New Jersey State Legislators Think They Can Get Trump Back On Facebook By Passing A Stupid Social Media Moderation Bill

from the keep-in-mind-the-only-legacy-you-can-really-shit-on-is-your-own dept

Facebook recently announced its decision to keep Donald Trump banned -- a decision supported by its new oversight board. That decision -- just like the original ban -- made certain people very angry and very sure a platform's decision to ban someone infringes on the First Amendment.

One of those deciding they should be the ones violating the First Amendment is New Jersey state senator Michael Testa. Announcing his ignorance on multiple platforms, Testa and a couple of like-minded state legislators declared they were finally going to do something about all of this not-actually-censorship.

Following the announcement that Facebook will uphold their ban of former President Donald Trump, Senator Michael Testa, Assemblymen Erik Simonsen and Antwan McClellan (All R-1) are introducing legislation that places penalties against social media platforms for the censorship and banning of conservative political and journalist voices.

“The muzzling of freedom of speech by social media sites, such as Facebook and Twitter, have shown that prominent conservative voices are not welcomed on the world’s leading social media platforms,” Senator Testa stated. “Today’s announcement of Facebook’s six month extension of their ban on former President Donald Trump exposes that social media has and always will control the narrative that they see fit – unless leaders take action.

It goes on for a bit more in that same vein, calling for New Jersey centric efforts to prevent the "silencing" of former presidents named Donald Trump and anyone else "King Zuckerberg does not agree with." You know, the usual idiocy that comes from people who are at their most ineffective when they're angry about stuff they don't actually understand.

There's also whatever this is:

“This is not a Republican issue nor a Democrat issue, this is an issue of protecting everyone’s First Amendment right of freedom of speech,” Assemblyman McClellan said. “No individual or corporation should have complete power to silence those who share opposing viewpoints. Our nation was built on the foundation that all Americans, regardless of race, religion, or political opinion should have the ability to freely voice their ideals and beliefs.”

Yeah, but it's mainly a Republican issue, if we're being more honest than these three New Jersey lawmakers. And making social media companies do moderation stuff with government mandates backed by the threat of fines, fees, and other punishments is the exact opposite of "protecting everyone's First Amendment rights."

The bill [PDF] has arrived and it's as ridiculous as you'd think. The new law would make social media companies engage in a whole lot more moderation related BS under the apparent theory that burying them in compliance paperwork will make them less likely to boot the Trumps of the internet off their services.

It shall be an unlawful practice and violation of the New 32 Jersey consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.), if a social media website fails to comply with the requirements set forth in this section.

A social media website shall:

a. publish the standards, including detailed definitions, it uses or has used for determining how to censor, selectively suspend, or implement anonymous content or user ban;

b. apply censorship, selectively suspend, and anonymous content or user banning standards in a consistent manner among its users on the platform;

c. notify users about any changes to user rules, terms, and agreements prior to implementing such changes;

d. not censor a user's content or material or selectively suspend a user from the social media website without providing notification to the user who posted or attempted to post the content or material, or in a way that violates State deceptive and unfair trade practices;

e. provide a mechanism for users to request the number of other users who were actually provided or shown the requesting user’s content or posts and provide users with the number of other users who were actually provided or shown that content or posts upon request;

f. categorize algorithms used for post prioritization and anonymous content or user banning and allow users to opt-out of post prioritization and anonymous content or user banning algorithm categories to allow sequential or chronological posts and content;

g. provide users with an annual notice on the use of algorithms used for post prioritization and anonymous content or user banning and reoffer annually the opt-out opportunity provided in subsection f. of this section…

In digital triplicate, one imagines. This is a long list of nuisances that will only help ensure the dominant players in the social media marketplace remain dominant. It doesn't go so far as to compel speech by forcing platforms to retain users they'd rather eject, but it does make it a challenge to comply with the law. And that's the intent, to be sure. You can tell that by all the times the legislators use the word "censor" rather than the word "moderate."

And it doesn't do anything to address the issue it claims to be addressing: namely, the banning of Trump by Facebook. If anything, Facebook's first ban and the oversight board's decision to extend the ban comply with most of these directives in terms of notifications and explanations for the moderation action.

Did I say there was no compelled speech -- one of the big no-nos of First Amendment compliance? That's only because we haven't gotten to that yet. There will be plenty of compelled speech, but only for those most deserving of uninterrupted service from social media platforms: politicians.

h. not apply or use post prioritization or anonymous content or user banning algorithms for content and material posted by or about a user who is known by the social media website to be a candidate for office from the date of qualification through the date of the election or the date the candidate ceases to be a candidate before the date of election...

There it is. It's another quasi-Fairness Doctrine -- one based on the faulty assumption that social media services go out of their way to bury posts from politicians "they" don't agree with. First off, most platforms allow users to sort their posts chronologically and/or make their own moderation decisions about the content they want to see. (See stipulation f. above.) But this attempt to address something that really isn't a problem for anyone who isn't suffering from a persecution complex allows the state to collect up to $100,000 per instance of "unfair" post sorting until platforms satisfactorily explain their algorithms and/or user preference settings to lawmakers who seem entirely uninterested in listening to them.

Finally, there's this word salad that, if you squint at it conspiratorially enough, might be a response to Twitter and Facebook banning links to the New York Post's bizarre "smoking gun" article about Hunter Biden's laptops.

not knowingly take any action to censor, selectively suspend, or anonymous content or user ban a journalistic enterprise based on the content of its publication or broadcast.

If you're curious as to wtf "anonymous content or user ban" means in the numerous places it's used in this bill, it refers to any act of banning that is "not readily apparent to a user." So, shadow-banning and things like that, although it's not clear why these reps felt compelled to make up a new term for it.

So, it's a bunch of different forms of compelled speech masquerading as a concerned-about-consumers bill. It invokes the state's consumer fraud act meaninglessly, equating actual fraud with moderation efforts by private companies -- companies that are free to choose who they do business with without committing a single act of fraud.

And if this does become a law, how would these legislators like social media companies to respond? By gathering even more identifying info to make sure New Jersey residents get all the additional notifications and faux protections the law puts in place? Or maybe suspected Jersey locals will just get a splash page notifying them they're no longer able to use these services because platforms are unable to comply with the ridiculous demands of grandstanding Trump loyalists. Whatever the outcome, it won't do what these legislators want it to do. It will only make these services less likely to welcome new users and more likely to ban content and the third parties creating it.

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Filed Under: 1st amendment, compelled speech, content moderation, donald trump, michael testa, new jersey, section 230, social media
Companies: facebook


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  • icon
    neost (profile), 17 May 2021 @ 10:12am

    ban em all

    When do we get to the point social media just bans politicians from their platform because it is easier than moderating their content?

    Let 'em pay for TV commercials.

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

    • icon
      fairuse (profile), 17 May 2021 @ 10:56am

      Re: ban em all

      My take is not allow politicians, Elected Officials on platforms. Was fun before they figured it out - free campaign shouts 24hrs a day.

      The old forums that had some noisy days were not message machines anyone could piss on - mod says bye and the planet could care less.

      Twitter you took microblog code (fun stuff for custom communities) and gave the least humble people access - politicians.

      Nice.

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

    • icon
      fairuse (profile), 17 May 2021 @ 10:56am

      Re: ban em all

      My take is not allow politicians, Elected Officials on platforms. Was fun before they figured it out - free campaign shouts 24hrs a day.

      The old forums that had some noisy days were not message machines anyone could piss on - mod says bye and the planet could care less.

      Twitter you took microblog code (fun stuff for custom communities) and gave the least humble people access - politicians.

      Nice.

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

  • icon
    Stephen T. Stone (profile), 17 May 2021 @ 10:52am

    Whatever the outcome, it won't do what these legislators want it to do.

    To be fair, that would only happen if the law could survive a First Amendment challenge, which seems unlikely. I can’t see the same court that said “[a] private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor” fucking around with the idea of compelling speech from private entities.

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

  • icon
    Blake C. Stacey (profile), 17 May 2021 @ 10:54am

    Research idea for machine learning: train a program to recognize which party a bad Internet-regulation proposal came from based on its announcement. I bet you could get pretty good results just by keyword-matching.

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

  • identicon
    Baron von Robber, 17 May 2021 @ 10:56am

    Alternate Headline:
    New Jersey State Legislators Think They Can Get Trump Back On Facebook By Ignoring They are In The US That Has A 1st Amendment.

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

  • identicon
    Anonymous Coward, 17 May 2021 @ 11:05am

    'The muzzling of freedom of speech by social media sites, such as Facebook and Twitter'
    how strange when the trend atm is to remove the first amendments rights from the likes of facebook and Twitter! funny how the law can be swapped about to suit the cause these moronic fucking State Legislators and others (read politicians, law makers, security services) need support from at the time!

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

  • icon
    Rico R. (profile), 17 May 2021 @ 11:12am

    Republicans got it wrong, AGAIN!

    the faulty assumption that social media services go out of their way to bury posts from politicians "they" don't agree with

    As someone who voted for Biden (can't say I like his copyright maximalist stance, nor did I support him in the primaries), how come I was bombarded with Trump ads on social media and only saw a handful of Biden ads? Either the AI in the algorithm can't tell that I'm politically liberal, anti-Trump, both, etc., or conservatives are dead wrong about social media companies wanting to control the narrative against them. Granted, this was (obviously) before January 6th, but still...

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

    • identicon
      christenson, 17 May 2021 @ 11:29am

      Re: Republicans got it wrong, AGAIN!

      Dear Liberal:
      you probably looked at a few Breitbart or similar articles or maybe visited Trump's facebook page, or maybe followed it on Twitter.

      Unfortunately, there was no context for the AI to discern that you reacted to those pages the same way you would upon finding vomit on the floor in the bathroom. "Interested in" is not the same as "likes" or "supports".

      This is corollary of Masnick's impossibility theorem.

      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), 17 May 2021 @ 11:12am

    Short List

    In digital triplicate, one imagines. This is a long list of nuisances that will only help ensure the dominant players in the social media marketplace remain dominant.

    It will probably be a minor issue IF a site were to limit its moderation to the original purposes of section 230: stopping obscenity and commercial spam. Corporations which expand beyond this will receive a headache, especially if they have contorted rules that engage in political favoritism. The rest of the public has to jump thru hoops to figure out how to reinstate their account if they receive some bogus DCMA takedown notice. Let's give the the social media giants a little taste in return.

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

    • identicon
      Anonymous Coward, 17 May 2021 @ 11:19am

      Re: Short List

      I ask again, as you did not answer me before, are the klan purveyors of hate speech. A yes or no answer is acceptable.

      Also are you saying, regardless of the topic covered by a site they must accept posts when they are off topic, and especially if they can be labelled political?

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

    • icon
      AC Unknown (profile), 17 May 2021 @ 11:42am

      Re: Short List

      Idiot says what?

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

    • icon
      Toom1275 (profile), 17 May 2021 @ 11:50am

      Re: Short List

      stopping obscenity

      Your constant deliberate lying is obscene.

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

    • identicon
      Anonymous Coward, 17 May 2021 @ 12:06pm

      Re: Short List

      Koby,

      First off allow me to thank you for not drooling on the floor, and for having a coherent (if very wrong) argument.

      However, the text of CDA 230 (https://www.law.cornell.edu/uscode/text/47/230) has no such restrictions on the service provide for C-1, and C-2A says "or otherwise objectionable, whether or not such material is constitutionally protected". So they are free to moderate (on their private property) basically however they feel like. Because it will always fall under "or otherwise objectionable" even if it doesn't fall under any other catagory.

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

    • identicon
      Anonymous Coward, 17 May 2021 @ 12:25pm

      Re: Short List

      The rest of the public has to jump thru hoops to figure out how to reinstate their account if they receive some bogus DCMA takedown notice. Let's give the the social media giants a little taste in return.

      Social media companies aren't sending notices on their behalf, you ignorant assclown. The artists are the ones demanding they be sent. Why don't you give them a taste instead? And while you're at it, quit bitching about being voted off the island - the problem isn't being conservative - it's just you guys are constantly complaining assholes no one wants to associate with.

      Pull yourselves up by your bootstraps and fuck off over to frankspeech. I hear it's launching again with some sooper-dooper bigly features.

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

    • icon
      Stephen T. Stone (profile), 17 May 2021 @ 1:56pm

      Don’t be intentionally ignorant, Koby. We know the original purpose of Section 230 — after all, we can gather such intent if we read 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.

      As for your “fight fire with fire” thinking: Revenge is a confession of pain; inflicting your pain on others creates only more misery and pain. A sensible, meaningful, and less spiteful approach would seek to change the notice-and-takedown system of the DMCA (preferably to notice-and-notice), enact stiffer penalties for filing false DMCA claims, and leave the already-working Section 230 alone.

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

  • identicon
    Anonymous Coward, 17 May 2021 @ 11:14am

    not knowingly take any action to censor, selectively suspend, or anonymous content or user ban a journalistic enterprise based on the content of its publication or broadcast.

    If they pass that law, somebody should start a newspaper detailing everything that they can find out about politicians, and use it to keep the contents and links up.

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

  • icon
    Flakbait (profile), 17 May 2021 @ 11:16am

    Ultimate content moderation

    The ultimate content moderation, IMO, would be to just ban anyone who is an elected or appointed government official for the duration of their public service.

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

  • identicon
    Anonymous Coward, 17 May 2021 @ 11:20am

    only ones winning are the lawyer$

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

  • icon
    Toom1275 (profile), 17 May 2021 @ 11:49am

    A social media website shall:

    b. apply censorship, selectively suspend, and anonymous content or user banning standards in a consistent manner among its users on the platform;

    Well, since no website has ever, or could ever, censor anyone or anything, this is certainly easy to comply with.

    d. not censor a user's content or material or selectively suspend a user from the social media website without providing notification to the user who posted or attempted to post the content or material, or in a way that violates State deceptive and unfair trade practices;

    see analysis of b.

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

  • icon
    ECA (profile), 17 May 2021 @ 11:55am

    "built on the foundation that all Americans, regardless of race, religion, or political opinion should have the ability to freely voice their ideals and beliefs.”

    Who believes this? At the time, only Land owners could Vote. and only White, non-jewish generally had land.

    Lets ask FB, to do something.
    Let him back on with an understanding.

    1. He can not broadcast. He can only chat in his own channel.
    2. Anyone, even anon, can POST in his channel.
    3. He can not restrict anyone from posting in his channel.
    4. he can not delegate or change or create Multiple channels to separate into more then 1 group chat.
    5. NOTHING can or will be EDITED/Changed/DELETED
      6, anyone can join/quit or Comment as Anon.
    6. HE is responsible for all illegal posts, from himself and those posting. With the understanding that without abit of moderation, That THIS is how the internet can be.

    A test to teach them something about the internet of things.
    This could be good.

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

  • identicon
    David, 17 May 2021 @ 12:04pm

    Doh.

    “The muzzling of freedom of speech by social media sites, such as Facebook and Twitter, have shown that prominent conservative voices are not welcomed on the world’s leading social media platforms,” Senator Testa stated.

    Well, and prominent royal tea was not welcomed in Boston harbour. And to stop it being festered upon unwilling recipients was the reason for the U.S. revolution and foundation of a republic with a constitution.

    And when "conservative" is used (to any linguist's chagrin) equivalent in meaning to "royalist", namely valueing nothing but bootlicking of authority figures, there is little surprise that free press does not see much value in proliferating such garbage and that neither does the Constitution.

    "Freedom of the press" involves the freedom of saying "no, thanks".

    Breitbart cannot be compelled to spread the truth, Facebook cannot be compelled to spread lies. Even though the latter's track record is a lot more mottled than the former's.

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

  • identicon
    Pixelation, 17 May 2021 @ 12:20pm

    Re-instate Trump and rename it Facebutt.

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

  • identicon
    Anonymous Coward, 17 May 2021 @ 12:25pm

    I rode through the platform on an ban with no name, a fictive thing that makes some folks insane

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

  • icon
    That One Guy (profile), 17 May 2021 @ 12:36pm

    'It's because you're assholes, here's some examples...'

    It sure is a good thing that republicans never try to shut people down and/or silence them for saying stuff that they don't like, that would make their 'people and companies shouldn't be allowed to silence people' argument look really hypocritical and expose it as 'people and companies shouldn't be allowed to not host our speech, we should be able to continue to silence who we want.'

    You gotta love how they whine about how persecuted 'conservatives' are and how social media has it out for 'conservatives'(you also have to wonder if Facebook will ever figure out that pandering to these liars isn't working), only to then turn around and try to spin it as 'not a democrat and republican problem'. No, the 'problem' is primarily on your side you hypocritical liars, and I'll let you figure out why.

    Social media companies really need to take the gloves off and start returning the favor to politicians, demanding that if politicians are going to claim that their buddies are being 'persecuted' for perfectly acceptable speech that they provide examples of that speech or the companies will. They want to claim that they're being treated unfairly then they should be forced to own their positions and what exactly they're defending, and any time they try to wiggle out of doing so that should be noted and their feet held to the fire.

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

    • icon
      ECA (profile), 17 May 2021 @ 2:26pm

      Re: 'It's because you're assholes, here's some examples...'

      Iv said before, its not WHAT they are saying its HOW they say it.
      And then they arent willing to have it Fact checked by anyone.

      Then ask them Where they heard this BS, and they cant tell you.
      Its from Fox, its from that guy, HE told me so. I saw it in my own life? Then Prove it.

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

  • identicon
    Anonymous Coward, 17 May 2021 @ 12:36pm

    Censorship

    So... since it's really only the government that censors does that mean that this is really and truly a feel-good bill with absolutely zero impact?

    If this were some layman trying to tout a fix, I'd assume that they really meant "moderate"... but since these are educated politicians, we all know that they are careful and precise with their words, so... um yeah.

    And of course, with all the focus on "freedom of speech" I'm sure they are saying this again and again so they can come back and remind folks that private entities are free to tell folks to get the hell of of their lawn! (as long as it's not one of those illegal ways filled with racism/discrimination)

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

  • icon
    DocGerbil100 (profile), 17 May 2021 @ 5:13pm

    not knowingly take any action to censor, selectively suspend, or anonymous content or user ban a journalistic enterprise based on the content of its publication or broadcast.

    There are times when I am inclined to attempt to write posts that are intelligent and thoughtful.
    At other times, all I can say is "that's just fucking gibberish." So it is here.

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

    • icon
      That One Guy (profile), 17 May 2021 @ 6:24pm

      Re:

      Gibberish would be worse, what that seems to say is that you're not allowed to impose consequences for what someone says, so if a 'journalistic enterprise' started posting for example anti-vax and/or racists content the platform they were posting to wouldn't be allowed to show them the door in return.

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

  • icon
    That Anonymous Coward (profile), 17 May 2021 @ 5:36pm

    From the state that gave us 'Jersey Shore', more stupid dreck designed to get ratings not do anything useful.

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

  • icon
    sumgai (profile), 17 May 2021 @ 6:25pm

    Against the grain, again....

    Yeah, I'm gonna go that way.

    I'm 99% certain that a majority of you have seen the loopholes provided, but you're taking the easy way out. Let me elucidate:

    Facebook (and no, not Facebutt, but perhaps Buttbook, per the suggestion above) and the rest should simply go ahead and implement policies to comply with this (1A-hating) law. Why? Because they have an easy get-out-of-crap-like-this-free card. All they need to do is write a few words to the effect of:


    Policy: If we don't like you, you're out of here.

    Policy: If you post something that we don't like, you're out of here - even if we used to like you.

    Policy: Our algorithms are ours alone, and they are Federally protected trade secrets. At no time will they be released to anyone for review, regardless of a requester's personal status.

    Policy: We may, from time to time as we see fit, release to the public at large certain data regarding the removal of users from our private holdings. Such data will be anonymized where appropriate.

    Policy: As a user of our service, you are automatically subject to all of our stated policies. If you wish to opt out of any of these Policies, you know where the door is.

    Please see our Policies web page for further details. Additionally, we won't push any updates to you, you need to go there and read them, if you're curious. And finally, there are NO special categories, classes, groups or any other manner of segregation of users. This is a one-size-fits-all Policy Statement.


    Any additions or other suggestions? Remember, the more "lawyerly", the wording, the greater the chance for creating a loophole - just like those NJ bozos did. In my estimation, simpler is better. IOW, if the average sixth-grader can understand it, then there should be no problems.

    Oh, wait... I momentarily forgot - politicians of the NJ stripe have yet to reach either the comprehension or maturity level of an average sixth-grader. My bad, please forgive me.

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

  • identicon
    Anonymous Coward, 17 May 2021 @ 7:49pm

    The way for Trump to get back onto Facebook is to cite Knight v. Trump and say that facebook has to allow everyone to particpate in official discussions, but that he can be banned from other uses.

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

    • icon
      That One Guy (profile), 17 May 2021 @ 10:47pm

      Re:

      ... The case that did not in any way say that a privately owned platform is obligated to host him, merely that he as a government agent was prohibited from blocking people? Yeah, not seeing that working so well for him.

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

  • icon
    nasch (profile), 18 May 2021 @ 8:56am

    Definition

    I have no desire to read the bill, but I'm curious if they even bothered to define "social media web site".

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

  • identicon
    Anonymous Coward, 18 May 2021 @ 2:58pm

    (oh god I'm showing my age)
    Hey, is that a politician who understands the First Amendment?

    Nooooope! It's Mike Testa.

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


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