gut 230 and platforms will still be able to moderate thanks to the first amendment, all you'll have done is screw over the smaller platforms who could be shut down by a few lawsuits and entrench the large companies being held up as problems into even more powerful positions.

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

    • icon
      Samuel Abram (profile), 29 Dec 2020 @ 4:14pm

      Re: 'Answer this question. No seriously, I don't know the answer

      Sounds like had someone asked them their own question they likely would have gotten it wrong, as 230 provides platforms for 'immunity' in the same way me not being able to sue a newspaper because someone bought a copy and scribbled something defamatory in it would be 'immunity', something which I feel rather safe in saying most people would consider entirely reasonable.

      I think a better analogy for §230 would be if someone went to an Applebee's and went into their bathroom and scribbled something defamatory on the stall, Person X wouldn't be able to sue Applebee's for libel, because they, you know, weren't the ones writing the defamatory statement; Applebee's only had the stall in question.

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  • icon
    Stephen T. Stone (profile), 29 Dec 2020 @ 4:10pm

    It is a flood that will inevitably chill platforms by effectively denying them the protection their First Amendment rights were supposed to afford, and in the process also chill all the expressive user activity they currently feel safe to enable.

    …which I can all but guarantee is exactly the point: Conservatives, conspiracy theorists, COVIDiots, QAnoners, and Trumpians (whoops, tautology!) want to force their way onto Twitter and spew their bile without anyone — least of all Twitter admins — getting in the way.

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

    • icon
      Nathan F (profile), 29 Dec 2020 @ 4:15pm

      Re:

      Which is going to be really amusing when they then get hit with the banhammer first time they try it and Twitter responds with, "not going to let you say this shit and us get sued for it."

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

    • identicon
      Anonymous Coward, 29 Dec 2020 @ 4:29pm

      Re:

      And how does making it easier to sue social media platforms whenever someone is offended, or the platforms have posts linkable to crime advance their aim of getting onto those same platforms?

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

      • icon
        That One Guy (profile), 29 Dec 2020 @ 4:35pm

        Re: Re:

        It doesn't, however they seem to be under the impression that its 230 that allows for moderation and as such if they can get rid of 230 platforms won't be able to moderate their posts. Under that fictional scenario they might be on to something, however in reality neither side trying to gut 230 will be happy with what results from such an action.

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

        • identicon
          Anonymous Coward, 29 Dec 2020 @ 4:50pm

          Re: Re: Re:

          What, and it may happen, the law is changed so that a site is responsible for it contents, whether not they moderate? That is the direction of FOSTA and similar laws.

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

          • icon
            That One Guy (profile), 29 Dec 2020 @ 6:00pm

            Re: Re: Re: Re:

            Assuming I'm reading your comment correctly then platforms would almost certainly block user submitted content entirely since a single image would be enough to put them on the hook for massive fines if not jail time depending on just how illegal it was.

            To say this would be a 'bad thing' would be an understatement in the same range as 'the surface of the sun is kinda warm', though I imagine certain companies/industries would be positively thrilled by such a development given how it would gut a primary opposition to their ability to act as gatekeepers.

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

        • icon
          nasch (profile), 1 Jan 2021 @ 5:14pm

          Re: Re: Re:

          It doesn't, however they seem to be under the impression that its 230 that allows for moderation and as such if they can get rid of 230 platforms won't be able to moderate their posts.

          Given the court case that prompted section 230, they may be at least partially correct.

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

          • icon
            That One Guy (profile), 2 Jan 2021 @ 8:45pm

            'Winning' the battle and losing the war

            Kinda, but not in a way that would help them, and if anything it would likely just make it worse for them. 230 came about because it was ruled that moderating some content meant a platform was liable for everything, which means to play it safe without that protection a site is likely to take one of three choice:

            Don't moderate anything.
            Don't allow anything.
            Moderate extremely restrictively.

            Of the three options only one of them is likely to allow their content to be posted and stay up, and even then it's going to be drowned in a sea of sewage and spam, driving the audience they so desperately want away and leaving their posts a drop in a sea sized cesspool.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Current restrictions not harsh enough! Go Tier 5!, 29 Dec 2020 @ 4:54pm

      Re: And A. Stephen Stone wants them silenced!

      ... Conservatives, conspiracy theorists, COVIDiots, QAnoners, and Trumpians (whoops, tautology!) want to force their way onto Twitter and spew their bile without anyone — least of all Twitter admins — getting in the way.

      You (like Masnick) are a proto-Nazi. You do not support Free Speech, only that which you approve of. You leftists have gone from needlessly supporting Nazis to march, to your REAL goal of controlling speech.

      You are UN-American, explicitly against almost every Supreme Court 1A ruling. And don't have confidence that your ideas can win in free and open debate.

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

      • icon
        Stephen T. Stone (profile), 29 Dec 2020 @ 5:19pm

        Conspiracy theory whackjobs, ratlickers, and redhatters can all say whatever the fuck they want. I support their right to do that, as per the First Amendment. The government shouldn’t have the ability to stop any or all of them from speaking their mind even if they only say bullshit.

        But the government shouldn’t (and doesn’t) have the right to tell any privately owned interactive web service — no matter how big, no matter how powerful, no matter whether a corporation or an “actual person” owns it — what legally protected speech it will or will not, can or cannot, must or must not host. The Trump administration shouldn’t have the right to force conservative speech onto Twitter, and the Biden administration shouldn’t have the right to force conservative speech off of Twitter.

        The First Amendment guarantees the right of association. Twitter, Facebook, DeviantArt, 4chan, a random Mastodon instance, a blog about Disney that allows for open comments, or a tiny forum dedicated to Mongolian basket-weaving — if any or all of them want to refuse association with certain kinds of offensive-yet-legal speech, neither you nor the government should have the right to say they can’t. You haven’t given me one reason to think the same protections that let you kick someone out of your home for saying something you don’t want said in your home without facing legal liability — or that let Walmart, McDonald’s, and other corporate businesses kick people out of their buildings in the same way — shouldn’t apply to services like Twitter. And you can’t give me any reason to think 47 U.S.C. § 230, which shortcuts lawsuits seeking to hold Twitter and its ilk legally liable for third-party speech, should be repealed or reformed in a way that revokes those protections in cyberspace but doesn’t do so in meatspace.

        By the by, shot in the dark here: How do you feel about corporations — which you have previously claimed have no legal rights — owning copyrights and enforcing those property rights to censor legally protected speech?

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

      • icon
        Toom1275 (profile), 29 Dec 2020 @ 8:11pm

        Re: Re: And A. Stephen Stone wants them silenced!

        [Projects facts not in evidence]

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

      • icon
        AC Unknown (profile), 29 Dec 2020 @ 9:05pm

        Re: Re: And A. Stephen Stone wants them silenced!

        Nice defamation. Spewing untruths with nothing but malice and venom on your tongue.

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

      • icon
        PaulT (profile), 29 Dec 2020 @ 11:33pm

        Re: Re: And A. Stephen Stone wants them silenced!

        Once again, you and your idiot friends have all the free speech they want, they just can't use someone else's property to use it if the property owner doesn't want you there.

        "You are UN-American, explicitly against almost every Supreme Court 1A ruling."

        No, you're the one opposing the First Amendment, by demanding that the government seize private property in order to force them to direct speech a certain way.

        Why is it that Americans who claim to be obsessed with freedom are always the ones calling for outright communism when it suits them?

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

      • identicon
        Anonymous Coward, 30 Dec 2020 @ 3:36am

        Re: Re: And A. Stephen Stone wants them silenced!

        "You (like Masnick) are a proto-Nazi."

        In your opinion, what is a nazi?

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

  • icon
    Rico R. (profile), 29 Dec 2020 @ 4:18pm

    Tweets are more subjective than oral speech...

    The issue here is that no, Section 230 is nothing like the government "handing out immunity like a hunting license,"--

    When I read the senator's tweet in context, I don't interpret it as him saying that's what section 230 is today. Rather, I think it's a rebuke to certain "reform" efforts to section 230 like the dangerous EARN IT Act, which would give the government discretion on who does and does not get section 230 protections, and on what grounds. In the case of EARN IT, it would be like "a government panel handing out immunity like a hunting license". Just like there are certain conditions and safety training that goes into hunting licenses, the conditions under an EARN IT regime would be whether or not they handle CSAM in the correct way determined by a panel like the FTC. In other words, if you allow end-to-end encryption, you don't get section 230 protections. I read his tweet as rebuking such ideas, saying that section 230 shouldn't become dependant on the judgment of some government panel.

    Now, I make no claims about his actual section 230 bill. I haven't read anything about it or seen the text of the bill itself. But I will say that section 230 doesn't really need reform. As you explain in your article, section 230 critics seem to have a problem with the first amendment instead of section 230. Section 230 reform also isn't a vehicle for "reining in big tech". But I agree with the senator when he says that most senators (or even representatives in the house) don't actually understand section 230. And if section 230 is to be reformed (which it shouldn't be), such reform efforts must be handled with care.

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

    • icon
      That One Guy (profile), 29 Dec 2020 @ 4:41pm

      Re: Tweets are more subjective than oral speech...

      That would certainly be a less damning reading of his tweet, hopefully it's the correct one.

      Section 230 reform also isn't a vehicle for "reining in big tech".

      Quite the opposite in fact, which makes the fact that they're being held up as the big bad boogiemen used to justify 'reform'/demolishing of 230 all the more ironic.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Dec 2020 @ 4:19pm

    Another disingenuous temper tantrum appears here.

    Section 230 is a GIFT, the gift of IMMUNITY from distributor liability, enjoyed only by tech companies in America. No other country has it.

    Allowing user defamation on one's website is a separate harm from the defamation, namely republishing it as a distributor. Websites are not sued for what their users do, but for ignoring a warning that they are allowing defamation on their sites, just like a bookstore that is warned it is selling a defamatory book. For a site to be liable as a distributor it would have to first be put on notice of defamation, then ignore a takedown. This would not break the internet any more than the DMCA (the "DMCA abuses" are easily-fixed isolated instances whereas piracy is rampant -- there's a single piracy ring that uses the same Bitcoin address to take payments for 1000+ books in each niche, it's destroying authors' livelihoods).

    Removing Section 230 is not unconstitutional, and the law can be changed. There IS a distinction between publishers who take an active role in content and platforms, which are "dumb pipes."

    This site has a few people who oversimplify and talk down to the audience as if their saying "we already EXPLAINED this" somehow solves the issue. It doesn't. They can EXPLAIN their point of view a million times and it'll still be incorrect.

    Section 230 harms individuals, like victims of revenge porn, AND victims of false advertising, since sites are immune from false-advertising lawsuits. Even victims of housing discrimination were found to have no resource.

    Section 230 should be abolished, and it looks like it will be. Some lawyers who have threatened the reputations of their adversaries might not like it (remember when Rose McGowan showed an e-mail threat? The person making the threat obviously had people who could post that stuff), but the public will be much better off without the law.

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

  • identicon
    Incognito Scared Person, 29 Dec 2020 @ 4:36pm

    Not sure you're reading the second tweet right

    It seems to be that Schatz is characterizing a repeal of 230 as "handing out immunity like it’s a hunting license", at least given the flow of that sentence. "X is bad but we shouldn't do Y" only works if the argument is that Y is a bad thing -- if he's arguing that repealing 230 is bad, it doesn't follow that he would be referring to 230 as being what's handing out immunity.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Current restrictions not harsh enough! Go Tier 5!, 29 Dec 2020 @ 4:45pm

    You are as usual speaking away from the contentious point.

    No one is arguing that "platforms" should be responsible for what others publish.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Current restrictions not harsh enough! Go Tier 5!, 29 Dec 2020 @ 4:45pm

      Re: You are as usual speaking away from the contentious point.

      But the purpose of Section 230 is to make everyone a Publisher, NOT to concentrate control into a few Super-Publishers which are IMMUNE TOO.

      You deliberately obscure the real battle because it's one you necessarily LOSE.

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

      • icon
        Stephen T. Stone (profile), 29 Dec 2020 @ 5:23pm

        the purpose of Section 230 is to make everyone a Publisher, NOT to concentrate control into a few Super-Publishers which are IMMUNE TOO

        Ironically, repealing 230 will leave the Internet with far fewer “publishers” (read: interactive web services) and entrench into power the ones large enough to survive the mass lawsuits that will result from a repeal of 230. For all the anti-corporatism shit you shout every day, you’re actively pushing for something that will put those big corporations you decry into an even better position of power.

        Congratulations: You’re a tool of the very things you want to destroy. How does it feel, chummer?

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

      • identicon
        Anonymous Coward, 30 Dec 2020 @ 1:51am

        Re: Re: You are as usual speaking away from the contentious poin

        But the purpose of Section 230 is to make everyone a Publisher, NOT to concentrate control into a few Super-Publishers which are IMMUNE TOO.

        Here you are commenting on a small site,about not being able to use a super publishing to reach the size of an audience that can only be build by a super publisher.

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

    • icon
      bhull242 (profile), 31 Dec 2020 @ 12:06am

      Re: You are as usual speaking away from the contentious point.

      Actually, many are. The far left and people who feel they were defamed online do want to hold platform holders responsible for others’ speech.

      There are two broad categories of people who don’t like §230. Those who don’t like the immunity from being responsible for third-party content, and those who don’t like the express license to moderate platforms freely.

      You are clearly in the latter camp, but many people are in the former. Some are even in both to some degree. That you are not one of them doesn’t make the position being dismantled here a strawman.

      Also, the point you keep trying to bring up (about moderation) has been addressed multiple times. That they don’t address it when a different part of §230 is attacked is in no way unusual.

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

      • identicon
        Anonymous Coward, 31 Dec 2020 @ 2:20am

        Re: Re: You are as usual speaking away from the contentious poin

        What is far left?

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

        • icon
          PaulT (profile), 31 Dec 2020 @ 8:37am

          Re: Re: Re: You are as usual speaking away from the contentious

          That's always a good question. Depending on who you're talking to in the US, it could be "hardcore Marxist who wants to destroy the rich and give the money to the poor" or "guy who thinks that adopting a type of healthcare system that's been successful in every other Western democracy, while costing far less money, might be a good idea". Knowing the definition does colour the following conversation.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Current restrictions not harsh enough! Go Tier 5!, 29 Dec 2020 @ 4:45pm

    You do not defend Public's right to Publish without interference

    ... but ONLY assert an alleged right of "platforms" to CONTROL The Public's Publishing.

    Problem is that you corporatists contend that the "platforms" are STILL the Publishers and empowered by Section 230 to CONTROL all speech.

    That does not serve We The People, who are to be beneficiary of all American law. Corporations are mere permitted entities, legal fictions.

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

    • identicon
      Anonymous Coward, 29 Dec 2020 @ 5:54pm

      Re:

      Corporations are mere permitted entities, legal fictions.

      So stop supporting Hollywood, you mindless cretin.

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

    • icon
      bhull242 (profile), 30 Dec 2020 @ 11:59pm

      Re: You do not defend Public's right to Publish without interfer

      We do defend the public’s right to publish without government interference. There is no inherent right to publish without corporate interference.

      We’ve also explained to you time and again how the public benefits from these protections. It does so both directly and by encouraging various platforms to emerge that will, in total, host anyone’s speech. Without these protections, no site will be willing to host users’ speech at all.

      Furthermore, we’ve also explained to you over and over again that platform holders only control what gets published on their platform(s) and nowhere else.

      Whether or not platform holders are publishers, the fact is that it is unconstitutional to force a platform to host speech it doesn’t want to.

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

      • icon
        PaulT (profile), 31 Dec 2020 @ 1:23am

        Re: Re: You do not defend Public's right to Publish without inte

        "There is no inherent right to publish without corporate interference."

        Or, indeed, interference from other members of the public. In a great many of these cases, it's not the platform randomly deciding to block or remove a person on a whim, it's them responding to complaints they have from other users. Sometimes it's a specific post being reported as offensive. Sometimes it's a little bit more general (e.g. people not engaging with the platform if they see too much offensive content, or advertisers threatening to stop advertising on a platform that hosts it).

        In other words, this isn't corporations trying to enforce some kind of morality. It's simply business. A platform being forced to host things that are bad for business will help nobody.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Current restrictions not harsh enough! Go Tier 5!, 29 Dec 2020 @ 4:46pm

    Simple as possible: WHY do "platforms" get to control MY speech?

    Why should a "platform" (a mere legal fiction and mechanism of HOSTING) be empowered to exercise alleged "First Amendment rights" OVER hundreds of millions of persons?

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

    • identicon
      Anonymous Coward, 29 Dec 2020 @ 4:58pm

      Re: Simple as possible: WHY do "platforms" get to control MY spe

      Because if they don't, they will be taken to court whenever somebody decides that speech that they host is defamatory, incitement to crime, or incitement or recruitment of terrorism. In other words if the platforms think your speech could land them in court, they will take it down, and the easier it is to sue them, the more speech they will take down.

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

    • icon
      Stephen T. Stone (profile), 29 Dec 2020 @ 5:29pm

      WHY do "platforms" get to control MY speech?

      They don’t — outside of their “platform”. Twitter can no more censor you here than Techdirt can censor you on Twitter. When Twitter suspends/bans someone for violating the Terms of Service, it isn’t saying “you can’t say that anywhere”. It’s saying “we don’t do that here” to let you know that if you’re not banned already, you’ll likely be banned if you do “that” again.

      If someone walks into my house and talks about how Outlaw Star is better than Cowboy Bebop, I have every right to tell them “we don’t say that here”. I also have the right to kick them out if they keep saying it, and they can’t legally sue me for kicking them out, nor can a third party sue me for overhearing that speech and feeling defamed or offended or whatever. For what reason should I have those rights within my own home (meatspace), but not on, say, a theoretical Mastodon forum that I own and operate (cyberspace)? For what reason does the transition from tangible private property to intangible private property necessitate the revocation of First Amendment rights and liability protection from third-party speech?

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

      • icon
        Toom1275 (profile), 29 Dec 2020 @ 8:12pm

        Re:

        Ronwit: The New York Post's fraudulent story was never, at any time, censored.

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

        • icon
          PaulT (profile), 29 Dec 2020 @ 11:36pm

          Re: Re:

          "Ronwit: The New York Post's fraudulent story was never, at any time, censored."

          This needs to be stressed as much as possible. Twitter did not affect a single word of the NYP's article, it was always free to be seen by anyone who wanted to use it and Twitter couldn't do a thing to stop it.

          The only thing that Twitter did was to stop their property being used as a free billboard to advertise it. When put in the correct terms, it's hard to see how anyone can possibly oppose that, which is why people have to lie about it.

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

    • icon
      PaulT (profile), 29 Dec 2020 @ 11:34pm

      Re: Simple as possible: WHY do "platforms" get to control MY spe

      "Why should a "platform" (a mere legal fiction and mechanism of HOSTING) be empowered to exercise alleged "First Amendment rights" OVER hundreds of millions of persons?"

      Because they don't outside of your head. They can't control ANY speech outside of their own platform.

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

    • identicon
      Anonymous Coward, 30 Dec 2020 @ 3:42am

      Re: Simple as possible: WHY do "platforms" get to control MY spe

      "Why should a "platform" (a mere legal fiction and mechanism of HOSTING) be empowered to exercise alleged "First Amendment rights" "

      • not again

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

    • icon
      bhull242 (profile), 31 Dec 2020 @ 12:11am

      Re: Simple as possible: WHY do "platforms" get to control MY spe

      Simple: they own the platforms being used, and they have the same rights as anyone else (according to the USSC). The number of people who use the platform is completely irrelevant.

      Plus, when you signed up to use their platform, you agreed to certain terms and conditions that allow them to remove any speech from their platform for any reason and to ban repeat/serious offenders. It’s their territory, and you agreed to play by their rules.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Current restrictions not harsh enough! Go Tier 5!, 29 Dec 2020 @ 4:49pm

    CONTROL means "platforms" are PUBLISHERS.

    If they act like Publishers, then they're LIABLE. Period.

    No, I don't care how corporatist courts have ruled.

    Section 230 like most of CDA is UN-Constitutional.

    In particular, if empowers control of individuals who merely signed on to get their own web-site but find themselves censored by mega-corporations, then Section 230 needs clarified. -- And the corps taken apart with anti-trust.

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

    • icon
      ECA (profile), 29 Dec 2020 @ 5:13pm

      Re: CONTROL means "platforms" are PUBLISHERS.

      if it.?

      I posted a link in the last comment about freedom of speech and the Internet.
      Where Compuserve and prodigy GOT REAMED.
      1 for NOT censoring
      Other for Censoring

      The corps dont really care about this, except to EAT up the Forms and Chats, but they dont want to Monitor and control it. Let others Waste their TIME.

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

      • icon
        ECA (profile), 29 Dec 2020 @ 5:15pm

        Re: Re: CONTROL means "platforms" are PUBLISHERS.

        If you really want to go deeper.
        Your best bet is the gov wishes it to be Localized/Smaller. They want to Dump onto the Big corps That will limit to LArger and LESS groups to be monitored. That is about the only outcome of this.

        Heard everyone together so we can be watched easier.

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

    • identicon
      Rocky, 29 Dec 2020 @ 5:51pm

      Re: The troll is an anarchist

      If they act like Publishers, then they're LIABLE. Period.
      No, I don't care how corporatist courts have ruled.

      You do understand that those two statements are mutually exclusive, right? It's the courts that determine liability in the end, and it seems you don't give a damn about the law and the courts.

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

      • icon
        Stephen T. Stone (profile), 29 Dec 2020 @ 6:48pm

        it seems you don't give a damn about the law and the courts

        Brainy is one of those “sovereign citizen” whackjobs. He doesn’t think the law applies to him unless it benefits him, in which case the law totally applies to him.

        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), 29 Dec 2020 @ 7:35pm

      Re: CONTROL means "platforms" are PUBLISHERS.

      The First Amendment is likely to insulate platforms from liability in their users' content, and it's also likely to insulate them from liability for their moderation decisions.... but even if there were no Section 230 the First Amendment would still be there to do the job of protecting platforms in this way. At least in theory.

      A lot of the pro-230 people seem to think that it's backed by the First Amendment, but the First Amendment didn't save Prodigy v Stratton Oakmont in the court case that started it all. I agree that 230 needs reform, at least to clarify that it is only designed to allow moderation for the purposes of profanity, commercial spam, or repetition spam. Moderating user content based on political preference changes a platform into a publisher, which ought to take away the blanket immunity that the tech monopolies currently enjoy.

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

      • icon
        Stephen T. Stone (profile), 29 Dec 2020 @ 7:47pm

        Moderating user content based on political preference changes a platform into a publisher

        No, it doesn’t. And the government shouldn’t have the right to mandate that platforms like Twitter, Mastodon, 4chan, DeviantArt, or any other interactive web service that accepts third-part speech must enact some form of “neutrality” vis-á-vis legally protected speech. If the government can’t make private persons and privately owned businesses host all legally protected speech in meatspace, for what reason should that notion change if we change “meatspace” to “cyberspace”?

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

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 29 Dec 2020 @ 8:28pm

          Re:

          Stop feeding the trolls, Freehaven.

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

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 29 Dec 2020 @ 11:40pm

            Re: Re:

            Serious question, does Ajit Pai give you a sip from the Reese mug before or after you wipe his cum from your lips?

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

        • icon
          ECA (profile), 30 Dec 2020 @ 4:11am

          Re:

          STS:
          You should express the opinion like this.

          A law/regulation or what is expressed in the simplist way possible to make it understandable.
          AND that Lawyers and judges can TRY to interpret NEW meanings to Simple things.
          Or we create a meaning thats 30 pages long, just to explain the diff of ICE CREAM AND ICE MILK.

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

      • identicon
        Anonymous Coward, 29 Dec 2020 @ 7:51pm

        Re: Re: CONTROL means "platforms" are PUBLISHERS.

        Why just political, and what is political, and do any of the big platforms do that?

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

        • icon
          Stephen T. Stone (profile), 29 Dec 2020 @ 7:56pm

          do any of the big platforms do that?

          Wouldn’t matter if they did. Twitter has every legal right to say a certain kind of legally protected speech is unwelcome on Twitter (e.g., racial slurs). So does every platform from Facebook to DeviantArt to a ten-person Mastodon instance. The government can’t (and shouldn’t be able to) compel/mandate/force “neutrality” toward all legally protected speech from any interactive web service. To say otherwise would be akin to spitting on the First Amendment.

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

          • icon
            ECA (profile), 30 Dec 2020 @ 2:32pm

            Re:

            There is something to CONTEST.
            That a Contract CAN take away your personal rights.
            Federal, state, all of them.
            Its been done, many times, already.
            Those EULA, and other TOS, can insert things you DO NOT WANT, and you dont get them unless the court decides against it.

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

        • icon
          PaulT (profile), 29 Dec 2020 @ 11:45pm

          Re: Re: Re: CONTROL means "platforms" are PUBLISHERS.

          "do any of the big platforms do that?"

          Only in their imagination. For example, when they're "censored" for posting racists hate speech, it has to be because they're a "Republican", and not because they're posting things that wouldn't be accepted from any political tribe. The fact that "Democrats" aren't being "censored" in the same way only proves their point to them (handily ignoring that no Democrats are posting the same hate speech).

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

          • icon
            ECA (profile), 31 Dec 2020 @ 1:02pm

            Re: Re: Re: Re: CONTROL means "platforms" are PUBLISHERS.

            I like the opinion.
            Posting hate speech has to be REPUBLICAN
            Only because a Democrat CANT/Wont/doesnt Write hate speech?

            Might as well say ALL of the Crap.
            This group, that group, NOT our group are all Blank, Blank blank, Blank BLANK.

            And thing good or bad you want to fill in, about any and all races, including WHITE, is Generally true/false.
            And the worst pasts TEND to be Not knowing history, and the Corps used them and then Blackballed them after ALL the work they did for 1/2 wages.

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

      • icon
        Toom1275 (profile), 29 Dec 2020 @ 8:13pm

        Re: Re: CONTROL means "platforms" are PUBLISHERS.

        [Asserts facts not in evidence]

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

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 29 Dec 2020 @ 8:32pm

          Re: Re: Re: CONTROL means "platforms" are PUBLISHERS.

          [Uses tired and worn gimmick response to feed a troll]

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

      • icon
        Mike Masnick (profile), 29 Dec 2020 @ 11:27pm

        Re: Re: CONTROL means "platforms" are PUBLISHERS.

        A lot of the pro-230 people seem to think that it's backed by the First Amendment, but the First Amendment didn't save Prodigy v Stratton Oakmont in the court case that started it all.

        Which is why we need 230.

        I agree that 230 needs reform, at least to clarify that it is only designed to allow moderation for the purposes of profanity, commercial spam, or repetition spam.

        So... you couldn't use it to stop pornography? Or harassment? Trolling? Defamation? Hate speech?

        Moderating user content based on political preference

        How do you define what decisions are made based on a political preference? More importantly, how do you write that into law in a way that is not unconstitutional (hint: you cannot).

        changes a platform into a publisher,

        No, it does not.

        which ought to take away the blanket immunity that the tech monopolies currently enjoy.

        No, it should not.

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

    • identicon
      Anonymous Coward, 30 Dec 2020 @ 3:54am

      Re: CONTROL means "platforms" are PUBLISHERS.

      If they act like Publishers, then they're LIABLE. Period.

      A publisher exercises content control over what is actually published from many many more submissions for publication. That is real publishers would exercise even more control of what you could have published than any site that use moderation to hide or remove comments that they find offensive or off topic.

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

    • icon
      bhull242 (profile), 31 Dec 2020 @ 12:25am

      Re: CONTROL means "platforms" are PUBLISHERS.

      A newspaper isn’t liable for third-party content, either (like letters to the editor), and yet they have full control over which content gets published on their newspaper.

      A bookstore isn’t liable for the content of the books they stock, and yet they have full control over which books they stock.

      A library isn’t liable for the content of the books they stock, and yet they have full control over which books they stock.

      The same applies to websites. Whether or not they publish or have control over content on those websites is completely irrelevant.

      Also, you didn’t sign onto Twitter or Facebook to get your own website; or rather, that was never what the deal was. If you want your own website, get your own website. Twitter and Facebook aren’t offering users their own websites. At best, it lends them webpages, but even that’s a stretch. I think you’re severely misunderstanding how platforms actually work. Twitter and Facebook allow users to publish their own content on Twitter/Facebook’s website. They are not giving users their own website. That you don’t understand that is not the fault of the platforms for misleading you. They never claimed to offer people their own websites.

      Plus, you have cited no law supporting the contention that §230 is unconstitutional, and if you don’t like the way the courts have ruled, you’ll have to amend the Constitution. §230 isn’t your problem; the 1A is.

      As for antitrust, that is completely unrelated. In fact, that would be a better solution than trying to change §230.

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

  • icon
    ECA (profile), 29 Dec 2020 @ 5:10pm

    REALLY hope this isnt true.

    Who remembers the original Bill and here 230 came from?

    I REALLY wonder if an idiot thinks that the Original bill is still around.

    I WOULD ASK THEM,
    " how many pages and/or paragraphs are in 230?"
    "How long did it take you to read ALL of 230?"

    Ask These questions, THEN ask the one above if you want. Because I dont think they are on the same page.
    Does this Truly express the intelligence of our representatives?

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Dec 2020 @ 8:25pm

    Can you guys at Techdirt please leash your pets? They keep getting out and shitting in other peoples’ yards.

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

  • icon
    ladyattis (profile), 30 Dec 2020 @ 8:22am

    The turning of the Internet into Cable TV

    Seriously, these moves smack of turning the Internet more into Cable TV where only a few players can afford the process of even defending themselves from errant lawsuits. In this case, section 230 is great for small blogs or web forums where it's just someone's hobby interest to maintain. I can't imagine web forums and blogs with comment sections staying up long without some kind of shrink wrap legal agreement or even some kind of for-pay membership to decrease the chances of being sued or harassed.

    Poland's own government just came up with a doozy of law where somehow it's a-okay to sue anyone that basically bans or removes a third party's content FROM THEIR OWN WEBSITE. Seriously, this is getting out of hand. People keep insisting some random website whether it's a big one like Twitter or Facebook or your grandma's knitting Livejournal (insert boomer meme here) has to let any comer post anything even if it's pure spam or just vile crap. At this rate, I'll have to just turn off my rarely used blog just because these clowns in government keep insisting there's something wrong with people moderating content on their own property. This isn't like blackballing or any other kind of private censorship which society already has some legal recourse to tackle. And it certainly won't end anyone's life if they can't post their content on someone else's website. But they'll keep it up and I expect the Internet will become more passive/consumer driven as a result.

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

    • icon
      ECA (profile), 30 Dec 2020 @ 2:29pm

      Re: The turning of the Internet into Cable TV

      WELLLLL,
      What can be done?
      No pictures
      No Video
      No audio
      NO sharing
      NO LINKS
      JUST TEXT.

      In the USA the ISP's own the phone system, Cellphone and the cable/sat systems also. Its an all in 1, IF they wanted it.
      But they like charging you FOR EACH PART.
      $50 Internet, $40 Cellphone, $80 Cable/sat TV, $40 Wired Phone(internet connection). Over $200 per month, for a system that IF 1 part goes down, IT ALL FAILS. Love that integration.

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

  • icon
    crade (profile), 30 Dec 2020 @ 8:51am

    "The platforms are irresponsible.. "
    Bullshit. The public is speaking irresponsibly. The platforms are already doing whatever they can reasonably do about it considering the public is generally supposed to be allowed to speak irresponsibly.

    The government here is basically trying to pressure "platforms" to control speech for them in ways they wouldn't even be allowed to restrict themselves. A legit supreme court would never stand for it

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

    • icon
      ECA (profile), 31 Dec 2020 @ 1:09pm

      Re:

      The confusion:
      Leave all posts UP?
      Censor CRAP and ?? speech?

      But no one is saying WHAT to leave up or Down.
      If Every thing has to be LEFT UP, Who is responsible? with 230, its NOT the Site owners.
      If the Crap and the hate speech, HAS TO BE taken down, its the SAME.

      IF every site has to leave everything UP, and THEY are responsible for POSTS, THAT ISNT FAIR. The only way to even get CLOSE to that would be a Text site only. NO links.
      But there are those who look for Words about themselves, and IF' they can Sue for Liable or Slander or ANYTHING ELSE.

      This battle is stupid.

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

  • icon
    sumgai (profile), 30 Dec 2020 @ 9:55am

    Here's the bottom line: §230 recognizes and formalizes just one concept - in a civil society, you don't get to shoot the messenger. All the wordage being expended that willfully sweeps this dictum under the carpet is just so many electrons in the ether being harassed by people who fail spectacularly at making good use of oxygen.

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

    • icon
      PaulT (profile), 31 Dec 2020 @ 1:18am

      Re:

      "Here's the bottom line: §230 recognizes and formalizes just one concept - in a civil society, you don't get to shoot the messenger."

      Or, just as simply - when addressing grievances, you get compensation from the person who actually aggrieved you, not the nearest easy target. This is more fundamentally baked in to legal systems in many other countries, which is why there is no equivalent to 230 elsewhere - you just can't randomly attack a cash rich bystander online or offline by default, unless they had some active role in the issue you're suing about. Since the US is a far more litigious society than most and this is theoretically possible, 230 makes it explicit.

      That's all it is - a statement that you have to sue the person who actually did the thing you're suing for. This is a not a concept that should be controversial.

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

      • icon
        ECA (profile), 2 Jan 2021 @ 11:52am

        Re: Re:

        What would happen, If we took those protections away, and then added them to Formal Law in every recourse?
        Newspapers?
        TV?
        How about Guns?
        Could we sue the Gun maker, the knife maker? The BAT maker for the use, while in Thieving or Thuggery? The beating of a spouse?
        But lets go abit Farther, the Horse/car/wagon that Brought then to it.

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


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