See the case here: https://www.law.cornell.edu/supct/html/93-44.ZO.html
The full text: "The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas."
Them taking steps to prevent Twitter from "restricting" information really doesn't follow with the approach this administration's FCC took with ISPs.
People (such as yourself, and myself as it happens) will claim that this order violates the first amendment. However the Supreme Court has explicitly allowed such actions under very specific circumstances. One such circumstance was called out above.
So the question is: would the actions in this case constitute a step to prevent a private interest (ie Twitter) from restricting communication via control of a physical pathway?
The ideas still flow freely. Twitter isn't even forcing more accurate and factual information right next to the dishonest framing. You have to click the link to even see it.
This seems like world class straw-grasping.
But here's the thing: that's fine! I can see why people would think that Constitutional protections of individual free speech apply on social media, but regardless of if you think they do or not, then adding editorial content to the posts should be protected as well.
Do you think the 1st amendment protects your posts because they're "speech"? Yes? Then Twitter also has free speech on it's own platform, even if it's biased.
Do you think the 1st amendment does not protect your posts, because Twitter is a private company? Yes? Then Twitter is also allowed to say whatever it wants on it's own private platform.
There's a difference between censoring, which is a whole other discussion, and adding editorial or fact-checking content, and I just don't see how anyone can argue that Twitter can't do the latter.
edit: there's also a difference in individual free speech and companies having free speech, but I think Trump is the last person who can make a stand on the idea that commercial interests can't be operated based on individual preferences.
One key quote:
> On California, Twitter is right that Mr. Trump is wrong. But on voter fraud, it’s complicated. There isn’t evidence of widespread fraud in mail voting. That doesn’t mean there’s no evidence. Last year a close House election in North Carolina was thrown out because of accusations that a Republican operative illegally collected absentee ballots, including incomplete ballots that his workers allegedly filled in. Investigators then also charged him with doing similar funny business in 2016.
They have been and will continue to "fact check" liberals and democrats too.
This reminds me of the dishonest framing of the IRS supposedly targeting conservative non profits for audits.
Yes, it is true Obama's DOJ targeted these groups.
What you'll never hear from the GOP talking points is that the IRS also targeted liberal groups for the same audits.
Historically, leaders like this are not rare. They're just rare in US history. In the US, they've rarely advanced beyond the mayor level. (See Tweed Ring, Pendergast machine, Daley machine, etc.) Huey Long made it to one term as Louisiana governor; he's the best known US example of the type.
Although, I will say that if you've ever moderated a forum or subreddit, you probably know that when you ban a user for stepping over the line one too many times, "I'm gonna shut this place down!" is a pretty common first response. Hopefully cooler heads will prevail and we won't have to find out what happens when the President and the first amendment come to blows.
It comes back to the question of whether a company should be able to deny the service of a customer based on its own internal decision making. So lets use a real world example, how about a baker denying service to a person based on sexual orientation. Should the company be forced to provide a service if it goes against their conscience? I believe the answer should and always will be: No. However, the economic and social ramifications of that company denying service is at their own risk and demise. Furthermore, any company should be allowed to modify, terminate, and/or otherwise control whatever service they provide. Which is the agreed upon User Agreement Terms that all people must agree to when they sign up for a social media service. This agreement means that you acknowledge that you will play by their rules, and that you forego your First Amendment rights absolutely, at the mercy and whims of the social media company.
That is the fucking point.
Whatever users write on social media is at the complete control via the User Agreement Terms unless otherwise stated. So yes, users have full control of what they write on social media and a company has zero reason to maintain, distribute, or display any information that users create for any reason whatsoever.
Social media companies CAN ban/shadow ban anyone for anything that they don't like. You are forever at the mercy of a private company and you did so freely by agreeing to their terms. If you don't like this approach, don't use social media. Economics. I do not want an internet where a private company is forced to be the voice box of any particular political philosophy that they did not choose, let alone ANY agenda that they do not choose or agree with.
That is the danger of insisting that social media should be at the behest of the First Amendment. If a person is ignorant of this fact, they need a REAL reality check.
Baker analogy doesn't quite cut it as there are many other bakers in town, give me 5 other alternatives to Twitter?
Honestly, the point I'm trying to make with the baker analogy is only to understand who has the final say: the company has the final say on what actions they will perform and the customer has the final say on where they spend their time and money.
There are actually plenty of alternatives to Twitter, but obviously these corporations own the largest market share. However, to blame Twitter or Facebook for that is misguided. They are as big as they are because customers have decided to agree to their terms, and if those terms change, Twitter and others have to send updated User Terms, at which point all users have every right to cancel their accounts. Any complaints about a company's policies whilst still being a customer is their own fault. :)
Laws pertaining to free speech do not apply here, as has been established time and again, partly because, like I said, it is their free speech in the wider gamut to remove things they don't want. Twitter's right to free speech exists in the public space, but your right to speech extends as far as Twitter's terms of service.
This all seems mostly disingenuous anyway -- the bias is very exaggerated. The right is mostly backed by armies of bots (a violation) and generally people who flaunt the rules more (anecdotally). Just something else to be outraged at.
Suppose a phone company (Verizon, Sprint, T-Mobile, etc.) decided to scan your speech for political content, then degrade your phone call quality if the algorithm decides that you seem to oppose the lobbying efforts of the company.
Suppose a package company (FedEx, UPS, DHL, etc.) decided that political items for one party would simply be destroyed, with the tracking number disappearing from the system. When you order a box of lawn signs for Biden, they never show up. Alternately, the packages aren't accepted for shipment, or they arrive with deliberate damage.
That's the private sector. Is this the world you want?
Courier services are pretty much private entities that have liability due to the fact they do not own the things they are delivering (this is a really nuanced topic). Lying about the practice and doing it transparently would be different stories.
I don't think social media is as nuanced. If you don't like it, go start your own or use one of the many that do not censor legal content. The burden of reproducibility is very low.
This has happened a few times (Voat, Gab) and the utopia of a hands-off content platform has never played out to anything other than a cesspool. Popular platforms remain popular and useful because they have the power to make editorial decisions.
I also assert that the world is not locked in to Twitter today, just like we were not locked in to Digg a decade ago. Users will flock elsewhere if they sense a need.
Bingo. I think this is a point that isn't made enough: to the extent platforms like Twitter can continue to exist, it depends on their ability to remove spammers, harassers, and other unwanted participants. Imagine using email in 2020 without a spam filter. Because Twitter isn't an open protocol, they provide both the protocol and the spam filter.
To ask them to stop removing any content would be as disruptive to their business as asking GMail to let all emails through.
What people need is not another right wing echo chamber and not another left wing one either.
Twitter was that neural platform for a while where ideas clashed but now they risk the right splintering off and that is not a good thing for anyone.
It's easy to parrot oft-repeated slipper slopes arguments, but doing that is actually the echo chamber. Especially when now even bothering to check to see if it applies in certain situations.
This case is fair enough but I really do believe in the slippery slope argument.
It's also clearly not an echo chamber to talk about it here considering the number of downvotes I'm sustaining. I'm also seeing posts get upvoted before they get downvoted so it's controversial... Which is a good thing for discourse!
This is, of course, disingenuous. It's like saying, just a monolithic railroad company was about to bulldoze your house in the mid 1800s, "If you're discontent, you can always start your own railroad company." We're dealing with a complex system of interconnected motivations. "Start your own Twitter" is an anti-solution.
You’re on a street with a 100 houses and one of them is having a cool party. But the cool kids don’t like you and don’t want you in their house. The other 99 houses (Gab, Mastodon, theDonald.win , bulletin boards, etc.) welcome you in, but you don’t think their owners are cool and don’t want to hang with them.
Should the government force the owner of the cool party house to let you hang with the cool kids?
Many would say that violates freedom of association.
Say what? https://www.pewresearch.org/internet/2019/04/24/sizing-up-tw...
Twitter is a minority.
Fox News Channel is arguably the place where political discourse happens. It’s the most popular cable news network in America.
Should Fox News be regulated and forced to have a democrat on each show?
Twitter is a self-selected minority of power users. It isn’t “The place” for political discourse, it’s simply a popular online web forum. Facebook is likely at least as influential on politics as twitter is.
The thing Twitter has is that it is a public forum where people who disagree can meet. I'd hate for it to become an echo chamber like Fox news.
Surely this is false. The world is full of hard facts—politics less than the sciences, sure, but still [0]. What are much rarer (non-existent?) are undisputed facts.
[0] To be clear, I distinguish hard facts in politics, like "Trump is the 45th president of the United States", from hard facts in political science, of which there indeed seem to be very few.
That is why Twitter is linking some facts to go along with the President's tweets.
You need a really good reason to take away Twitter's editorial control over Twitter. Please provide one. (The best I see so far is "Twitter is really popular, so they shouldn't be allowed to edit their own website." I am not convinced that that is a good justification for limiting the freedom of the press. If that's where we want to go, I would be the first in line to make sure Fox News drops their conservative bias and gives liberal viewpoints a fair shake. Does that sound good to you?)
For almost 100 years it has been held both in general and by the Supreme Court in particular that the remedy to speech you disagree with is more speech. Do you object to Twitter's ability to have such a disagreement?
Or, as is being proposed, do you believe Twitter should be held legally liable for every nasty thing said on their platform simply because they choose to have an opinion of their own?
To me that seems like a recipe for significantly more banning of content & users by Twitter to avoid even the hint of liability that would come with allowing it to stand.
I can't think of a single platform with a more hands-off approach than Twitter that hasn't become a toxic cesspool.
The point of "free speech" is to be able to express opinions that aren't currently "mainstream" among fashionable thinkers. Free speech advocates aren't objecting to a single instance of some company expressing an opinion. That was just a "last straw", it seems. They are objecting to the tactics of Big Tech platforms in general, which use all sorts of deceitful methods to manipulate the visibility of arguments in order to influence the debate while pretending to be merely neutral platforms.
Political speech in public squares are what the First Amendment was written to protect. “Bias” isn’t an exception.
https://www.reuters.com/article/us-usa-trump-twitter/trump-u...
https://www.reuters.com/article/us-usa-trump-twitter/trump-u...
This does not mean that Twitter or Youtube cannot ban them from their site or control what they do on their site. It means the government cannot selectively enforce who can or cannot view their content. If Trump came over to your home and asked to hold a SOTU, you have the right to turn him away. However if you agreed to let him hold a SOTU and he decides to turn away your friends because he doesn't like them, that would be against the law.
What kind of regulation is it subjected to? It doesn't have to be neutral, and it has a legally-tested right to lie, and mislead. And that's for first-party content directly produced by it.
You can read the order. Section 230 of the Communication Decency Act set out provisions protecting internet service providers from liability for obscene, lewd, etc content on the basis they are a neutral platform (like an email provider) and not an active arbiter and curator of content published on their page. The law clearly states it's protection for private blocking and screening of offensive material (lewd, lascivious, filthy, excessive violent, harassing, etc). Not for editorial protection. Not for arbitrary enforcement of TOS.
Looking forward to an army of bureaucrats making sure every tweet is kosher, then? An agency will last longer, with staff that lasts longer, than any single presidency.
Sounds like a nightmare scenario for an "un-PC" asshole like Trump.
I really don't think you, or Trump, understand the ramifications of what you're asking for. You have this ideal, naive view of what's allowed in "public squares" that doesn't seem to match what happens.
See: Trumps belief he was persecuted by other government agencies. Which he complains about on Twitter. Which would now be answering to a... government agency...
And then, once that happens, now you have no recourse - even if you build another platform, it ends up controlled by the same regulators.
Please cite the law that says that, because it's certainly not S230.
S230 was specifically made to empower sites to moderate, editorialize, and remove content as they see fit for their platform.
> Section 230 protect a blog host from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” [1]
The phrase "otherwise objectionable" has come under limited judicial review. It is not a unlimited catch-all, but relates back to the meaning and purpose of the preceding language, mainly dealing with mature themes.
The Ninth circuit reviewed a case against Malwarebytes where they were blocking access to a competitor and they were hoping for Section 230 protection, but the Ninth found that "otherwise objectionable" did not extend to anti-competitive blocking. [2]
I think it's also interesting that in this particular case it is not even really a question of restricting access or availability of material. Twitter is editorializing -- essentially adding a Editor's Note to Trump's tweet.
That Twitter has to right to do this is unquestionable. The question is whether in doing so they have crossed a bridge into become a publisher and not a platform protected by Section 230 immunity.
If you read the history / case law which Section 230 is meant to address, the issue was a contrast between Compu-Serv dodging liability from statements posted by users because they were not moderating topics, vs. Prodigy being found liable for user-posted statements because they were moderating topics.
> Section 230 was enacted in early 1996, in the CDA’s Section 509, titled “Online Family Empowerment.” In part, this provision responded to a 1995 decision issued by a New York state trial court: StrattonOakmont, Inc. v. Prodigy Services Co. The plaintiffs in that case were an investment banking firm. The firm alleged that Prodigy, an early online service provider, had published a libelous statement that unlawfully accused the firm of committing fraud. Prodigy itself did not write the allegedly defamatory message, but it hosted the message boards where a user posted the statement. The New York court concluded that the company was nonetheless a “publisher” of the alleged libel and therefore subject to liability. The court emphasized that Prodigy exercised “editorial control” over the content posted on its Congressional Research Service site, actively controlling the content of its message boards through both an “automatic software screening program” and through “Board Leaders” who removed messages that violated Prodigy’s guidelines. [3]
CDA's intention was to allow "good faith" / "Good Samaritan" moderation without triggering publisher liability. The CDA was not designed to totally eliminate the entire concept of publisher liability on the internet.
There is a lesser standard of liability which falls upon distributors based on content which they "know or should have known" violated the law. It's a higher standard than publisher liability because it requires establishing direct knowledge of the offending material. Very interestingly, the courts found that CDA 230 actually precludes even distributor liability in the case the service knows or should have known of the illegal content, because distributor liability is a subset of publisher liability and if they don't have publisher liability then they can't have distributor liability. (I'm sure I'm butchering this explanation somewhat).
This has become a problem as of late with issues like revenge porn or online harassment campaigns where service providers had refused to take down material even after being notified it was illegal, and were getting protection under Section 230 for keeping the content up!
[1] - https://www.eff.org/issues/bloggers/legal/liability/230
[2] - https://www.wileyconnect.com/home/2020/1/22/ninth-circuit-re...
> Do I lose Section 230 immunity if I edit the content? Courts have held that Section 230 prevents you from being held liable even if you exercise the usual prerogative of publishers to edit the material you publish. You may also delete entire posts. However, you may still be held responsible for information you provide in commentary or through editing. For example, if you edit the statement, "Fred is not a criminal" to remove the word "not," a court might find that you have sufficiently contributed to the content to take it as your own. Likewise, if you link to an article, but provide a defamatory comment with the link, you may not qualify for the immunity.
You may be held liable for the commentary you provide, but you are not liable for the content you provide commentary for, even if you choose to sometimes provide commentary.
> The courts have not clarified the line between acceptable editing and the point at which you become the "information content provider." To the extent that your edits or comment change the meaning of the information, and the new meaning is defamatory, you may lose the protection of Section 230.
I'm not qualified to say what the limit is, I'm merely hoping to provide some background on how 230 came about and that it does have some form of limits.
What's particularly unclear to me is that if you have a site under active moderation which could even include editorializing some small percentage of the posts that are made, how does that impact the potential liability from posts which you don't editorialize.
So unless Trump's original tweet, or Twitter's fact check are defamatory or otherwise illegal, Twitter doesn't care.
That seems like a pretty blank check for moderation to me, at least. "Otherwise objectionable" can easily be defined in a ToS, and you're off to the races.
https://www.law.cornell.edu/wex/ejusdem_generis
> For example, if a law refers to automobiles, trucks, tractors, motorcycles, and other motor-powered vehicles, a court might use ejusdem generis to hold that such vehicles would not include airplanes, because the list included only land-based transportation.
(I'm not a lawyer.)
It doesn't. Here is its text:
Also if a mass of bipartisan support existed, I expect it would have been rolled into the last changes that modified these liability protections on the topic of sex trafficking content.
No, the truth is that this particular controversy began when the double standard arose on various social media platforms when the current administration's use of social media violated ToS yet was allowed to remain. This in turn prompted greater awareness of all such content and the extent to which it had been allowed or overlooked, resulting in efforts by social media platforms to simply enforce their own ToS.
If there is a problem with the current Twitter actions taken, it's that they continue to try & thread the needle between two opposing goals: Adhering to their own ToS and preserving their platform as something other than a cesspool, and not adhering to their ToS in a way that makes powerful interest groups angry.
What we have is private enterprise, and government regulation. Neither has complete control, neither should have complete control.
Opinions regarding Trump have nothing to do with anything here.
What checks, exactly? There was an impeachment recently wherein he refused to hand over any documents and witnesses. Those witnesses who chose to testify in the House were retaliated against. The Senate refused to hear any witnesses (a first for impeachment trials in the US). The President argued that if he believes his conduct will help his election, and he believes his election will help the American people, he cannot be removed for the conduct. The senate affirmed this view by acquitting him of the charges and refusing to remove him from office.
Or maybe the IG system checks him and his agencies? Well he's been busy firing any IG who is investigating him or his cronies like Mike Pompeo. Michael Atkinson was fired for bringing to light the fact that Trump was extorting a bribe from a foreign nation using taxpayer dollars. Glenn Fine was to oversee the spending of coronavirus federal dollars, but Trump wanted control of the money himself, so he had to go. Christi Grimm was fired for investigating PPE shortages in hospitals. Her findings flew against the Trump narrative that "everything was fine" so she had to go. Steve Linick was investigating corruption in the State Department, so he had to go at the request of the Secretary of State under investigation. Mitch Behm was investigating corruption of the Secretary of Transportation, who is the wife of Mitch McConnell, who refused to hear witnesses at Trump's impeachment trial. So he had to go.
Or maybe the Justice department is a check? They are supposed to be independent after all. Well, they're busy interfering in cases related to Trump's friends and associates. His Attorney General is happy to run interference for Trump in a number of areas, whether that be misrepresenting the Mueller report, intervening in Roger Stone's sentencing, or declining to prosecute a man who already plead guilty to crimes. Oh, and an internal memo of the Justice Department states that the President is immune from indictment. So there's no check there.
Maybe the court system can check Trump. He's been arguing in court that he has absolute immunity from investigation. He already enjoys immunity from indictment due to a memo written decades ago, but he asserts that he enjoys absolute immunity from even being investigated in the first place. If Congress and the DOJ can't even investigate him, how is the court supposed to hold him accountable?
Americans really love to trot out this trope that we have a "system of checks and balances" as if this is a hack-proof system that is incorruptible. It's failing right in front of us.