I think that’s fine to ask social medias to choose between being a publisher or a platform.
It’s perfectly fine to push your point of view online as it’s protected by the first. But you should bare consequences for the cases not protected by the first.
It isn't semantics. We give protected classes extra protections because they are attributes of who a person is. To give the same protections to actions that people do would be wildly different.
A salesperson should be able to be fired for shit-talking their own product. A customer service representative should be able to be fired for treating a customer inappropriately. The editor of a magazine should be allowed to edit contributors' articles. Putting speech on the same level as a protected class is ridiculous.
Courts aren’t machines that evaluate a series of IF statement in vacuums; they look at the entirety of the situation. They’re going to be looking for the root cause of the reason that management has landed on their decision.
Someone mentioning they’re gay after being asked if they have a wife would be a very different situation from someone who, for instance, is engaging people in inappropriate and unwanted discussions of sexuality.
The law is quite simple: was the person fired because of their membership in a protected class?
What do you mean “why isn’t speech codified at the same level”? You mean, why haven’t legislators made a law that protects free speech against discrimination by employers and businesses, in the same way the Civil Rights Act does for religion?
I mean, what other answer is there than what’s implied by that very question: it’s because “legislators haven’t made a law”.
Now you can believe all you want that there’s been a centuries-old conspiracy by legislators to not ever draw up and approve this kind of law. But maybe you should consider that the other things mentioned in the 1st amendment, such as freedom of press, lobbying, and assembly, also aren’t “codified at the same level” as religious protections. And maybe you’ll realize that there are obvious differences in how religion is perceived to be different than the 4 other things protected by the 1A.
If I had intended a "pretty extreme bad faith response", I would've done it in a sentence, not several paragraphs.
To use your analogy, it'd be as if u/deadmik3 were asking, "Why must apples be called 'apples', when oranges are called 'oranges'?" It's a question that isn't coherent enough for a single answer, as it seems to be based on flawed foundational assumptions on the part of the asker, e.g. "Who says you 'must' call apples 'apples'" and "Do you actually think English people named oranges after the color, 'orange'?"
Here's deadmik3's original question/assertion [0]:
> Why is speech the only part of 1A that gets this treatment? You wouldn't say the same thing about religion
I would've thought u/kube-system's response was clear enough (e.g. it's the Civil Rights Act, not the 1A, that protects religion), but apparently it hasn't been. So I genuinely don't know what deadmik3's issue is. Do they think laws (and/or the process of making them) are merely a "semantic" concept? Do they think that religion and speech, being in the "First" amendment, confers to them a special overriding priority (i.e. in the way that being in Amendments 2-27 do not)? And if so, have they considered that the 1A explicitly mentions 3 other freedoms – press, assembly, and petition/lobbying – that, like speech, do not have the protection for religion?
Without knowing the presumptions behind their confusing question, it's hard to answer or otherwise debate it. I mean, the natural rebuttal would be to point out that the CRA's protections for religion is far from clear cut and indisputable – has deadmik3 never heard of the gay wedding cake case, which after 6 years ended in a narrowly defined Supreme Court decision? [1] – which means that similar protections for free speech would be even more contentious and logistically complicated, which is likely a key factor why that legislation doesn't exist/has never passed.
But why get into that if someone believes lawmaking is a semantic designation, rather than an actual process that requires considering how a law (and its enforcement) will actually operate in reality?
We can. We just haven't yet, and it is not clear that it would result in a world that most Americans would prefer to the one we live in. And like religion it would be subject to lots of tension and litigation about the speech of the corporation's owner vs. the speech of the corporation's customer.
When discussing the nuance of legislation and constitutional law, there is no such thing as being too pedantic. The difference between something being enshrined in law, something being protected by the constitution, and something being protected by jurisprudence based on the constitution are really big, important differences.
The 1st amendment may only protect us from the government, but there is nothing stopping us from taking away immunity from "platforms" that are actually acting as publishers.
If a platform wants the liability protections for being a platform, then we can force them to not act like a publisher, or we can take away those platform protections.
> I think that’s fine to ask social medias to choose between being a publisher or a platform.
Why should we force websites to choose between being a publisher and a completely unmoderated platform? Why do people keep parroting that line with zero justification as if it's self-evident? You are commenting right now on a website that is heavily moderated, a website that could not possibly exist if the admins faced personal legal liability for any illegal content an anonymous commenter posts on here. If you don't think Hacker News should be legally allowed to exist why are you posting here?
Nobody outside of a fringe group of edgelords wants their favorite Internet communities to turn into 8chan. But the legal regime you are suggesting would make any other kind of website that hosts user generated content effectively illegal.
When HN's demographic imagines such legislation, they are thinking about how racist views get quickly kicked off of other platforms, and they want those other platforms to suffer. You won't hear any of these proponents complain about someone getting banned on HN, because it's an environment where their line of thinking is dominant.
I think that most of them should remain platforms, but that recommendation algorithms should be treated as publishers. So a reverse chronological feed would be protected by 230, while publishers would be liable for the contents in an algorithmic feed. People can subscribe to whatever sketchy content they want, but it won't be pushed to people that didn't ask for it.
I don't agree with the downvotes: it's a concept that should get more discussion, in the sense of "where should the line be drawn between common carrier behavior and publisher behavior?"
Heck, I think it's fine for entities to be both, but recognize the need for special rules allocated to individual companies that reach a certain level of subjective public-space-y-ness
If our concerns are facebook, instagram, reddit, and maybe 20 others, let's not constrain ourselves with fundamental rules that try to group them in with an obscure independent forum site that houses a few hundred members
For example, calling for the murders of specific people based on their political views or races don’t fall under the first. And social medias allow the spread of some of these messages with no consequences at the moment.
That's not exactly true.
"Speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely."
Someone randomly spouting off that people of a race or ideology should be wiped out doesn't always/exactly pass this legal test.
Great point. Visit any US neo-Nazi website and you’ll see language that one could argue is “threatening to a specific group”. But unless it’s “hey, everyone gather at 5 pm on Main St so we can start shooting people”, it’s still protected language.
That's actually a point that I don't think has been decided yet, specifically "imminent". It's been ruled that "at some unspecified point in the future" doesn't count, but I can't find a case (with an admittedly short search) about where the exact boundaries are.
I don't know what the exact legal definition of imminent is, but the layman's definition involves the thing happening soon.
It may well depend on how close to 5 it is (but what timezone?).
The same sentence with the words "right now" would almost certainly meet the test though (assuming the action was actually likely to occur).
The First Amendment does protect that though. As long as the speech isn't intended to incite imminent lawless action, calling for murders is absolutely protected.
E.g. "We should go harm X" is arguably illegal, since it's an immediate call to action.
However, "It'd be great if X died" or "All Y should die" are certainly protected.
In the same vein, this is why "Punch a Nazi" is totally legal: assault is illegal, but you're not immediately inciting a lawless action. "Let's go punch that Nazi", less so.
The essential thing missing from all of these discussions (unless I am misunderstanding people) is the immediacy of the incitement. The context in which the speech matters. That is where the imminent and likely parts properly arise from.
If you write a book advocating for violence against x or y group or individuals that is permissible, but if you were in a crowded square and advocated the same thing when those targets were also in the square and it is likely that your incitement will lead to violence then it is not. That's incitement, it's imminent, and it is for a lawless act. But again, if you did it at home on your blog in some nebulous sense that isn't likely to cause some specific event then it is protected speech.
An important distinction here is that "true threats" are a separate category from what we are talking about. A true threat doesn't have a "likely" or "imminent" component and so is even broader in scope than violent speech in general. That is, true threats are not protected.
It's not a matter of what kind of speech 1A governs, but what kind of entities.
The government is the entity that is not allowed to restrict legal free speech. Private corporations are not bound by the same rule; they can restrict all they want.
So if I sent a note with the content you just described to everyone I know via UPS and you define this content as a crime, then UPS should be held liable in facilitating this crime? So therefore UPS needs to inspect the content of every package that it delivers to avoid culpability in crimes like this?
Or somehow UPS is different from a social media entity. Then what legally is a social media entity?
These are interesting times. The rules will certainly change; it remains to be seen if they will ultimately change for the better.
If the UPS was already opening the mail of everyone to add its own pamphlets when you discuss x or y, yes they should be responsible for facilitating crime that they know of then.
Interesting, so the implication is that web companies are generating advertising from user-submitted content, therefore it's been read by the company, so therefore any cross-user communication needs to be reviewed by a person or a sufficiently accurate AI for endorsement through publication.
So in your framework, transmission of user content + advertising based on that content = culpability. I wonder if social media companies would figure out a way to legally prove transmission of a message without viewing its contents as a way to avoid culpability and maintain some level of profitability.
This is like suggesting that if you build a spam filter, you need to build a filter that scans content and catches and reports every type of crime possible to commit ever.
This could destroy the tech oligopolies. This would tangle them in unlimited court cases allowing for smaller sites with smaller pockets [1] to flourish. I imagine they will fight this to the death - or drag it in court at least until November elections for a pro-Oligopoly (Biden) camp to take over.
Judging from patent trolls (technically their lawyers) suing small startups, I don't see how thats the case, unless each website was serving <100 people and making 0 revenue.
It could also have the reverse effect, because the prospect of unlimited court cases represents a very high financial bar for small newcomers to deal with. The oligopoly already has the funds to deal with it. And/or they comply, creating an ossified, state-controlled set of social networks. Yay.
If this does destroy tech oligopolies, they'll have nobody to blame for it but themselves. They've had over a decade to prove that they're fair and impartial and, if anything, have worked overtime to prove the opposite.
Private organizations have zero obligation to be fair and impartial. If you want a company to be run differently, start your own.
It's funny how conservatives were totally on board with deregulation and perfectly fine with corporations steamrolling every one else as long as they were aligned with conservative objectives. Then the moment a powerful corporate faction with liberal-ish sensibilities emerges, they freak out and abandon all their fake principles and run crying to the nanny state to save them from the big evil corporations.
That doesn't make much sense in this context - the "nanny state" refers to the government taking care of your physical needs, like a nanny. But even if you sweep all government regulation under the blanket of "the nanny state", that's still not what's being proposed here: what they're proposing is removing protections previously afforded by the government because they've been abusing them for so long. In essence, all that's being proposed is that everybody plays by the same set of rules.
1. Please note that ‘obligation’ is not the only standard at play. Companies exist in a social and economic context. (I have previous comments on this topic that can be easily found.)
2. The ‘if you want a company to be run differently, start your own’ argument is tiresome and weak. There are (and should be) many mechanisms to influence corporate behavior.
3. Even the pre-Trump Republican Party has long taken flack from libertarians who essentially argue that one core principle should guide their political philosophy.
3B. Personally, I have not found a strong philosophical grounding to claim that political philosophies should be reducible to one core thought from which everything neatly derives. (That would be nice, wouldn’t it?) In my experience, figuring out public policy decisions is fundamentally more complex than that due to the interplay of conflicting values and moralities.
> libertarians who essentially argue that one core principle should guide their political philosophy.
this isn't really true of libertarianism even. the word "aggression" from the NAP does a lot of heavy lifting and is subject to a lot of different interpretations.
yes, "threatening" and even "forceful" are subject to interpretation.
suppose you see me walking around town with a rifle. is that threatening? maybe not if you're comfortable with open carry, but what if I do it on the sidewalk in front of your house?
is it a violation of NAP to not wear a mask during a pandemic? what if I've already tested positive for covid and am refusing to quarantine? or what if I know that I have a detectable viral load for HIV and have sex without informing my partner?
another interesting example: if you accept the claim that racist speech is an implicit threat of violence, you can use NAP to justify deplatforming.
you can make NAP imply almost any position you want, depending on how you interpret it. only a very specific and narrow interpretation implies the typical positions held by (US) libertarians.
There is a range of libertarian thought, but all share one principle: liberty.
The ‘non-aggression principle’, in my experience of libertarianism at least, is not as central / common across libertarian writings.
Wikipedia:
> Libertarianism (from French: libertaire, "libertarian"; from Latin: libertas, "freedom") is a political philosophy and movement that upholds liberty as a core principle.[1] Libertarians seek to maximize autonomy and political freedom, emphasizing free association, freedom of choice, individualism and voluntary association.[2] Libertarianism shares a skepticism of authority and state power, but libertarians diverge on the scope of their opposition to existing economic and political systems. Various schools of libertarian thought offer a range of views regarding the legitimate functions of state and private power, often calling for the restriction or dissolution of coercive social institutions. Different categorizations have been used to distinguish various forms of libertarianism.[3][4] This is done to distinguish libertarian views on the nature of property and capital, usually along left–right or socialist–capitalist lines.[5]
doesn't that wikipedia quote kinda make my point in a different way though? if the concept "liberty" is central rather than the NAP, isn't it just as subjective? the pursuit of freedom from coercion at the point of a gun vs freedom from coercion by economic necessity lead one toward very different conclusions.
to be clear, I certainly don't intend to shit on libertarianism. I'm far from an expert on the philosophy, and I do feel libertarians make a lot of valuable contributions to political discussions. I wouldn't want to live in a world where a libertarian got every single thing on their wishlist, though.
My #3 point, in case it wasn’t clear, is this: any particular form of libertarianism, in comparison with many other political philosophies (such as as the platform of progressives in/near the Democratic Party, has considerably fewer principles that must be traded off. Libertarianism is widely regarded as ‘intellectually simpler’.
My #3B point emphasizes this question: ‘Is simplicity best? Or simply the easiest?’ (to quote a song)
In my view, the respectability of private mortalities is not strongly correlated with the simplicity of their core principles. (For background on what I mean by public and private moralities, see writings by Robert Kane, such as ‘Through the Moral Maze’)
It’s perfectly fine to push your point of view online as it’s protected by the first. But you should bare consequences for the cases not protected by the first.