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Dear Section 230 Critics: When Senators Hawley And Cruz Are Your Biggest Allies, It's Time To Rethink

from the strangest-bedfellows dept

Last week Senators Hawley and Cruz used their platform and power as United States Senators to deliberately spread disinformation they knew or should have known to be false in order to undermine public confidence in the 2020 Presidential Election results. Their actions gave oxygen to a lawless and violent insurrection that nearly overran—literally and physically—our democratic government.

They should have known better and there is every reason to believe they did know better. There is every reason to believe that they intended their actions to further their craven attempt to solidify their own desired political power, even though it came at the expense of our Constitutional order and democratic norms and likely *because* it came at the expense of our Constitutional order and democratic norms, which would otherwise have stood against their ambition. They are, after all, highly educated people, bearing credentials from some of our most esteemed academic institutions. It is impossible to believe they did not know what they were doing.

Just as it is impossible to believe they did not know what they were doing when they railed against Section 230. At first glance it may seem like an irrelevant quibble to take issue with their position on Internet policy when viewed in comparison to the actual, violent insurrection they also invited. But it is indeed worth the attention, for the same reasons that their other anti-democratic behavior is so troubling. Because one of the reasons we have rights of free expression in America, and the Constitution to guarantee them, is because free expression is so necessary as a check against tyranny. And for those like Hawley and Cruz who are rooting for the tyranny, getting rid of those speech protections is a necessary first step to advancing that anti-democratic end.

Which is what gutting Section 230 would do. While the First Amendment would, of course, in theory still be there to protect speech, in practice those rights would become illusory. When it comes to online expression, Section 230 is what makes those speech rights the First Amendment protects real and meaningful. And that's exactly what Hawley and Cruz want to prevent.

They want to prevent it because they can see how Section 230 stands in their way. They can see how platforms exercising their First Amendment rights to choose which user speech to facilitate could lead to those platforms choosing not to facilitate their poisonous propaganda, and they understand how stripping platforms of their Section 230 immunity effectively takes away platforms' ability to make that choice by making it too legally precarious to try.

They also can see how stripping platforms of their statutory immunity could force platforms to suppress user speech that challenges them. Section 230 allows platforms to have a free hand in enabling user speech because it means they don't have to fear enduring an expensive legal challenge over it. Without the statute's currently unequivocal protection, however, they won't be able to accommodate it so willingly. They will be forced to say no to plenty, including plenty of socially valuable, Constitutionally-protected speech against government officials like Hawley and Cruz, lest these platforms make themselves vulnerable to expensive litigation over it—which, even if unmeritorious, would do nothing but drain their resources. Every change to Section 230 that Hawley and Cruz have demanded would erode this critical protection platforms depend on to enable all this user expression and lead them to second guess whether they could continue to. And it would thus leave Hawley, Cruz, and their corrupt compatriots free to continue their nefarious efforts to consolidate their control over the nation without much fear of complaint.

The problem is, though, so would all the changes to Section 230 also being championed by Democrats. Campaigning against Section 230 has not been the exclusive domain of Republicans. Plenty of Democrats have joined them, from Senator Blumenthal (D-CT), to Rep. Eshoo (D-CA) and Rep. Malinowski (D-NJ), to even Senator Schatz (D-HI). And, of course, perhaps the most prominent Democrat of them all: President-Elect Joe Biden. Their reasons for agitating against Section 230 may be different than those cited by Republicans, and their proposed changes may vary in specifics as well, but, whether they realize it or not, the effect of all these changes would be the same as what Hawley and Cruz have advocated for: the erosion of First Amendment protections online. Which will only grease the skids for the Hawleys and Cruzes of the world as much as all the changes they themselves have been calling for.

Every policymaker appalled by what has just transpired and eager to preserve our system of self-government must take heed. Our inherently fragile democracy cannot survive without free speech, and no policymaker who wishes to ensure its survival can afford to do anything to undermine it. But when it turns out, as it does now, that the policy demanded by democracy's saviors is the same exact policy sought by its enemies, those who wish to save it need to think again about what they really ought to be asking for.

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Filed Under: 1st amendment, free speech, josh hawley, open internet, reform, repeal, section 230, ted cruz


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  • icon
    That One Guy (profile), 11 Jan 2021 @ 12:16pm

    'Our goals are opposite but we want the same thing, odd...'

    Politics can make for strange bedfellows at times but when people with diametrically opposite goals(in this case less content removal vs more content removal) are pushing for the same general thing that's probably a good sign that you need to reevaluate what you're doing, because if your goals are opposite but you're trying to use the same method to get it it's all but ensured that at best one of you is not going to be happy should you 'win'.

    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), 11 Jan 2021 @ 12:54pm

      Re: 'Our goals are opposite but we want the same thing, odd...'

      You may be correct about this. Section 230 was originally a bi-partisan solution when it was passed. Republicans and Democrats offered solutions to tackle the problem from different directions. Republicans wanted to prevent the distribution of indecent materials to minors, while Democrats sought to protect websites that wanted to moderate. But the Republican portion got thrown out in court, the internet never got cleaned up, it only got worse, and now a lot of Republicans hate section 230.

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

      • icon
        Stephen T. Stone (profile), 11 Jan 2021 @ 1:04pm

        Both sides (remember, 230 was a bipartisan bill) wanted to protect websites from liability for moderation. The reasoning for why may have differed, but the desired outcome was the same. For proof, we can look at the actual, factual, on-the-Congressional-record words of Republican(!) lawmaker Chris Cox, who helped craft 47 U.S.C. § 230:

        We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see.

        [O]ur amendment will do two basic things: First, it will protect computer Good Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive material for their customers. It will protect them from taking on liability such as occurred in the Prodigy case in New York that they should not face for helping us and for helping us solve this problem. Second, it will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be what it is without that kind of help from the Government. In this fashion we can encourage what is right now the most energetic technological revolution that any of us has ever witnessed. We can make it better. We can make sure that it operates more quickly to solve our problem of keeping pornography away from our kids, keeping offensive material away from our kids, and I am very excited about it.

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

      • icon
        Mike Masnick (profile), 11 Jan 2021 @ 1:35pm

        Re: Re: 'Our goals are opposite but we want the same thing, odd.

        This is wrong historically, factually, and conceptually.

        1. The part that got thrown out, from Senator Exon, was pushed by a Democrat, not Republican.

        2. The part that got kept, was created by a Republican (Cox) and a Democrat (Wyden). And both have made it clear (as they did at the time) that they wanted platforms to moderate how they see fit in order to provide for famiy friendly spaces.

        Koby, you are wrong and you should stop being an ignorant fool pushing misinformation.

        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), 11 Jan 2021 @ 3:18pm

          Re: Re: Re: 'Our goals are opposite but we want the same thing,

          I am unconcerned about the authors. They are the folks that managed to do the legwork in Congress to get the legislation passed. That's fine. They were still the PREFERRED methods by which each side wanted the system to operate. I stand by my statement that it was a bait and switch. Future lawmakers may want to heed that warning.

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

          • identicon
            Rocky, 11 Jan 2021 @ 4:15pm

            Re: Re: Re: Re: 'Our goals are opposite but we want the same thi

            I am unconcerned about the authors.

            Considering that you managed to mix up who did what and what spurred the authors of section 230 to propose it, you seem awfully unconcerned about the facts of the case.

            Oh well, a little history revisionism sure do strengthen one's argument....

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

          • identicon
            Anonymous Coward, 11 Jan 2021 @ 5:01pm

            Re: Re: Re: Re: 'Our goals are opposite but we want the same thi

            Bait and switch? lol

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

          • icon
            bhull242 (profile), 11 Jan 2021 @ 11:39pm

            Re: Re: Re: Re: 'Our goals are opposite but we want the same thi

            Actually, the authorship was directly relevant to your claim about what each side wanted. It’s also worth noting that §230 got enough bipartisan votes to win in the House completely on its own. You’re completely misrepresenting what the legislative history actually was.

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

            • icon
              PaulT (profile), 11 Jan 2021 @ 11:41pm

              Re: Re: Re: Re: Re: 'Our goals are opposite but we want the same

              "You’re completely misrepresenting what the legislative history actually was"

              As usual, Koby's argument depends on inventing a fiction to attack? What a shock.

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

    • identicon
      Anonymous Coward, 11 Jan 2021 @ 1:17pm

      Not even a theory.

      The United States (politicians on both sides) should know where this road will take a country.

      • Turkey
      • Hungary

        Or why not watch in real-time as it is happening in Hong Kong.


        The Democrats appear especially righteous in their calls for Section 230 reform. I can empathize with how their feelings, they did just survive an inserection. But this is reactionary, & literally a 'shoot the messenger' solution.


        Trump & his enablers can/could have been held accountable by 'conventional' laws. All without destroying the Internet or harming free-speech.

      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, 11 Jan 2021 @ 12:37pm

    Argument ad hominem, and the capital riots prove that Section 230 is enabling internet harm that spills over much as it has for years, just not for Congress itself. Now that it has, the law will be repealed.

    Blumenthal was falsely accused of domestic violence so he got a firsthand course in Section 230, which every country other than the US manages to do fine without, and still has an internet.

    Twitter stock got murdered today for banning Trump. Get woke go broke.

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

    • icon
      Stephen T. Stone (profile), 11 Jan 2021 @ 12:53pm

      the capital riots prove that Section 230 is enabling internet harm

      …fucking what

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

    • identicon
      Anonymous Coward, 11 Jan 2021 @ 1:15pm

      Re:

      You are overlooking that those riots were created by the fucking president, who under changes to 230 would in all likelihood still have a platform, while moderating voices would in likelihood be silenced.

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

      • icon
        That One Guy (profile), 11 Jan 2021 @ 1:26pm

        Re: Re:

        Depends on which way the cases went and how platforms responded, because if platforms went with the 'anything that even might get us in trouble is gone' option then Trump and his cultists would have been given the boot long ago.

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

        • identicon
          Anonymous Coward, 11 Jan 2021 @ 1:43pm

          Re: Re: Re:

          We the government can sue into the ground if you do not do as we want is a powerful means of controlling speech. Ask sites that used to allowing user adverts including adult services, and sites impacted by FOSTA about government censoring of speech.

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

    • identicon
      Anonymous Coward, 11 Jan 2021 @ 4:31pm

      Re:

      Oh hi Jhon Smith. Weren't you saying you would bless Donald Trump if he got rid of Section 230? Guess he managed to fuck that up too huh? Maybe you'd like to mention "distributor liability" or "mailing lists" while you cry salty tears into your pillow.

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

    • identicon
      Anonymous Coward, 12 Jan 2021 @ 1:08am

      Re:

      Yes, us other countries outside the USA do get by without s230, but this is for two reasons:

      1. We don't have anywhere near the amount of crazy people willing to sue anyone for anything whatsoever.

      2. We also have other laws that protect us.

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

    • icon
      PaulT (profile), 12 Jan 2021 @ 1:23am

      Re:

      "Section 230, which every country other than the US manages to do fine without"

      As has been explained to you many times, this is because the US is fairly unique in having such a sue happy culture that it's even possible to sue innocent bystanders for things that happened on their property with no involvement from the person being sued.

      As with net neutrality, the reason it's needed to be made explicit in law is because it's not already implicitly baked into the existing legal infrastructure. This is not the clever point you think you're making.

      "and still has an internet"

      We will still have one even if you cause your own part of the internet to hold people legally liable for things they didn't do. We might just not communicate as often with that dangerously restricted area.

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

    • icon
      Bluegrass Geek (profile), 12 Jan 2021 @ 8:43am

      Re:

      If by "Twitter stock got murdered" you mean "down by 1%" I have to wonder whether you consider getting bruised to be equivalent to an amputation.

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

      • icon
        PaulT (profile), 12 Jan 2021 @ 10:38pm

        Re: Re:

        For additional context, if you look at the stock at the time I'm writing this, it's at $47.07. 1 month ago it was $52.02, after hitting an all time high in December of $55.87. But, the price 6 months ago was $33.82, after having hit a 2 year low in March of $22.00. It's not even hit the low point of the last major dip around the election where it hit just below $40.

        Day traders might be a little worried, but long term investors are still at the point of more than doubling their money in less than a year. If this is "go broke" for anyone, it's their own fault.

        So, a Trump fan not understanding numbers and context, and thinking that a minor issue represents a major victory. What a shock.

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

  • icon
    Toom1275 (profile), 11 Jan 2021 @ 1:16pm

    As if Hawley's CDA 230 "reform" was ever not about ushering in fascist control over free speech.

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

  • identicon
    Anonymous Coward, 11 Jan 2021 @ 6:49pm

    [...] but, whether they realize it or not, the effect of all these changes would be the same as what Hawley and Cruz have advocated for: the erosion of First Amendment protections online.

    Have you ever doubted that Freedom of Speech is not identical to First Amendment? Freedom of Speech is a fundamental human right, unrelated to how law of a single country wrote their laws. First Amendment is just some text written 200+ years ago, kept being interpreted by justices over 200 years, with most decisions made before the Internet was invented and before a few corporations can control 80% of your social life. What if those decisions were wrong?

    I know companies have their freedom of speech as much as people do. Therefore it should be a balance between them, not an outright favor on one side. When a company is so influential that its censorship can be more powerful than what the government can do, it is time to rethink whether it is just to allow every private entity to be given this blanket exemption to censor. Even though that may mean First Amendment is no longer the best way to ensure Freedom of Speech.

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

    • icon
      That One Guy (profile), 11 Jan 2021 @ 7:21pm

      How popular does a bar need to be before it can't remove drunks?

      When a company is so influential that its censorship can be more powerful than what the government can do, it is time to rethink whether it is just to allow every private entity to be given this blanket exemption to censor.

      And when that actually becomes the case it might be a relevant argument/point, but it's not because it's not.

      The government tells you 'you're not allowed to speak' and no amount of platforms are going to save you because they're all off limits to you at that point. A private company tells you 'you're not allowed to use our property to speak' and you've been limited in your choices but you can just switch platforms, because the only platform off limits to you is that one.

      If you want to nationalize a company such that it's run by the government and therefore required to host any and all legal speech just say so, don't wax poetic about how terrible it is that privately owned platforms are 'allowed' to choose what speech they will and will not host.

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

      • identicon
        Anonymous Coward, 11 Jan 2021 @ 8:04pm

        Re: How popular does a bar need to be before it can't remove dru

        If you still need to ask what the problem is: Freedom of Speech is not binary. Every inhibition of speech is a slight loss to the freedom. You can still yell at home and yet no one can listen, but does that still count as having freedom of speech?

        Just count how many oligopolies out there have the ability to act together to stop serving a single person/group of people, but just happen to be not limiting their speech? What if Bell didn't allow you to make phone calls?

        One solution doesn't work doesn't mean there cannot be a solution. You already know one: as a last resort, we can nationalize a company if we really cannot find a way to preserve online free speech without one.

        We can set a price for every CDA 230 editorial privilege (to be defined) a platform company (to be defined) takes advantage of. We can tax platform companies 50% of their profit who want to enjoy the editorial privileges, and refund those taxes who opt out. We can setup a cap on the editorial privileges allowed and a market for platforms to trade.

        Not that any of these work as is, but if you agree that there is a problem, the discussion has to start somewhere, especially under a delusional and dysfunctional Congress.

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

        • icon
          That One Guy (profile), 11 Jan 2021 @ 9:35pm

          Re: Re: How popular does a bar need to be before it can't remove

          You can still yell at home and yet no one can listen, but does that still count as having freedom of speech?

          Depends, are you yelling at your home because the government or a similarly powerful entity has barred you from every other space, because no private platform/business wants to host you and public property doesn't cut it for some reason or simply because you want to? Free speech has never been shorthand for consequence-free speech, with the first amendment merely preventing the government from barring you from speaking, not has it ever included a guarantee of a platform to speak from or an audience to speak to, so not having a specific platform to speak from nor people who care to listen to you does not automatically mean that your free speech has been reduced or eliminated.

          Just count how many oligopolies out there have the ability to act together to stop serving a single person/group of people, but just happen to be not limiting their speech? What if Bell didn't allow you to make phone calls?

          There are a number of ISP's out there that might fit the bill, where you either get internet service and everything that comes with it from them or you don't get it, but as far as social media it's not really the case, as if you don't want to use or cannot use one there's any number of alternatives, switching is fairly easy and most importantly if you can't use one then you can't use one, you don't lose out on a massive swatch of other services/platforms.

          We can tax platform companies 50% of their profit who want to enjoy the editorial privileges, and refund those taxes who opt out. We can setup a cap on the editorial privileges allowed and a market for platforms to trade.

          Being able to control your own property and what speech you want on it counts as a 'privilege' that needs to be paid for now, charming.

          As for the tax sure thing, we can call it the 4chan tax because that's what every platform will look like once they have to face loosing half of their profits should they have the audacity to moderate their own property. We can also call it 'grossly unconstitutional' while we're at it for the insanely restrictive limits it would impose upon the first amendment rights of the platforms and their owners in an attempt to 'protect' the fictional first amendment/'free speech' rights of users.

          Not that any of these work as is, but if you agree that there is a problem, the discussion has to start somewhere, especially under a delusional and dysfunctional Congress.

          To the extent that their might be a problem(and I've yet to see anything to suggest that it both exists and is a major issue) every proposed 'fix' I've seen, including if not especially yours, are vastly worse than that problem. Forcing platforms to host speech they don't want to is not how you fix a free speech/first amendment issue, that's how you make it worse and turn the platforms into places few actually want to be on just because some people think they're entitled to have a soapbox and captive audience.

          If your concern is that big platforms might have too much power and you want some way to keep them in check then a better way to do that without trashing their first amendment and property rights is to work to create a competitive market where it's easy for new competitors to pop up and survive, as while people might hesitate to make the jump to a new platform if those options are out there and a given platform gets too bad then that's likely to overcome that hesitation, which is going to help reign in excesses. This also allows multiple forms of moderation to be tried out, from almost none to much more restrictive systems, with the more popular winning out and people able to choose the moderation levels they prefer.

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

          • identicon
            Anonymous Coward, 11 Jan 2021 @ 10:37pm

            Re: Re: Re: How popular does a bar need to be before it can't re

            Free speech has never been shorthand for consequence-free speech, with the first amendment merely preventing the government from barring you from speaking, not has it ever included a guarantee of a platform to speak from or an audience to speak to, [...]

            Neither. Once Trump or Parler has been convicted of a crime, they deserve no or less free speech. But when private companies can consipire to disenfranchise a bit of your freedom at their own will, it's all fine, until a sudden day it's lost entirely.

            [...] but as far as social media it's not really the case, as if you don't want to use or cannot use one there's any number of alternatives, switching is fairly easy and most importantly if you can't use one then you can't use one, you don't lose out on a massive swatch of other services/platforms.

            Tell that to Trump (after 9 days) and Parler. If your only platform is your own website, you already lost most of your freedom, not much far from only allowed to yell from your home.

            Being able to control your own property and what speech you want on it counts as a 'privilege' that needs to be paid for now, charming.

            No one has taken away your free speech. You can trade some or all for money. This is called incentive. The current problem with 230 is lack of incentive, so there is nothing we can complain no matter how good or bad they are doing.

            As for the tax sure thing, we can call it the 4chan tax because that's what every platform will look like once they have to face loosing half of their profits should they have the audacity to moderate their own property.

            That's why I am not pretending any of my solutions is going to work as is. We can have rules about what kind of moderations are exempt, and what are not. People are going to game it, just like people are going to game SEC rules. If it is the only solution, we will live with the defects and hope that one day we will make it good enough.

            We can also call it 'grossly unconstitutional' [...]

            You're back into the box. A broken constitution is something we can fix.

            [...] Forcing platforms to host speech they don't want to is not how you fix a free speech/first amendment issue, that's how you make it worse and turn the platforms into places few actually want to be on just because some people think they're entitled to have a soapbox and captive audience.

            I am not forcing them. I insists that platforms are given the same free speech rights, but some of them are incentivized to trade that up, just not the kind of trade as if 230 is repealed.

            I didn't ask for all platforms to allow all speech. I asked for a system where naturally some platforms volunteered to allow all speech. This is needed because the free speech rights 100 years ago are no longer meaningful free speech. If social-media world caused spread of speech 100x more effective than before, then offline speech is only 1% as powerful of what it used to be.

            If your concern is that big platforms might have too much power and you want some way to keep them in check then a better way to do that without trashing their first amendment and property rights is to work to create a competitive market where it's easy for new competitors to pop up and survive, as while people might hesitate to make the jump to a new platform if those options are out there and a given platform gets too bad then that's likely to overcome that hesitation, which is going to help reign in excesses. This also allows multiple forms of moderation to be tried out, from almost none to much more restrictive systems, with the more popular winning out and people able to choose the moderation levels they prefer.

            Frankly, I agree. I even agree 230 as is protects small players. But we all know the above is not going to happen without incentives. Network effect makes it both hard to stay away and switch. Since businesses are, per their first amendment right, allowed to make sudden and abrupt actions, people can be deeply locked in when they're denied speech. You can argue we need to mandate social networks to adopt open standards, offer APIs, allow transfer of data, etc. but these are all areas that we have zero experience and can take a decade to polish even if a law is written today.

            There is also oligopoly. If Google and Apple denied your right to a mobile app, you are doomed to a browser. If Google, Amazon and Microsoft denied your right to a hosting, you need to scrambled to a new setup and risk a week of downtime. Your self-hosting ISP maybe pressured to take you down or lose peering with another Tier-1 ISP. They are all within their right to do it, and they can even do it one after another, giving you 24 hours grace period to move to the next one. It is true that on the internet, no one can that truly silence you. But if this is not loss of Freedom of Speech, what is?

            These are not from an imaginary future. They are happening today. It is a world where one person not convicted from any crime needs to build a mobile phone OS, a social network, and an ISP in order to speak online, because of hundreds of unelected private individuals independent decided so. This is the problem I have in mind.

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

            • identicon
              Rocky, 11 Jan 2021 @ 11:20pm

              Re: Re: Re: Re: How popular does a bar need to be before it can'

              The problem boils down to: Which peoples rights are we going to curtail to protect these other peoples rights?

              That private companies doesn't want to do business with certain people doesn't violate those peoples rights, but forcing the company to do business with them anyway infringes the rights of the people making up that company. There are exceptions to this, which is why we have anti-trust and public utilities which regulate some types of services and markets for the public good. If social media was regulated like a public utility it opens up a whole vista of constitutional problems since we essentially then would regulate free speech on a massive scale.

              I think one of the problems with grappling with free speech and online moderation and its consequences is that a lot of people think free speech means "the right to have an audience" or "I can say whatever I want" which have never been the case. And in a majority of cases when people are being moderated it's not really a free speech issue, it's a service agreement issue.

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

              • identicon
                Anonymous Coward, 12 Jan 2021 @ 2:03am

                Re: Re: Re: Re: Re: How popular does a bar need to be before it

                You can use your same arguments on why businesses should be allowed to choose to not serve any African Americans.

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

                • icon
                  PaulT (profile), 12 Jan 2021 @ 2:18am

                  Re: Re: Re: Re: Re: Re: How popular does a bar need to be before

                  No you can't since discrimination on the basic of protected class is expressly illegal.

                  "Raging asshole" is not a protected class, therefore that argument doesn't apply.

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

            • icon
              Stephen T. Stone (profile), 11 Jan 2021 @ 11:38pm

              You’ve put some thought into this. So let’s see how far you’ve thought this through.

              But when private companies can consipire to disenfranchise a bit of your freedom at their own will, it's all fine

              Yes or no: Do you believe the government should have the legal right to compel any privately owned interactive web service into hosting legally protected speech that the owners/operators of said service don’t want to host?

              If your only platform is your own website, you already lost most of your freedom

              Yes or no: Has anyone who chooses to have a personal website and no social media accounts given away their freedom?

              The current problem with 230 is lack of incentive

              How should the law “incentivize” moderation or a lack thereof?

              We can have rules about what kind of moderations are exempt, and what are not.

              Which moderation styles/actions would you exempt? Which ones would you not exempt?

              A broken constitution is something we can fix.

              What is “broken” about the idea that the government letting the owners of private property decide what speech they’ll allow on their property is a constitutionally protected right?

              I asked for a system where naturally some platforms volunteered to allow all speech.

              What makes you think we don’t have that system in an age where 4chan, 8kun, Gab, and their various bastard children all exist?

              If social-media world caused spread of speech 100x more effective than before, then offline speech is only 1% as powerful of what it used to be.

              For what reason should that curtail the First Amendment right of association granted to the people who own Twitter, Facebook, etc.?

              I even agree 230 as is protects small players. But we all know the above is not going to happen without incentives.

              What are you trying to say should be “incentivized”, and what incentives do you think should be offered?

              if this is not loss of Freedom of Speech, what is?

              What do you call someone being threatened into not speaking, either by the government or by some asshole with a knife? What do you call being legally barred from expressing speech by prior restraint?

              It is a world where one person not convicted from any crime needs to build a mobile phone OS, a social network, and an ISP in order to speak online, because of hundreds of unelected private individuals independent decided so. This is the problem I have in mind.

              How do you suggest we solve this problem without forcing Internet access providers such as Comcast and Internet service providers such as Twitter and Amazon to give up their constitutional rights?

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

              • identicon
                Anonymous Coward, 12 Jan 2021 @ 12:29pm

                Re:

                You’ve put some thought into this. So let’s see how far you’ve thought this through.

                Appreciate for your time with the questions. Let me restate a few viewpoints before proceeding so we can be on the same page.

                1. For simplicity "Platform" means private companies who hosts others' speech
                2. There are multiple social problems mentioned in this original article and in the congressional acts being proposed. (a) Some people enjoy much less freedom of speech than others. (b) Platforms do not take down enough fake news. (c) Society is increasing polarized due to platforms. I only talk about (a) here, not that it's more important, but we need to start somewhere.
                3. I agree platforms and their users have their right to freedom of speech, but disagree with how First Amendment has been interpreted on that companies' right preside whenever the rights clashed. First Amendment is not a law of universe, so it should be up for debate whether it correctly proxies freedom of speech.
                4. I agree right to freedom of speech does not mean right to say everything (there are laws, etc.) or a right to be heard. I am arguing it is the right to be allowed to be heard, i.e. if you and I both have true followers, I should not need to take 10x of the effort to be heard by my followers. This is true in the physical world, not online.
                5. I agree 230 is striking a balance between (a) and (b). I do not think it is perfect, especially as highlighted by recent events. Hence I am soliciting comments on whether there are people who agree with the problem, and would like to brainstorm solutions.
                6. I believe the statements (especially here in Techdirt) on impossibility to find a solution were bounded by a box: First Amendment. I can understand end-to-end encryption + decryption for good guys = impossible. I am not convinced a better balance on Freedom of Speech for both platform and users (than 230) is impossible.
                7. I do not have a concrete solution myself that can work. I don't think I can ever find one on my own. I need to learn from experts like all of you, but I also want to explore areas where you seemingly did not.

                (Questions reordered to problems first and solution later, some dropped due to duplicate answers.)

                Yes or no: Do you believe the government should have the legal right to compel any privately owned interactive web service into hosting legally protected speech that the owners/operators of said service don’t want to host?

                No, but it should be an incentive, not compelled.

                > If your only platform is your own website, you already lost most of your freedom

                Yes or no: Has anyone who chooses to have a personal website and no social media accounts given away their freedom?

                Yes. But the original statement should be read as: if I am open to every means online, yet I am only allowed to speak on my website, I already lost most of my freedom of speech. (point 3)

                Apart from my own website, where are the government properties online that allow speech? Domain names, IP addresses and?

                > A broken constitution is something we can fix.

                What is “broken” about the idea that the government letting the owners of private property decide what speech they’ll allow on their property is a constitutionally protected right?

                Nothing wrong, but we know the right is not absolute when it clashes with others' right, which is the current case. First Amendment as ruled by courts have ruled it 100% on the platform's favor, and that is what is wrong.

                > if this is not loss of Freedom of Speech, what is?

                What do you call someone being threatened into not speaking, either by the government or by some asshole with a knife? What do you call being legally barred from expressing speech by prior restraint?

                Good point. I take that back.

                > It is a world where one person not convicted from any crime needs to build a mobile phone OS, a social network, and an ISP in order to speak online, because of hundreds of unelected private individuals independent decided so. This is the problem I have in mind.

                How do you suggest we solve this problem without forcing Internet access providers such as Comcast and Internet service providers such as Twitter and Amazon to give up their constitutional rights?

                First, I am not sure I have to agree ISPs have the right to block you from viewing something not on their property, but through their property. Yes, Supreme Court made them so, but they also make dubious decisions like a restaurant renting a space in a city building is an extension of the government. Seriously?

                Second, I am exactly not asking Twitter and Amazon to give up their right. I am asking for a system where even Twitter and Amazon enforcing a right would not severely deprive others from their right, defined in point 3 above slightly differently than usual. It's not wrong to argue they are more powerful than some sovereign nations.

                (I feel bad that I need to use Trump's right to make a point but) Trump is not impeached or convicted of a crime, yet he lost many means to gather his followers. He does not need to have lost all means for this to be alarming, just like African Americans did not lose all rights when some restaurants did not welcome them.

                –––

                It ends here with questions about the "problem" I am trying to solve. Anything below are about the solution, which I don't argue I have. I don't think you should focus on my solution, but think again if the problem above is real, worth solving, and not 100% impossible to solve.

                (Even if it means we need a new constitution amendment. Imagine, the world is watching us to uphold freedom of speech as a right, not how we can upload it inside our box.)

                > The current problem with 230 is lack of incentive

                How should the law “incentivize” moderation or a lack thereof?

                Just like capitalism, we define rules so players who abide to rules are encouraged do actions that they other would not pick, resulting in a better social equilibrium.

                Say, in my prior posts, I proposed financial incentives for companies if they give up some types of moderations. In turn, they choose to moderate less, and leave more room for their users' rights.

                We do not need every company to cave in, just enough so that those minority users' are not almost deprived of their rights, like now. There are state-built roads and toll roads. There are city parks and Disneylands. Maybe not US, but there are both public and private hospitals in a lot of capitalist countries.

                > We can have rules about what kind of moderations are exempt, and what are not.

                Which moderation styles/actions would you exempt? Which ones would you not exempt?

                This is the part which I have least idea on. I know it's so easy to be gamed if we micromanage moderations. Feel free to call me naive, but please explain why.

                (i) Encourage platforms to not moderate users, but speech, i.e. no permanent deplatforming
                (ii) Encourage platforms to hide moderated content rather than taking them down
                (iii) Encourage platforms to moderate by wisdom of crowd, e.g. take down only if x% of users voted so, instead of committee
                (iv) Encourage platforms to allow users to own their space and setup their moderation rules (i.e. every one's blog hosted by the platform as a utility)

                These are all encouragements driven by incentives. The incentive for each item can be different, say more for the last one. A company can ignore all of them and still be the top social medium. They are arguably not harsh enough to not rule out a viable product if you follow. So it encourages a market towards better moderation.

                Anything can be the incentive. Can be money, but we need to make sure larger players pay more, at least proportionately. 230(c)(2) protection on conditions of the above rules is seemingly a good one. I do not think 230(c)(1) is a good one to trade though.

                > I asked for a system where naturally some platforms volunteered to allow all speech.

                What makes you think we don’t have that system in an age where 4chan, 8kun, Gab, and their various bastard children all exist?

                Good question. I don't know. What I observed is that in this system produced semi-omnipotent winners like Facebook and Twitter, which is not the "lots of competition" situation.

                So you can ask yourself, does the mere existence of plenty of seemingly irrelevant and competitors mean the problem does not exist? Or does the system still need more incentives to allow more mainstream competition. IMO a good yardstick is whether a wide spectrum of the general public will still yell Freedom of Speech next time some large platforms coincidentally bans the same person.

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

                • icon
                  bhull242 (profile), 12 Jan 2021 @ 4:56pm

                  Re: Re:

                  I’d just like to say the following points:

                  1. We fundamentally disagree on the free speech rights guaranteed by the 1A. The fact is that the 1A cannot be used to force anyone to host speech they don’t want to. One’s 1A rights cannot be restricted by any private persons (including corporations) outside of lawsuits. Not that it’s illegal to do so; it’s impossible to do so. As such, I don’t recognize (a) as a problem at all, nor can I agree with points 3, 4, or 6. Your freedom of speech is not lessened one iota by a private corporation’s decision not to host/publish your speech.

                  2. We have explored other possibilities, but we don’t believe that they strike a better balance than anything else.

                  3. That the competition is not as large as Facebook or Twitter is immaterial. The existence of a number of competitors shows that there’s lots of competition in itself. The reason that platforms like Gab, 4chan, and 8kun that don’t moderate much, if at all, aren’t as large as Twitter or Facebook could very well be because consumers prefer the heavier moderation of Twitter and Facebook. The idea is to let the market decide.

                  4. I don’t see how Facebook and Twitter have “near-omnipotence” considering the fact that their reach simply does not extend one picometer beyond their respective platforms, and there are a number of other options available.

                  5. I am not the least bit alarmed by Trump’s deplatforming. I am surprised it happened while he was in office, but the fact is that he still has other options available, and it happened because of his own actions that he had full control over. I don’t see it as remotely comparable to the situation with blacks during the Jim Crow era as those restrictions were based on factors 100% outside the control of those people and 100% impossible to change.

                  There are other points, but those are the big ones.

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

                • icon
                  Stephen T. Stone (profile), 13 Jan 2021 @ 1:08am

                  Oh good, you weren’t a coward. I appreciate that.

                  I agree platforms and their users have their right to freedom of speech, but disagree with how First Amendment has been interpreted on that companies' right preside whenever the rights clashed.

                  Herein lies the problem with this idea: You’re all but saying the right of free speech should override the right of free association. Twitter has the same right as you to decide what speech/persons with which it will or won’t associate. That you might think the law should say otherwise doesn’t make it so — or make it right, for that matter.

                  I am arguing it is the right to be allowed to be heard, i.e. if you and I both have true followers, I should not need to take 10x of the effort to be heard by my followers.

                  Twitter shouldn’t be forced to give you an audience. No one should. And the law says you can’t make anyone do that. If you want to be heard, you’ll need to work for that audience — to both gain it and make it pay attention.

                  I am not convinced a better balance on Freedom of Speech for both platform and users (than 230) is impossible.

                  It may not be impossible. But the solution won’t be found by destroying 230 or forcing sites to host all legally protected speech.

                  it should be an incentive, not compelled

                  I see no reason for the law to “incentivize” any site to become another 4chan.

                  we know the right is not absolute when it clashes with others' right, which is the current case. First Amendment as ruled by courts have ruled it 100% on the platform's favor, and that is what is wrong.

                  Walmart has the right to kick people out of their stores for saying shit nobody else wants to hear. So does McDonald’s. And virtually any other public-facing business in meatspace. I don’t see any reason why that same right shouldn’t apply to Twitter, Facebook, Gab, or a tiny-ass Mastodon instance.

                  The right of association is as important as the right to speak freely. Platforms such as Twitter should have the right to decide what speech will or will not be associated with said platforms. To say otherwise is to say a Black Lives Matter forum should be forced by law to host White supremacist propaganda because the forum shouldn’t have the right to ban that legally protected speech from that forum.

                  I am asking for a system where even Twitter and Amazon enforcing a right would not severely deprive others from their right

                  They don’t do that right now. I’m not deprived of my rights if Twitter gives me the boot.

                  What you’re asking for is for platforms like Twitter to be forced into giving up their right of association. It’s paradoxical thinking: “Twitter should have the right of association, but it should also be forced to host all legally protected speech.” You can’t square that circle.

                  Trump is not impeached or convicted of a crime, yet he lost many means to gather his followers.

                  He isn’t entitled to use anyone else’s property for that purpose. Neither are you or I.

                  He does not need to have lost all means for this to be alarming, just like African Americans did not lose all rights when some restaurants did not welcome them.

                  …I…uh…I’m gonna let someone else handle that one, because if I were to say something, I’d probably get angry as fuck and that would hang over everything else I say from here on out.

                  I proposed financial incentives for companies if they give up some types of moderations. In turn, they choose to moderate less, and leave more room for their users' rights.

                  Again: 4chan moderates next-to-nothing. I don’t see how incentivizing other sites to become 4chan does anyone any good — including the existing userbases of sites like Twitter.

                  Encourage platforms to not moderate users, but speech, i.e. no permanent deplatforming

                  This would allow assholes to stay on a platform and keep finding loopholes in the rules. Racist White assholes will always find a way to be racist towards people of color, after all. And with no way of stopping them from harassing people of color, those racist assholes would drive people of color away from the service. And sooner or later, the platform would become another example of the “Worst People” Problem.

                  Encourage platforms to hide moderated content rather than taking them down

                  For smaller platforms, this might be effective. For platforms the size of Twitter? Not so much with the effectiveness.

                  Encourage platforms to moderate by wisdom of crowd, e.g. take down only if x% of users voted so, instead of committee

                  This runs the risk of opening the door for the “Worst People” Problem. Not to mention that democratizing moderation runs the risk of taking down speech that inoffensive yet unpopular. (And yes, I realize the irony of saying that on a site that lets people flag comments for being abusive/trolling and hides comments that get enough flags.)

                  Encourage platforms to allow users to own their space and setup their moderation rules (i.e. every one's blog hosted by the platform as a utility)

                  I mean, this is kinda what social media platforms already do. They’re not public utilities, though. And I’m not sure how you could make them public utilities now without it coming off as a government takeover of platforms for speech (which is fraught with its own set of issues).

                  230(c)(2) protection on conditions of the above rules is seemingly a good one.

                  If the law conditioned 230 protections on any kind of “neutrality” towards speech, it would be able to effectively compel association between Twitter and assholes. You can’t avoid that wall no matter how much you want to go around it.

                  What I observed is that in this system produced semi-omnipotent winners like Facebook and Twitter, which is not the "lots of competition" situation.

                  The solution isn’t to make them all like 4chan and its ilk. I don’t know what the real solution is, other than interoperable protocols (e.g., Mastodon/the Fediverse).

                  does the mere existence of plenty of seemingly irrelevant and competitors mean the problem does not exist?

                  The problem exists. But there isn’t an easy solution — especially one that avoids violating the First Amendment at some point.

                  a good yardstick is whether a wide spectrum of the general public will still yell Freedom of Speech next time some large platforms coincidentally bans the same person

                  That they don’t understand the difference between First Amendment violations and privately owned businesses telling an asshole to fuck off is their problem. It shouldn’t be a problem foisted onto Twitter, Facebook, etc.

                  I have concerns about the size of, and the power held by, companies like Twitter, Amazon, Cloudflare, and so on. But I also have concerns about the government getting involved with telling those companies what speech they will and will not, can and cannot, must and must not host.

                  The First Amendment isn’t a one-way street. And until corporations have their constitutional rights stripped from them, they have as much right to choose what speech they will or won’t associate with as you do. So I have One Simple Question for you: Should companies like Twitter lose those rights and be forced into becoming another 4chan for the sake of “free speech”?

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

            • identicon
              Anonymous Coward, 12 Jan 2021 @ 9:42am

              Re: Re: Re: Re: How popular does a bar need to be before it can'

              If you precent platforms from moderating as they see fit, you end up curtailing the speech of the majority as a vocal minority turn every platform into 8kun. Also, if you build a platform, and it provides the sort of speech people want to hear, they will come to the platform. Parler was, and 8kun is, a minority platform because most people do not want to participate, or even listen to most of the conversation that go on there.

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

            • icon
              That One Guy (profile), 12 Jan 2021 @ 11:00am

              Re: Re: Re: Re: How popular does a bar need to be before it can'

              Neither. Once Trump or Parler has been convicted of a crime, they deserve no or less free speech. But when private companies can consipire to disenfranchise a bit of your freedom at their own will, it's all fine, until a sudden day it's lost entirely.

              Bloody hell this is a pernicious myth...

              Because apparently it needs to made clear yet again: You have no free speech rights on or to someone else's property. If a company tells you 'not on our property' you have not lost any of your 'free speech' or 'freedom' because you never had a right to use their property in the first place.

              Tell that to Trump (after 9 days) and Parler. If your only platform is your own website, you already lost most of your freedom, not much far from only allowed to yell from your home.

              See above. You cannot lose what you never had in the first place, and on top of that if you've only made use of one platform to speak from and you get the boot that's on you, and it's now your responsibility to find an alternative if you want to continue to be heard.

              No one has taken away your free speech. You can trade some or all for money. This is called incentive. The current problem with 230 is lack of incentive, so there is nothing we can complain no matter how good or bad they are doing.

              This? This gets me every time it comes up, with you just the latest to argue it. Right above you argued that being told 'not on my property' is a gross violation of free speech but here you apparently see nothing wrong with massively infringing on the free speech rights of platforms to protect the fictional free speech rights of users.

              'You will be punished if you exercise your free speech and property rights to decide what speech to allow on your property' is absolutely a harm against free speech, and one far worse than the 'harm' you're complaining about regarding people being moderated.

              You're back into the box. A broken constitution is something we can fix.

              You've got some seriously warped priorities if someone tells you that your suggestion is unconstitutional and your first response is 'change the constitution so it's not'. The first amendment preventing the government from interfering with speech outside of very narrow exceptions is not the problem, your desire to expand those exceptions significantly just because you don't like how others have used their first amendment rights is.

              I am not forcing them. I insists that platforms are given the same free speech rights, but some of them are incentivized to trade that up, just not the kind of trade as if 230 is repealed.

              I wasn't aware that if I chose to host a party I had to pay if I wanted to kick an abusive visitor out, you'd think that sort of penalty would be general knowledge if that's the sort of free speech rights everyone gets rather than just a penalty you would apply to online platforms.

              I didn't ask for all platforms to allow all speech. I asked for a system where naturally some platforms volunteered to allow all speech.

              No, you just wanted to punish them for not allowing all speech, but setting that aside you'll be glad to know that your desired outcome, where platforms allow (almost) all speech already exist, with no need to change the law at all, it's just most people don't use those platforms because they don't want to hang around on platforms where conspiracy theories, bigotry and abhorrent pictures and statements are regular occurrences.

              As I and others have said elsewhere if you like sites like 4chan then great, go there, stop trying to turn every other site into those places.

              You can argue we need to mandate social networks to adopt open standards, offer APIs, allow transfer of data, etc. but these are all areas that we have zero experience and can take a decade to polish even if a law is written today.

              Tough. You don't burn the current system to the ground just because a better alternative would take time and effort.

              But if this is not loss of Freedom of Speech, what is?

              For the most part the free market telling you 'not on our property'.

              Things can get trickier the closer you get to the base layers that everything else is built upon where one company's action can block you from a bunch of other stuff, but for higher up stuff like social media platforms where the alternatives exist the fact that switching may take some effort and might not provide you the same sized audience neither of those facts make losing out on them a reduction of your free speech, because as I noted above you have no free speech rights to or on someone else's property.

              It is a world where one person not convicted from any crime needs to build a mobile phone OS, a social network, and an ISP in order to speak online, because of hundreds of unelected private individuals independent decided so. This is the problem I have in mind.

              As I noted above free speech has never been shorthand for consequence-free speech, and barring some rampant bigotry or something similar if no-one around you wants to have anything to do with you that might be a bit of a clue that the problem is on your end.

              As for the hypothetical while that admittedly sucks for that person the 'solution' is not to take a wrong inflicted on one person and inflict it on many, telling all those 'unelected private individuals' that they are not allowed to choose who they will and will not associate with. There's a reason that even with anti-discrimination laws on the books businesses are still allowed to kick out customers for how they act, and it's because it's to the benefit of both the business and other customers that businesses are able to keep disruptive people out.

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

              • icon
                PaulT (profile), 12 Jan 2021 @ 10:42pm

                Re: Re: Re: Re: Re: How popular does a bar need to be before it

                "As I noted above free speech has never been shorthand for consequence-free speech"

                Apart from the idiocy of thinking that have the right to co-opt someone else's private property against their will if you find it more convenient, this seems to be the major issue. These people don't just want speech, they want to be exempted from any consequences of that speech, and for their actions. This is why when sane people are looking on and saying "well, that's what you get for acting the way you did", the cultists are crying foul just because they face some comeback for an attempt at violent insurrection that killed 5 people.

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

        • icon
          PaulT (profile), 11 Jan 2021 @ 11:43pm

          Re: Re: How popular does a bar need to be before it can't remove

          "If you still need to ask what the problem is: Freedom of Speech is not binary"

          It's also not only in one direction. The government compelling a site to host speech against their will is a bigger violation than a private platform owner kicking off people who are causing them problems.

          "You already know one: as a last resort, we can nationalize a company if we really cannot find a way to preserve online free speech without one"

          I love the fact that you people always revert to calling for outright communism when you don't get your way in the free market.

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

          • identicon
            Anonymous Coward, 12 Jan 2021 @ 4:45am

            Re: Re: Re: How popular does a bar need to be before it can't re

            I love the fact that you people always revert to calling for outright communism when you don't get your way in the free market.

            They call for outright fascism, where unlike communism/socialism, companies can remain in private ownership, its just that the government decides what services they offer, or goods that they produce, and at what price.

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

            • icon
              PaulT (profile), 12 Jan 2021 @ 5:56am

              Re: Re: Re: Re: How popular does a bar need to be before it can'

              It's hard to keep track, but the comment I was responding to did call for forced nationalisation, which implies the removal of private ownership. It's hard to keep track sometimes, since these guys don't seem to know the definitions of the words they use.

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


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