NY’s ‘Hateful Conduct’ Social Media Law Blocked As Unconstitutional

Free Speech

from the some-good-news dept

Last summer, we wrote about New York’s law to require websites to have “hateful conduct” policies, noting that it was “ridiculous” and “likely unconstitutional.” The law was passed in the wake of the horrific Buffalo super market shooting, where the state’s Governor and Attorney General sought to blame the internet, rather than the government’s own failings that contributed to the death toll.

While we noted the law wasn’t quite as bad as some other state laws, it was very problematic, in that it was pretty clearly trying to force websites to pull down content even if it was constitutionally protected speech. Some people argued back that since the law didn’t really require anything other than having a policy and some transparency, that it would pass muster.

Thankfully, though, the first court to take a look has agreed with me, and granted an injunction barring the law from taking effect over constitutional concerns. The ruling is… really good, and really clear.

With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs’ motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.

The ruling then digs into the details, and notes that the requirement for a hateful conduct policy is compelling speech, which is a problem under the 1st Amendment:

Plaintiffs argue that the law regulates the content of their speech by compelling them to speak on an issue on which they would otherwise remain silent. (Pl.’s Mem., ECF No. 9 at 12; Tr., ECF No. 27 at 47:5–13.) Defendant argues that the law regulates conduct, as opposed to speech, because there is no requirement for how a social media network must respond to any complaints and because the law does not even require the network to specifically respond to a complaint of hateful content. (Def.’s Opp’n, ECF No. 21 at 9.) Instead, the law merely requires that the complaint mechanism allows the network to respond, if that is the social media network’s policy. (Tr., ECF No. 27 at 11:25–1212:4.)

Defendant likens the Hateful Conduct Law to the regulation upheld in Restaurant Law Ctr. v. City of New York, which required fast-food employers to set up a mechanism for their employees to donate a portion of their paychecks to a non-profit of that employee’s choosing. 360 F. Supp. 3d 192 (S.D.N.Y. 2019). The court found that this did not constitute “speech”—nor did it constitute “compelled speech”—noting that the “ministerial act” of administering payroll deductions on behalf of their employees did not constitute speech for the employers. Id. at 214. As such, the court applied rational basis review and found that the regulation passed muster. Id. at 221.

However, those facts are not applicable here. The Hateful Conduct Law does not merely require that a social media network provide its users with a mechanism to complain about instances of “hateful conduct”. The law also requires that a social media network must make a “policy” available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.

Furthermore, the court notes that the law more or less demands a specific kind of “hateful conduct” policy.

Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”. To be in compliance with the law’s requirements, a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3). Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself. In other words, the social media network’s policy must define “hateful conduct” as conduct which tends to “vilify, humiliate, or incite violence” “on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1)(a). A social media network that devises its own definition of “hateful conduct” would risk being in violation of the law and thus subject to its enforcement provision.

It’s good to see a court recognize that compelled speech is a 1st Amendment problem.

There are other problems as well that will create real chilling effects on speech:

The potential chilling effect to social media users is exacerbated by the indefiniteness of some of the Hateful Conduct Law’s key terms. It is not clear what the terms like “vilify” and “humiliate” mean for the purposes of the law. While it is true that there are readily accessible dictionary definitions of those words, the law does not define what type of “conduct” or “speech” could be encapsulated by them. For example, could a post using the hashtag “BlackLivesMatter” or “BlueLivesMatter” be considered “hateful conduct” under the law? Likewise, could social media posts expressing anti-American views be considered conduct that humiliates or vilifies a group based on national origin? It is not clear from the face of the text, and thus the law does not put social media users on notice of what kinds of speech or content is now the target of government regulation.

Last year, we had Prof. Eric Goldman on our podcast to discuss how many lawmakers (and some courts…) were insisting that the “Zauderer test” meant that it was okay to mandate transparency on social media policies. Both the 11th Circuit and the 5th Circuit‘s ruling in the Florida and Texas social media bills actually found the transparency requirements to be okay based on Zauderer. However, Goldman has argued (compellingly!) that both courts are simply misreading the Zauderer standard, which was limited to transparency around advertising, and only required transparency of “purely factual information” that was “uncontroversial” and for the purpose of preventing consumer deception.

All of that suggests that the Zauderer test should not and could not apply to laws mandating social media content moderation policy transparency.

Thankfully, it appears that this court in NY agrees, rejecting the attempts by the state to argue that because this is “commercial speech,” the law is fine. Not so, says the court:

The policy disclosure at issue here does not constitute commercial speech and conveys more than a “purely factual and uncontroversial” message. The law’s requirement that Plaintiffs publish their policies explaining how they intend to respond to hateful content on their websites does not simply “propose a commercial transaction”. Nor is the policy requirement “related solely to the economic interests of the speaker and its audience.” Rather, the policy requirement compels a social media network to speak about the range of protected speech it will allow its users to engage (or not engage) in. Plaintiffs operate websites that are directly engaged in the proliferation of speech—Volokh operates a legal blog, whereas Rumble and Locals operate platforms where users post video content and comment on other users’ videos.

Goldman wrote a detailed post on this ruling as well and notes the importance of how the court handles Zauderer:

The court’s categorical rejection of Zauderer highlights how Zauderer evangelists are using the precedent to normalize/justify censorship. This is why the Supreme Court needs to grant cert in the Florida and Texas cases. Ideally the Supreme Court will reiterate that Zauderer is a niche exception of limited applicability that does not include mandatory editorial transparency. Once Zauderer is off the table and legislatures are facing strict scrutiny for their mandated disclosures, I expect they will redirect their censorial impulses elsewhere.

Anyway, it’s good to see a clear rejection of this law. Hopefully we see more of that (and that this ruling stands on the inevitable appeal).

Filed Under: 1st amendment, compelled speech, eugene volokh, free speech, hateful conduct, new york, social media, transparency, zauderer
Companies: locals, rumble

Conservatives Loved Expanding The 1st Amendment To Corporations… Until Last Year. Wonder Why?

Free Speech

from the what-could-it-possibly-be dept

Right after the 5th Circuit’s ruling on Texas’ HB 20 law on content moderation came out, I wrote up a long post going through the many, many oddities (and just flat out mistakes) of the ruling.

Since then, one thing that was bothering about this ruling was that it wasn’t just wrong on the law, wrong on the relevant precedents, and wrong on the 1st Amendment… but it literally went against the last few decades of how conservative Federalist Society judges have been expanding the 1st Amendment to cover more and more activity by organizations (which, contrary to popular opinion, I actually think has been mostly correct).

The Daily Beast asked me to write up an analysis of the 5th Circuit ruling, and one thing I focused on was just how blatantly basically the entire Republican ecosystem completely reversed on this issue over the last year and a half since Donald Trump got banned from Twitter. I mean, at a very direct level, Republicans insisted (falsely) that net neutrality was an attack on the “free speech rights” of internet providers, and that the very limited net neutrality rules that the FCC put in place were “the government takeover of the internet.” Yet they suddenly have no problem applying much more aggressive and 1st Amendment violative rules to edge providers that are nothing like internet service providers.

And while I kept hearing people say that the Dobbs ruling showed that the Supreme Court will now ignore precedent to get to the results it wants, there’s something different about the 5th Circuit’s ruling in the NetChoice case:

The cynical will point to things like the Supreme Court’s decision in Dobbs (which overturned Roe v. Wade) and note that we’ve entered an era of Calvinball jurisprudence—in which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic strip Calvin and Hobbes introduced us to the concept of “Calvinball”—a sport in which the participants make up the rules as they go, never using the same rules twice.)

But in some ways this decision is even more ridiculous. There are pockets of the conservative world that have spent 50 years honing arguments to overturn Roe. The opposite is true when it comes to upending the First Amendment.

Indeed, the same forces that worked to overturn Roe spent nearly the same amount of time working to strengthen and expand judicial recognition of the First Amendment rights of companies—from allowing a baker to choose not to decorate a cake, to allowing companies to cite the First Amendment as a reason not to provide contraception as part of a health plan, and deciding that the First Amendment did not allow Congress to bar certain types of expenditures in support of political candidates.

No matter how you feel about Masterpiece Cakeshop, Hobby Lobby or Citizens United, all three were cases driven by conservative arguments that relied heavily on the fundamental position that the First Amendment barred restrictions on corporate expression, including the right to not be forced to endorse, enable, or support certain forms of expression.

I pointed out how Ken White had once noted that there just wasn’t a deep bench of conservative judges looking to take away 1st Amendment rights. And that actually held for a while:

As First Amendment lawyer Ken White noted back in the comparatively innocent days of November 2016, regarding Donald Trump’s call to open up our libel laws, “You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]”

But, as if to just put a spotlight on their lack of actual principles, a huge part of the Republican establishment flipped on this point on a dime, solely to punish tech companies that they feel have become “too woke.” It’s almost as if they only support the 1st Amendment for those who ideologically agree with them.

I mean, Justice Clarence Thomas, who almost certainly will vote to uphold the 5th Circuit, will be doing a complete 180 on his concurrence in Masterpiece Cakeshop. In that one, he argued the Supreme Court should have gone even further to make it clear that forcing a baker to decorate a cake for a gay couple would violate the baker’s free speech, and dismissed the key cases the 5th Circuit relied on in the NetChoice case (FAIR and Pruneyard) as being wholly inapplicable, while highlighting the importance of Miami Herald v. Tornillo (the case that the 5th Circuit says is wholly different) on the 1st Amendment protecting the right for private operators to “exercise control over the messages” they send.

With Dobbs, everyone knew where it was going, because conservatives spent 50 years working up to it. But the 5th Circuit ruling lays bare how there are no principles among an unfortunately large segment of today’s Republicans in both statehouses and courts. It’s not about principles. It is entirely focused on punishing people they don’t like.

There’s a lot more in the Daily Beast piece, but I wanted to highlight that one element that hadn’t received as much attention.

Filed Under: 1st amendment, 5th circuit, andy oldham, clarence thomas, compelled speech, content moderation, hb 20, social media, texas

NJ Appeals Court: Lower Court Mixed Up 4th And 5th Amendment And Either Way, Phone Passcodes Can Be Compelled

Legal Issues

from the looking-at-the-wrong-problem-and-it's-not-even-a-problem dept

More case law on compelled passcode production and the Fifth Amendment has been generated by a New Jersey appeals court. Unfortunately, it doesn’t do anything to strengthen Fifth Amendment protections against compelled production.

And that’s largely because this court can’t. The state’s Supreme Court handed down a ruling in August 2020 that limited the “foregone conclusion” the government needed to reach before securing a court order demanding passcode production was limited to the device and the existence of a passcode, rather than offering supporting arguments about the presumed existence of criminal evidence on the device.

That case dealt with a crooked cop whose phones were seized during an investigation. After discussing some (still unaddressed) concerns about the Fifth Amendment’s inconsistent application in other cases that may protect people using passwords more than people using biometric features to unlock phones, the court said that, in this case, law enforcement knew what it needed to know to surmount the “foregone conclusion” barrier.

The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.

It’s this case that’s specifically cited in this appeals court decision [PDF]. The lower court refused to grant the government’s motion to compel, citing its inability to prove the locked iPhone seized belonged to the suspect. It also said the search of the phone (which hasn’t occurred yet) raised additional Fourth Amendment concerns.

Here’s how everything started:

Det. Pancza and members of the Internet Crimes Against Children Task Force executed the three warrants at 6:00 a.m. on July 16, 2021, at defendant’s residence. Defendant was located in his locked bedroom. He was the only occupant of the room, and he refused to open the door. Ultimately, the officers forced entry into defendant’s bedroom.

During their search of defendant’s bedroom, officers located three electronic devices: a Samsung cell phone, an Asus laptop, and an Apple iPhone. The iPhone was found in a pull string bag hanging on the back of a computer chair.

In accordance with the search warrant, Detective Brian Migliorisi attempted to access the iPhone 7, but he was prevented from doing so because the iPhone was passcode protected. The only information Det. Migliorisi could retrieve from the iPhone was its association with the same iCloud email account from the cyber tips, the one containing defendant’s last name and first initial. Defendant was charged with third-degree endangering the welfare of children, N.J.S.A. 2C:24-4(b)(5)(b)(iii).

The lower court did not find these circumstances added up to proof of the defendant’s ownership of the iPhone.

The court denied the motion, concluding the State failed to establish defendant’s ownership of the iPhone and knowledge of the passcode. The court found that officers locating the iPhone in “a backpack” in “a bedroom” was insufficient to prove defendant’s ownership. The court also found “that the phone immediately being in the vicinity of the defendant at the time of the search” did not “conclusively demonstrate that . . . defendant own[ed] the phone.”

The appeals court disagrees. First, it points to the August 2020 Andrews decision, which limited the Fifth Amendment discussion to the government proving a passcode exists, the defendant “operates or controls” the device in question, and that entry of the passcode would allow investigators to access the device’s contents. From what it sees here, the government has everything it needs to utilize the “foregone conclusion” exception.

Further, it says the Fourth Amendment concerns about the proposed search have no bearing on this discussion because the search hasn’t been performed and the defendant never challenged the warrants utilized in this case. If the search is indeed determined to be overbroad, the defendant can challenge it then. But because no challenge to the probable cause basis was raised by the suspect, the lower court was wrong to bring Fourth Amendment analysis into a discussion dealing solely with compelled production.

The only standard being applied to compelled production was easily met here, the appeals court says.

The motion court found defendant was in the “vicinity” of the phone and concluded that this was insufficient to prove defendant’s ownership or operation of it. We disagree, as the court overlooked credible evidence in the record when making its findings. At the time of the search the phone was in defendant’s locked bedroom; he was the sole occupant and refused to let the police in. Significantly, the email address associated with the phone’s iCloud account incorporates defendant’s last name and first initial. These probative facts, which suggest that defendant owned and operated the iPhone, were omitted from the motion court’s analysis.

Any further appeal efforts within the state will be foreclosed by the state Supreme Court’s decision. To appeal this determination, the defendant will have to look to the top court in the land. That remains an option because this is a discussion about federal constitutional rights rather than limited to the protections granted by New Jersey’s constitution. But odds are slim this will be examined by the US Supreme Court. The Andrews case that set state precedent has already had its appeal effort rejected by SCOTUS. For the time being, it will remain pretty easy for New Jersey law enforcement to bypass the Fifth Amendment.

Filed Under: 4th amendment, 5th amendment, compelled disclosure, compelled speech, new jersey, passwords, phone passcode

‘Preeminent’ Constitutional Legal Scholar Files Embarrassingly Confused Amicus Brief In Favor Of Texas’ Ability To Tell Websites How To Moderate

Legal Issues

from the i'm-embarrassed-for-you dept

In 2021, Columbia Law professor Philip Hamburger, whose own website at the school describes him as “one of the preeminent scholars writing today on constitutional law,” beclowned himself in the pages of the Wall Street Journal’s editorial pages (which seem always open for a beclowning, so long as the beclowning supports Rupert Murdoch’s blinkered worldview).

He first wrote an op-ed attacking Section 230 of the CDA, but which got almost all of the basic facts wrong. It’s one thing for graduates of Twitter Law to make these kinds of mistakes, but a supposedly “preeminent scholar” on constitutional law who made it appear as though he had neither read the law, nor any of the many (many, many) court rulings on the law, is kind of embarrassing. Indeed, the most embarrassing part is how this “preeminent” constitutional scholar didn’t seem to realize that it’s not Section 230 that enables the right for a website to moderate, but the 1st Amendment. Rather than realizing that maybe he was in over his depth, Professor Hamburger pulled a Principal Skinner and insisted that, no, it was the children who were wrong. He wrote a second WSJ op-ed, arguing that, according to him (and basically him alone), websites don’t actually have a 1st Amendment right to moderate. It was even more embarrassing than the first one. I honestly feel bad for students at Columbia Law who apparently will be learning blatantly false interpretations of the Constitution.

Either way, it’s one thing to be wrong on the pages of the WSJ’s opinion section. It’s another thing entirely to file your wrongness in a court of law. But that’s what preeminent constitutional law scholar Philip Hamburger has now done, in filing the wrongest amicus brief I’ve seen in a while, in support of Texas’s unconstitutional social media content moderation law.

Over the last few years we’ve seen repeatedly how confused Twitter Law^TM graduates love to cite the Packingham case to mean something it very clearly does not mean. In Packingham, the Supreme Court (properly) ruled that government laws that bar people from the entire internet clearly go too far. In that ruling, the majority opinion mentions that it is unconstitutional for the government to bar people from going online, because the internet represents “the modern public square.” Unserious people have, incorrectly, taken this to mean that the Supreme Court has declared private websites some sort of quasi-governmental role, requiring openness to all. It has not. Again, the ruling in Packingham is that the government cannot pass laws that ban individuals from the internet. It does not say that private companies cannot do so. And anyone arguing otherwise suggests they don’t know what they’re talking about — so of course Hamburger begins his piece citing “the modern public square” line from Packingham.

It jumps from that wrong foot to another wrong foot — using the term “censorious” (meaning: “severely critical of others”) when he actually means “censorial” but even if he was using the right term, this wouldn’t make any more sense:

Nonetheless, censorious gatekeepers circumscribe this square, eliminating and silencing views with which they disagree. As a result, voters receive inadequate information, minority religious and cultural views are suppressed, and vital scientific data and dissenting scientific opinion cannot be disseminated. Not only are nonconforming views scrubbed, but often those who take such perspectives are permanently deplatformed—in effect, depersoned for purposes of effective public speech. The State of Texas has a profound interest in protecting vibrant political, religious, cultural, and scientific debate. HB 20 protects that interest—to which amicus is dedicated.

Of course, this is nonsense on multiple levels, and if someone handed in a law school paper arguing this, they’d fail (I guess, except in Prof. Hamburger’s class). Private companies hosting speech have always had the right to refuse to host certain speech. It’s why the WSJ opinion page publishes blatantly false information written by the likes of Philip Hamburger, but need not publish my article “If You Took Philip Hamburger’s Class At Columbia Law, You Are Probably Dumber For It.” That’s the WSJ’s right to refuse my article, just as it’s Facebook’s right to refuse to host content that violates its rules.

As for the idea that this leads to “inadequate information, minority religious and cultural views [being] suppressed,” well, again, that’s nonsense. People have significantly more access to information today than at literally any point in human history. Hell, for most of history (once voting was allowed) voters had significantly less information than they have access to today, and minority religious and cultural views were basically unavailable at all to most.

At no point in history has the 1st Amendment meant or implied that every publisher MUST publish all views. Yet, Hamburger seems to think it does. This is not just historically, factually, and legally wrong. It’s embarrassing nonsense that raises serious questions about Prof. Hamburger’s ability to understand the first thing about constitutional law, let alone analyze this particular Texas law.

From there, Prof. Hamburger goes deep into fantasy land in his arguments. I have neither the time, nor the desire, to go page by page debunking each and every embarrassing error of history and law in the piece, but let’s just go through the summary of the argument to give you a sense.

First, common carrier regulation of the sort adopted by the statute is entirely consistent with the First Amendment. Under centuries-old precedent that no court has ever questioned, Texas has the power to regulate the social media platforms covered by H.B. 20 (“the Platforms”) as common carriers.

No, first, the idea that no one has ever questioned the rights of a government to unilaterally declare certain services common carriers is laughable. I mean, I’ll just note that during the net neutrality fight in 2015 that anti-neutrality lobbyists pointed to… Philip Hamburger’s book, Is the Administrative State Unlawful as proof that the FCC could not declare broadband a common carrier. Hamburger, of course, would argue that there’s a difference between an administrative agency (i.e., the FCC) and a legislature declaring something a common carrier, but the difference here is somewhat meaningless, given that the FCC’s net neutrality order was done under the basis of Congressional law (the Telecom Act) which granted them that right.

Of course, as we recently noted, you can’t just randomly call something a common carrier. It has to meet certain conditions to be considered one, and social media websites come nowhere close to meeting any of the characteristics of a traditional common carrier. So, yes, what Texas has done here, especially given the impact on 1st Amendment protections, is very much questionable (as the lower court found, and a court in Florida similarly found).

Second, Texas has a compelling interest in protecting the free exchange of expression, and HB 20 is narrowly tailored to that interest. Such an interest, however, is unnecessary to defend HB 20, because the Platforms have little or no speech interest here. They are affected only in their role as common carriers or
conduits for other people’s speech, not their own speech. Moreover, to the extent the Platforms enjoy section 230 immunity for silencing speech on their conduits, see 47 U.S.C. § 230, they are censoring the speech under color of federal law. They have no free speech interest in this federally privatized censorship, and, even if they had such an interest, it would be of no avail against the state’s compelling interest in
protecting free expression.

Hooo boy. Where to start on this one? I think this is the most embarrassingly confused paragraph in the whole thing. Hamburger has to claim that the state has a “compelling interest” here because that’s part of the 1st Amendment’s strict scrutiny test for getting around 1st Amendment concerns (as is “narrowly tailored”) but it confuses just about everything here. Claiming that states have a “compelling interest” in compelling private parties to perpetually host speech they disagree with is utter nonsense.

Indeed, while Hamburger is focused on “compelling” interest, he is ignoring the Supreme Court’s pretty clear prohibition on compelled speech. It’s kind of fatal to his entire argument, and he just… ignores it. The famous line in the Barnette case is: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Bizarrely, Hamburger seems to be claiming that… Section 230 actually is the opposite of what it is, and that it’s the government censoring people. Except it’s literally the exact opposite. Platforms have always had a 1st Amendment right to refuse to host the speech of others. All Section 230 was doing was making it clear that when they did moderate, they didn’t magically take on the legal liability of the stuff they didn’t moderate. That’s not, as Hamburger implies, “censoring the speech under color of federal law” because they always had that right under the 1st Amendment. That’s what’s so embarrassing here. Hamburger has everything completely backwards — just as he did in his WSJ pieces, but rather than recognize his own factual errors, he’s just doubling down.

Further, the idea that websites “have no speech interest” in deciding what speech to host on their own website is just so ridiculously wrong I don’t even know what to say beyond: Columbia Law: do you have a program to check the competence of your professors?

Third, HB 20 does not conflict with 47 U.S.C. § 230(c)(2). That federal section protects platforms from liability, in the sense of damages, for restricting material that falls into specified categories of content. But HB 20 bars only viewpoint discrimination, not content discrimination, and it provides for declaratory
and injunctive relief, not damages. It thus is entirely consistent with section 230.

Lol, wut? First of all, (c)(2) is not limited to “specified categories of content.” It includes the catch-all “otherwise objectionable” to make it clear that it’s designed to enable the websites to be free of liability (which also goes beyond “damages”) for efforts to take down content that they find objectionable (i.e., that violates their rules). But, really, the funny part here is claiming that “viewpoint discrimination” is somehow different than “content discrimination” and that the bar on liability only applies to damages, not injunctive relief. All of that is just… wrong.

I feel sorry for lawyers who get their JD from Columbia.

Filed Under: 1st amendment, compelled speech, content moderation, philip hamburger, section 230, social media, texas

Washington Post Forgets It Fought (And Won) Legal Battle Against Mandatory Transparency; Now Demands Internet Co's Face The Same

Free Speech

from the psst,-editorial-board,-speak-to-your-lawyers dept

A few years ago the Washington Post (and a bunch of other newspapers) fought and won a fairly important 1st Amendment lawsuit to strike down as unconstitutional a Maryland law that required news organizations to publicly post information about the political ads they chose to carry. The district court and then the appeals court found that the law was pretty clearly unconstitutional:

As the district court noted in a lengthy and thoughtful opinion, Washington Post, 355 F. Supp.3d at 272-306, the Act is a content-based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland’s law is a compendium of traditional First Amendment infirmities.

Specifically, the court found that the compelled speech aspect of the law was particularly problematic:

Taken together, the Act’s publication and inspection requirements ultimately present compelled speech problems twice over. For one, they force elements of civil society to speak when they otherwise would have refrained. Time and again, the Supreme Court has made clear that it makes little difference for First Amendment 515*515 purposes whether the government acts as censor or conductor. Indeed, the “freedom of speech `includes both the right to speak freely and the right to refrain from speaking at all.'” Janus v. Am. Fed’n of State, Cty. & Mun. Emps. Council 31, ___ U.S. ___, 138 S. Ct. 2448, 2463, 201 L.Ed.2d 924 (2018) (quoting Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (internal quotation omitted)). It is the presence of compulsion from the state itself that compromises the First Amendment. The Amendment extends “not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).

What’s more, the fact that the Act compels third parties to disclose certain identifying information regarding political speakers implicates protections for anonymous speech. Requiring the press itself to disclose the identity or characteristics of political speakers is a problematic step. See Branzburg v. Hayes, 408 U.S. 665, 709, 92 S.Ct. 2646, 33 L.Ed.2d 626 (Powell, J., concurring) (noting that newsmen faced with a grand jury subpoena are not “without constitutional rights with respect to the gathering of news or in safeguarding their sources”); id. at 725, 92 S.Ct. 2646 (Stewart, J., dissenting) (requiring the press to disclose its sources risks “annex[ing] the journalistic profession as an investigative arm of government”). This country, moreover, has “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Much as our forebears elected to hash out the architecture of this nation under the pseudonyms of “Publius” and “Agrippa,” many political advocates today also opt for anonymity in hopes their arguments will be debated on their merits rather than their makers. See id. at 343, 343 n.6, 115 S.Ct. 1511. To be sure, this tradition of anonymity is anything but absolute. But revelations of executive misconduct throughout our history have often been anonymously sourced. And when the government enlists the press to disclose the sources of political speech, thus potentially exposing those speakers to identification and harassment, First Amendment protections and values come into play. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 14-15, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion).

Apparently, the editorial board of the Washington Post is wholly unfamiliar with this lawsuit and the fact that its own publication won this lawsuit just two years ago. Because in a new opinion piece, the Editorial Board of the Washington Post calls for nearly identical requirements for internet companies. Really.

Specifically, the Washington Post endorses the extremely problematic recommendations from the Aspen Institute’s Commission on Information Disorder:

The report starts, as any study aimed at restoring trust and truth ought to, by acknowledging reality: ?In a free society, a certain amount of misinformation will always exist.? The hope isn?t to punish every exaggeration, piece of propaganda or flat-out lie but to home in on the most egregious damage caused by specific types of mis- and disinformation ? by discouraging people from spreading falsehoods and minimizing the fallout when they do. This is easiest in ?empirically grounded? areas, in which facts can most clearly be found: public health and election integrity foremost among them.

How do we do it? Some steps are obvious, such as mandating more transparency from technology companies. Platforms should be required, for instance, to publish data about the content, source, targeting and reach of posts seen by large audiences, as well as produce standardized archives of the material they remove or otherwise moderate.

That “obvious” step is exactly what the Washington Post fought in court against and won just two years ago. And, it should be noted that in fighting that Maryland law, the Washington Post trotted out Section 230 as a reason that the law should be pre-empted, but the court went past that and didn’t even bother with the 230 issues, noting that the 1st Amendment was the issue, and it didn’t even need to bother with Section 230.

In some ways, this isn’t surprising. For reasons I don’t fully understand, newspapers seem to have a weird blindspot for the very laws and constitutional rights that protect themselves when there are attacks on those rights on internet companies. The more conspiratorial will insist that this is because news organizations are jealous of the success of internet companies — with whom they often compete for ad dollars. But I think it’s likely to be somewhat more fundamental than that. Institutionally, too many news organizations take such a dismissive view of the internet and the communities created on it, and look at themselves as the “defenders of truth” (hell, the Washington Post’s own bizarre slogan, “Democracy Dies in Darkness” is trumpeted on every damn page). To them, the internet and social media are riff raff — enabling the people who are too stupid for their own good to wallow in disinformation.

And, thus, the only answer must be to mandate these kinds of rules that could and should never apply to the pure giant news orgs. It’s disappointing and hypocritical, but hardly surprising.

Filed Under: 1st amendment, compelled speech, disinformation, editorial independence, section 230, transparency
Companies: aspen institute, washington post

Brazilian President Bans Social Media Companies From Removing Disinformation & Abuse

Content Moderation

from the well-that-will-work-out-just-great dept

Ah, great. Just after Australia made it clear that media organizations are liable for comments on social media (demonstrating one aspect of a world without intermediary liability protections), Brazil’s President Jair Bolsonaro has announced new social media rules that effectively force social media sites to keep all content online (demonstrating the flipside to a world without intermediary liability protections). The two most important things that Section 230 does — limiting liability for 3rd party intermediaries and freeing websites of liability for moderation choices — each going away completely in two separate countries in the same week.

To be clear, the rule in Brazil can only stay on the books for 120 days — since it’s a “provisional measure” from the President — and if they’re not enacted into law by the Brazilian Congress by then, they’ll expire (and there’s at least some suggestion that the Brazilian Congress has no interest). But, still, these rules are dangerous.

Under the new policy, tech companies can remove posts only if they involve certain topics outlined in the measure, such as nudity, drugs and violence, or if they encourage crime or violate copyrights; to take down others, they must get a court order. That suggests that, in Brazil, tech companies could easily remove a nude photo, but not lies about the coronavirus. The pandemic has been a major topic of disinformation under Mr. Bolsonaro, with Facebook, Twitter and YouTube all having removed videos from him that pushed unproven drugs as coronavirus cures.

Imagine needing to get a court order to remove content? That’s ridiculous. Bolsonaro’s government put out a twitter thread (in English) claiming that this is the country “taking the global lead in defending free speech” when the reality is exactly the opposite. Compelled speech, which includes the compelled hosting of speech, is the exact opposite of “defending free speech.” Here’s what the government is saying about this dangerous proposal:

Brazilian government is taking the global lead in defending free speech on social networks and protecting the right of citizens to freedom of thought and expression.

As noted, compelled speech is not defending free speech. And freedom of expression does not mean you get to force someone else to let you speak on their property.

The Provisional Measure issued today by the Brazilian government forbids the removal of content that may result in any kind of “censorship of political, ideological, scientific, artistic or religious order”.

Hilariously, though, it does allow for the removal of copyright infringing material, which already undermines the idea that it does not allow for censorship of “artistic” works.

It is also guaranteed that the social network will have to justify the removal of content under the terms of Brazilian laws. Without a just cause, the social network will have to restore the removed content.

This may be the most pernicious part here, because (as we’ve discussed before), the most bad faith, abusive trolls are the ones who are most likely to demand justification — and then to act shocked and pretend to be offended at claims that they were acting as bad faith, abusive trolls. This provision just allows trolls to make an even bigger nuisance of themselves. Which seems to be exactly what Bolsonaro wants, knowing he has more bad faith, abusive trolls on his side.

This measure forbids selective deplatforming by requiring that social media provide a just cause for the suspension of services and restore access should the suspension be considered unlawful. This measure is based on precedent in Brazilian law and freedom of expression.

Compelled speech is never freedom of expression. As for “precedent,” Brazil once led the way in passing smart internet rules. This makes a mockery of them.

Attention: the law does not prevent the social network from removing content that violates Brazilian law, such as child pornography. The Brazilian government stands for both freedom and democracy!

That’s a pretty damn Orwellian statement right there.

This measure has been emitted as a result of ongoing concern with actions taken by social media groups that have been perceived as harmful to healthy debate and freedom of expression in Brazil, and hope it will serve to help restore online political dialogue in the country.

Basically, we’re doing this because our President is not doing well in the polls leading up to a national election, and has been taking a page from Trump’s playbook and talking about how he can only lose by election fraud — and we need to make sure that social media companies don’t actually stop our bullshit propaganda from spreading widely.

The real question now is how will the social media companies respond. According to the NY Times:

Facebook said that the ?measure significantly hinders our ability to limit abuse on our platforms? and that the company agrees ?with legal experts and specialists who view the measure as a violation of constitutional rights.?

Twitter said the policy transforms existing internet law in Brazil, ?as well as undermines the values and consensus it was built upon.?

YouTube said it was still analyzing the law before making any changes. ?We?ll continue to make clear the importance of our policies, and the risks for our users and creators if we can?t enforce them,? the company said.

There’s also this:

In July, YouTube removed 15 of Mr. Bolsonaro’s videos for spreading misinformation about the coronavirus. And late last month, YouTube said that, under orders from a Brazilian court, it had stopped payments to 14 pro-Bolsonaro channels that had spread false information about next year’s presidential elections.

Brazil’s Supreme Court has also been investigating disinformation operations in the country. Mr. Bolsonaro became a target of those investigations last month, and several of his allies have been questioned or detained.

Of course, it seems notable that it was just a few years ago that Brazil arrested a Facebook exec because the company refused to hand over information on WhatsApp users, and has, at times, blocked the entirety of WhatsApp in the country. So, it would be interesting to see what will happen if the companies refuse to follow these ridiculous rules.

But, between this and what happened in Australia, we’ll now get to see two examples of the dangerous situation that happens when you don’t have strong intermediary liability protections, including for the ability to moderate websites how best you see fit.

Filed Under: brazil, compelled speech, content moderation, election misinformation, free speech, jair bolsonaro, marco civil
Companies: facebook, twitter, youtube

Texas Gov. Greg Abbott Announces On Twitter The Livestreaming On Facebook Of His Signing Of A Bill That Removes 1st Amendment Rights For Both

Failures

from the you-did-what-now? dept

We’ve talked a bunch about just how incredibly unconstitutional Texas’s social media content moderation bill, HB20 is, so I don’t really need to cover any of that again. You can look it up — or just read how a court found Florida’s similar bill unconstitutional.

Still, the entire point of this bill is to play up a culture war for grandstanding politicians, and Texas Governor Greg Abbott wants to grandstand with the best of them (even if he’s a pathetic copy of some of the other grandstanders in his party). Even so, it still was quite something to see Abbott announce on Twitter that people should watch him on Facebook as he signed the bill into law — a bill that would attempt to remove the 1st Amendment rights against compelled speech from both companies.

He’s doing this on the same day that the Justice Department is suing Texas for its equally unconstitutional anti-abortion “let everyone sue everyone and let the courts sort it out” bill.

I know that some people are concerned about this bill, and what awful things it will do for social media, but all it’s really going to do is waste a ton of taxpayer money in Texas, which Abbott and the other faux culture warriors want to use as basically taxpayer-funded campaign dollars to get their names in the headlines, talking about they’re “fighting for free speech” when all they’re doing is removing 1st Amendment rights, abusing the power the voters entrusted with them, and throwing their money away on lawyers who have nothing legitimate to defend.

It’s political theater, with your speech and your tax dollars being held hostage. No one should accept this as reasonable, but these are the times we live in, where corruption and violations of the oath of office for the sake of some dumb culture war are more important than governing and doing what’s right.

Filed Under: 1st amendment, compelled speech, content moderation, greg abbott, hb20, social media, texas
Companies: facebook, twitter

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

Content Moderation

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.

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

Senator Bill Hagerty Believes Compelled Speech Is 'Liberty'; And Anyone Upset With Moderation Choices Should Be Able To Sue

Legal Issues

from the we've-always-been-at-war-with-eastasia,-senator dept

Senator Bill Hagerty was just elected out of Tennessee to take over Lamar Alexander’s old seat, and he’s kicking off his tenure with a bang… of not just unconstitutional madness, but anti-Constitutional madness. And this from a guy who presents himself as a Constitutional originalist. But, of course, when it comes to nurturing culture wars, today’s GOP apparently believes that they can throw the Constitution out the window… as long as they (1) claim they’re owning the libs, and (2) pretend that they’re tearing up the Constitution to save the Constitution.

In this case, Hagerty has put out a piece in the Wall Street Journal — which will publish any anti-Section 230 screed no matter how factually challenged — to talk about a new bill he’s preparing that would force social media sites to host any and all speech by getting rid of Section 230 and making websites common carriers. Yes, Senator Hagerty is calling for compelled speech, and even more obnoxiously, he’s doing it by claiming it is about “protecting liberty.” The article is ridiculously entitled: Goodbye Section 230, Hello Liberty, though a more accurate title would be “Clueless Senator Wants To Take Away Internet Freedom.”

Let’s dig in.

For too long Americans have watched Big Tech trample on the principles of the First Amendment?free speech, freedom of thought and belief, free assembly and the open exchange of ideas. As more information is filtered through online platforms, the First Amendment is becoming a dead letter. That?s why I?m taking action to hold these corporations accountable.

So much nonsense in just one paragraph. First off, the 1st Amendment protects against government intrusions into speech, and so it’s literally impossible for “Big Tech” to “trample on the principles of the First Amendment” unless they’re being compelled to do so by government actors. Second, nothing “big tech” does harms “free speech, freedom of thought and belief, free assembly and the open exchange of ideas.” You can still do that all over the internet. You just can’t force one particular site to host your nonsense if they feel it violates their policies.

Republicans like Hagerty used to talk up the importance of private property rights, but apparently that goes out the window when Facebook decides it doesn’t want Nazis and conspiracy theorists on its property any more.

Finally, “hold these corporations accountable” for what, exactly? They have every right to run their own private property the way they want to. They cannot be compelled to host speech they do not feel they wish to host.

Today, I?m introducing the 21st Century Foundation for the Right to Express and Engage in Speech Act (or the 21st Century FREE Speech Act), which would restore the Bill of Rights?rather than the whims of big companies?as the guide for what Americans can say or hear in today?s public square.

Amusingly, in searching for the actual text of this bill, I initially couldn’t find anything. I could only find (1) this WSJ op-ed, and (2) Bill Hagerty promoting the bill on… Twitter and Facebook, two of the “big tech” platforms he complains are censoring his speech. Eventually I found a copy of the bill not on the government website where it should be posted, but on Scribd… yet another private social media company. I’ve uploaded a copy to Document Cloud for easier access.

However, for someone who has a law degree (does Vanderbilt offer refunds?), he sure seems confused about the Bill of Rights. The Bill of Rights protects against government intrusion of our rights — and that includes the right not to have the government compel speech. This bill is not about “restoring the Bill of Rights” it’s about violating it. Companies have always had the right to determine what speech is on their platform. It’s why the NY Times won’t ever publish my op-ed about how “Bill Hagerty Is A Bad Senator Who Hates The Bill of Rights.”

The modern public square is dominated by ubiquitous platforms facing little meaningful competition. Instead of being accountable to consumers or voters, the companies that dominate communication today use opaque, inconsistent practices to control the information Americans get to see and discuss. As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers?such as trains or phone networks, which are essential to everyday goings-on, connecting people and information?have historically been subject ?to special regulations, including a general requirement to serve all comers? without discrimination. The same logic should apply today to Big Tech.

Each paragraph seems to stuff itself with more wrong than the previous one. First of all, if the issue is “little meaningful competition,” then the answer should be to focus on increasing competition, not putting on even more regulations that would lock in today’s largest players. But, of course, even the idea that they face “little meaningful competition” is laughable. As you start looking at just how many players there are in the realm of today’s “public square,” you’ve got Facebook (including Instagram and WhatsApp), YouTube, Twitter, Snapchat, Reddit, TikTok, Discord, Clubhouse, Medium, Substack, Imgur, Vimeo, DailyMotion and many, many more. And if none of those work for you, you can set up your own blog or your own website. Just the fact that in the past couple of years TikTok, Clubhouse, Zoom, Discord, and Substack and a bunch of others have all basically come out of nowhere and built up a huge audience certainly suggests that there remains plenty of openings for competition.

We’ve already responded to Clarence Thomas’s bizarre unbriefed musings, but let’s dig in a little deeper on this whole “common carrier” idea. The nature of common carriers is entirely different from the nature of social media. Common carriers tend to be (1) commodity style services (such that replacing one with another leads to basically the same service) that (2) transport goods/people/information from one place to another. Neither condition applies to social media. Every social media site is different from one another, and you can’t just swap out one for the other. It’s not a commodity style service. Indeed, since social media is about community, each site takes a different approach to try to attract the community they want. They’re not offering up a utility style service. Second, they are (for the most part!) hosting content, rather than just transmitting it from one location to the other. If you’re transmitting, then the arguments for common carrier regulations are stronger, but if you’re hosting, it just doesn’t make any sense.

Finally, I’m going to go out on a limb here and say that Bill Haggerty opposes net neutrality (these days, basically all Republicans do). Yet, with net neutrality (involving commodity services and data transport) there is a much stronger common carrier argument. So it’s bizarre to see him suggesting this here where it does not make any sense. Indeed, in looking at the text of the actual bill, it explicitly excludes broadband providers! So, this just doubles down on how full of shit this bill is. It tries to impose common carrier obligations on those who don’t meet the definition, but explicitly excludes the companies that do meet the definition and which are significantly less competitive than social media!

Unfortunately, our laws haven’t kept pace with this technological reality. The statutes governing free speech and the free exchange of ideas online haven’t been updated in a quarter-century. Since it was passed in 1996, Section 230 has been stretched from its original intent?the promotion of the free exchange of ideas online?into a license for companies like Facebook and Twitter to censor.

Again, the exact intent of 230, as explained multiple times by its co-authors, including Republican Chris Cox, was to encourage companies to actively moderate their websites to create family friendly communities. Hell, the bill itself was in response to the Prodigy ruling, in which a judge said that by doing any moderation, the “family friendly” Prodigy became liable for any content that was left up. Cox worried that this would fill the internet with garbage, and make it unusable by children, because websites would avoid any moderation. So, the paragraph above is just wrong historically.

In recent months, these platforms have effectively smothered newspaper stories that they found inconvenient for their loudest users? preferred candidates.

This is not true. (1) They did not “smother” those newspaper stories, and the actions taken by the platforms got those stories much more attention. (2) The reasons those stories were stopped from sharing was due to legitimate concerns that they violated platform policies — and had nothing to do with any “preferred candidate.”

Big Tech companies have silenced mainstream American political figures, while leaving up Iran?s Supreme Leader Ali Khamenei?s account, even as he tweets hateful things, including calls to ?eliminate Israel? and discussions of how to do so. These platforms have censored and editorialized with blatant political bias?writing progressive ideology into their content policies or scrubbing dissent against Covid lockdowns off their sites. Moderate and conservative viral content is suppressed. Twitter blocked the account of the New York Post over its reporting on Hunter Biden, while Amazon removed from its streaming service an acclaimed documentary on Justice Thomas during Black History Month. Implicit in these censorship practices is an apparent belief that Big Tech has the right to shape what Americans can learn and believe?a totalitarian concept that runs contrary to U.S. values.

There’s a lot of selective cherry-picking in here that ignores tons of stories on the other side. It ignores the times the platforms have bent over backwards to give online trolls and rabble rousers extra space to avoid being called out for “bias.” It ignores all the times the platforms have taken down people for other policy violations. And it reframes every one of these stories to avoid explaining why the content and users in question violated long standing policies that the platforms had in place for useful reasons.

My bill would (1) abolish Section 230, (2) treat Big Tech?defined as any interactive computer service platform with more than 100 million active monthly users world-wide?like a common carrier that must provide reasonable, nondiscriminatory access to all consumers, and (3) prohibit political censorship by Big Tech.

(1) Would lock in the power of big tech by making it nearly impossible for newcomers to be able to withstand the legal liability of hosting 3rd party content — which would directly undermine Hagerty’s own claims of how the real problem is a lack of competition. (2) Would, again, lock in those big providers and guarantee that those sites become unusable as they would fill sites with spam, hate, harassment, bigotry, porn, and more. (3) Would violate the 1st Amendment.

Other than that, Senator, have you got any other stupid ideas?

In addition to not discriminating against political opinions their employees personally dislike, social-media companies should be required to provide basic consumer transparency regarding their products, given that many Americans rely on them for news and information. The 21st Century FREE Speech Act would require platforms to disclose their content management and moderation practices to users, so that consumers can understand and better manage the information they receive.

Every one of these websites already has publicly accessible user policies and releases transparency reports. But if being a website that Americans “rely on for news and information” is the characteristic here — will this bill also require that Fox News release a transparency report regarding how it chooses which stories and which guests to put on air? Or nah?

The 21st Century FREE Speech Act would abolish Section 230 in favor of a liability protection framework that marries that section?s original intent with the practical implications of the enormous technological change that has ensued over the past 25 years. Liability protection would remain in place for third-party speech and family-friendly moderation of specifically defined obscene or lewd content, without providing limitless special protection for platforms? own speech and viewpoint censorship. This legislation provides the liability protection necessary to spur continued innovation, without giving companies carte blanche to censor speech on political, religious, or other grounds.

Oh, I see. You’re creating a policy that treats different speech differently. Which is pretty clearly not allowed under the 1st Amendment. You must have learned about it at law school.

Ultimately, the 21st Century FREE Speech Act is about promoting free speech, thought and exchange of ideas.

Compelling speech — including abuse, hate, and harassment — is the opposite of promoting free speech.

As Justice Oliver Wendell Holmes Jr. , put it in a 1919 Supreme Court opinion concerning the censorship issue of his day, the prosecution of printers of an anti-U.S. leaflet during World War I: ?The theory of our Constitution? is that ?the ultimate good desired is better reached by free trade in ideas? and ?the best test of truth is the power of the thought to get itself accepted in the competition of the market.?

And yet, your bill would kill off this market, and refuse to allow private companies to create spaces where speakers feel free to say what they want.

This freedom to think, discuss and determine one?s own beliefs is the foundation of American liberty and opportunity. Washington can?t allow Twitter and Facebook to eliminate these freedoms. We owe it to our children and grandchildren to ensure they are preserved.

And this bill does the opposite of that. We also owe our children and grandchildren not to have Congress mock the 1st Amendment with bills like yours.

As for the actual bill, it’s even dumber than I expected. It limits moderation protections to a very narrow class of content, and then puts ridiculous (easily unconstitutional) limits on those. It says you can only moderate “obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, or unlawful” content. At first, I thought this meant that all spam must be allowed, but in the clarifications, the bill notes that spam can be moderated as “harassing” content… which is bizarre.

The bill also includes a ridiculous private right of action, that would allow any user to sue any website if the person is “aggrieved” by a moderation choice, and can ask a court to get an injunction, barring the moderation decision and award $500. Holy shit. Every single website would immediately shut down their comments (including ours). This is wildly unconstitutional. For all of Hagerty’s high and mighty talk about the 1st Amendment, this is a massive infringement upon the 1st Amendment rights of anyone operating a website (not to mention their own private property rights).

There have been so many bad and unconstitutional attempts to change and reform 230, but this one is just completely disconnected from reality. The people of Tennessee deserve better. Elect better Senators, people.

Filed Under: 1st amendment, bill hagerty, common carriers, compelled speech, content moderation, free speech, net neutrality, private property, section 230