State Legislators Are Demanding Websites Moderate Less AND Moderate More; Federal Law Prohibits Both

Content Moderation

from the state-legislators-need-to-knock-it-off dept

Local politicians across the political spectrum are trying to force websites to moderate their content in a manner the politicians want. Some (mainly Democrats) are trying to push for companies to remove more content. Some (mainly Republicans) are pushing companies to stop removing certain kinds of content. In both cases, trying to force specific editorial stances — either hands on or hands off — raises serious Constitutional issues. And this is partly why Congress, wisely, decided in 1996 with Section 230 of the Communications Decency that no state could pass a law that interfered in the editorial decision making process of websites. Because without that, websites would have to deal with a confusing and contradictory patchwork of laws — some of which demanding certain types of content not be hosted, with others demanding certain types of content must be hosted.

Let’s start with Democratic legislators, who have been introducing a flurry of bills to pressure websites to take down content those politicians find problematic. We’ve talked about proposals in New York, Colorado, Washington, and California to pressure websites to be more aggressive in taking down “misinformation” or “disinformation” or “hate speech” — all of which are likely constitutionally protected. California, in fact, has a whole slate of bills that would likely impact content moderation in questionable ways.

Then there’s Minnesota’s bizarre bill, which appears to be on a dangerous fast track to being signed into law, which targets “algorithms,” and, in the process, would similarly impact a website’s ability to moderate its community.

On the Republican side, both Florida and Texas have successfully passed laws that would require less content moderation on websites, and both laws have been tossed out as unconstitutional (though both are now on appeal). They’re not the only states trying to do this. We’ve talked about Georgia and Utah as well, both of which had similar bills (though it appears both died as time ran out of those states’ legislative sessions). And there are other states we didn’t even get a chance to write about, like Ohio, whose legislature had a similar bill introduced. There has been talk of similar bills in multiple states.

These Republican bills all attempt to force websites to moderate less — which sometimes seems quite at odds with other Republican bills that seek to suppress other kinds of speech. While these bills all use different methods, the goals are generally the same. To greatly limit the ability of websites to moderate specific content — content that is currently in favor among Republican politicians and (more importantly), their base.

While the two laws that have been signed into law so far (Texas’ and Florida’s — Utah’s passed the legislature, but was wisely vetoed by the governor) were thrown out as unconstitutional, it’s important to also point out that both should have been blocked because federal law, namely Section 230 of the Communications Decency Act, preempts any state law that tries to impose restrictions (or demands) on how websites moderate. Specifically, 230(e)(3) notes that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” Section 230.

And that’s incredibly important. As we noted in an earlier post:

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.

But that hasn’t stopped both Red States and Blue States from trying to do exactly what Section 230 rightly bars. You have Red States seeking to force websites to host material they don’t want to host in perpetuity, while Blue States are trying to force websites to pull down content that those sites might wish to continue to host. Both are problematic on their own.

But when combined, they create an absolutely impossible scenario for any website covered by these bills. Some states demand you leave up certain content that other states are demanding be taken down (and yes, it’s not hard to envision scenarios in which content would meet the criteria of both of these types of laws). Section 230’s preemption feature is designed to prevent this kind of impossible scenario, and yet states keep pushing these bills, whether it’s done for earnest reasons or simple political grandstanding.

Thankfully, the authors of Section 230 included this key preemption clause, recognizing how impossible this would be had it been any other way. It would be nice if these states were reminded of this as they keep pushing these bills.

Filed Under: california, colorado, content moderation, federal law, florida, georgia, minnesota, new york, ohio, preemption, section 230, state law, texas, utah, washington

Social Responsibility Organization Says Meta’s Embrace Of Encryption Is Important For Human Rights

Say That Again

from the encryption-protects-human-rights dept

Encryption is under attack from all over the world. Australia already has a law on the books trying to force companies to backdoor encryption. The UK is pushing its Online Safety Bill, which would be an attack on encryption (the UK government has made it clear it wants an end to encryption). In the US, we have the EARN IT Act, whose author, Senator Richard Blumenthal, has admitted he sees it as a necessary attack on companies who “hide behind” encryption.

All over the world, politicians and law enforcement officials insist that they need to break encryption to “protect” people. This has always been false. If you want to protect people, you want them to have (and use) encryption.

Against this backdrop, we have Meta/Facebook. While the company has long supported end-to-end encryption in WhatsApp, it’s been rolling it out on the company’s other messaging apps as well. Even if part of the reason for enabling encryption is about protecting itself, getting more encryption out to more people is clearly a good thing.

And now there’s more proof of that. Business for Social Responsibility is a well respected organization, which was asked by Meta to do a “human rights assessment” of Meta’s expanded use of end-to-end encryption. While the report was paid for by Meta, BSR’s reputation is unimpeachable. It’s not the kind of organization that throws away its reputation because a company paid for some research. The end result is well worth reading, but, in short, BSR notes that the expansion of end-to-end encryption is an important step in protecting human rights.

The paper is thorough and careful, details its methodology, and basically proves what many of us have been saying all along: if you’re pushing to end or diminish end-to-end encryption, you are attacking human rights. The key point:

Privacy and security while using online platforms should not only be the preserve of the technically savvy and those able to make proactive choices to opt into end-to-end encrypted services, but should be democratized and available for all.

The report notes that we’re living in a time of rising authoritarianism, and end-to-end encryption is crucial in protecting people fighting back against such efforts. The report is careful and nuanced, and isn’t just a one-sided “all encryption must be good” kind of thing. It does note that there are competing interests.

The reality is much more nuanced. There are privacy and security concerns on both sides, and there are many other human rights that are impacted by end-to-end encrypted messaging, both positively and negatively, and in ways that are interconnected. It would be easy, for example, to frame the encryption debate not only as “privacy vs. security” but also as “security vs. security,” because the privacy protections of encryption also protect the bodily security of vulnerable users. End-to-end encryption can make it more challenging for law enforcement agencies to access the communications of criminals, but end-to-end encryption also makes it more challenging for criminals to access the communications of law-abiding citizens.

As such, the report highlights the various tradeoffs involved in encrypting more communications, but notes:

Meta’s expansion of end-to-end encrypted messaging will directly result in the increased realization of a range of human rights, and will address many human rights risks associated with the absence of ubiquitous end-to-end encryption on messaging platforms today. The provision of end-to-end encrypted messaging by Meta directly enables the right to privacy, which in turn enables other rights such as freedom of expression, association, opinion, religion, and movement, and bodily security. By contrast, the human rights harms associated with end-toend encrypted messaging are largely caused by individuals abusing messaging platforms in ways that harm the rights of others—often violating the service terms that they have agreed to. However, this does not mean that Meta should not address these harms; rather, Meta’s relationship to these harms can help identify the types of leverage Meta has available to address them.

The report notes that people who are worried that by enabling end-to-end encryption, Meta will enable more bad actors, do not seem to be supported by evidence, since bad actors have a plethora of encrypted communications channels already at their disposal:

If Meta decided not to implement end-toend encryption, the most sophisticated bad actors would likely choose other end-to-end encrypted communications platforms. Sophisticated tech use is increasingly part of criminal tradecraft, and the percentage of criminals without the knowledge and skills to use end-to-end encryption will continue to decrease over time. For this reason, if Meta chose not to provide end-to-end encryption, this choice would likely not improve the company’s ability to help law enforcement identify the most sophisticated and motivated bad actors, who can choose to use other end-to-end encrypted messaging products.

While the report notes that things like child sexual abuse material (CSAM) are a serious issue, focusing solely on scanning everything and trying to block it is not the only way (or even the best) way of addressing the issue. Someone should send this to the backers of the EARN IT Act, which is predicated on forcing more companies to scan more communications.

Content removal is just one way of addressing harms. Prevention methods are feasible in an end-to-end encrypted environment, and are essential for achieving better human rights outcomes over time. The public policy debate about end-to-end encryption often focuses heavily or exclusively on the importance of detecting and removing problematic, often illegal content from platforms, whether that be CSAM or terrorist content. Content removal is important for harm from occurring in end-to-end encrypted messaging through the use of behavioral signals, public platform information, user reports, and metadata to identify and interrupt problematic behavior before it occurs.

The report also, correctly, calls out how the “victims” in this debate are most often vulnerable groups — the kind of people who really could use much more access to private communications. It also notes that while some have suggested “technical mitigations” that can be used to identify illegal content in encrypted communications, these mitigations are “not technically feasible today.” This includes the much discussed “client-side” scanning idea that Apple has toyed with.

Methods such as client-side scanning of a hash corpus, trained neural networks, and multiparty computation including partial or fully homomorphic encryption have all been suggested by some as solutions to enable messaging apps to identify, remove, and report content such as CSAM. They are often collectively referred to as ”perceptual hashing” or “client-side scanning,” even though they can also be server-side. Nearly all proposed client-side scanning approaches would undermine the cryptographic integrity of end-to-end encryption, which because it is so fundamental to privacy would constitute significant, disproportionate restrictions on a range of rights, and should therefore not be pursued

The report also notes that even if someone came up with a backdoor technology that allowed Meta to scan encrypted communications, the risks to human rights would be great, given that such technology could be repurposed in dangerous ways.

For example, if Meta starts detecting and reporting universally illegal content like CSAM, some governments are likely to exploit this capability by requiring Meta to block and report legitimate content they find objectionable, thereby infringing on the privacy and freedom of expression rights of users. It is noteworthy that even some prior proponents of homomorphic encryption have subsequently altered their perspective for this reason, concluding that their proposals would be too easily repurposed for surveillance and censorship. In addition, these solutions are not foolproof; matching errors can occur, and bad actors may take advantage of the technical vulnerabilities of these solutions to circumvent or game the system

The report notes that there are still ways that encrypted communications can be at risk, even name-checking NSO Group’s infamous Pegasus spyware.

How about all the usual complaints from law enforcement about how greater use of encryption will destroy their ability to solve crimes? BSR says “not so fast…”

While a shift to end-to-end encryption may reduce law enforcement agency access to the content of some communications, it would be wrong to conclude that law enforcement agencies are faced with a net loss in capability overall. Trends such as the collection and analysis of significantly increased volumes of metadata, the value of behavioral signals, and the increasing availability of artificial intelligence-based solutions run counter to the suggestion that law enforcement agencies will necessarily have less insight into the activities of bad actors than they did in the past. Innovative approaches can be deployed that may deliver similar or improved outcomes for law enforcement agencies, even in the context of end-to-end encryption. However, many law enforcement entities today lack the knowledge or the resources to take advantage of these approaches and are still relying on more traditional techniques.

Still, the report does note that Meta should take responsibility in dealing with some of the second- and third-order impacts of ramping up encryption. To that end, it does suggest some “mitigation measures” Meta should explore — though noting that a decision not to implement end-to-end encryption “would also more closely connect Meta to human rights harm.” In other words, if you want to protect human rights, you should encrypt. In fact, the report is pretty bluntly direct on this point:

If Meta were to choose not to implement end-to-end encryption across its messaging platforms in the emerging era of increased surveillance, hacking, and cyberattacks, then it could be considered to be “contributing to” many adverse human rights impacts due to a failure to protect the privacy of user communications.

Finally, the paper concludes with a series of recommendations for Meta on how to “avoid, prevent, and mitigate the potential adverse human rights impacts from the expansion of end-to-end encryption, while also maximizing the beneficial impact end-to-end encryption will have on human rights.”

The report has 45 specific (detailed and thoughtful) recommendations to that end. Meta has already committed to fully implementing 34 of them, while partly implementing four more, and assessing six others. There is only one of the recommendations that Meta has rejected. The one that it rejected has to do with “client side scanning” which the report itself was already nervous about (see above). However, one of the recommendations suggested that Meta “continue investigating” client-side scanning techniques to see if a method was eventually developed that wouldn’t have all the problems detailed above. However, Meta says it sees no reason to continue exploring such a technology. From Meta’s response:

As the HRIA highlights, technical experts and human rights stakeholders alike have raised significant concerns about such client-side scanning systems, including impacts on privacy, technical and security risks, and fears that governments could mandate they be used for surveillance and censorship in ways that restrict legitimate expression, opinion, and political participation that is clearly protected under international human rights law.

Meta shares these concerns. Meta believes that any form of client-side scanning that exposes information about the content of a message without the consent and control of the sender or intended recipients is fundamentally incompatible with an E2EE messaging service. This would be the case even with theoretical approaches that could maintain “cryptographic integrity” such as via a technology like homomorphic encryption—which the HRIA rightly notes is a nascent technology whose feasibility in this context is still speculative.

People who use E2EE messaging services rely on a basic premise: that only the sender and intended recipients of a message can know or infer the contents of that message. As a result, Meta does not plan to actively pursue any such client-side scanning technologies that are inconsistent with this user expectation.

We spend a lot of time criticizing Facebook/Meta around these parts, as the company often seems to trip over itself in trying to do the absolutely wrongest thing over and over again. But on this it’s doing a very important and good thing. The BSR report confirms that.

Filed Under: client-side scanning, csam, encryption, end to end encryption, human rights, messenger
Companies: facebook, instagram, meta, whatsapp

Ed Sheeran Gets It: As He Wins His Copyright Lawsuit, He Decries ‘Culture’ Of Bogus Copyright Suits

Copyright

from the copyright-is-broken dept

We’ve covered a variety of recent copyright lawsuits against songs that sound vaguely similar, noting this ridiculous war on genres, and basically outlawing the idea of an homage. Even in cases where the lawsuits fail (which is frequently, though not always), it’s still an extremely costly waste of time that can still have massive chilling effects on creative people. Ed Sheeran has been sued a few times with these kinds of claims, and thankfully, just won a case in the UK.

But, perhaps even more importantly, with the announcement of the win, Sheeran put out a really fantastic video statement that is worth watching about the state of vexatious copyright lawsuits these days.

In case that video disappears (or you’re not able to watch it), here’s a transcript:

Hey guys. Me, Johnny, and Steve have made a joint statement that will be a press release on the outcome of this case. But I wanted to make a small video to talk about it a bit, because I’ve not really been able to talk about it whilst it’s been going on. Whilst we’re obviously happy with the result, I feel like claims like this are way too common now, and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim. It’s really damaging to the songwriting industry.

There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify—that’s 22 million songs a year—and there’s only 12 notes that are available.

I don’t want to take anything away from the pain and hurt suffered from both sides of this case, but I just want to say, I’m not an entity. I’m not a corporation. I’m a human being. I’m a father, I’m a husband, I’m a son. Lawsuits are not a pleasant experience. And I hope that with this ruling, in the future baseless claims like this can be avoided. This really does have to end.

Me, Johnny, and Steve, are very grateful for all the support sent to us by fellow songwriters over the last few weeks. Hopefully, we can all get back to writing songs, rather than having to prove that we can write them. Thank you.

That’s a really fantastic statement. Copyright has long been a complete mess, and one that, in its current form, has done way more damage to creativity than helped it. And Sheeran is no stranger to recognizing this as it’s not the first time we’ve talked up his views on these things. Five years ago, we wrote about how he explained that piracy is what made his career possible. And not in the sense of this lawsuit, which falsely accused him of “pirating” someone else’s work, but he recognized that fans sharing his songs is what made it possible for him to build a devoted fan base.

Furthermore, when his big record label pulled a video down of someone singing a Sheeran cover on Facebook, causing her to lose her account for infringement, Sheeran stepped in to say he supported people singing his songs and got his label (Atlantic/Warner) to remove the copyright claim.

But this is not just about Sheeran. In the video above, he correctly notes that he’s a human being, not an entity or a corporation. But he’s also an enormously successful and wealthy human being who is able to weather these attacks more easily than nearly everyone else impacted by a copyright system run amok. For most people today’s modern copyright system is not doing anything to incentivize new creations or to “protect” artists. It’s doing the opposite. It’s great that Sheeran seems to understand all this, but it’s not enough for a few musicians (and the wider public) to recognize it.

We’re still living in a world where the record labels, like Sheeran’s, and other legacy players in the copyright industries, are pushing for ever more ridiculous copyright laws. In the EU they have Article 17, that is going to make things much worse, while in the US, we have a new bill, pushed for by the record labels to basically break the internet in support of their (not the actual artists) business interests.

The copyright system is broken. It’s great that Ed recognizes that and is willing to speak to that fact, but these lawsuits aren’t going to go away just because he won this one. It needs real change in terms of fixing our incredibly broken copyright system. And it certainly doesn’t need politicians playing to donors making it worse.

Filed Under: copyright, ed sheeran

It’s Wrong For Politicians To Announce Plans To Punish Companies For Speech, No Matter Who Does It

Politics

from the stop-it dept

I feel like I keep needing to write this, but once again, no matter who does it and no matter which company they’re targeting, it’s wrong for politicians to promise to punish companies for their speech. For some reason, many people’s position on this point changes based on whether or not they like or dislike the politician, and whether or not they like or dislike the company. But it’s wrong.

It’s wrong when Senators Ted Cruz and Mike Lee go after Major League Baseball for its speech. It’s wrong when Senator Elizabeth Warren threatens Amazon for its speech. It’s wrong when Senator Marsha Blackburn (and a ton of others) threaten Disney for its speech. It’s wrong when White House officials threaten Facebook for its speech. And it’s wrong when Rep. Ken Buck threatens Apple for its speech.

All of this is grandstanding nonsense, but it’s designed to suppress speech. It’s designed to punish companies for speech that these elected officials dislike. And that’s even if the companies have said something stupid or acted in a way that deserves a regulatory response. By positioning any response as retaliation for speech, these politicians are fundamentally going against the 1st Amendment.

Some have argued that these retaliatory threats don’t amount to an actual 1st Amendment violation because a single politician can’t pass legislation by themselves. But you don’t need to pass legislation to violate the 1st Amendment. Indeed, in Bantam Books v. Sullivan the Supreme Court noted that merely informing someone of “objectionable” speech could violate the 1st Amendment.

While not an exact match, in that case book distributors were informed by a Commission of books that the Commission felt were “objectionable”, with the vague threat that if the distribution went ahead, then some sort of legal punishment might follow. The Court not only found that this violated the 1st Amendment, but that in some ways, the mere threat was worse than if an actual censorial regulation had been put in place. Because when it’s just more vague statements there is less definition in how to appeal, and much greater likelihood of simply over-censoring.

Unfortunately, this now seems to have become the norm on both sides of the political aisle. Browbeat companies for their speech, and threaten to pass regulations (even if those regulations might make sense absent the question of retaliation) in response to the speech. This only serves to put pressure on companies to be silent — which appears to be what these politicians want.

And it is that wish for silence, and the implicit threat in response to speech, that is so problematic.

Even in the cases where you might agree with the underlying regulatory proposal, you should be against these threats because they actually make the regulatory proposals that much less likely to be effective, because companies will be able to challenge them in court as violating the 1st Amendment due to the stated threats of these grandstanding politicians.

If you believe that certain regulations are necessary to deal with certain companies, then make that case. But if you claim that companies need to be punished because of their speech or political activity, then you are a part of the problem.

Filed Under: 1st amendment, elizabeth warren, free speech, jawboning, joe biden, ken buck, mike lee, ted cruz, threats
Companies: amazon, apple, disney, facebook, mlb

The 1st Amendment Wins The Inaugural Techdirt Legal Misunderstanding March Madness

Techdirt

from the it's-all-over-now dept

It was a hard-fought battle, but in the end, the 1st Amendment has been crowned champion as the most misunderstood legal concept in the inaugural Techdirt Legal Misunderstanding March Madness:

Techdirt Legal Misunderstanding March Madness Finals. Which of the following is the *most* misunderstood legal concept.

— techdirt (@techdirt) April 4, 2022

Check out the final bracket to see the path to victory.

There were a lot of arguments about the choices of legal concepts and (especially) the seeding. And some arguing about the rules (there were rules?!?). Anyway, thanks to all of those who participated in this fun bit of nonsense. The 1st Amendment v. Section 230 matchup in the final was quite close (about halfway through it was still 50/50), though late on Monday evening the 1st Amendment started to pull away, and it kept that narrow lead right up until the end.

Will we do this again next year? Maybe! I think we now have enough additional legal concepts to run a second tier NIT-style bracket as well, though that seems like a bit much. We might at least have a play-in for final spots. Or maybe we’ll pick a different topic altogether for a March Madness style competition. Stay tuned…

Filed Under: 1st amendment, legal misunderstanding, march madness

Florida Has Already Wasted Over $700k Of Taxpayer Funds Defending Its Unconstitutional Content Moderation Bill

Legal Issues

from the and-more-to-come dept

We’ve already talked about how Georgia looks to be moving forward with its clearly unconstitutional content moderation bill. Back when Florida signed its content moderation bill into law (which actually put in a few things to pretend to appear more constitutional, unlike Georgia’s…), we noted that the state was going to waste a ton of taxpayer funds before losing. And, that’s exactly what’s happened. Florida’s bill was tossed out as unconstitutional, fairly easily. While an appeal on that ruling will be heard soon, all this is doing is racking up Florida’s expensive legal bills.

CCIA has a post up effectively warning Georgia not to go down this same path, and in the middle of that post it notes that, via some public records requests, Florida has apparently already spent somewhere around $700,000 of taxpayer dollars defending the law in court. And that’s even before the appeal is heard — meaning that it’s quite likely that Florida will set over a million dollars of taxpayer money on fire in an attempt to violate the 1st Amendment rights of internet websites.

As states around the country continue to pass these kinds of laws, it makes me wonder at what point supposedly “small government” elected officials who are “concerned about the budget” will realize that wasting taxpayer funds on a quixotic attack on the 1st Amendment just isn’t worth it? Or do they not care, since it’s not their money that’s being spent?

Filed Under: 1st amendment, content moderation, florida, taxpayer funds, wasting money

Elon Musk Is Now Twitter’s Largest Shareholder; And That’s Probably Not A Good Thing

Content Moderation

from the for-fuck's-sake dept

Elon Musk appears to have a childlike understanding of free speech, especially with regards to how content moderation and free speech work together. But after running a silly poll a few weeks ago, many people assumed that the reason Musk was agitating to see if people felt that Twitter “supported” free speech, was that he might try to buy the company. It turns out, he was already in the process of trying to do so. On Monday it was announced that Musk has accumulated nearly 10% of Twitter’s shares, via some pocket change, making him the single largest shareholder in the company.

The purchase, equal to 9.2 percent of the company, appears to make Mr. Musk Twitter’s largest shareholder. His holding is slightly larger than Vanguard’s 8.8 percent at the end of last year, and it dwarfs the 2.3 percent stake of Jack Dorsey, Twitter’s former chief executive. The shares represent a fraction of Mr. Musk’s reported $270 billion-plus net worth.

It’s unclear, in the short term, what that will mean for the company. It’s not clear, for example, that Musk will get a board seat or become a particularly active board member, but given his agitating, and the way he’s handled some of his other companies, it wouldn’t be much of a surprise if he does end up becoming quite active.

It is unclear what Mr. Musk’s plans are beyond the large shareholder position and whether he’ll ask — or be invited — to join Twitter’s board. Mr. Musk filed a securities document indicating that he planned for the investment to be passive, meaning he does not intend to pursue control of the company. But there was also speculation Monday that he could change the status of his investment, continue buying shares or even try to acquire the company outright, today’s DealBook newsletter reported.

“We would expect this passive stake as just the start of broader conversations with the Twitter board/management that could ultimately lead to an active stake and a potential more aggressive ownership role of Twitter,” Daniel Ives, an analyst at Wedbush Securities, said Monday morning.

Again, I think Musk deserves praise for driving some innovations forward, and having a unique vision on how to execute on big, challenging scientific problems — like sending rockets into space and building electric cars, among other things. But managing speech is not a scientific or engineering problem. It’s a human challenge. And Musk does not exactly have the greatest of track records in showing empathy, or, frankly, common decency.

When the initial rumors were that Musk might start a competing social network, I was at least intrigued to see how that might compete with something like Twitter. But I do wonder how much his naïve take on speech might do serious harm to Twitter.

Honestly, I hope this drives the Bluesky team to focus that much more on its efforts, because if Musk is intent on ruining Twitter, which may actually come to pass, having an easy offramp to building a better Twitter would be important.

Filed Under: content moderation, elon musk, speech
Companies: twitter

Techdirt Legal Misunderstanding March Madness Finals: 1st Amendment Takes On Section 230

Techdirt

from the could-it-be-any-other-way? dept

VOTE NOW for the Single Most Misunderstood Legal Concept!

It’s become something of a mantra around these parts, that much of the time when people are complaining about Section 230 of the Communications Decency Act, what they’re really complaining about is the 1st Amendment. Hell, the NY Times itself has repeatedly had to run a correction admitting that it falsely blamed Section 230 for things that were enabled by the 1st Amendment. And, of course, people regularly get confused about the 1st Amendment, who it applies to (hint: not Twitter), what it means for hate speech or misinformation, and how it intersects with things like the Fairness Doctrine. Oh, and also what it has to do with fires and crowded theaters.

So, really, after a few weeks of our March Madness of legal misunderstandings, could the finals really have come down to anything but Section 230 vs. the 1st Amendment? That’s where we are:

Only one can win it.

Techdirt Legal Misunderstanding March Madness Finals. Which of the following is the *most* misunderstood legal concept.

— techdirt (@techdirt) April 4, 2022

If you’d like to see the final bracket leading up today, it’s here:

It’s been quite a ride, and now it’s down to just two, so get your votes in now:

Techdirt Legal Misunderstanding March Madness Finals. Which of the following is the *most* misunderstood legal concept.

— techdirt (@techdirt) April 4, 2022

Filed Under: 1st amendment, legal misconceptions, legal misunderstandings, march madness, misunderstood legal concepts, section 230

The Techdirt Legal Misunderstanding March Madness Final Four!

Techdirt

from the crunch-time dept

Vote On the Final Four Now!

And here we are. The inaugural Techdirt Legal March Madness is down to its Final Four! There are just four concepts left, and (to be honest) none are that surprising. The 1st Amendment faces off against RICO and Free Speech faces off against Section 230. I don’t think any are complete surprises, even if number one seeds HIPAA and Treason were defeated earlier in the tournament.

Either way you can check out the full current bracket here to see how we got here:

And while this set of competitors is completely understandable, the fact that so many people filled out brackets with very, very different results highlights what a tough competition this has been.

Still, the Elite 8 was actually a pretty easy affair with only one matchup really being even remotely close: RICO beating out Defamation 52.6% to 47.4%. The other matchups were more boring. The 1st Amendment easily defeated the Fairness Doctrine (as it should) 76.2% to 23.8%. Section 230 easily dominated Treason 79% to 21%. And Free Speech cruised to a straightforward win over States Rights 80.5% to 19.5%.

Anyway, now there are just four. Voting will run into tomorrow, and the championship matchup will take place on Monday… So who do you take? In a matchup designed to drive Ken “Popehat” White crazy, we have RICO vs. the 1st Amendment:

Techdirt Legal Misunderstanding March Madness Final Four. Which of the following is more misunderstood?

— techdirt (@techdirt) April 1, 2022

And, then on the flip side we have Free Speech facing off with Section 230:

Techdirt Legal Misunderstanding March Madness Final Four. Which of the following is more misunderstood?

— techdirt (@techdirt) April 1, 2022

Who will win? Will we have a final matchup of the 1st Amendment vs. Free Speech? What will that even mean? It might be fitting to have Section 230 face off against the 1st Amendment since many people mistakenly blame Section 230 for things the 1st Amendment enables. Or is the wild card going to be RICO, telling us that not all the biggest legal misunderstandings are about speech… Stay tuned to find out.

Filed Under: legal misconceptions, legal misunderstandings, march madness, misunderstood legal concepts

Trump Isn’t Concerned About Free Speech, Just A Free Audience

Failures

from the neither-true-not-social dept

I have to admit that it’s been somewhat amusing watching Truth Social flop. After months of rumors (and a variety of competitors targeting the Trumpworld), Trump announced plans for his own Twitter clone, Truth Social, in October of last year, using a sketchy financial instrument to fund it. He found a perfect dupe in Congressman Devin Nunes to run the operation, whose only relevant experience seems to be suing Twitter accounts that mocked him. The promise of a “free speech” supporting, Trumpist world, social media dissolved into obvious parody as Nunes promised the site would be heavily moderated with a ridiculous set of rules. There were already reports that the site was having difficulty attracting users, perhaps because Trumpist “influencers” were whining that it’s no fun if they’re not upsetting the right people.

And now, more reports are coming out about just how much of a flop Truth Social is so far. An analysis of traffic to the site shows that it’s in free fall.

The former president’s social media network for MAGA disciples has sunk to about 60,000 new users a week.

“This is down 93% from its launch week, when it saw 872,000 installs during the week of Feb. 21,” Stephanie Chan of the analytics site Sensor Tower told The Wrap. “We estimate that Truth Social has so far reached approximately 1.2 million installs since its launch.”

Truthsocial.com reportedly has fallen to 1.9 million weekly visits from a high of 6 million in the debut week for the Twitter-like platform, according to Similarweb stats cited by the news website.

As we’ve noted before, the problem for the people who complain about being moderated off of Twitter is not actually about free speech at all. Indeed, Twitter’s policies actually do plenty to enable strong free speech principles. The real issue is that Trump and his friends didn’t want a platform for “free speech,” they wanted a “free audience” to rile up.

And no matter what you think of the 1st Amendment or “free speech principles,” they don’t automatically grant you the power to force people to listen.

Filed Under: devin nunes, donald trump, free speech, social media
Companies: truth social