Utah Prematurely Tries To Dance On Section 230's Grave And Shows What Unconstitutional Garbage Will Follow If We Kill It

from the not-dead-yet dept

As Mike has explained, just about every provision of the social media moderation bill being proposed in the Utah legislature violates the First Amendment by conditioning platforms' editorial discretion over what appears on its services—discretion that the First Amendment protects—on meeting a bunch of extra requirements Utah has decided to impose. This post is about how everything Utah proposes is also barred by Section 230, and why it matters.

It may seem like a fool's errand to talk about how Section 230 prohibits state efforts to regulate Internet platforms while the statute currently finds itself on life support, with fading vital signs as legislators on both sides of the aisle keep taking aim at it. After all, if it goes away, then it won't matter how it blocks this sort of state legislation. But that it currently does preclude what we're seeing out of Utah it is why it would be bad if Section 230 went away and we lost it as a defense against this sort of speech-chilling, Internet-killing regulatory nonsense from state governments. To see why, let's talk about how and why Section 230 currently forbids what Utah is trying to do.

We often point out in our advocacy that Congress wanted to accomplish two things with Section 230: encourage the most good content online, and the least bad. We don't even need to speak to the law's authors to know that's what the law was intended to do; we can see that's what it was for with the preamble text in subsections (a) and (b), as well as the operative language of subsection (c) providing platforms protection for the steps they take to vindicate these goals, making it safe for them to leave content up as well as safe for them to take content down.

It all boils down to Congress basically saying to platforms, "When it comes to moderation, go ahead and do what you need to do; we've got you covered, because giving you the statutory protection to make these Constitutionally-protected choices is what will best lead to the Internet we want." The Utah bill, however, tries to directly mess with that arrangement. While Congress wanted to leave platforms free to do the best they could on the moderation front by making it legally possible, as a practical matter, for them to do it however they chose, Utah does not want platforms to have that freedom. It wants to force platforms to moderate the way Utah has decided they should moderate. None of what the Utah bill demands is incidental nor benign; even the requirements for transparency and notice impinge on platforms' ability to exercise editorial and associative discretion over what user expression they facilitate by imposing significant burdens on the exercise of that discretion. Doing so however runs headlong into the main substance of Section 230, which specifically sought to alleviate platforms of burdens that would affect their ability to moderate content.

It also contravenes the part of the statute that expressly prevented states from interfering with what Congress was trying to accomplish with this law. The pre-emption provision can be found at subsection (e)(3): "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Even where Utah's law does not literally countermand Section 230's statutory language, what Utah proposes to do is nevertheless entirely inconsistent with it. While Congress essentially said with Section 230, "You are free to moderate however you see fit," Utah is trying to say, "No, you're not; you have to do it our way, and we'll punish you if you don't." Utah's demand is incompatible with Congress's policy and thus, per this pre-emption provision, not Constitutionally enforceable on this basis either.

And for good reason. As a practical matter, both Congress and Utah can't speak on this issue and have it yield coherent policy that doesn't subordinate Congress's mission to get the best online ecosystem possible by letting platforms feel safe to do what they can to maximize the most good content and minimize the least bad. Every new threat of liability is a new pressure diverting platforms' efforts away from being good partners in meeting Congress's goal and instead towards doing only what is needed to avoid the trouble for themselves these new forms of liability threaten. There is no way to satisfy both regulators; Congress's plan to regulate platform moderation via carrots rather than sticks is inherently undermined once sticks start to be introduced. Which is part of the reason why Congress wrote in the pre-emption provision: to make sure that states couldn't introduce any.

Section 230's drafters knew that if states could impose their own policy choices on Internet platforms there would be no limit to what sort of obligations they might try to dream up. They also knew that if states could each try to regulate Internet platforms it would lead to messy, if not completely irreconcilable, conflicts among states. That resulting confusion would smother the Internet Congress was trying to foster with Section 230 by making it impossible for Internet platforms to lawfully exist. Because even if Utah were right, and its policy happened to be Constitutional and not a terrible idea, if any state were free to impose a good policy on content moderation it would still leave any other state free to impose a bad one. Such a situation is untenable for a technology service that inherently crosses state boundaries because it means that any service provider would somehow have to obey both the good state laws and also the bad ones at the same time, even when they might be in opposition. Just think about the impossibility of trying to simultaneously satisfy, in today's political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.

The only solution to the regulatory paralysis Congress rightly feared is what it originally devised: writing pre-emption into Section 230 to get the states out of the platform regulation business and leave it all instead to Congress. Thanks to that provision, the Internet should be safe from Utah's attack on platform moderation and any other such state proposals. But only so long as Section 230 remains in effect as-is. What Utah is trying to do should therefore stand as a warning to Congress to think very carefully before doing anything to reverse course and alter Section 230 in any way that would invite the policy gridlock it had the foresight to foreclose these twenty years ago with this prescient statute.

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Filed Under: 1st amendment, free speech, pre-emption, section 230, utah


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Scott Grate, 1 Mar 2021 @ 7:57pm

    You want hundreds of millions...

    ... subject to corporate control?

    A) Why don't Internet Service Providers (ISPs) have this "editorial discretion"?

    B) Wouldn't you howl like stepped-on puppies if they did have that "editorial discretion" and kicked off obvious pirates who are stealing copyrighted content?

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

    • icon
      PaulT (profile), 1 Mar 2021 @ 10:53pm

      Re: You want hundreds of millions...

      I know you're a hit and run trolling moron, but just in case anyone is fooled into thinking you have an honest question:

      "Why don't Internet Service Providers (ISPs) have this "editorial discretion"?"

      Because they do no editing work whatsoever, or at least don't where net neutrality is protected - something which is vital for the operation of the free internet. You might as well be asking why the inside of Wal Mart has different rules to the highway outside.

      "Wouldn't you howl like stepped-on puppies if they did have that "editorial discretion" and kicked off obvious pirates who are stealing copyrighted content?"

      Yes, because you base your accusations on lies and you don't have competition in your ISP space, whereas you mewling cowards have millions of other websites to choose from when you get yourself kicked out of communities that don't want you. Quite apart from the fundamental differences between a utility and a service that you always have to ignore to spew random bullshit, the scope of these issues is totally different, and that's even if you're telling the truth about who is pirating (which you always have to lie about).

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

    • icon
      Uriel-238 (profile), 5 Mar 2021 @ 1:18pm

      If it weren't for those thieving pirates

      There are few ethical considerations when robbing from rent seekers who are, themselves a massive drain on the rest of the economy. We might as well be preying on the Spanish silver train.🏴‍☠️

      But eliminating 230 (or preserving it) is going to do little to stop internet distribution of media, if that's what you're afraid of. The efforts so far to paint the sharing community in a bad light have driven it to develop its own infrastructure and make sure it's good and concealed. You can lock down the internet all you want, and by the time you stop the sharers, you will have driven all the cat enthusiasts, porn enthusiasts and social media addicts to violent revolution.

      Maybe when big media starts learning to make content worth paying for, those of us who have money to toss its way will do so. But for now, they're still trying to rob morons who don't know any better while not paying their artists or techs.

      Maybe we should blast you out of the water so as to encourage the others.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Scott Grate, 1 Mar 2021 @ 7:57pm

    You want hundreds of millions subject to corporate control?

    C) The big question: WHY are hundreds of millions of "natural persons" subject to mere legal fictions called corporations? Wouldn't it make sense to regulate corporations so that they too act like common carriers and don't arbitrarily discriminate against viewpoints?

    D) Bearing in mind that corporations asked The Public for permission to exist in the first place and agreed to be subect to the whole panoply of corporate law, HOW are they now elevated over The Public? -- There's NO statute doing! It's merely court decisions that need changed by our legislative reps.

    E) Exactly how far do you imagine that the "rights" of corporation extend in this area? Until the half dozen biggest completely control speech?

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

    • icon
      ECA (profile), 2 Mar 2021 @ 3:26pm

      Re: You want hundreds of millions subject to corporate control?

      WELL,
      Why not ask your state and fed Gov. YOU ELECTED THOSE that make the laws that the corps Must follow.
      And if you fire 1 you have to replace them. ANd the corps start filling the pockets MORE.
      Why complain here?
      Its not going to help alot.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Scott Grate, 1 Mar 2021 @ 7:58pm

    You want hundreds of millions subject to corporate control? - 3

    F) Already here at Techdirt, Masnick has knucked under to AdSense, had to put word out to his fanboys not to use "dangerous and derogatory" words. -- You no longer have "free speech" right here! And yet you're not alarmed by corporate power?

    G) Don't all the above directly diminish exercise of First Amendment for every "natural person"? Are you that rabid of corporatists?

    H) Trouble getting in! Several attempts as the bad old days? -- Doesn't Techdirt want discussion? Or is there to be only one opinion for all, just like in the book "1984"?

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

    • icon
      Stephen T. Stone (profile), 1 Mar 2021 @ 8:10pm

      Shut up, Wallace.

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

    • icon
      Mike Masnick (profile), 1 Mar 2021 @ 9:41pm

      Re: You want hundreds of millions subject to corporate control?

      Already here at Techdirt, Masnick has knucked under to AdSense, had to put word out to his fanboys not to use "dangerous and derogatory" words.

      Beyond all your other nonsense, I'll just point out that this never happened. I have not told anyone to change their commenting habits or word choices to appease any advertiser.

      I may have asked people like you to stop being fools, but that's different, and for the general good, not for any advertiser. If advertisers want to pull their ads, let 'em.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Cary Atid, columnist, 2 Mar 2021 @ 9:40am

        Re: Re: You want hundreds of millions subject to corporate contr

        I may have asked people like you to stop being fools, but that's different, and for the general good, not for any advertiser. If advertisers want to pull their ads, let 'em.

        Heh, heh. STINGS when I'm right, doesn't it? -- Again, ten years and more ago I told you better clean up the site or it'd inevitably diminish. You didn't, and it did. No one reasonable wants to read this cesspit of un-civil discussion.

        When AdSense pulled ads here, I was not even commenting on the site. Indeed, few dissent, because it's futile, just get endless ad hom attacks.

        No, Maz, you're lying as usual. It's your fanboys who were / are the problem, and who have visibly changed.

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

        • icon
          Toom1275 (profile), 2 Mar 2021 @ 11:16am

          Re: Re: Re: You want hundreds of millions subject to corporate c

          Heh, heh. STINGS when I'm right, doesn't it?

          Sure does.
          Which is why you've never been more than an annoying tickle.

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

        • icon
          Stephen T. Stone (profile), 2 Mar 2021 @ 1:12pm

          No one reasonable wants to read this cesspit of un-civil discussion.

          This is more of a self-own than you probably realize, fam.

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

        • icon
          bhull242 (profile), 7 Mar 2021 @ 4:23pm

          Re: Re: Re: You want hundreds of millions subject to corporate c

          Heh, heh. STINGS when I'm right, doesn't it?

          It doesn’t matter if it does because you’re wrong. The quote you pulled shows that you’re wrong.

          Again, ten years and more ago I told you better clean up the site or it'd inevitably diminish. You didn't, and it did.

          [citation needed]

          No one reasonable wants to read this cesspit of un-civil discussion.

          As Stephen pointed out, that’s because of people like you.

          When AdSense pulled ads here, I was not even commenting on the site.

          Given the fact that 1) you admitted that you have been commenting here for over ten years and 2) the AdSense thing happened less than ten years ago, this is clearly false.

          Indeed, few dissent, because it's futile, just get endless ad hom attacks.

          Actually, there have been a number of dissenters, including you. And they don’t “just get endless ad hom attacks”.

          No, Maz, you're lying as usual. It's your fanboys who were / are the problem, and who have visibly changed.

          I haven’t been on this site as long as you have, but I haven’t seen a significant difference in the discussions on this site between old and new articles, except that possibly there’s more of it and the writers at Techdirt write fewer comments. There has been no real change among any of the commenters, “fanboys” or otherwise.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Cary Atid, columnist, 2 Mar 2021 @ 9:44am

        Re: Re: You want hundreds of millions subject to corporate contr

        Oh, and by the way: you (and I mean YOU, "the community" doing it is an other lie) CENSOR my on-topic civil comments, but NEVER those of fanboys, and then claim I'm the problem!

        Enjoy your shrinking cesspit, Maz. You can't even increase it with astro-turfing. -- That's another win for me: by exposing those unbelievable ZOMBIE accounts with gaps up to TWELVE years, I've nearly stopped that.

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

        • icon
          Stephen T. Stone (profile), 2 Mar 2021 @ 1:13pm

          Your possibly sexual obsession with Techdirt in general and Mike Masnick in particular is…unsettling. Please seek help for your obvious mental health issues.

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

        • icon
          bhull242 (profile), 7 Mar 2021 @ 4:27pm

          Re: Re: Re: You want hundreds of millions subject to corporate c

          Oh, and by the way: you (and I mean YOU, "the community" doing it is an other lie) CENSOR my on-topic civil comments

          Nope. First, prove that Masnick is lying about the community doing the moderation. Second, only commercial spam gets removed; your comments have just been hidden. Even by the loosest reasonable definition of “censorship”, that isn’t censorship. Third, your comments that have been hidden were flagged for good reason.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Cary Atid, columnist, 2 Mar 2021 @ 9:54am

        Re: Re: You want hundreds of millions subject to corporate contr

        And another thing, Maz: until I commented, were NO comments on this DULL topic. You should welcome dissent just for that. -- But of course you can't -- and don't -- actually answer any point I make above, just go to snide little ad hominem, that's your true level of competence, and you don't even have sense enough to NOT do it and look foolish!

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

    • icon
      PaulT (profile), 1 Mar 2021 @ 10:55pm

      Re: You want hundreds of millions subject to corporate control?

      "Trouble getting in!"

      Let me guess - your spamming was correctly identified as spamming again? If only there was something you could do in order to not be correctly identified as a trolling spammer...

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Cary Atid, columnist, 2 Mar 2021 @ 9:51am

        Re: Re: You want hundreds of millions subject to corporate contr

        Let me guess - your spamming was correctly identified as spamming again? If only there was something you could do in order to not be correctly identified as a trolling spammer...

        You guess wrong as usual, just blather.

        No, looked like the site was locked down. But ALL the original text went in without changes after repeated tries.

        So the "filters" are unreliable, clearly it's not the text as such.

        Since Techdirt won't divulge any more hints of how this mystery works, YOU cannot say. I only report. One wonders how many dissent comments go into the bit bucket, while those acceptable are let through. I never bother with waiting for the alleged moderation, mine NEVER come out. -- And that on a site which, I guess last week, was railing about India requiring up-front "editing and curating". Techdirt actually DOES it.

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

        • icon
          Stephen T. Stone (profile), 2 Mar 2021 @ 1:09pm

          No, looked like the site was locked down. But ALL the original text went in without changes after repeated tries.

          I’ve had posts held up by the spamfilter before. I didn’t try to repeat the same post over and over in an attempt to brute force consent from the spamfilter. What does it say about you that you’ve openly admitted (multiple times!) to repeatedly spamming until the spamfilter gives up and consents to letting you in?

          And yes, the consent talk is intentional. You seem like someone who has those kinds of issues in meatspace.

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

          • identicon
            Anonymous Coward, 2 Mar 2021 @ 3:08pm

            Re:

            And yes, the consent talk is intentional. You seem like someone who has those kinds of issues in meatspace.

            Not taking no for an answer is sometimes an indicator of being a sociopath...

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

          • icon
            PaulT (profile), 2 Mar 2021 @ 11:24pm

            Re:

            "attempt to brute force consent from the spamfilter"

            ...behaviour which is flagged as obvious spamming, since that's one of the definitions of spamming.

            Not the brightest bulb.

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

        • icon
          PaulT (profile), 2 Mar 2021 @ 11:20pm

          Re: Re: Re: You want hundreds of millions subject to corporate c

          "No, looked like the site was locked down"

          So, yes, you were correctly blocked for spamming.

          "So the "filters" are unreliable, clearly it's not the text as such."

          No, the text is not the only things that gets involved with flagging. This is obvious.

          10 years, and you're still pretending that you're a genius for understanding basic functions of the site.

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

        • icon
          bhull242 (profile), 7 Mar 2021 @ 4:30pm

          Re: Re: Re: You want hundreds of millions subject to corporate c

          Have you ever considered, you know, waiting for your comments to get through rather than trying over and over.

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

    • icon
      ECA (profile), 2 Mar 2021 @ 3:28pm

      Re: You want hundreds of millions subject to corporate control?

      Well,
      I dont see you giving money to keep the site up.
      So they need some cash, in 1 way of another.
      So you get to pay for your words.

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

    • icon
      Gwiz (profile), 3 Mar 2021 @ 5:32am

      Re:

      ...not to use "dangerous and derogatory" words. -- You no longer have "free speech" right here!

      What the fuck are you talking about?

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

  • icon
    Toom1275 (profile), 1 Mar 2021 @ 9:06pm

    None of what the Utah bill demands is incidental nor benign; even the requirements for transparency and notice impinge on platforms' ability to exercise editorial and associative discretion over what user expression they facilitate by imposing significant burdens on the exercise of that discretion.

    Much in the way the Trump administration changing environmental studies to have to release confinential health information to use it in studies, under the similar lie that's it's only for "transparency."

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

  • identicon
    Anonymous Coward, 2 Mar 2021 @ 5:42am

    Section 230 means websites big and small can exist and host user content and opinions, without getting attacked with random lawsuits ,
    it basically says if you wish to sue sue the person who made a statement, not the website or the social media service.
    AS we have seen with patent trolls you can be doing everything right and still
    be destroyed by high legal fees .
    it would break the web if all websites had to follow contradictory laws
    on moderation from texas ,new york or california .
    thats why many websites block ips from russia or the eu ,
    many websites do not wish to deal with gdpr rules when their main audience
    is america.
    section 230 says you have the right to provide a platform free speech and you do not
    have to deal with pointless lawsuits to prove it.
    blm or me too probably would not exist without the shield of section 230.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Cary Atid, columnist, 2 Mar 2021 @ 9:59am

      Re: Lawsuits are dealt with elsewhere, and are NOT "random"!

      Section 230 means websites big and small can exist and host user content and opinions, without getting attacked with random lawsuits

      Rubbish. "random" lawsuits would properly be punished.

      Section 230 allows corporations to escape lawsuits for what they DO NOT publish.

      The controversy is over mere hosts acting as Publishers but IMMUNE for it. Those protections -- which are NEW, have never been there for paper Publishers -- should be removed.

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

      • icon
        Stephen T. Stone (profile), 2 Mar 2021 @ 12:58pm

        Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy’s causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy’s suit is barred by the broad immunity conferred by the CDA.

        – from the ruling in Meghan Murphy v. Twitter, Inc. by the California Court of Appeal for the First District (Source, relevant Techdirt link)

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

      • identicon
        Anonymous Coward, 2 Mar 2021 @ 1:32pm

        Re: Re: Lawsuits are dealt with elsewhere, and are NOT "random"!

        have never been there for paper Publishers

        A paper publisher is aware of everything that goes into the paper before it's printed. An internet platform with UGC isn't.

        They aren't even close to similar situations, so why would they be governed by identical rules?

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

        • icon
          That One Guy (profile), 2 Mar 2021 @ 7:32pm

          That's crazy talk that is, everyone knows you apply the same rules for things in the same category, that's why cars, boats and planes have to follow the same rules after all.

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

  • identicon
    Glenn, 2 Mar 2021 @ 6:54am

    The politicians frame all of this as controlling (aka assaulting) "Big Tech." There is no "Big Tech." There's just tech. If a Google or a Facebook is "big," then it's because We The People make them big. We aren't forced to use any of these services, which for the most part are free to use (which is why we use them). So, in fact, this is really an assault on us, the people who use tech. Politicians want to control the USERS of [big] tech (that's us). Tech isn't the problem. We are. But, we're our own problem, and we don't need govt. legislation to do anything. If we choose to use--or misuse--tech, then--well--it's our choice either way.

    What we the people need to do is elect legislators and officials who'll represent our interests instead of their own, who'll stop lying to us for their own benefit, and who'll stop trying to take away our rights. So, again, we're the problem... and the solution.

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

    • identicon
      Anonymous Coward, 2 Mar 2021 @ 6:06pm

      Re:

      Problem is, very few people like that even run for office at all. It takes a certain kind of mind to want power over people, and it's not typically a good one.

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

  • identicon
    Anonymous Coward, 2 Mar 2021 @ 10:59am

    Has anyone else noticed how much state congress resembles the blockchain?

    They're constantly trying to mine new laws, at great expense, purely to increase value for the representatives linked to the bills. And often you get outsiders attempting to mine new laws under the representatives' names to increase their own personal riches at the expense of congress and the public.

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

  • icon
    ECA (profile), 2 Mar 2021 @ 3:37pm

    And still opinion

    I wont pine on.(joke included)

    But lets ASK the state of Utah to come over with 1000 editors, and DO THE JOB.
    Paid by the state.
    ANd Since you are an independent contractor, YOU are liable for your edits.
    So if ANYONE around the world has a complaint...YOU answer it, YOU goto court

    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, 3 Mar 2021 @ 3:52am

    Progressive real-time implementation

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

  • identicon
    YOUR FATHER, 7 Mar 2021 @ 2:05am

    Stupido gueros

    If you think anyone is going to regulate themselves like the writer propagates you are myopic, ignorant and incredibly naive. This self regulation has never happened. Nor will it. Not until humans start acting with the intention of the responsible human being, which their time may have already come and went. Keep supporting policies that change the fundamental "values" this "freedom" giving inverted totalitarian gangster CUNTry convinces, CONVINCES, you to support. With their rhetoric and fascist ideology consistent of all aristocrat/kleptocrat class subhumans, and you'll see your folly if they let you slave for them

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

  • identicon
    Anonymous Coward, 24 Mar 2021 @ 2:03pm

    Just vetoed!

    The governor just vetoed it. Unfortunately the sponsor has said he'll try to file a new variation in May.

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


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