Right now we have a situation where the platform owner can collect the fruits of popularity, while the platform users experience basically no-liability gossip, such as empirical claims about businesses.
Anyone who is hated broadly by the internet, whether just or unjust, would like FB to be liable no matter what is right or wrong, because holding hundreds of tiny individuals accountable for tiny wrongs over the web is a losing battle.
Section 230 shields Facebook from liability for these posts, not the users. And Facebook generally responds to subpoenas from a court for IP address data that can be used to identify a the user behind a libelous post...
The restaurant can sue all of the other users for libel, and if it's a coordinated effort or the apparent facts behind each libelous act are sufficiently similar, they can get them joined into a class action imposing joint and several liability imposed on the named defendants (i.e. the few they are able to reasonably identify), meaning that it is now the named defendants' responsibility to find the other users if they want to avoid paying the full damages out of their own pockets.
Believe it or not, all of these hypothetical that techies keep bringing up on HN in this thread as if they were magical logical bullets have long been addressed by courts and/or legislators.
Are you sure you're not engaging in some magical thinking when you imagine Yelp users enjoined as a defendant class? When is the last high profile case where something like this happened?
Not true. You can be sued for Libel on Twitter and Facebook [1].
https://slate.com/technology/2012/11/libel-on-twitter-you-ca...
For sure, if you are Elon Musk and you claim on your twitter account that a world renowned diver is a pedophile, you might suffer real consequences.
But if someone posts on my restaurant's yelp page a totally fabricated negative review, what are my options? Even let's say I have video or other evidence that disproves their assertion (unlikely), I will need to quantity the harm that this particular internet comment did to my business, which is in most cases nearly impossible. And all for what? A median wage worker isn't going to be able to cover my lawyers fee's (assuming I can prove malicious intent) before going into bankruptcy.
What businesses really want is to be able to sue Yelp itself for libel. They want to say: "Yelp, you didn't quality control your comments, these reviews are being fabricated. After my 5 star rating dropped to 1, my business’s income plummeted, now pay up."
I don't think it would be a good idea if our laws worked like that, but as the parent points out, the current situation is that the platforms are more or less immune to libel, and suing random internet commenters for libel makes no sense.
It really is a public web space that is operated by a private company, but I can't help but feel that the nuances and similarities of what Twitter really is and what responsibility they truly hold in society is above the courts comprehension.
No, it isn't, any more than a store is a public space because it has windows the public can see into. You have to sign up for a Twitter account and accept their terms of service to post on the site. It's a private platform run by a private company for its own private business interests.
It is absolutely the case in the USA that private properties which are open to the public are regulated as "places of public accommodation" under, notably, the Civil Rights Act and the Americans with Disabilities Act. That includes privately-owned hotels, schools, restaurants, retail, and more.
You're correct that this is directly analogous to a privately-owned website that is primarily geared toward accommodating the general public (like Twitter), but it makes the opposite point of what you intended.
https://en.wikipedia.org/wiki/Public_accommodations_in_the_U...
Twitter may technically be a private platform run by a private company, but the issue not one of semantics, it’s about ethics and morals and how we compose a society with mighty power imbalances, fortified by new tech.
But that's not what this is really about.
This is about the President being angry that Twitter fact checked him and using executive power to create a chilling effect against any platform doing so in the future. It's about fears of a nonexistent conspiracy controlling the media becoming the basis for authoritarian laws meant to stamp out that menace - a phenomenon which never goes well, historically. It's about Americans hating "the left" so much that they'll support an obvious violation of the First Amendment as long as it silences their ideological enemies.
That is the impetus in this case, but that doesn't mean it doesn't border on questions we've been slowly grappling with for some time now, nor does it mean we have to ignore that question.
> the basis for authoritarian laws meant to stamp out that menace
I'm not sure it's authoritarian to remove their liability protections, is it? In a sense, I think it's an interesting question, if you're willing to editorialize content on behalf of your users why should you get safe-harbor protection? You clearly are willing to put the man power and technology into it, shouldn't you then be liable for content posted on your site?
> It's about Americans hating "the left" so much that they'll support an obvious violation of the First Amendment as long as it silences their ideological enemies.
What's the obvious First Amendment violation here? If you act as a conduit for certain types of speech, you're liable for that speech. We're just bringing "content neutral providers" into the same realm that everyone else already was.
If the intent is to punish critics and suppress the speech of party opponents, then yes. Any authoritarian can justify their actions in abstract and general terms, but context matters.
>nor does it mean we have to ignore that question.
We don't have to ignore it, but we also don't have to accept an autocrat's temper tantrum by fiat as an answer.
>What's the obvious First Amendment violation here?
The purpose of the First Amendment is to prevent the government from infringing freedom of speech - the President is attempting to use government power to infringe freedom of speech, to do exactly what the First Amendment was created to prevent.
Granted, the First Amendment only explicitly applies to Congress, but I feel like if states can be accused of violating it (as they often were regarding quarantine and shelter-at-home orders) then the President can as well.
This is literally what Twitter has been doing. Trump's order puts an end to it.
> We don't have to ignore it, but we also don't have to accept an autocrat's temper tantrum by fiat as an answer.
Exactly why Twitter needs to be stripped of their 230 protections.
> The purpose of the First Amendment is to prevent the government from infringing freedom of speech - the President is attempting to use government power to infringe freedom of speech, to do exactly what the First Amendment was created to prevent.
This is the government upholding free speech. Twitter's policies and their selective enforcement of such run directly contrary to the underlying tenets of free speech. This holds Twitter accountable for their "un-American" practices.
Although it may be hard to see through the vitriolic debates currently raging, this will be a net win for the internet. This will encourage decentralisation in so far as there is now a soft power cap on these big tech companies.
Debatable, on both points. There have been studies[1] that show that accounts are banned, but it's not necessarily because they are conservative accounts or conservative content. In a civil or criminal case, causation must be established. In this case, the president is making it very much more expensive for certain companies to defend themselves.
This EO is more likely to hurt YouTube than Twitter because it has the ability to get the Federal Government to no longer approve grants to Google subsidiaries and for government agencies to stop advertising with them.
> to be stripped of their 203 protections.
You mean The Communications Decency Act, Section 230?
> Twitter's policies and their selective enforcement of such run directly contrary to the underlying tenets of free speech.
That's interesting. Government law enforcers and prosecutors have the ability to use prosecutorial discretion. Are you saying that the government should be able to select who they prosecute, but that private organizations should not be allowed discretion to enforce their own contracts?
If ISPs (where content in a pipe is pretty close to comparable to Common Carrier standards) can't be held up to the standards of Net Neutrality, how can social media companies (where content is much more subjective to interpret as violations of their contract)?
> this will be a net win for the internet
That remains to be seen. I can see it being another tool where the executive branch gets to unilaterally change the definition of which internet companies get protections, not leveling the playing field.
> This will encourage decentralisation in so far as there is now a soft power cap on these big tech companies.
More likely there will be some obvious "unintended consequences" similar to what happened after Trump signed the FOSTA bill in 2018[2] (hint: multiple dating sites, including Craigslist sections, closed up shop). It will very likely increase the cost of being a user-generated content host to the point that only a very select few companies would do it and they will all require arbitration clauses in the ToS to avoid extremely expensive litigation of the CDA230 rules. I expect a handful of forums and lots of news comments sections to close due to this "free speech" Executive Order.
[1] https://www.cjr.org/the_media_today/platform-bias.php
[2] https://www.npr.org/sections/thetwo-way/2018/03/23/596460672...
thats an interestating take, considering trump is trying to stop the selective editorialization of individuals covered by the first amendment.
are we really taking twitters side of this because we hate trump so much?
Are you required to let me organize a protest in your front yard? Do property rights not matter anymore?
Again, the first amendment protects those individuals from being censored by the government. Twitter is not bound by the first amendment. They're allowed to editorialize content. They're allowed to curate, moderate, deplatform and ban people.
However, Twitter is also protected by the first amendment, and Trump's executive order is an attempt to erode those protections.
>are we really taking twitters side of this because we hate trump so much?
No. I believe in the right of platforms to censor content as an extension of their own freedom of speech and association, because that still leaves the internet itself free. If one objects to Twitter's behavior, one can always find a new platform or create one. However, when the government attempts to assert censorship over the entire network, that reduces freedom for everyone.
The order regards the additional protections of section 230 which even protect twitter for content that is not protected by the first amendment. Trump is essentially trying to say if Twitter takes sides by fact-checking some tweets, then they are also responsible for all the other "facts" they allow to be posted on their platform without fact-checking. And by the way the courts are still perfectly capable of deciding in favor of twitter regarding blame for all those other posts too. Twitter just won't be shielded by a special law from such decisions.
You absolutely do. The same protection that applies to Twitter applies to a personal blog that allows comments, or any site that allows users to post.
So let's look at today. You have a tweet from a conservative group that "concludes" that the only way forward for America is violent action, up to and including murder of political opponents. "The only good Democrat is a dead Democrat".
To me, it seems that there is a plausible argument to be made that this group is inciting violence.
And then Trump re-tweeted it, with the additional commentary, "Thanks, Cowboys of America!".
If we want to compare "consequences of speech and platforms", then on one hand we have hand-wringing about "Twitter _annotated_ a tweet with links to resources about the substance of that tweet", versus "group hints at violent oppression of political opponents, and is given the thumbs up by political leader".
I was going to say "I know which one I find more problematic", but lest someone attempt a slippery slope retort, I'll be more clear: I find only one of these actions at all problematic (and it's not annotation of tweets).
There's some merit to that position, but things like adding a fact check (which you might or might not agree with) do not incur any sort of civil or criminal liability. You make good points, but we should also engage with the reality that the president and his supporters are demanding a quality of representation/protection for their political views that they don't have any particular entitlement to, and for which no mechanism currently exists in law; it seems (going by the general tenor of their arguments over the last few years) like they want to bring back the 'Fairness Doctrine' that obtained for broadcast media up to the Reagan era to create some protected space for their viewpoint.
The way I interpreted it, your parent comment was arguing the opposite of the way you framed it.
It's a long run-on sentence, but the `;` is meant to be interpreted as "start a new sentence that is related to the previous one"
Power and technology can't curate content to the level where you are safe from lawsuits. What you're saying is that if they are willing to do a bit of moderation they should do total moderation.
https://www.cnn.com/2020/05/28/politics/trump-twitter-social.... > consistent with a draft order whose text CNN first reported last summer
2. What was drafted last summer was legislation. Legislation that would likely not stand up to political or legal resistance. This is an executive order to make an end-run around all that "bureaucracy".
> has little to do with the recent twitter news.
This fails the plausibility test. This came hot on the heels of this incident, Trump _said_ it was related to this incident, and that he'd be doing this as result, and the last several years are packed with a multitude of examples of exactly that: Trump knee-jerking an angry response (words, actions, both) to those who he deems to have slighted him.
https://www.cnn.com/2020/05/28/politics/trump-twitter-social...
And no it wasn’t legislation it was a draft of an executive order from last summer as mentioned in this article.
They don't allow libellous, defamatory, salacious or inappropriate comments for example.
So it sounds 'new tech' hasn't really changed anything.
If someone uploads their library of child porn encoded to base64 split across tons of tweets, do you want Twitter to have a choice between removing that content and continuing to operate?
We have 3 options here:
1. No moderation allowed whatsoever on a site without a court order. That obviously leads to a terrible, toxic community with lots of reprehensible content that the average person wouldn't want to participate in.
2. A good faith effort at moderation. This allows the most reprehensible, highest-impact content to be removed and allows users to participate in the moderation process.
3. No content can be published without moderation, on any site anywhere. Want to post a Facebook status? Have fun paying $20 for the privilege of waiting 48 hours for a human to review it.
All of this is irrelevant though, because this executive order is not targeted at censorship. It's targeted at a private individual who voluntarily, for free, passed on a message from one person to many other people and decided to tell them "this seems fishy, you might want to read up on it."
In the specific example of child porn, would removing it be protected speech and a copyrightable work? To my knowledge, no, it is not.
However telling someone "this seems fishy, you might want to read up on it.", attached to someone else copyrighted work, is to me speech. It is also a copyrightable work if its original enough. It could also be a defined as a derivative work if it includes major copyrightable elements of the original, which in this context is likely.
The difference between removing child porn and creating derivative work is one that I don't think courts will have a problem to distinguish between. Both may end up being described as moderation, but the outcome, intent and context is very different.
Twitter isn't liable for illegal content posted by their users, as long as they take it down in time and make good faith efforts to keep it from being posted in the first place. If they weren't free from liability then a service like Twitter would need heavy human moderation and be extremely expensive to operate - perhaps it wouldn't exist at all.
That's the only reason this non-liability exists. It has nothing to do with moderation or censorship. Twitter, as any other web property, have the right to curate their platform and make it pleasant for their other users. It's their personal property.
They've always done some editing and removal of certain content.
In this particular case, was anything modified or censored though? It seems more like Trump had his say, and Twitter had theirs. Is Trump saying that Twitter can't also express themselves on their platform?
There are degrees to moderation, but not to liability. This black or white approach doesn't seem appropriate. They should be liable in a degree proportional to the moderation they introduce.
That's very different from, say, a public restroom where people write on the walls. The owner of the restroom is not responsible for what people write on their walls.
Newspapers also have zero obligation to convey the words of the President, and by frequently contextualise them.
Absolutely. And they don't say "we're just a platform transporting information", they restrict what they publish.
> They don't allow libellous, defamatory, salacious or inappropriate comments for example.
They do. And they get sued for it, and they can lose, see Gawker. Precisely because they are not like Twitter.
No, they're not. You have to visit the Twitter website or otherwise pull the data from some source to get tweets.
it’s about ethics and morals and how we compose a society with mighty power imbalances, fortified by new tech.
It's technically trivial to create your own Twitter. There are indeed plenty of competitors to Twitter. Twitter has no moral or ethical obligation to carry lies. Indeed, the opposite is true: because of their market position, they should be ethically and morally obligated to prevent lies from being spread through their platform because they have the greatest reach.
Would you make this same argument when it comes to privacy? Technically it's your computer sending your data to Google/Facebook, therefore you are giving them permission to use your data, because you're so generously providing it to them. Technically this is true and any real privacy solution would have to address this point, but it's clearly not what is done in legislation.
When you send your data to Google or Facebook by explicitly providing that data, you are giving them permission to use that data for purposes of providing the service for which the data is granted. This is true everywhere, even in the EU.
If you're asking whether that upload would grant Googlebook broader rights to use your data, then the answer is yes in the US because there are no laws currently restricting such use, but no in Europe because EU law says permission must be explicitly granted for other uses.
If I have the right to every website then how about password-protected ones. Do I then have the right to demand that Apple give me access to everyone's iCloud website ?
You don't need Twitter.
Yet we still have people trying to define what activity on the Net constitutes the necessity that access is supposed to fulfill.
I understand where you're coming from though. I just wanted to point out the amusing dichotomy that stood out in my head.
As much as Twitter is important, it's not nearly as important.
For some of my friends, Twitter was the only contact information I had for them. I have now totally lost the ability to communicate with those friends in the midst of a global emergency, even if I make a new account (which itself would be subject to immediate termination at any time), because I don’t know their usernames.
A few of the closest ones fortunately noticed my absence without prompting, went to my profile, saw it suspended, went to my website (I presume it helped that my username, @sneakdotberlin, describes my website address), and emailed me. As for the busier or less attentive friends? No word yet. :(
You can’t export your data or do “data takeout” from a suspended account, sadly, and you can’t view your DM history either inbound or outbound.
EDIT: Also, I do need Twitter (and a high follower count) to meaningfully interact with my bank or my airline’s (or Google’s) customer service department. The 1-800-i’m-a-schnook line doesn’t seem to get things done.
This is a big problem.
More impactful would be access to any accounts which you only have access to with Twitter/Facebook/Google/etc federated login (like OAuth). It's very significant if you can't access your email/cloud/DNS accounts if you make a gray area ToS-violating comment/video on YouTube.
I was going to say it's not really about access but censorship. Using gmail as an example is nice because I do appreciate their spam filtering which spammers might consider a form of censorship (lack of deliverability). And yet I'm against platforms like twitter censoring things. The spam situation quickly leads into another set of arguments with me about traceability.
This has happened to me multiple times. Most people would likely never notice the opportunities they missed as a result of such.
I’m talking about real live false positives, on important messages from real live human beings.
Additionally, gmail spam folders even well run, nonspam, properly configured and secured mailservers AFAICT simply for not being part of the wider deliverability cartel.
Speaking of which, shouldn't we make it a crime to lie or substantially mislead the public while holding public office?
But I also think that the more Twitter is used to disintermediate political communication, the more it starts to look like a vital public utility. It's tough to say where the line will or should be drawn. I don't envy Jack Dorsey's position, that's for sure.
As far as making a law that prohibits politicians from lying to the public, I don't see a way to write a law like that without making the situation even worse.
Except it's not. Trump is right here; most of the confirmed voter fraud is on mail-in and absentee ballots, despite being less used than in-person in the past decades. Switching everyone to mail-in will cause a sharp uptick in voter fraud.
Spot-checking and using search for counts, most are manipulation of mail-in or absentee ballots (many being a bunch of ballots by a single person), with the next highest looking like individual people voting who didn't realize they were ineligible.
"Carlos Lopez and his wife, Luz Lopez, registered to vote and voted on three separate occasions (2004, 2006, and 2007) in Hartford, where they own a furniture store, while actually living in Farmington." (Fittingly, this story is included twice: once with each spouse first).
"In 2009, Lillian Cummings Stevenson agreed to a consent order after the State Elections Enforcement Commission found her guilty of illegally signing and submitting two absentee ballot request forms on behalf of her sons, who were living in Europe. She was given a $200 fine."
"James Bryant, Jr. admitted to improperly assisting voters in completing their absentee ballots in the 2005 Americus mayoral election...."
The document itself admits that it is "only a sampling," which, in the absence of further methodological detail, should raise their hairs on the back of your neck.
Nobody ever said that vote-by-mail is fraud proof, only that it's good enough. Which it indisputably is, at least as implemented here in Washington state.
Well.. How about another case I just learned of today? 'Cause it kinda doesn't seem like we're even at "good enough":
> “Invalidate the election. Let’s do it again,” said Rev. Kenneth Clayton said amid reports more that 20 percent of all ballots were disqualified, some in connection with voter fraud allegations.
[..]
> In addition to apparent problems with the vote count in Paterson, NBC New York has shown video of ballots left out in building lobbies, of one voter handling many ballots, and reported on postal workers reporting finding hundreds of ballots at a time stuffed in mailboxes in Paterson – and even in a neighboring town, Haledon.
https://www.nbcnewyork.com/news/politics/nj-naacp-leader-cal...
One good aspect of the vote-by-mail system we use here in WA is that the voter retains a code they can use to verify that their ballot has been counted. There is an auditable paper trail at every step that's accessible to all parties - the voter, the election officials, and the candidate. That's more than you get with many in-person voting systems, especially those involving closed-source machines made by companies with questionable ethics and engineering practices.
Yes, I'm sure it's possible to build a vote-by-mail system that is more prone to corruption than in-person voting. But the point is, it's not necessary.
This could, and presumably is intended to, mislead people on both sides of the political spectrum.
Assuming for the sake of argument that someone could be trying to promote a fundamental truth using lies, it doesn't make it sane to trust or acquiesce as a result of lies.
Maybe in our brave new world, disbelieving in something because it is supported with lies is an example of an ad hominem fallacy?
Thomas Bayes is screaming in his grave, something about cancer diagnoses...
Actually I don't know if that's even true. And almost all the significant cases of any kind of election fraud aren't about ballots at all. It's stuff like voting in the wrong jurisdiction, or count fraud, or registration fraud.
Please cite me where you got the info that most election crime is from remote voting. That info doesn't exist.
What does exist is the facts in the WaPo article that twitter linked, which show that effectively zero mail-in ballot fraud is happening.
Why should a private company have this power? I don't think that people who run a successful website automatically are qualified to fact check the president and insert blurbs directly in his messages. That needs to be regulated some way.
And no, them being a private company doesn't matter. Currently they have a lot of power thanks to them having a lot of important users, and now that they are starting to use that power we need to quickly come up with regulations for it.
Twitter invites the public in to exercise free speech, which in a public space would be protected. This invites an analysis that Twitter may be a quasi-public space that offers some 1st Amd. protections.
And so if I run a knitting forum I am not allowed to restrict people who want to turn it into a pornography one. And how would it work for spam. This could end up in a situation where a large spammer could force websites to not remove spam.
It sounds unworkable and over the top just to protect some people who aren't even having their rights impeded.
Twitter would not be mandate to open up access to everyone. Instead, the proposed legal changes would merely treat them as publishers, if they act like publishers, and therefore twitter would not have liability protections anymore.
If they don't like the section 230 laws, that already exist, then they should go lobby Congress to change it or something.
But right now, if you act as a publisher, then you lose certain protections. That's how that law works.
Doesn't matter. Twitter is a privately owned platform not a public one.
SCOTUS has already said that simply being open to the public does not make a business a public platform, see Pruneyard v Robins, applying this reasoning to privately-owned malls.
And yes, that makes all the difference, since SCOTUS has repeatedly held that publicly owned spaces like public parks and main streets are subject to first amendment requirements.
In Packingham v. North Carolina (2017) SCOTUS described social media websites as similar to a public square and ruled that the state couldn't block access to them in an overly broad manner.
Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically. However, a reasonable case can be made that Twitter has _intentionally_ positioned themselves as a public platform and so the case you cite could be argued not to apply.
Alternatively, Twitter could be argued to be editorializing. If that were the case, presumably they wouldn't really be a public platform but rather a publisher. But if that's the case, shouldn't they be held liable for all the nonsense that people post there?
The situation isn't clear at all even though many people on both sides of the debate frequently claim that it is.
Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically
This is true. A statute of Congress can place restrictions on businesses. Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws.
Moreover, SCOTUS cases have ruled that privately owned facilities are not subject to the "limited purpose" test. It doesn't matter that they've held themselves open to the public, it matters that they're privately owned. (See Lloyd and Pruneyard, explicitly addressing this point.)
> Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws.
I never claimed this? I said only that the current situation was not as simple as you made out. (I would also note that the president appears to be targeting Section 230 protections which is quite a different beast.)
> That's not at all what Packingham says.
Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way.
Except the text of the case itself literally does not do that. You need to read the actual text and not just the summary. Importantly, every time in the case they reference a "social media" website and a form of expression that could occur in a public forum, it is with respect to how the appellant would use that website--to freely express himself under his own first Amendment rights, and they contrast that with the government's attempt to restrict that expression. And as I pointed out, these activities were expressly addressed in the mall cases I cited, in which the courts said it didn't matter that such activities could occur in a mall, what mattered was that the malls were privately owned facilities. (And that is why I keep bringing the cases up--because malls are the closest analog to Twitter. They let people come in and at the time of these cases had millions of customers/visitors annually--on a relative basis, they were more a part of American life back then than Twitter is now.)
I would also note that the president appears to be targeting Section 230 protections which is quite a different beast.
The Section 230 protected are provided by congressional law, so it's not a different beast. The President does not have the power to target section 230 protections. The executive agencies could arguably make rules to change those protections, if they adhere to the administrative rulemaking process and their rules do not contradict the express text or purpose of the law.
I previously pointed out that a reasonable argument can be made as to why that precedent should not apply.
No, you didn't. The ADA (1990) and Civil Rights Act (1964), are older unrelated laws governing different issues. The CDA was passed in 1996, and so jurisprudence and the law itself already incorporated existing understandings of both of those laws...as well as the SCOTUS cases addressing the exact points you raised in your comment (i.e., the mall cases you keep dismissing). The CDA was written in a world where private facilities were not public forums as a result of multiple SCOTUS decisions saying they weren't. And the law reflects that.
> > I previously pointed out ...
> No, you didn't. The ADA ...
That isn't what I was referring to. I initially noted that Twitter has very clearly and intentionally positioned themselves as what I can only think to describe as a public platform. Private malls simply do not do that. They are also so many orders of magnitude larger than any private mall that I fail to see a relevant comparison there. It is my understanding that factors such as intentions and size of influence are important in cases like this. I make no claim as to how that argument would go in court, only that it seems like a reasonable one to put forward.
> You need to read the actual text and not just the summary.
I was very careful to clarify that the court did not explicitly rule on that. When the majority opinion goes out of its way to bring such an issue up and makes direct comparisons, I think it is reasonable to assume that they would be open to entertaining such a line of argument. If they thought it was ridiculous then why did they bring it up and go on about it to such an extent?
You need to actually read the private mall cases, since the malls actually held themselves out to be replacements for the public square, i.e., to replace Main St and the public park where people used to freely meet and discuss stuff. There is a reason these cases are so important to First Amendment jurisprudence.
The point of the private mall cases is that it doesn't matter if they hold themselves out to be replacements for the traditional public forum, because they're not actually a public forum--they're still just privately owned venues that can withdraw their openness to public expression at any time as a matter of their own first amendment rights.
Twitter is just the new private mall. It may hold itself up to be a public platform, but as a private entity, it can revoke that presentation at any time as a matter of its own first amendment rights.
It is my understanding that factors such as intentions and size of influence are important in cases like this
You would be wrong. This has never been relevant to first amendment cases. Moreover, at the time of the private mall cases, the malls had significantly more customers on an absolute and proportional basis (out of the US population at the time) than Twitter does today in the US.
When the majority opinion goes out of its way to bring such an issue up and makes direct comparisons, I think it is reasonable to assume that they would be open to entertaining such a line of argument.
The ruling does not "go out of its way" to compare social media platforms to public forums. In mentions "public forum" only once, offhand, as one of the ways that social media could be used by the appellant whose civil rights were being violated when the government tried to bar him from using social media. And even then, under the lineage of the private mall cases, it's irrelevant because private websites are still private websites with their own first amendment rights to control the speech that appears on their websites.
Currently. Might not be long after this change to Section 230 enforcement.
> Twitter matters to political discourse, knitting doesn't.
I don't follow this logic. There are substitutes for Twitter, even banned users can view publicly posted content on Twitter, and the CDA Section 230 has nothing to do with "political discourse" -- it describes all content.
I'm also fascinated that you used the word "political" and not "policy". All things "political" could vanish tomorrow and the world would be better off. Not being able to discuss policy issues/ideas would be tragic.
It easy to make it workable, just claim that general-purpose platforms beyond a certain use size become public forums where freedom of speech must be protected.
If an online forum wants to curate speech it should be treated as a publisher. Or, perhaps develop some legal regime that recognizes that smaller forums can be restrict to certain topics, but not viewpoints if they want to retain their immunity against defamation.
edit: deleted some nonsense that I got wrong
It's also not Day 1 of "Trump being upset at Twitter for much the same reasons", so no doubt there's been a plan. But ascribing the timing of this EO to "just a coincidence" stretches credulity, to me.
The timing of this release is hardly coincidental, but it's been on the minds of the politicians for long enough that this reads to me more like an opportune time to push something forward that's been brewing for a while, rather than an off-the-cuff reaction.
[1]: https://www.nytimes.com/2019/05/15/us/donald-trump-twitter-f...
[2]: https://www.nytimes.com/2018/07/26/us/politics/twitter-shado...
Considering they could log out (or open a private tab) and view the content, obviously it wasn't access to the information that was fundamental but the act of the President taking a step to reduce someone's access.
With that in mind, does the host have the authority to take the same action? Why or why not?
This is not a 1st Amendment issue - after all Trump blocking someone doesn't limit their ability to tweet him or at all - but it's a really weird spot of free speech vs private property vs public forum vs public access vs.. ?
Does a private company have the authority to impede access to Official Statements? If so, under what conditions? If no, is it "never"?
The answer is yes to your first question. A private company is not required to make available "Official Statements" (whatever that means) using its own resources. The government (in the US at least) must pay for publication and dissemination of "Official Statements."
And to be clear, I've read the DOJ position asserting that "Trump's tweets are official government statements" (linked in this thread) but wasn't aware of court rulings.
https://www.indiewire.com/2020/04/cnn-msnbc-not-airing-trump...
There are more.
The answers you want are the first search result in Google and Bing for first amendment and compelled speech and are covered by the Wikipedia page on the First Amendment.
Does a private company have the authority to impede access to Official Statements? If so, under what conditions? If no, is it "never"?
As noted, I suspect this is not a 1st Amendment issue as the "speech" is present regardless and you have organizations, not necessarily people.
Twitter is not a legally recognized method of presenting Official Statements, as a matter of law (which sets forth the prescribed methods for making Official Statements). They have no responsibilities to present Official Statements, which means they can "impede" access to those statements on their platform all they like, in whatever manner that takes, from simply deleting such posts to providing fact checks to outright editorializing against the official statements.
As noted, I suspect this is not a 1st Amendment issue as the "speech" is present regardless and you have organizations, not necessarily people.
I don't understand what you're trying to say. This is definitely a First Amendment issue...even the White House acknowledges that this is a First Amendment issue. This order is entirely about trying to violate Twitter's First Amendment rights as a private non-governmental organization.
The Trump DOJ disagrees. Further, the ruling that he had to unblock people on Twitter established exactly that. He had to unblock people because he's making statements about government policy.
Therefore, them muting/hiding/blocking him is impeding access to official government statements.
Further, once they mute/hide/block some of his tweets, they're presenting some but not all.
They would probably be safer to allow all or none. This middle ground is editorial control over government statements which is a bizarre middle ground.. imagine a major announcement or policy change not being reported? Or actively being quashed?
Yes, that is their right to control how their website works.
> that would mean Twitter has to allow anything any public official, at least in the US, broadcasts via that medium...
No, they are not part of the US government, and they are not required to host official US government statements.
[0]: https://www.google.com/search?client=firefox-b-1-d&q=are+tru...
https://www.abajournal.com/news/article/government_says_trum...
I don't see banning a user from social media sites very different from exercising trespassing laws. Should Republicans be sheltered from trespass laws just because the owner of the property might not be a Republican?
Perhaps the best way for social media websites to avoid being is to more clearly define what content violates their ToS. I suspect most people don't read the ToS and certainly don't know how every company chooses to enforce their ToS with enough detail, and that's almost certainly the confusion when social media users complain about persecution.
In America, no matter how big of a community mall, management can always remove you for good reasons (using racial slurs, even at normal volume), silly reasons (they didn't like the color of your hat), or no reason at all, as long as it's not for a prohibited reason (because of your race). Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance).
It depends if you are reported and what for. American authorities have prosecutorial discretion, so they can choose to overlook the "wholesome things shouter", but may choose to charge the "racist shouter" with a vaguely defined law like "disturbing the peace". There are enough laws like "disturbing the peace", "trespassing", and "obscenity" which are largely subjective.
The left can attempt to immediately equate everything to the right of Obama with Hitler.
The right can attempt to immediately equate everything to the left of Reagan with Stalin and Mao.
Who is going to sort this out? Both sides might think they're being perfectly reasonable about their characterization of the other side. And if a judge on one side agrees with them, the alternative viewpoint becomes criminal hate speech. This is very dangerous.
Web publishers do not need any special protection from well established jurisprudence governing other publishers. It made some sense in the early days when it was unclear how things would turn out, now those protections should be rolled backed or adjusted.
In contrast, a public space like a public park is subject to free speech requirements, which is why the Westboro church can scream vile racist things from a playground.
[1] https://www.law.cornell.edu/supremecourt/text/447/74
About your specific question, I would say "standing INSIDE the mall screaming" (screaming anything) would be more similar to posting large amounts of text on someone else's personal Twitter feed.
Whereas simply having your own personal Twitter and saying things that someone doesn't like would be more like standing on the walkway outside a business.
Also, I read the draft of Trump's order posted on HN last night, and it doesn't say that lewd or obscene content can't be removed. If you start using the N word or posting pornography, I think that's still legitimate for companies to remove.
The problem is that the idea of "hate speech" is being weaponized. If someone simply wears a MAGA hat, that's being called "threatening" or "racist". If someone expresses economically protectionist views, they're called "racist" even though protectionism was used centuries ago to protect European countries from other European countries and has nothing to do with "race".
The right could similarly weaponize the idea of "hate speech" by saying that any time anyone mentions any kind of social program spending, that's "threatening" because that's akin to "communism, which has killed hundreds of millions of people".
Now, plenty of conservatives do say they're concerned about the slippery slope, but they don't immediately equate "we should give housing to the homeless" with "put the rich in the gulags", the way the vocal far left equates "maybe we should reduce taxes a bit" with "they're racists who want poor minority people to starve to death".
edit: deleted - the link did not support my claim.
Additionally, public sidewalks in front of stores are considered public areas because of the public easement to use the sidewalk. A private sidewalk is not a public area for free speech purposes (see Lloyd).
[edit: fixed Logan to Lloyd]
FWIW this is only thematically related, the order concerns the distinction between immune or non-immune activities under Section 230.
If you publish something defamatory on your blog, and you operate it, you may be liable. Section 230 is there to say that if a website merely retransmits your publication, it is not liable for it, so if you publish that same defamatory statement on Facebook, Facebook is not then liable.
However, the argument with the executive order is that if you exercise a level of deliberate control over the content beyond some threshold, or you augment expression (like Twitter did the other day, adding links to contrary opinion pieces next to the President's opinion), you effectively become a publisher of that content.
It's not a completely ridiculous idea either. Consider how diverse the expressions published to Twitter are; at some point it's not that different to choose not to publish some expression, than to express the complement of that expression yourself.
Before S230 that was the case: Executing any editorial control risked you being concluded to be the publisher.
Online providers said this is bullshit, we want be able to remove garbage -- lies, obscene material, defamation, etc. If moderating makes us publishers over everything on our site and legally liable, we can't do that. Make us immune so we can clean up the worst of things, and you can still always go after the actual sources.
So I think it only makes sense to the extent that the world before S230 also made sense. But that's a world where sites like twitter probably couldn't have come into being.
Without S230 the law is bizarre because it treated running a public venue as equivalently of being a publisher for everything that happened in it. It would be like if I ran a shopping mall and some member of the public came in and started calling you a paedophile that you could sue the mall simply because at other times I removed other people who were urinating on the walls.
Let's put in another way: publishers used to produce content (as in select, solicit, remunerate) to further their interests (financial, but sometimes also political, or cultural). Now the big social networks don't need to produce the content, but they can tap into such an enormous amount of it that they can limit themselves to shaping it. Promote certain posts, reduce the visibility of others. The overall effect is the same. You could probably make Facebook or Twitter in a great cultural publications just by tweaking the algorithm that determines the visibility of the posts.
That isn't clear to me at all. The publisher is essentially the author from a liability perspective.
I do agree (see my other post in this thread) that there are serious concerns about the moderation power of the operators of these massive online public forums. But that doesn't make treating them as the author from a liability perspective the right tool for dealing with that.
Particularly because in most specific cases where their moderation power might be misused there is no question of liability. Imagine a site where everyone was always honest and nice, but the operator ruthlessly censored all posts by Georgists and S230 didn't exist. Okay, they'd be liable for their users posts-- but so what? There is nothing there for anyone to sue over. The Georgists would still be totally silenced.
In a newspaper that selectively chooses to print some letters from readers, would the author be the publisher or the newspaper? That's an example of extreme moderation ("out of the 1000 letters we received this week, we will print this one") while Twitter is likely closer to the other extreme ("out of these 1000 Tweets, we'll hide/delete this one").
If I go to a bar and there's some guy screaming about his Nazi ideology and the owners don't kick him out, I'm going to just move on.
If some social media platform is full of trolls and hatred and such... people are just going to go away. It becomes a 'race to the bottom'.
Instead what seems to happen is that normies get pulled into Nazi content because the recommendation algorithms on these sites see heated discussions as engagement and try to feed it.
Or, HN :)
I'm just glad the prevailing call isn't to delete Section 230 altogether, which I think would cause a bit of pandemonium (though maybe that would be a social good as well, and maybe Section 230 was the mistake that made the social media monster).
Wouldn't this harm any of these activities, aside from situations where people are directly hosting their own content, because anyone hosting could be held liable for what gets posted?
The parallel would be Twitter commenting on a tweet. As long as they just pass the tweet on to other people, without commenting on it, then they aren't responsible for it's content. But as soon as they say "hey, this might be false information" about a specific tweet then they are responsible for the content of all tweets.
The Supreme Court may eventually take one of these cases and come to a different conclusion.
You can call the right hypocrites for doing a 180 on corporate property rights and demanding a 21st century fairness doctrine.. but didn't the left do a 180 as well?
Some may want to break true monopolies maybe, but twitter?
Anyway i was convinced by a conservative that big media companies should be partially nationalized (for gov oversight), still i don't think twitter is a big enough natural monopoly to warrant that.
I guess it comes down to whether these justices are ideologically "right-leaning", or just Republican partisans.
From my perspective, left-meaning means having a close association with reality and pragmatism, and right-leaning means do and say anything to make the rich richer.
And where does the Constitution say that a corporation spending money is speech?
You could say that the value of free speech is so important to society that it is codified on the Constitution. These companies that become big enough platforms should respect that value.
You could also say that the Constitution provides free speech protections to everyone. These companies should benefit from those same protections, thus the government shouldn't be able to interfere what these companies publish.
User count? Great, while the user count is < N the platform is moderated and popular. As soon as the user count exceeds N it's instantly a cesspool of spam and porn. Then what, it bleeds users and drifts back into the first category again? They're going to write subjective distinctions on the content of the speech into the law to differentiate between spam, porn, porn-spam, and political speech?
It doesn't work! If it could work, please, anyone who reads this comment: Many of us are programmers here, propose a rule that doesn't fall apart.
The second interpretation is at least consistent, even if it does protect corporations.
If Twitter is the devil just leave Twitter, no one has to use it. Gab exists. We have no legal right to access the people who are on Twitter.
Legislation has an easy out here: "you'll know it when you see it." Courts would decide and they already need to decide on these distinctions.
>If Twitter is the devil just leave Twitter, no one has to use it. Gab exists. We have no legal right to access the people who are on Twitter.
There's also no reason why the government has to give special protections to Twitter and other sites like it.
Whilst it might be, but is the left in us is already right (like Obama use Romey Insuranve not single payer). Or are we in mix economy some are left some are right. Or left right actually many different things like large and small Gov,liberty, ownership, ...
Or is there something like open source which is beyond left and right but community, not gov vs market etc.
"There were only three areas in which Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving advertising, religious expression and campaign finance regulation. Rehnquist was 2.6 times more likely to invalidate laws restricting commercial advertising than laws restricting political or artistic expression. He voted to invalidate campaign finance legislation 67 percent of the time, and he voted to invalidate restrictions on religious expression 100 percent of the time. Indeed, in non-unanimous decisions, Rehnquist was 14.7 times more likely to vote to invalidate a law restricting commercial advertising, campaign expenditures, or religious expression than one involving any other aspect of 'the freedom of speech, or of the press.'"[1]
[1] https://www.chicagotribune.com/news/ct-xpm-2005-09-06-050906...
https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf
The case was about a government trying to restrict a sex offender from accessing web sites where he could engage in first amendment activities like commenting. The court ruled that they could not, absent a sufficient showing that the restrictions on the appellant's internet usage were necessary to prevent the sex offender from re-offending.
In fact the express language of the ruling states that social media sites are a means for accessing the public square, not that these sites are the public square. Moreover, these dicta statements (i.e., non-binding commentary) are a direct reference to the first amendment mall cases, which similarly involved activities that could occur in a public square. The mall cases held that private malls could ban speech because they were private facilities, thus they were not public squares even though the public could (and frequently did) engage in traditional public square activities in the mall.
TLDR: the private-public distinction matters for First Amendment law. The First Amendment only applies to public properties and public agencies, not private properties or persons.
Perhaps this will end the same way codifying the word “Marriage” in the Defense of Marriage Act did. Nothing like Federalizing a word.
“This week a federal appeals court, ruling in a case brought by conservative activists against social media companies, affirmed that private websites are not public spaces and social media companies don't have First Amendment obligations.
Any truly strong limits to Section 230 would almost certainly require action by Congress.”