Important to note that this 5th Circuit ruling conflicts with the 11th Circuit's ruling. And SCOTUS had previously reinstated an injunction against this very same law.
And this 5th Circuit opinion has very idiosyncratic reasoning [0, just the first few pages will blow your hair back]. A sample:
"In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to 'the freedom of speech.' But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech."
How the 1st Amendment might protect a corporation's religious POV but not its exercise of editorial control is a very good question. I'm not saying this very conservative SCOTUS won't adopt the 5th Circuit's reasoning, but it still seems unlikely. In my view -- much more likely is that they resolve the Circuit split by adopting the 11th Circuit's view wholeheartedly.
This opinion is just badly written and badly reasoned. It's not even well written enough that it is worth trying to debate. Of course the judges in question were rated unqualified by the ABA (which is a really low bar) so not surprising.
"This opinion is badly reasoned so it's not even worth debating" strikes me as a very poor way of engaging in dialectic. I mean, maybe it is poorly written and poorly reasoned, but best to demonstrate that to us, otherwise we're just kind of taking your word for it...
It goes into thorough analysis into why this is such a lazy, stupid decision. This is the quote I agree with:
> Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law.
> It goes into thorough analysis into why this is such a lazy, stupid decision.
The author, Mike Masnick, is a tech blogger — not an attorney, as far as I've been able to determine.
Even Eugene Volokh — who is both an actual attorney and uniquely qualified to weigh in here — didn't attempt to digest the 113 pages of the opinion, much less immediately produce a reasoned analysis. I'm sure one will be forthcoming.
The quote you cited from Masnick certainly isn't legal analysis. It's empty invective, as are statements like "This "judge" is an unqualified political hack".
"Just finished reading the 5th Circuit’s decision in the NetChoice v. Paxton case and it’s . . . not good. To say the First Amendment analysis is deeply flawed would be an understatement."
"I am old-fashioned, but I would think that inferior courts start with what the Supreme Court has said the text means."
(I did a quick search and found three sources that span the ideological spectrum, which show how widespread the negativity about this decision has been.)
This is a terribly-reasoned decision that doesn't make much legal sense. It's an ideological decision, motivated by the feeling that rightwing voices, which are actually boosted by the rich people that own social media, are instead, against all sense, suppressed.
> Volokh is a conservative attorney who is intellectually aligned with the 5th circuit judges who wrote this opinion.
Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA, uniquely qualified to weigh in on first amendment law, wrote a column on first amendment and speech issues for the Washington Post for years, and frankly, I imagine would be pretty disappointed (but not surprised, in these illiberal times), to be written off as a “conservative attorney” when he’s consistently espoused libertarian views over the decades.
On top of which, he hasn’t actually weighed in on this ruling yet, and may very well take umbrage with the decision!
His blog at reason did, in fact, post a guest article arguing that the ruling falls afoul of the takings clause.
> Orin Kerr, a conservative attorney and notable Federalist Society backer
You just disqualified Volokh for being a “conservative attorney”.
Now you’re citing a conservative attorney whose opinion suits your argument?
That’s not arguing logically or in good faith, even putting aside the fact that your claims regarding Volokh are a fabrication.
The way I read the parent comment, they dismissed Volokh for stated reasons, but then provided three other sources to bolster the idea that early analysis is generally all against this ruling.
They mentioned they cited sources across the ideological spectrum. In theory, that's good.
It sounds like the primary issue here is mischaracterization of Volokh, but that doesn't necessarily change or invalidate the other sources mentioned.
My primary issue is that (1) these replies are rebutting imagined arguments that neither I (nor Volokh, for that matter) have actually made, and (2) in the fervor to rebut these strawmen, Volokh was grossly mischaracterized.
Speaking of 'grossly mischaracterizing' Volokh, why do you think he is "uniquely qualified" to weigh in here? Is it because your views usually align with his? He seems no more qualified than the sources mhneu provided. This decision has been soundly roasted across the spectrum.
> Speaking of 'grossly mischaracterizing' Volokh, why do you think he is "uniquely qualified" to weigh in here?
Volokh is a highly-credentialed subject matter expert whose work has been cited by the Supreme Court, and who has been working in first amendment and related law for decades.
His first book, in 2001, was "The First Amendment: Problems, Cases and Policy Arguments. New York: Foundation Press."
He published a 100+ page, peer-reviewed article covering this subject area in 2021:
> He seems no more qualified than the sources mhneu provided.
He's a great deal more qualified, but that's not the point. He hasn't weighed in on this decision at all yet, other than to note that it was released.
I swear, the amount of "motivated reading" by emotionally invested commenters has me seriously suspicious of anyone that holds a particularly strong legal position on this just-released decision. People do not appear to be thinking. At all.
> This decision has been soundly roasted across the spectrum.
It may very well be rebutted by Volokh, but if so, it won't be a "roasting", and his position will certainly be a great deal more erudite than "this judge is an idiot!"
I brought up Volokh in contrast with the random tech blogger's review of the decision that was cited by the (now great-great-great...-grant-parent post), because if a subject matter expert like Volokh has not yet had time to read and properly analyze the decision, there's simply no way "Mike Masnick" of "Techdirt" has.
What do you think the most convincing part of that techdirt piece is? To me it mostly reads like an exasperated emotional rant. He calls the ruling “stupid” and “batshit crazy” and likens the judges to “ignorant trolls.” And uses italics everywhere. It’s not exactly an appeal to reason.
To me the one interesting bit was this: “ The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use).”
I mean, I disagree — terms of use of a tech platform are miles away from an actual editorial opinion, they are bloodless legal documents and virtually impossible to read for pleasure, unlike actual editorial - but at least this engages with the decision on the merits.
I’d encourage anyone to read the actual decision, it (and the dissent) are more interesting reading than this. (And unlike at TechDirt the citations don’t approvingly quote someone named “Wonton Killing Hat”). https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd...
That article quotes the opinion at length, and I think does a good job of pointing out how bad the opinion is on its face.
For example, just look at the section where the opinion argues that the platform is bringing up "hypotheticals" it talking about curbing pro-Nazi or terrorist posts. I kept re-reading the quoted opinion again and again thinking "Is this judge a complete idiot?" To be clear, I'm not basing this on the commentary from the article's author (though I agree with him). But trying to argue that pro-Nazi and terrorist speech on tech platforms are "hypotheticals" makes me wonder if this judge has ever seen the Internet.
I appreciate the answer. Interesting. My read on that section was that it was all around specifically the request for immediate preliminary relief (to stay the state law basically?) — this was from section IV right? - and in that section the “hypothetical enforcement” was, in my reading, pretty clearly referring to what the tech companies were arguing the state would do to enforce the law, and the court seemed to be saying, you haven’t established that the enforcement mechanism will be onerous because it’s yet to be seen how this will be enforced - your concerns about enforcement are hypothetical.
“Hypothetical”, in this legal context, is used to describe an assumption of facts to be used to test a logical proposition or legal consequences under those assumed facts.
The judge’s use of the term “hypothetical” was correct, and does not represent an assertion, one way or the other, about whether “pro-Nazi and terrorist speech” does or does not exist on these platforms.
"This opinion is badly reasoned so it's not even worth debating" strikes me as a very poor way of engaging in dialectic.
It's not a way of engaging in dialectic/dialogue. It's saying it's so bad you won't engage in dialogue. That's a legitimate position in some circumstances.
That this is a court decision, however, might mean that in these circumstance one does need to directly challenge despite it's qualities.
> That's a legitimate position in some circumstances.
If someone doesn't want to discuss a topic, all they have to do is not discuss the topic.
Expressing such a position isn't a legitimate contribution to public discourse; it's a tactic that inhibits the process of building mutual understanding through discourse.
Exactly. That's my point. It is true that sometimes an idea is too stupid to even deserve a reply. But simply stating here that 'this is so dumb, I'm not going to respond to it' doesn't contribute anything nor is it in line with the spirit of HN, per https://news.ycombinator.com/newsguidelines.html
The problem with what you're advocating every idea or comment either have a reasonably in-depth response or none at all. That reduces the poster's toolbox and lets the naive observer think the fundamentally unsupportable ideas might not be being noticed.
A reply that says "this is obviously wrong" may seem contentless but it's just "minimal content". You should be able to respond like this for the same reason you should be able to down vote things without comment. It's like a professor giving comment on an exam. Some questions they will just mark wrong, some they might write "makes no sense" to get the person thinking or clarifying and others they'd go into detail with.
What you just wrote is just so wrong that only a complete fool would waste their time engaging with you. Do you really believe that the previous sentence is a worthwhile contribution?
There was literally zero argument in the original post. You don't have to write a full analysis of everything that was said, you can just pick the parts you're willing to discuss and focus your attention on that or don't engage at all.
> a corporation’s unenumerated right to muzzle speech ..
That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody.
They don't knock on your door and say you better stop expressing these views or we will harm you. They don't even harass people online. They just simply choose which speech they will pass on and which not.
If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech". Of course not. Rather it is the case that you don't have the right to demand that I pass on your emails to all my contacts.
This is bad jurisprudence. I wonder, was this judge perhaps nominated by D. Trump?
That makes private messages an interesting question, though. Or even cases where many people explicitly subscribe to a single voice -- is the platform really amplifying anything?
Blocking such messages (to specific recipients who specifically opt to receive them) seems materially different than declining to promote/amplify such messages.
I'm speaking from an ethical standpoint; it may or may not matter legally.
> Corporations simply have a right to choose which speech they will AMPLIFY
I'll readily admit that algorithms can amplify content; but more than enough people have been tweeting for years and barely have any likes on their tweets (see @CNN, though I'm being cheeky). People say that algorithms reward bad content, because they amplify controversy; but really they just give people what they want. A "controversial" tweet with no likes won't get amplified.
The crux is that if you agree that due to their use of algorithms, these platforms "amplify" all the content they host, then surely that means they endorse whatever they don't ban, to some extent? I'm not making a legal argument, just an intuitive one. That reasoning doesn't scale to an understaffed, undermoderated social media platform that can't even ban the omnipresent "double your crypto" scam accounts.
> That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody.
It depends, can I go to the mall and start preaching the gospel?
The answer is yes - at least in NYC, SF, Chicago, etc (where these legal cases have played out). I’m legally aloud to do that; and as it’s the public square I cannot legally be removed (doesn’t mean you wont). It is considered the commons and open to the public. Inside a store is not the same thing, some jurisdictions have various rules.
Now back to this discussion. I agree a company wouldn’t be obligated to amplify, ie promote via an algorithm. That said, they shouldn’t remove someone’s ability to share political speech. On social media platforms they have been banning people for just that.
Social media is the commons, as such anyone should be able to preach to the masses. Though, perhaps it’ll be limited to only those who follow them.
That said, I think the Texas law is kinda stupid. Because the tech companies have claimed they ban for other reasons such as: misinformation — challenging elections, questioning vaccines, questioning masks, etc all get banned.
None of them are directly political in nature. However, only one political party rejects that stuff… that said, arguably I could go to a mall and preach any of those. The same protections should apply.
For many, many people the internet doesn’t really exist outside of a few FAANG apps.
Even for technical users, if you want to post a political video, is there really an alternative to YouTube with any audience for it?
Add to that platforms such as Facebook groups and Reddit subreddits, where the individual groups are much more like stalls and the platform is like the mall.
> Even for technical users, if you want to post a political video, is there really an alternative to YouTube with any audience for it?
To be fair, Rumble is a decent alternative. Some videos have millions of views, they basically accept anything that’s protected by the first amendment. A lot of banned creators have moved or are moving there.
That said, I’d still argue YouTube is “the commons”. Just like you can have multiple malls and a town square, there’s no real argument there should be a limit.
In a free society you’re free to speak in the commons. That doesn’t mean anyone has to listen. That said you can’t boot everyone you don’t like from the town square.
Social media posts can be made, doesn’t mean you have to follow or read.
Start your own website. It's not a town square. There's infinite land on the internet for interested people to create their own forums for discussion. There is no barrier to getting started, there's no reason to make laws creating entitlements for viewpoints in the private domains of others.
> Social media posts can be made, doesn’t mean you have to follow or read.
... or share posts. The same applies to social-media-companies themselves. They don't have to "share" your post to anybody.
They have much the same rights and obligations as you do (especially if you believe that corporations are "people").
It is a different question as to are they monopolies and should the law do something about monopolies.
Social media companies' platforms are not "Town Square". How do we know that? Because tax-payers are not paying for their operations. Their share-holders are paying for that by retaining some or most of the revenues in the company.
I’d argue sharing is still free speech. If I copy & paste that’s okay? Lol
> Social media companies' platforms are not "Town Square". How do we know that? Because tax-payers are not paying for their operations. Their share-holders are paying for that by retaining some or most of the revenues in the company.
This has already been litigated in American history. It’s called a “company town”. I also previously mentioned how you can have protected speech in places like malls (litigated in New York and Chicago).
> ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk even though the sidewalk was part of a privately-owned company town
The difference is that people giving out the religious materials were doing the giving out. The ruling didn't say they could just send the materials to the owners of the side-walk who would then have to give them out to everybody who walks on their sidewalk.
That would be like expecting Facebook or Twitter to distribute any materials you give them, to everybody who visits FB. That would be totally unfair, companies don't have the obligation to pass on your messages to anybody.
Freedom of Speech means I don't have to repeat and amplify what somebody else says or wants me to say. It is not only the freedom to speak what I want, but also the freedom to NOT speak. And companies have freedom of speech too.
This judicial ruling sounds very suspicious to me.
One nuance these judges don't understand is that picking one person to amplify is often de facto muzzling another because bandwidth is finite in the age of zero friction social media. These dinosaurs are trapped in a 20th century paradigm.
Social media has dramatically magnified these preexisting 'material contradictions' to America's sociolegal conception of free speech. The absurdities are becoming larger and larger and cracks are showing. Stochastic terrorist there. Fascist elected here. 500k anti-vaxxer deaths over there. What will come first, will the dam finally break in the form of society collapsing into conspiracy driven dictatorship, or will the ideologues realize that their constructs can't cope with the modern world?
"Stochastic terrorism" is the concept that a media campaign with large enough reach that vilifies and dehumanizes a target group will cause a rise in attacks against them, without any central planning who is attacking whom when, but rather because it pushes random (hence "stochastic") at-risk people to commit random attacks.
They are actively blocking stories about Biden. Actively filtering stories about negative aspects of COVID vaccines. They are actively filtering stories about inconsistencies in the 2020 election - "The most secure ever".
They are amplifying stuff - absolutely... but they are also censoring free speech because "corporations are allowed too".
"If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech"."
No... but if you post a story and your account gets banned for stuff that's later found out to be true (IE: hunters laptop and the New York Post RIGHT BEFORE AN ELECTION)? that's absolutely muzzling speech and suppressing facts.
"They" also ban anyone not supporting Trump from posting to their site
...or from forever blocking nonsense unscientific articles from a newsfeed
...or from wearing a shirt that's pro-Democrat at a convention
...or from bringing scientific consensus into Fox talking heads shows
...or from posting on their subreddit unless certified by a peer as being sufficiently conservative
That your post focuses singularly on denial of Republican establishment talking points shows the real intent implied by those pushing such laws, without any consideration that the "cancel culture" has been a deep tradition pervasive in media and American life on both sides of the aisle.
> Also, corporations either have personhood or they don't.
I'm fine with allowing them to censor speech if they also are liable for the speech they do choose to publish, just like any other individual, newspaper, or publisher would be.
Platforms cannot simultaneously claim that:
(1) They are mere conduits for other people's speech, and thus, deserve to be shielded from any liability for what they publish
(2) What they publish is their own speech, and thus, their publication choices should be considered protected expression under the first amendment.
I was under the impression that the law isn't quite settled on this point. I certainly am not going to pretend to understand the legal interests at play in this question. Why exactly should I be suing YouTube for hosting someone else's libel?
The law is very settled when it comes to publishers and common carriers, and has been for very long time.
If Fox News publishes libel, they can’t just claim that they’re hosting someone else’s reporting.
If a telecommunications provider publishes someone’s libel, they are shielded from liability as a common carrier. In exchange, however, they must provide their services non-discriminatorily to the public.
If FedEx delivers controlled substances as part of their usual course of business, they are also shielded from liability as a common carrier, but the same responsibility to serve the general public applies.
YouTube and other “interactive computer services”, however, were granted an explicit privileged shield from liability by the Communications Decency Act of 1996, with none of the responsibilities historically associated with that privilege.
Without the CDA, Twitter wouldn’t exist; they’d have been sued into oblivion long ago. Instead of solving that problem by extending our well-understood common carrier framework to “interactive computer services”, we granted them a massive privilege and asked for nothing in return.
> they must provide their services non-discriminatorily to the public
Providing service without discriminating... how does holding all users accountable to the same terms of service not satisfy that requirement? I don't know of any cases where a person kicked off their ISP for torrenting subsequently denounced the ISP as a "publisher".
Are you saying that we get to dictate to internet companies exactly what their services entail? Doesn't sound quite right to me.
The idea that a single website is a common carrier seems to stretch the definition to the breaking point. It ignores the general understanding that common carrier designations tend to occur in situations involving natural monopolies.
A website decides what information it takes in, stores, displays, and transfers. No one's rights are violated when they take information from you but don't display it anywhere else. You are not entitled to an audience on their infrastructure; go find a website who shares your ideas about how to operate.
Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.
When internet giants suddenly have a huge incentive to withhold content that powerful interests might sue over, what sort of platform for free expression do you think social media will end up becoming?
In countries with Net Neutrality, or more : those where Internet access has been deemed a minimal human right, needed for basic citizenship, Internet Service Providers are indeed very restricted in what and how they are allowed to block...
> The idea that a single website is a common carrier seems to stretch the definition to the breaking point. It ignores the general understanding that common carrier designations tend to occur in situations involving natural monopolies.
The definition and purpose of a "common carrier" has no relation to monopoly status whatsoever, whether you're referring to English common law (the concept dates back to the 1600s), or in its modern US incarnations.
Conceptually, the principle of common carriage is that:
(1) There are beneficial services that private entities can only feasibly provide if they are granted special privileges generally reserved by the government.
(2) Such services, in exchange for being granted those privileges at a cost to the public, must also serve the public.
> Are you saying that we get to dictate to internet companies exactly what their services entail? Doesn't sound quite right to me.
"Telecommunications providers" — landline and cellular telephone companies — are already classified as common carriers under our telecommunication laws. We don't dictate exactly what their services entail.
ISPs are not classified as "telecommunications providers", mainly because ISPs have spent a lot of money and lobbied very, very hard over the past three decades to avoid exactly that outcome. They convinced Congress to grant them the privileges without the responsibilities. Net neutrality was just a skirmish in this very long-running war.
> Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.
Yes, absolutely. If you do not want to operate as a common carrier — that is, on a non-discriminatory basis, neutral as to use and user — then you do not get the special privileges granted by the government to common carriers serving the public interest.
Websites will be forced to either:
(1) Take responsibility for their content posted by their users — including the spread of libel, disinformation, harassment, doxing, threats, et al, or
(2) Serve the public square, neutral as to use and user, in exchange for the privilege of limited liability for what they publish.
> The definition and purpose of a "common carrier" has no relation to monopoly status whatsoever, whether you're referring to English common law (the concept dates back to the 1600s), or in its modern US incarnations.
"As part of its attempt to exempt new entrants from common carriage requirements, the FCC ruled that even providers who held themselves out as serving all comers were not common carriers unless they possessed market power, only to see this decision struck down on judicial review as exceeding the FCC’s statutory authority. Congress subsequently amended the statute to give the FCC the authority to exempt firms that lacked monopoly power from common carriage requirements. After experimenting with different approaches, the FCC now applies a traditional market-power framework to determine when it should exercise its so-called forbearance authority.
Even skeptical commentators recognize that it has become the dominant, if not the sole, criterion for determining the scope of common carriage."
> > Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.
> Yes, absolutely. If you do not want to operate as a common carrier — that is, on a non-discriminatory basis, neutral as to use and user — then you do not get the special privileges granted by the government to common carriers serving the public interest.
Is this dichotomy recognized as such in any consequential legal decisions? Where can it be shown that internet companies meet the standard criteria for being a common carrier? Since I cited a source, perhaps you might also.
> on a non-discriminatory basis
All references I can find to nondiscrimination in connection with common carriers are about price, e.g. charging different prices for the same service quality, or vice versa. How does this apply to social media companies who charge their users nothing, and whose service is not a commodity whose quality is measurable in absolute terms?
You clearly don't like section 230, but you're not really contending with the ramifications of your position.
Your analysis stops at the point of passage of some hypothetical legislation removing section 230 protections, which is not really the point of my question about free expression. What is the actual downstream systemic effect on what speech users are allowed to express, and that providers are discouraged from permitting?
I think it's safe to say that correctly identifying disinformation (not to mention libel) is flat-out impossible at a certain scale. Much disinformation is impossible to prove as such at any scale - would you require users to cite sources? Or just limit themselves to expressions of opinion?
Providers and users will thus have to satisfy themselves with imperfectly coarse filters and policies that inevitably chill more speech than intended. This probably goes double for video content, since analysis is that much more difficult.
Your citation was paid for, in part, by Broadband for America — an industry lobbying organization backed by the likes of Comcast.
Lobbying efforts, lobbyist-funded legal opinions, and a captured regulatory body don’t a valid legal/policy argument make.
Yes, congress has given away massive privileges to ISPs and none of the responsibilities; that’s the whole point. That was a mistake; the gift of privatization of a public good.
Thanks to heavy lobbying, ISPs have avoided being classified as common carriers entirely (irrespective of their sitting in a monopoly position).
> Your analysis stops at the point of passage of some hypothetical legislation removing section 230 protections, which is not really the point of my question about free expression. What is the actual downstream systemic effect on what speech users are allowed to express, and that providers are discouraged from permitting?
The downstream effect is that providers either have to take responsibility for what they claim is their own speech, or in exchange for the privilege of a shield from liability for what they post, serve the public good regardless of use or user, and operate their sites as an open public forum.
I think it’d be an incredible improvement to the state of public discourse.
If this particular comment section is any indication, there are large groups of people living entirely in information bubbles that have no idea what their ostensible opposition actually believe, have seemingly lost the ability to actually critically read and understand opposing viewpoints, and whom argue voraciously and without exception against straw men solely of their own devising.
If you're not willing to engage with arguments by people with an agenda, I don't think anyone needs to hear from you on critically reading and understanding opposing viewpoints, let alone public discourse.
Not exactly clear on your point. Is it to say that anyone who opposes limiting a platform's power to control speech on its services is implicitly supporting this bad policy? If so you might as well complain that the federal government still hasn't outlawed disliking gay people.
At any rate, this would be a stupid and abhorrent policy which would nonetheless not discriminate in the sense described by federal law. The marketplace of ideas being what it is, I'm not sure what kind of foothold such a site would be able to get, having such a stupid policy.
I think it’s likely OP made an honest mistake of some sort (as opposed to an intentional deception) but I do wish he’d correct it. It was a pretty broad and dismissive statement and personally maligning the judges involved in decisions we don’t like distracts from what should be the focus of the discussion, the actual legal principles and other ideas in play here. Sometimes I worry that we may be losing the ability or willingness in this country to separate the ideas we don’t like from the people who embrace them. I think making that distinction is critical for building a rational, humane, and effective society.
> Of course the judges in question were rated unqualified by the ABA (which is a really low bar) so not surprising.
Not true.
The first of the two judges who concurred on this opinion, Andrew Oldham, was unanimously rated “well qualified” by ABA’s federal judiciary standing committee on Feb 15 2018 according to their website see page 5: https://www.americanbar.org/content/dam/aba/administrative/g...
Edith Jones was appointed by Reagan in 85 so I can’t readily find her rating, but she almost entirely dissented from this ruling, so if she’s unqualified it runs against your point.
Here is a sloppy copy paste of the list of judges voted unqualified by ABA since 1989 to further confirm the above (none of the concurring judges are on it and both were appointed since then)
Alexander Williams Jr. District of Maryland Clinton Substantial majority not qualified Confirmed on August 6, 1993
Bruce Greer Southern District of Florida Clinton Substantial majority not qualified Nomination withdrawn
David Hamilton Southern District of Indiana Clinton Majority not qualified Confirmed on October 7, 1994
David Katz Northern District of Ohio Clinton Substantial majority not qualified Confirmed on October 7, 1994
Daniel Patrick Ryan Eastern District of Michigan G. W. Bush Substantial majority not qualified Nomination withdrawn
David Bunning Eastern District of Kentucky G. W. Bush Majority not qualified Confirmed on February 14, 2002
Dora Irizarry Eastern District of New York G. W. Bush Majority not qualified Confirmed on June 24, 2004
Frederick Rohlfing District of Hawaii G. W. Bush Unanimously not qualified Nomination withdrawn without hearings
Gregory Van Tatenhove Eastern District of Kentucky G. W. Bush Majority not qualified Confirmed on December 21, 2005
Michael Brunson Wallace Fifth Circuit Court of Appeals G. W. Bush Unanimously not qualified Nomination withdrawn without hearings
Roger Benitez Southern District of California G. W. Bush Substantial majority not qualified Confirmed on June 17, 2004
Vanessa Bryant District of Connecticut G. W. Bush Substantial majority not qualified* Confirmed on March 28, 2007
Brett Talley Middle District of Alabama Trump Unanimously not qualified Nomination withdrawn
Charles B. Goodwin Western District of Oklahoma Trump Majority not qualified Confirmed on August 28, 2018
Holly Lou Teeter District of Kansas Trump Substantial majority not qualified Confirmed on August 1, 2018
John O'Connor Northern, Eastern, and Western Districts of Oklahoma Trump Unanimously not qualified Nomination withdrawn
Jonathan Kobes Eighth Circuit Court of Appeals Trump Substantial majority not qualified Confirmed on December 11, 2018
Justin Walker Western District of Kentucky Trump Substantial majority not qualified Confirmed on October 24, 2019
L. Steven Grasz Eighth Circuit Court of Appeals Trump Unanimously not qualified Confirmed on December 12, 2017
Lawrence VanDyke Ninth Circuit Court of Appeals Trump Substantial majority not qualified Confirmed on December 11, 2019
*This rating represents Bryant's nomination to the 109th Congress; Bryant's rating changed when her nomination was submitted to the 110th Congress. A substantial majority rated her as qualified at that time.
Source: American Bar Association
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Correction: Jones was concurring and Southwick was the dissent. I can’t find any evidence of how ABA ruled on Jones’ qualifications back in 1985 but it’s clear Oldham who wrote the opinion that appears first was never found “unqualified.”
If you Google Jones you will find an ethics complaint, maybe that’s what OP was thinking of. It was over a speech she gave (not recorded) and was dismissed.
Yes, it turns out that professional vetting institutions have biases.
If those biases appear partisan, it may be the case and that they are partisan for a reason having to do with the nature of the professional expertise that and the lack of said expertise on the other side of a partisan divide.
A disproportionate share of the intellectual horsepower in the legal profession is on the right. Which is why the conservative legal movement is so effective even though liberal lawyers outnumber conservative ones 10:1.
I don't think I've seen evidence of this in my lifetime. If anything, legal decisions in the federal court system have been pretty liberal until recently.
My generation saw the legalization, nationally, of gay marriage as well as the protection of personal property rights regarding firearms against government attempts to circumvent those rights for law-abiding citizens. Meanwhile, an attempt to modify the census (a fairly broad executive power) failed to pass muster in the court because someone wrote down basically the only way such a modification could be illegal (blatantly attempting to disenfranchise states along racial lines)... Was their actual intent.
And we probably shouldn't go into the absolute debacle that was the attempt to override the electoral will of the 50 states in the 2020 election.
See: https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?arti.... Go back and compare judicial decisions from the 1940s to 1970s to ones today. The ones today are much more grounded in statutory text, constitutional history, etc., and less reliant on policy arguments, notions of justice and fairness, etc.
Even “liberal” legal decisions are far more conservative today than they were in the 1970s. Compare Roe and Obergefell (both written by socially liberal Republicans). Roe has lots of high minded hand waving about rights and dignity and whatnot. Obergefell meanwhile starts from deeply rooted traditions and spends a tremendous amount of ink making the case that gay marriage is sufficiently like traditional marriage that it should be covered by the same constitutional protection.
This became starkly apparent when Roe was overturned. By that point, the ground had shifted so much that even liberals had a hard time defending Roe on the merits. They had instead retreated to stare decisis. Because even a lot of liberal lawyers today have a hard time swallowing the idea that judges should be in the business of inventing new rights to implement their vision of what’s just.
That says very little about the legal progression as a whole and a lot about the nearly-statically-insignificant, structurally-supreme sample of nine judges with life appointments generated via an extremely political process.
Yes, there are a lot of textualists on the Supreme Court right now (thanks to a concerted political effort to put them there). That doesn't imply they represent the "intellectual horsepower" of the legal profession as a whole. They might represent the political savviness and luck of the GOP, to have managed to appoint so many from a minority-populace-support footing by maximally gaming the non-representative quirks of the US political system. But I wouldn't classify political savvy as legal "intellectual horsepower;" the ABA doesn't rate voters.
The article isn’t just talking about the Supreme Court. Yes that’s where this has had the most prominent effect, but the influence of textualism (and concrete legal analysis in general) has filtered down throughout the courts and even those bastions of liberalism, law schools.
To be sure, the overwhelming majority of lawyers are liberal, and indeed the majority of very smart lawyers are liberal. But legal conservatism punches way above its weight in shaping the turf everyone is playing on.
Yes, because it is popular among GOP politicians (since it supports interpretations of the law that are positively archaic by modern standards... In some cases, ignoring decades of jurisprudence is the only way to get the outcome they want short of controlling enough of Congress to pass laws, which they find harder to do year over year as the demographics of America shift) and through their efforts we've got a few true believers on the Supreme Court and several in the lower courts now.
That doesn't imply it's good law that well-trained lawyers believe is correct. If anything, the prevalence of lawyers who aren't on board with it indicates the contrary. But the federal legal system itself is not a democracy, and when we change a handful of key operators in the courts, the timbre of the law can change quickly.
As the article observes, the conservative legal movement has had a tremendous influence on law schools as well. It has moved the entire landscape to the right. When Justice Kagan said “we are all textualists now,” she was hitting upon a real thing. Across the board, the legal profession today has a greater belief that judges should be interpreting the laws, not making new law out of abstract notions of justice and fairness. Among the latest generation of lawyers and judges, there are just way fewer people who have the expansive view of the role of judges that the profession had in the 1960s and 1970s.
You’re incorrect about both democracy and demographics. The legal profession is dominated by the ideology of a white liberal minority. Not only are there few conservatives, but the conservative views prevalent among Black, Hispanic, and Asian people are also absent. (This is a common mistake where people confuse minorities voting democrat for being liberal. Most democrats are not liberal, and “changing demographics” hasn’t affected that because most minorities aren’t liberal either.)
Modern liberal legal thought arose in the 1950s and 1960s to allow that ideological minority to change society in ways they couldn’t achieve at the ballot box. For example, both Republican and democrat lawyers and judges are much more secular than voters in their respective parties. Thus, the Supreme Court banned school prayer more than 70 years ago, but even as of 2012 a strong majority of Americans opposed that decision: https://www.pewresearch.org/fact-tank/2013/06/13/south-carol....
Another example is racial preferences in education and hiring. It’s the pet project of white liberals and their allies. The majority of non-white Americans, including Black people, oppose express racial preferences for both college admissions and hiring. (E.g. https://www.pewresearch.org/social-trends/wp-content/uploads...)
Does it make it not true. Feel free to argue against it. Newspapers like New York times and WSJ require their opinion letters cite facts for statements they make. If the ABA is pushing woke curriculum on law schools, is that not the ABA being leftist with their policies?
The "do your own research" meme works better when the initiator can make the target go refer to a corpus of questionable content (that is often already ideologically skewed), actively filter out whatever they find benign, and zero in on whatever lights up their confirmation bias.
It seems like you're trying to turn someone's objection to a weak argument into a weak argument itself by referring to it as an example of a "meme". I'm not sure I need to say anything else to be honest.
It's a mistake to think of much of the American right as a legal movement or theory vs something more akin to a moral or religious one. Consistency is not the point. The examples of this in the media are the easiest to see: consider the performative outrage and hurt feelings you'll get on a Monday with the grief of how everyone is such a snowflake today on a Tuesday.
(EDIT: this is in all likelihood true for every political party everywhere - that in practice not every decision comes down to strict application of some theory - but the American right often makes fairly strong claims to some inherent pureness of principle that cannot be backed up by the facts of their behavior.)
>this is in all likelihood true for every political party everywhere
Of course it is. And of course consistency is not the point. Hypocrisy is just good politics. "It's bad when you do but good when we do it" is optimal strategy.
Check out Schmitt for the "friend/enemy distinction" in politics [0]. All political factions plays this game, this is fundamental to democracy [1]. Holding your opponents to standards and principles you yourself don't follow is how you win. And of course speech rules within social media platforms is fundamentally a political issue.
Citizens United determined that corporations have some of the same natural rights that people do. In particular, First Amendment right, which in turn means that corporations can do the same politicking (and political funding) that natural persons do.
This ruling countermands that: the (implicit) right to not be compelled to speak would seemingly no longer apply to corporations or, more accurately, the people within them.
Edit: It's important to note that corporations' rights to moderate their online holdings does not rely on the CU ruling.
Citizens United determined that corporations have some of the same natural rights that people do. In particular, First Amendment right, which in turn means that corporations can do the same politicking (and political funding) that natural persons do.
A more charitable way to put this: you don't lose your First Amendment rights just because you joined with other people for commercial or other purposes.
You have never lost your First Amendment rights in the context of a corporate venture. Citizens United goes substantially beyond affirming that fact: it establishes a separate notion of 1A personhood for the corporation itself.
It’s the same old “personhood” fiction for doing things in groups that’s been around since Dartmouth College vs Woodward, which is over 200 years at this point.
Corporations are also entitled to other rights that can be exercised by groups, like not having their property searched without a warrant or seized without just compensation, or their contracts broken. They are presumed innocent in court unless demonstrated guilty.
The actual Citizens in question were getting together (uniting, if you will) to spend money and engage in overtly political speech in a tradition that goes back to Thomas Paine. They used a non-charitable not-for-profit corporation to make and to show a stupid movie about Hillary Clinton. They used a corporation because that’s what you’re supposed to use for things like this and the alternative is sending the money to one private person’s individual bank account and that’s got all sorts of problems. And the court found that was a valid way for the people who contributed to exercise their rights to free speech, because of course it is.
This is the second time in this thread[1] that someone has tried to talk Citizens United down into some sort of scrappy outfit, when it was anything but.
I am also not convinced that use of a personal bank account was a significant problem here, unless you mean in the sense that the FEC (rightfully) prohibits excessive individual contributions.
Assuming it was, however: it stands to reason that everyone (including myself!) would be content with a legal structure where N people can pool their money into a publicly auditable political contributions account. I would happily support a law that makes that easier! But that wasn't the intended goal with CU -- the goal there was to channel extraordinary donations from a very small handful of individuals in a manner not accountable to the public.
You know what? You want to talk down Citizens United the organization, say I’m playing them as too scrappy and they’re really big money? … be my guest.
But don’t use your personal bank accounts to run businesses or charities, and don’t let anyone at the business or charities you might some day run do that either. That’s a massive red flag, the IRS will come auditing and looking for money laundering, and besides that there’s just an ocean of ways that can go wrong.
And the mechanism for sharing your account like you want already exists. It is called “incorporation”. That is like 85% of the point, easily. (That and doing things with the money, like entering into contracts or owning property.) You’re reinventing the corporation.
Anyway. The goal of CU was to air a movie (a stupid political hit-piece movie, I wouldn’t watch it, but it’s plenty politics).
Why is a for profit corporation the right instrument here? It seems to me that wanting to join together for political speech doesn't need a profit motive, since there is another motive. Does America not recognize provide any manners for organization that are not for profit without needing to be charitable?
A 'foundation' in the Netherlands (where I am from) would serve perfectly. And it seems to make sense to me to bar for-profit organizations from influencing elections because of the inherent conflict.
> You have never lost your First Amendment rights in the context of a corporate venture
Hmm. Technically yeah, but corporations tend to gag their own employees more than the government gags corporations. The corporation can say just about anything it wants about politics and faces no repercussions from the government, but if an employee says the wrong thing about politics, they'll be shitcanned very quickly.
Further: Citizens United didn't just pop into our reality, fully formed, from a vacuum. Decades of prior jurisprudence and SCOTUS rulings related to campaign speech led to it.
Too many people think CU was some sort of this-changes-everything moment when it was actually a fairly narrow, technical decision based on prior rulings.
I agree that CU was a culmination of decades of jurisprudence. But that doesn't meaningfully change the fact that it has had a substantial effect on corporate money in politics.
Right, which is a very bad place to be -- it takes the already-low standard for politicking and campaigning and lowers it further. Why make yourself accountable to your constituents when you can keep your base inflamed with an infinite supply of PAC-funded rage clips?
I don't think that's accurate. I don't think anyone believed that joining a company would -- for example -- mean that they were no longer allowed to make financial contributions, individually, to political campaigns.
Citizens United affirmed that it was ok for corporations to use corporate funds to make political speech via financial contributions. Not allowing that would not imply that people who work for a corporation have lost their individual first amendment rights.
This is correct... but there's also a good reason as to why allowing companies might be a good idea.
Companies allow individuals to limit their liability.
Now I'm sure there are people who abuse this, but it also allows good people to not risk their life getting involved in a political process where they could be sued for their personal assets.
Perhaps it would be better if the government created a separate category though to separate regular businesses from political liability protection "businesses".
I'm still not entirely sure that would be for the best though on a practical level. Businesses do advocate for themselves with lots of money but that money also prefers a stable boring economy... meaning without those actors, we might start seeing laws and lawmakers that are crazy on both sides more than we are now.
> which in turn means that corporations can do the same politicking (and political funding) that natural persons do.
How can a corporation do any of these without natural persons being actually the ones deciding on and performing these actions? Corporation is, after all, just a form of organization of natural persons, and cannot do anything on its own.
In Citizens United, government argued that the government can ban you from publishing a book, unless you’re completely self funding it: if any corporate funds are used in book publishing process (as they typically are with books where authors are paid royalties, it is likely that no books you ever heard about have been completely self-funded). Are you also supporting this position, that government can suppress your speech if any at any point corporate funds are used?
> Corporation is, after all, just a form of organization of natural persons, and cannot do anything on its own.
A corporation is a synthetic legal object: beyond basic restrictions on its form, it's allowed to legislate itself internally according to whatever bylaws and structure it pleases. There is no requirement (and no particular precedent) for them having a democratic structure.
This produces a fundamental tension between the people who comprise the corporation and the decisions that the corporation makes: the corporation can choose to do things that are overwhelmingly unpopular with its employees without significant recourse, since the corporation does not operate according to the will of its members.
In other words: corporations are naturally susceptible to undemocratic power concentrations, where a small number of executives or board members use the financial heft of the corporate body to achieve their personal goals. Allowing those concentrations to then seep into our democratic system is fundamentally corrosive.
> Are you also supporting this position, that government can suppress your speech if any at any point corporate funds are used?
No. I'm not obliged to defend whatever argument the USG's lawyers presented during the particulars of the CU case.
> This produces a fundamental tension between the people who comprise the corporation and the decisions that the corporation makes: the corporation can choose to do things that are overwhelmingly unpopular with its employees without significant recourse, since the corporation does not operate according to the will of its members.
Sure, but it’s still natural persons who are actually making those decisions, no? After all, a “synthetic legal object” cannot actually make any decision. You seem to be conceding that the Citizen United did in fact protect the speech right of natural persons, you just complain about the technical aspects of how this speech act was performed.
> In other words: corporations are naturally susceptible to undemocratic power concentrations, where a small number of executives or board members use the financial heft of the corporate body to achieve their personal goals. Allowing those concentrations to then seep into our democratic system is fundamentally corrosive.
So you are only against Citizens United as applied to big and powerful corporations, but are totally fine with it with less powerful corporations? Say, you totally support the actual plaintiff, the Citizens United organization, in its right to publish the movie that was the subject matter in the case?
Also, given that you seem to believe that the government should be allowed to block speech by powerful corporations, what about speech by powerful and rich individuals? Should government also have a right to restrict speech of individuals if they are rich and powerful enough?
If it's a natural person, then they can do it with their own time and money. This is not what we've seen in the post-CU political financing world: we've increasingly seen opaque corporate structures where unknown individuals ply unknown amounts of money (collected from the labor of people who almost certainly wouldn't approve it directly) into races.
CU does nothing to protect the free expression of individuals; it has markedly diminished the expressive power of individuals in the political sphere in favor of opaque and legally established (rather than natural) entities.
> So you are only against Citizens United as applied to big and powerful corporations, but are totally fine with it with less powerful corporations? Say, you totally support the actual plaintiff, the Citizens United organization, in its right to publish the movie that was the subject matter in the case?
I don't know if this is intentional on your part, but you're dropping a key piece of context: Citizens United (the organization) is a PAC, with extraordinarily wealthy corporate financiers. It's not some kind of scrappy outfit with a handful of unpaid undergraduate interns, and it would not exist independent of the corporate interests that use it as a more palatable front for political influence ("Koch Interests Action Campaign" just doesn't have quite the same ring to it, I think).
> Should government also have a right to restrict speech of individuals if they are rich and powerful enough?
Frankly, there should be no private financing of elections at all. But that's not realistic.
Realistically: rich and powerful people have the exact same right to engage in electoral politics as everyone else, and there is no immediately feasible way to stop them from dominating those politics via their wealth and power. What we can do is make those attempts at domination as transparent as possible. Rulings like CU directly stand in the way of electoral transparency.
> If it's a natural person, then they can do it with their own time and money.
> (...)
> Citizens United (the organization) is a PAC, with extraordinarily wealthy corporate financiers.
So what is your complaint here, exactly? That wealthy corporate financiers can do everything that Citizens United tried to do, as long as at no point any of the funds pass through any corporation or a non-profit? Seems like you're just trying to make the speech of the wealthy corporate financiers difficult. I don't think people should lose their rights just because they are wealthy.
Nobody is talking about anybody losing any rights. To paraphase Anatole France: the law, in its majestic equality, permits the rich as well as the poor to express and petition as private individuals.
My "complaint" is about civic integrity and transparency: you are (presumably) a member of the same society as me, so you should have an intuitive (and civically gained) understanding that sunlight is the best disinfectant. Our country is better off when those who engage in our political processes, especially disproportionately, cannot hide behind corporate structures.
Agreed. This is why we insist on campaign finance limits and public lists of donors.
See new article just today from the UK where someone wanted to donate $300k to a US election, and did so by funneling it through a lobbying group to obfuscate the foreign source.
The key point being made is that corporations give both an opaque knowledge of their funding and also a multiplier effect of that funding in a way that a wealthy individual cannot. You saw this immediately with astroturfing on candidates and issues all neatly hidden behind the PAC facade, with no way to discern who funded it.
No, because they can't actually do everything that Citizens United tried to do.
Here's a structure that I think would be fairly unobjectionable: Citizens United works collectively to raise funds for political causes. Once funds are raised, the money -- in its entirety, minus administrative and other overhead costs -- is distributed to all the employees of Citizens United itself. That money is taxed, as it should be. Then the employees are free to voluntarily choose to contribute that money -- up to individual contribution limits -- to whatever candidates they so choose.
The same should be the case if an ordinary corporation (one that doesn't exist for political purposes) wants to donate to political causes: they should be forced to distribute the sum total of that desired contribution as salary to employees, who could then choose to make (or not make) those contributions.
Obviously there are flaws to this plan, and it needs more scrutiny and fleshing out, but I think it is much more democracy-preserving and -- critically -- transparent than just allowing corporations to act as "people" and fund political campaigns directly, or via shadowy means.
Is CU allowed to pay people a nominal fee to be on-paper employees, whose only responsibility is to, a few times a year, sign a release form that allows CU to make a bundle of political donations on their behalf, with the fee paid out to the individual.
Or on the personal level, I can't actually tell if it's illegal for me to pay you $3000 to sign a contract saying you will donate $2600 to a particular candidate. And if it's legal for me and you do to that, why shouldn't it be legal for a corporate entity to do that at scale?
And it's certainly legal for you to hire me to handle the minutia of donating money to a political candidate.
> Sure, but it’s still natural persons who are actually making those decisions, no?
It is a small handful of natural persons (or corporate board or executive team) deciding for the entire corporation full of people who have zero say that the fruits of their economic output (under the auspices of the corporation) are being used to support a particular political party or candidate.
If we look at individual political campaign contributions, then it's one person deciding that some of their hard-earned cash should go to support a particular candidate or cause. But with a corporate structure, it's five people deciding that the collectively-earned cash of thousands of people should go to support a particular candidate or cause.
To put it another way, an individual campaign contribution is "one person, one vote". A corporate contribution is "one person, many votes".
And no, most people do not have the realistic option to quit their job because they don't agree with the political contributions the executives have decided the company will make.
> Should government also have a right to restrict speech of individuals if they are rich and powerful enough?
Governments already do this: individuals are subject to political campaign contribution limits[0]. This unfortunately gets muddied by PACs and the like, which was the issue at hand in Citizens United.
How do monetary donations translate into votes? Whether I give a candidate $1 or $1million, I still get only one vote; the only merit of donating money is to help my candidate make their views better known to more people, each of whom can now make a better-informed decision.
There are many cases of well funded candidates (be they self-funded or funded by small donors) failing to win elections; e.g. Michael Bloomberg and Bernie Sanders on the national stage. Despite tremendous advertising, these candidates were deemed inferior by enough voters to lose.
Are you suggesting that you cannot actually make any decision, only your decision-making part of your brain can ? ;)
Also, I think that one of our mistakes was to not require limits on the duration of a company (because they used to be shut down once their goal was accomplished?). In comparison, even the richest human has a well-limited lifespan...
> you seem to believe that the government should be allowed to block speech by powerful corporations, what about speech by powerful and rich individuals?
It's like speed-limits. You can only drive so fast. Similarly we should limit how many dollars any single person can spend on manipulating public opinion.
With corporations I guess we should divide the amount they spend on political adds by the number of share-holders, and put a limit on that.
> It's like speed-limits. You can only drive so fast. Similarly we should limit how many dollars any single person can spend on manipulating public opinion.
Does this apply to all advertising, or just "political" advertising? Is "Enjoy Coca Cola" the acceptable kind of "manipulating public opinion", or the bad kind that is limited? Who draws the distinction?
Is Shell or Exxon allowed to advertise their products? Are they allowed to advertise their products in a positive light? Are there spending limits on their just, like, normal product advertising?
Can I air anti-oil and pro-clean-air advertisements? Are these "political" even if Shell's aren't?
Good questions. I think companies should be allowed to advertise their products.
But advertising for who should be elected to run the government is a different ball-game. Why? Because government is not just a product you could refuse to "buy".
Government should represent us. But it should not represent rich people more than anybody else, which is what happens if the rich can choose the government based on political advertising and misinformation.
Not too surprised that so many HNers don't know this, so I should have explained better in the previous comment. The Federalist party called for a strong national government to fix all the ills in the previously weak confederation, and they succeeded spectacularly, making the US the most powerful government on Earth instead of a bunch of warring factions making their own treaties, regulations, money, and tariffs. The very first aim of the Federalist Society is "checking federal power."
It's all about the context. Federalists wanted a stronger government compared to Anti-Federalists who wanted something akin to a confederation. Nowadays the debate is not between federalists and confederalists, that ship has sailed, it is between federalists and unitarists.
I think that history is happening as we speak (Yo, media outlets/reporters interested in writing a feature! This would be an amazing topic.). The crux is really 2016/Trump, Adrian Vermeule's "common good constitutionalism", and outlets like Claremont's The American Mind. For lack of a better term, MAGA conservatives are building an intellectual infrastructure for a very aggressive conservative judiciary right now.
Can we stop miscategorizing reactionary regressivism as "conservatism" ? There is nothing conservative about it. They're essentially trying to drag us back at least a few decades and destroy longstanding institutions, including things like separation of church and state and the right to access medical care.
>...Can we stop miscategorizing reactionary regressivism as "conservatism"
But that is conservatism though. I can't help but see the whole attempt at renaming it "regressivism" is to avoid "conservatism" from taking the fall when people look at it's outcomes. No one that would be "regressive" today was not a conservative yesterday.
That is not my intent, but I see where you're coming from. Today's reactionaries were conservatives yesterday because that is what the politicians constrained their viewpoint into. To me, the only peacefully-resolving course is to hope there are enough actual conservatives (ie people who respect institutions and want to slow change, and would therefore be against the recent bans on fundamental medical care, the Republican party's disruption of the pandemic response, etc) that will distance themselves from the reactionaries and not continue to blindly vote Republican.
No. Because as much as your absolute moral certitude might feel good to express you aren’t changing anyone’s mind with it. On the contrary.
There’s tens if not hundreds of millions of them and same for you guys. We are all stuck together in one polity.
If we are ever going to achieve a synthesis and get back to a healthier place it’s not going to involve the kind of rhetoric you are indulging in here.
Rhetoric? I'm making an objective point about the political spectrum. Moldbug labeled his own philosophy as the Reaction, and condemned conservatism as being doomed to perpetual failure because some progressivism inevitably occurs regardless. And it's just plainly nonsensical to label a movement aimed at undermining longstanding institutions as "conservative".
As far as synthesis and reconciliation, for a long time I viewed the answer as that of respecting individual liberty. Each party seems to get its constituents excited about a desire for individual freedoms on topics that matter to them, and then transmutes that energy into enacting authoritarian regulations that benefit their commercial sponsors. I had hoped that over time the liberty would be an attractor that gained ever more ground. But the flare up of grassroots authoritarianism, specifically in the Republican party where it has gone mainstream, has shown this was too optimistic. So I'm left hoping that there are enough actual conservatives horrified by these developments that will end up voting for the actually conservative options (which now seems to be mostly in the Democratic party) to keep the off the rails reactionary populism from causing too much damage.
>But the flare up of grassroots authoritarianism, specifically in the Republican party where it has gone mainstream
Wow that took a turn to a hot take really fast. You don't find the rise of the green left, the authoritarian self-described socialists like "The Squad", etc to be the equivalent on the left? Or do you only view things through the lens of the party you like? Yes, the green energy, banning ICE, defunding police, anti-liberty left is just as bad as the deep right wing that wants to ban abortion and all the other things they do. There's no question and there is no ambiguity. Both want control of what you do in nearly every aspect of your life. Waking up involves realizing both of the extremes (left and right) would happily put you against the wall.
Extremism begets extremism. Authoritarianism begets authoritarianism. The horseshoe theory of politics has reached its peak in the last 6 years and opinions like this are part of the reason why. It's always "Them". Never "Us". If only "They" could wake up they'd finally love "Our" version of big brother.
How exhausting it must be to constantly find a way to simplify a vast group of people down into the absolute edge cases and judge them entirely on that edge case.
> self-described socialists like "The Squad" ... banning ICE, defunding police
These are not positions of the mainstream Democratic party. The Democratic party is still basically constrained to its traditional function of channeling constituents frustration into boring status-quo corporate-first policies, much to the chagrin of people who do support the things you've listed.
> green energy
I don't know how you're saying green energy is authoritarian. If it's the economic meddling with subsidies, I'd say it's disingenuous to focus on that when fossil fuels, and overproduction in general, have been so heavily subsidized. I'd much rather the government did not print trillions of dollars and give it away as corporate welfare, but if it's going to, I'd rather it go to forward thinking technologies rather than just lining the pockets of existing industries.
> It's always "Them". Never "Us". If only "They" could wake up they'd finally love "Our" version of big brother.
I'm not an "our". I routinely get into arguments with Democratic friends advocating bureaucracy-centric corporate-first policies that their politicians have convinced them are genuine attempts at reform. I've read plenty of reactionary writing and think it has fantastic critiques about the Cathedral and the deep state. I think those structures are ultimately at odds with personal liberty and enlightenment. However this does not mean that I view every attempt to attack those structures as a good thing.
Some Republican movements have been authoritarian, but an effort to prevent people from saying that which is undesirable is definition authoritarian just as much if not more so. I don't know what example of authoritarianism you would offer as characteristic of the Republican party, but I'm sure you could offer more than one or two. That's because both political parties must push authoritarianism because both must accumulate authoritarian power to stay in the game, lest they be overpowered by the opposing party.
While constituents, we the people, agree on most points like personal freedom, individuality, respect of human life, and liberty etc., politicians of both parties, out of necessity, must paint their opponents as the authoritarian regime, set on revoking personal freedom and individuality, and devaluing human life.
If you dislike either party, it's not because one is more authoritarian than the other. It's because we lack the mental capacity to retain all the information that makes up the world around us, and must therefore make easier to process, generalizations to survive; Republican, Democrat, grassroots, mainstream, Black, Hispanic, White, etc. And it's obviously no secret that this necessity to generalize is very much exploitable.
What you don't like about the Republican party is all the things that are also the Democratic party, but only in a generalized view that the opposing parties' electorate has succeeded to exploit in your mind.
This is simply not true. You're trying to do a 'both sides are bad it's only your perception coloring your things' deal, but I live in a red state where Republicans encouraged bounty hunters to go after and harass women while also trying to control them if they leave to other states.
The only 'generalized view' is the one being created by Republicans, which I see pushed by Republicans and supported by Republicans. You don't have to look far to see some of the dreadful things they're pushing, and trying to pretend both sides are equally bad is not only intellectually dishonest but it's also argumentally lazy.
You've given me anecdotes and then proceeded to generalize. And called me lazy, which taken together is hilarious. Let's investigate that philosophy, shall we?
Generalizing by nature requires the ignorance of certain truths or anecdotes, in favor of others in order to simplify and conceptualize complex ideas about the world around us.
Read that again. Generalizing requires ignorance.
When you generalize, which you just did, you are, if only by definition, wrong. You must be, logically. If you need help gaining some understanding of logic systems, I'm happy to oblige, because I'm not "argumentally" lazy. (That's not a real word by the way.)
Not all Democrats make up words.
Not all Republicans hire bounty hunters.
In summary, when you generalize people as a group to be of a particular belief or characteristic, you must by definition ignore the vast majority of ideas that are intrinsic to the humanity and individuality within the group. That is dehumanizing; it's factually wrong, and it's frankly immoral.
The whole bounty hunter thing is something that was championed by the Republican party. Both locally here in Texas as well as by the party as a whole. I'm not sure how you can call that generalizing when the party directly supports that position. If someone calls themselves a Republican and votes for them knowing that this is their position, then they tacitly support it.
You're effectively taking the stance that you cannot ever criticize a political party for its actions because some small portion of its constituents may disagree which is like I mentioned before, the easy way out. It's avoiding arguing against the actual critique in favor of moving the argument somewhere entirely different.
That's not what I'm saying. But suit yourself. Let's run with your line of thinking and see how that plays out for you. Let's generalize the other way for the sake of debate.
Let's assume you voted Democrat sometime before 2018.
SC Justice Kennedy, a Republican made it illegal to prosecute gays for sodomy.
Kennedy was on the bench so if you voted Democrat, I guess you're anti-gay, you sick bastard! (Me too apparently! Since I did.)
Sure, Democrats are fighting for civil liberties, right? Unless you want to talk about how they are actually anti-gay, and opposed Trump's rules that federally prevent discriminating cross dressers at work. Didn't hear about that one? Well, that might be because you're busy listening to Democrat politicians YELLING SO LOUD about how they are pro gay rights. Pro civil rights. While they go sit in Congress and vote, just like everyone else, for the corporation who gave them the biggest campaign contribution. Check for yourself at Congress.gov what your Democrat politicians are voting for. Should we brand you with all of those horrible things they voted for like Intuit's grip on the complexities of the tax system? It's your fault taxes are hard to file, I guess! Surely that's a Democratic ideal! I blame you! I should, right? Isn't that what you're saying? That we blame you for your politicians?
And if anything I just said about you isn't true, well, it's just a generalization, isn't it? So by your philosophy, I'm right. Whether you're anti gay or not, you aren't an individual so you don't actually have any opinion except what the Democratic party says your opinion is when they vote in Congress. You are anti-gay now and I don't care how much you want to defend yourself you can't because you voted Democrat. You're a gay hater bro. That's that. That's just who you are.
> SC Justice Kennedy, a Republican made it illegal to prosecute gays for sodomy ... Kennedy was on the bench so if you voted Democrat, I guess you're anti-gay
Politics is so full of contradictions, that you can't simply take an inversion and use it to argue much of anything. I'm sure you could come up with a good example to illustrate the individual-vs-collective distinction, but this isn't it.
Also at a certain point the policies of the collective do matter, especially when people choose to label themselves as being members of a specific party/movement/etc, rather than merely voting for a politician carrying those labels as a least worst option.
I consider myself a libertarian. I might have written your comment several years ago, and I echoed its sentiment above when I described the parties' traditional dynamic. However, the Republican party of ~2020 onwards is a drastic qualitative departure from that symmetric status quo.
You've thrown out "effort to prevent people from saying that which is undesirable" as an example of Democratic authoritarianism. However, this is not a mainstream grassroots view. Rather it's the status quo agglomeration of power by politicians, the government grabbing power while entrenching the big tech oligopoly. Democratic voters in general don't seem to be sitting around going "Biden is going to shut those deplorables up", rather it's more like lament and resignation when the topic of social media censorship does come up.
We can of course point to authoritarian policies enacted by politicians from both parties, because politicians are inherently authoritarian, and enacting authoritarian policies that enrich their sponsors is their bread and butter.
However, the cults of personalities around Republican politicians, the rejection of intellectualism, overtly excepting politicians from the rule of law. These all indicate an authoritarian-flavored organizational structure, supported by the grassroots. If fronting as a strongman and pulling stupid stunts didn't work to get votes and donations, Republican politicians wouldn't do it. And the recent state level pushes to prohibit fundamental medical care (ie straight up individual liberty-destroying dark ages authoritarianism) is policy that doesn't enrich any corporate sponsors (as legislation usually must), but rather seems to be completely at the behest of their perceived constituents.
And so, I no longer consider the two parties symmetric. The Republicans have seemingly made their mainstream platform to dismantle our institutions in favor of regressing to some sort of good-old-days theocracy, while the Democrats still basically represent the corporate/bureaucratic status quo. And while I find that status quo repugnant from a position of wanting to reform it in favor of individual liberty, I'd much rather have the imperfect institutions we've come to take for granted, like the rule of law, than have them destroyed from the top down.
The only difference between us is that I'm aware that we're both victims of marketing. You seem to imagine that it's just me, which suggests to me that it's just you. And that only further makes my point. If you're the egoist, then I'm right. If I'm the egoist, then I'm even more right. At least you acknowledge that you can't sum up someone's opinions based on which party they vote for. The reality is simply that you only get one blanket vote for probably one issue you read about, and thousands you didn't but apparently should be held accountable for.
I dispute that, having myself passed through the perspective you're arguing. It's easy to dismiss things with relativism, and it is in fact necessary for dealing with the media's endless stream of tempests in teapots, but significant differences can still exist and you need to keep your mind open to them.
For me, the off ramp for my benefit of the doubt was the Republican's Covid response, where political nonsense came up against cold hard non-mediated reality. Let's hamstring federal departments precisely when we need them, 2+2=5, don't bother wearing a respirator to protect your family it's all made up anyhow, all merely to feed egos large and small. The fact the party and its constituents continue to double down on an a President that overtly damaged our country are at least two pillars of fascism - party over country, and cult of personality.
And sure, we can apply similar judgements to help us critique the Democratic party. But there is a stark difference in degree and effect, and it's utterly foolish to ignore that.
It sounds to me like you're talking about the Republican party that you saw on Democrat TV. Literally a fabricated cliche marketed to the average viewer that describes exactly zero real human beings but has a nice ring to it and allows you to simplify "them" into a nice box that you can label "not me" and feel good about yourself.
You're posting in a thread about a topic where they're literally trying to do exactly what the GP is saying. I don't know what you view as a 'middle road' given that their starting negotiating point is 'users cannot be banned for any reason ever'.
I'm not so sure, since section 230's safe harbor is involved. If section 230's protections were dropped for social media, I am sure that most courts would adopt the Citizens United standard.
However, that would mean a ton of lawsuits for all the defamation and harassment that happens on those platforms.
Section 230 is a federal law, it cannot make a state law that would otherwise violate the First Amendment as incorporated into the Fourteenth Amendment somehow okay. That’s not how the relationship between state, federal, and constitutional law works.
Corporations are entities that exist as contracts between people. The theory is that the speech of a corporation is thus the speech of the people involved in the contract.
No one is protected by the First Amendment. The government is forbidden to do things. "Congress shall make no law abridging the freedom of..." several things, including freedom of speech.
The idea that corporations were given First Amendment rights by a recent Supreme Court decision that made them people is very frustrating to me. Corporations were deemed "people" in 1882, in San Mateo County v. Southern Pacific Rail Road, but it doesn't matter even slightly what they are with regards to the First Amendment, which doesn't specify who is speaking. Whether you're a citizen, noncitizen, undocumented immigrant, visitor, or soulless capitalist entity, if you can speak, Congress shall make no law.
If this court case is over a state law, is Citizens United even precedential? That was a ruling about a federal law, and this appears to be a matter of Texas law, adjudicated with Texas court precedent. I assume it's only in federal court due to diversity jurisdiction.
Both state and federal laws have to comport with the constitutional free speech doctrines. Technically they apply to the federal government via the First Amendment and state governments via the Fourteenth Amendment but for a hundred years now the content of the doctrines have been considered identical when applied to either.
Citizens United isn’t directly on point. That was a question of positive corporate speech while this law, if it’s struck down will be struck down under the corporate compelled speech doctrine. But they are both part of the same body of Constitutional law that the federal courts very much have jurisdiction to enforce.
> this law, if it’s struck down will be struck down under the corporate compelled speech doctrine
That's unlikely, as such an argument is a complete non-starter.
If I were arguing against the law, I suspect (shooting from the hip without researching it) that the most fruitful line of reasoning would be that the federal government has preempted the field of interstate communications transmission by a combination of the FCC's organic statute and the CDA. This is a better argument because, despite what some on HN believe, there is a half-century of Supreme Court precedent that compelled hosting is not compelled speech, and because of the doctrine of constitutional avoidance.
As an interesting aside, Justice Kagan had some involvement in one of the issues underlying one of the cornerstone cases in this area. Though she was not a party and does not appear to have been among the amici, when she was Dean of Harvard Law School she opposed military recruiting on campus due to the Don't Ask, Don't Tell policy. The Solomon Amendment required non-discrimination in hosting speakers for recruiting purposes, under threat of the loss of federal funding. That compelled hosting was challenged and upheld in Rumsfeld v. FAIR, 390 F. 3d 219 (2006).
Even granting, for the sake of argument, that this is compelled speech, would that be sufficient reason to strike down the law?
I ask because there are so many examples of compelled speech that have not been struck down. Witnesses are required to testify. Various companies are required to print warning labels, nutrition facts, country of origin, and such on their products. Politicians are required to say "I approve this message" in advertisements. Doctors and pharmaceutical companies are required to describe side effects of medications. Police are required to give Miranda warnings. Professors at many state universities are required to add a few paragraphs of mandatory text to their syllabi, including a notice that they are mandatory reporters who are compelled to tell the government what they know about certain events.
It's so common that I wonder (despite frequent claims in these discussions) whether a prohibition against compelled speech actually exists at all.
Yeah this is a good point. Compelled speech is a pretty new and undeveloped doctrine with unclear boundaries.
The Court tends to defer to history as a way of understanding how the framers viewed an issue so things like compelled testimony would likely be safe. My pet thought experiment is challenging the requirement to answer the census, particularly with it's much-expanded survey questions. Perhaps I can be compelled to say where I live and who lives with me, but can I be compelled to answer questions like whether any of us are gay?
Rumsfeld vs FAIR was a spending clause case, so there was an additional level of indirection vs the Texas law. In addition it involved Congress’ power to raise and support armies which have always been given a great deal of deference. It’s not really on point.
The Supreme Court's published syllabus explains the holding as follows:
"Because the First Amendment would not prevent Congress from directly imposing the ... access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds." (emphasis added). Rumsfeld v. FAIR, 547 U.S. 47 (2006).*
I'm not sure where you're getting the argument that this is inapplicable, but it sounds like some of the talking points coming from the Internet outrage machine (e.g., the OP). I strongly encourage you to read the primary sources.
* This is the correct citation. The one I entered yesterday is no longer editable but refers to the Third Circuit case preceding the Supreme Court case; switching tabs on my phone is a little harder to keep track of than on my computer, and I apologize.
I've read the decision at length. If you had done so as well, you would see that this line in the syllabus comes verbatim from the majority opinion. 547 U.S. at 60. I cited the syllabus because it occurs first and has less pagination markup, making it more accessible to the average HN reader.
The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws.[1]
The last paragraph of page 111 is interesting because I don't think the majority opinion tries to rebut that criticism, and it destroys the premise of most of their arguments.
It's also interesting to compare the tone of the two opinions. The majority is theatrical. That's not what I want to see from a court. Unfortunately, it's hardly unique to this court.
I think it makes perfect sense if you view the courts as largely a political operation, with a thin veneer of legal language on top.
Given the past decades of highly coordinated--and completely politically motivated--court-stacking, it's probably most accurate to put the political definitions ahead of the legal definitions of conservative.
This applies to every court in this country, and even more so to some. If 5th circuit is “corrupt, incoherent activism”, I’m lacking words to even describe the 9th.
No, the great majority of judges and courts – even the majority of e.g. Trump-appointed district-court judges – have internally consistent legal philosophies and prejudices which happen to differ from one to another. Sometimes judges talk past each-other or fundamentally disagree, but that is not the same as corruption. For the most part judges take their job seriously and do it carefully and in more or less good faith.
What we are talking about here is judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome. Such rulings are profoundly corrosive to the rule of law and the legitimacy of the court system.
> What we are talking about here is judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome. Such rulings are profoundly corrosive to the rule of law and the legitimacy of the court system.
Yes, and this in fact happens in every court, that's my entire point. I can provide endless examples of outcome-oriented rulings from every single appeals circuit, and from SCOTUS too.
In fact, the original Roe v Wade decision is the archetypical example of outcome oriented judiciary, of “judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome.”
First, nothing in constitution talks about abortion. Second, when Roe was passed, it forced states to allow actions that previously have been illegal in every single one, i.e. it ignored the law. Third, it ignored the precedent that saw limiting abortion as perfectly kosher. Fourth, it ignored the will of the people, who at the time were decidedly against abortion being allowed to the extent Roe requires (and in fact, they still are to this very day, if you ask them if abortions should be allowed in 6th month of pregnancy). Finally, the argument in Roe is completely incoherent as a matter of law, being based on the “emanations of the penumbra” of what is being said in the actual law.
I do think that abortion should be legally allowed, up until 15th week. Nevertheless, Roe is the clearest example of extremely bad judiciary.
> In fact, the original Roe v Wade decision is the archetypical example of ... “... zany partisan outcome.”
The Roe v. Wade decision was joined by 1 Roosevelt-appointed justice, 2 Eisenhower justices, 1 Johnson justice, and 3 Nixon justices, and opposed by 1 Nixon justice and 1 Kennedy justice.
Abortion was not a partisan issue until afterwards when a group of GOP activists decided it would help them politically to spin abortion into a moral panic they could organize around in churches (which, except for the Catholic church, had mostly been ambivalent before). This is hard to remember after 4+ decades of intense partisan propaganda about the subject from the GOP.
The Supreme Court was not really a partisan institution at the time, and justices regularly split in their decisions in every imaginable configuration. (After the ignominious end of the Nixon administration, a different group of GOP activists started a decades-long conspiracy to stack the court with corrupt partisans with no regard for the collapse in the court’s legitimacy and the rule of law. That plan has been highly successful, Leonard Leo and Mitch McConnell’s great masterpiece.)
> First, nothing in constitution talks about abortion
Abortion is a question of fundamental body autonomy (Can my state use my body in order to preserve the life of another person[1][2]), and all the other rights enumerated in the constitution aren't worth a rat's ass without body autonomy.
[1] It pretty immediately follows that if the state has the power to do so, it should also have the power to take you apart for your organs, because I will die without an organ transplant.
[2] Or, as the case may be, another person-to-maybe-be.
Maybe, but here is the thing: that’s not the argument actually put forward in Roe v. Wade. This thread is not about litigating whether there is a constitutional right to abortion. Instead, it’s whether the particular case, Roe v. Wade, was correctly decided as a matter of law. If you want to argue that it was, you need to refer to the actual arguments put forward in it, instead of some (arguably) better arguments they could have used instead.
All court activism is corruption; their job is not to make law or have political opinions of any sort, they should be slaves to the text of the law, not bending it to their will.
Yeah, certainly not what we once thought of as conservative judicial restraint.
One comment I remember reading on Twitter which makes sense: "Funny how what the 1st Amendment means seems to align perfectly with currently fashionable conservative (MAGA) social views."
>The term “conservative” means nothing if you apply it to a court which has overturned years of legal norm across various areas of law.
your definition of conservative seems to be "obeys Newton's second law", or going further, "synonymous with hysteresis": "resists change, but thereupon resists changing back"?
Yes, the correct term is reactionary, which many modern "conservatives" are - they don't want things to remain the same, they want a return to "the good old days".
The first amendment does not protect you against anything but the government. Full stop. Between people and people, corporations and corporations, and corporations and people it does nothing.
The opinion fails at this very basic fact because they want it to be false. Not because there's any law suggesting it is false, nor has there been in a hundred years, but because they dont like it they just decided to make it up.
The states do not get to change this. If you want something else pass an amendment, don't try to get a bunch of crazy unqualified judges to make a mess.
> Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.
That decision does not dispute what you quoted at all. That case is not even about the first amendment, it is based on California’s state constitution. In fact your link makes the exact claim as the one you say is false.
> the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech
Touché! But the bit I quoted is something of a non sequitur as this case, like PruneYard, concerns a state law extending additional speech protections into the private sector, so PruneYard does seem relevant, as PruneYard affirmed a state’s ability to do this. Further, it doesn’t seem much rebuttal of this ruling about a state law to argue the First Amendment offers no protection to those censored by Facebook (as the part I quoted was doing). The First Amendment enters the case in terms of whether it protects Facebook from this law, not whether it protects users from censorship corporate censorship.
What personal consequences do you think should come to federal officials who explicitly requested social media companies to censor specific people and certain categories of speech?
So a Linux User Group cannot kick out someone that's espousing neo-nazi viewpoints during meetings because they're a facilitator of them speaking to you, and because neo-nazism is a political viewpoint?
Anti-speech pro-corporate-authority advocates always try to put these monopolistic, unescapable megacorporations in the same category as some local mom-and-pop operation. It's a massive intentional category error; megacorps are not little companies you can just walk awawy from. There is a point where a corporation's influence becomes so unescapable and so capable of greatly degrading your life that it must be treated in some ways like a government, for the same reasons we treat government differently from just another company or citizen.
The same reason that the phone company or a company that owns all the local roads or water mains can't decide to "stop serving" you because they don't like your religion.
>The same reason that the phone company or a company that owns all the local roads or water mains can't decide to "stop serving" you because they don't like your religion
Because it's hard to impossible to get alternate services for roads, water and electricity, i.e common carriers. But there are plenty of neo nazi forums, Gab, Truth Social, Parler, 4chan for racists to express and spread their views.
There already are common carriers for communication, see email services.
These are unmoderated, just spam filtered. Forums, social sites and video sharing sites are typically not one of these, and the distinction is important. The most important distinct piece is ownership. Shen you signed the Terms of Service with say YouTube, you granted them rights that vastly exceed ones a common carrier has.
Email is not carrier and is not regulated as such. I can create a private mail server, invite users and keep any email from being delivered that I so choose.
Ridiculous idea. Sure, you can run your own private email server... and watch as your messages go to everyone else's spam. It does not matter what SPV, DMARC bullshit hoop you jump through. Ultimately google gets to decide what email providers live and what email providers die.
It is analogous to creating your own postal service or phone company that only lets you send letters to users of the same postal service or phone company. The service is only useful due to network effects.
But it actually is almost impossible to truly start your own phone company, in terms of running wires to people's homes or putting up towers. The capital expenditures and regulatory hurdles are near impossible, save for extremely well financed and well connected people.
I've had SMTP servers which have extremely high deliverability rates hosted for <$100/mo for over a decade.
The capital expenditures are nowhere near comparable. The regulatory burdens are nowhere near comparable.
Email providers are not common carriers. Its very easy to just sign up for a different email provider. Its easy to buy a domain name and update MX records across literally hundreds of commercial providers eager to have your business. And even if every single host bans you (you really should then question what you're doing if nobody wants your business) its still technically possible to go it on your own. And once again, as long as you're not being generally abusive its possible to have good success.
Comparing getting banned from Gmail might as well be the same as comparing getting banned from McDonalds. McDonalds isn't a common carrier no matter how much you like Big Macs. There's plenty of other restaurants available.
"Because it's hard to impossible to get alternate services for roads, water and electricity, i.e common carriers."
You are omitting telephone service, which is also a common carrier despite being arguably more competitive than the Big 3 cloud providers.
That's where I personally would come down. This decision is ridiculous; social media companies are highly competitive. But I am much, much less comfortable with AWS kicking off Parler.
Those places should allegedly be held to the same standards in suppression of speech. Only they don’t have numbers to withstand the destruction of their platform if, say, numerous other people suddenly showed up to disagree with them.
Facebook doesn't own all the local roads or water mains though. They're one website. It's just as easy to go to twitter.com as it is truthsocial.com or mastodon.social.
If Comcast owned practically the only ISP in my area then yes they should be considered a common carrier and shouldn't be able to discriminate traffic that isn't trying to break their stuff. In that case they would be the company that owns the roads or the water mains. Facebook isn't like that in the slightest.
Facebook, Twitter, etc. are not even close to inescapable. It's remarkably easy to leave those sites for one of the hundreds of other social media sites out there. We're using a nice one right now.
Yes. A handful of megacorps acting together (and they all act together generally) can take away your property by banning you, which makes it impossible to have a normal career in fields as diverse as academia, creative media, journalism, tech, and many others. If you're running a small business and trying to promote it, being banned from social media is a huge hit as well.
They already have taken away your liberty to speak your mind in the common public square of our society - social media - because you know they'll ban you if you say any of a wide variety of things, leading to the consequences described above.
The common public square is just that - paid for and maintained with public money.
Trump doesn’t seem to have any issue getting his message out or getting people to come to his rallies.
Before the internet existed, the entire civil rights movement was organized by leaders going to churches - even though the locations were actively being bombed, leaders were being arrested, water hosed, lynched, bitten by police dogs, etc.
Cry me a river that some conservatives can’t post on Twitter.
Okay, but how are they “inescapable”? I hear this argument a lot, but no one can seem to dot that very important i.
If I can’t use Facebook, I can use Reddit. If I can’t use YouTube, I can use Vimeo. If I can’t use Instagram, I can use TikTok or Snapchat. If conservatives get banned from Twitter, there’s a bevy of conservative-leaning Twitter clones. Plus Mastodon, which you can’t get banned from because you can just set up your own instance.
> The Texas law forbids social media companies with at least 50 million monthly active users from acting to "censor" users based on "viewpoint," and allows either users or the Texas attorney general to sue to enforce the law.
> This chapter applies only to a social media platform that functionally has more than 50 million active users in the United States in a calendar month.
By some readings of section 230, they may not be able to unless they want to be treated as a publisher of speech. However, almost nobody is going to actually argue that this is the case.
Also, IIRC moderation rules are allowed, and if your rule is "no politics on the forum" and someone talks politics, they can be banned. Same with "no racism" or "no antisemitic comments."
No, only by a reading of a made up text that some people wish was in section 230. If you're bringing it up I'm sure you've had pointed out before that there is no publisher/platform distinction in it.
> Also, IIRC moderation rules are allowed, and if your rule is "no politics on the forum" and someone talks politics, they can be banned.
The first person you ban is going to argue with you about the definition of "politics". So many people have been through this idea before, and it always leads right back to "we reserve the right to refuse service to anyone".
It turns out that there actually are several subjects that are pretty well defined to be "politics," and there are lots of subjects of conversation that are definitely not "politics." There is a gray area, and as a forum moderator you can choose where the line is as long as you apply the rule consistently. Most of the discussion about this right now is about the consistent application of those rules: people point out one side getting moderated more heavily on certain forums than the other side.
Section 230 (c) 3. Seems pretty clear that they can moderate for anything the provider finds objectionable.
Do you think this is unclear?
> No provider or user of an interactive com-
puter service shall be held liable on account
of—
> (A) 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, exces-
sively violent, harassing, or otherwise objec-
tionable, whether or not such material is
constitutionally protected;
I think the argument is that "good faith" necessarily doesn't hold when you allow one group of people to post threats, harassing content, and misinformation while you ban another group from doing the same thing. In other words, selective enforcement to favor your friends doesn't seem to be particularly good faith. I'll leave you to decide which platforms to investigate and to find selective enforcement: all of them do it.
To be clear, I don't agree with those interpretations of section 230 - and neither do many judges.
I'm not sure telephone companies or shipping services are a good analogy here, though, yes, that's an example the opinion uses. One key difference is that telephones are generally one to one or one to few communications, whereas social media platforms are a megaphone to speak to many people? Do other forms of mass communication require you deliver any and all speech?
If you're going to say social media is like a telephone, I think you have to at least consider in what ways it actually isn't like a telephone.
That's not why people write on social media. There are very many "telephone wires" that have nobody listening on the other side. What every contributor is after is the audience. But there is no legal right to an audience.
If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model.
I understand why people hate that opinion, because they want civil discourse and nearly free access to media online. Uncensored content pushes normal people out.
Those things are great, but are ultimately out of alignment with a commercial revenue model. The result is social media imposing an algorithmic bias to increase engagement, the results of which are often toxic, and that toxicity ultimately pushes normal people out anyways. You can’t have your cake and eat it too.
> If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model.
Why? This is seems like a total non-sequitur. It's pretty obvious that the individual posting illegal content is the person responsible for it and not the platform it's posted to, unless the platform is soliciting or refusing to remove said content. The anti-230 reasoning seems purely motivated by punitive thinking rather than what actually makes sense in reality.
> Those things are great, but are ultimately out of alignment with a commercial revenue model.
I would say it's out of alignment with the ad model specifically. Currently, there exists a financial incentive to curate content in a manner that pleases advertisers and the internet mobs that patronize their businesses. However, if social media companies were somehow forced into a subscription model, they would have a financial incentive to avoid banning users because it would hurt the bottom line, it would also eliminate the incentive to curate content to the prerogative of advertisers, and it would make the user experience much better due to lack of ads and the need to create better user experiences to maintain retention.
It is a non-sequitur only from the perspective of a social media company protecting its media business, but not from any other perspective. If I, as not even a user of the given social media service, were to receive numerous death threats as a result of content published and republished on that social media service I should have the ability to sue them for libel. This, of course, also ignores the numerous criminal liabilities faced by that social media company had they not been shielded by something like section 203, such as depraved indifference harm. There are numerous examples of this scenario both large and small, for example pizza-gate conspiracy theory and various online conspiracy theories attributed to Alex Jones.
At the moment harmed individuals get neither the ability to sue to recoup their harms nor a vote to censor content that is clearly illegal and/or harmful in the immediate to their person. This immunity does not exist for any other communication venue in the US irrespective of first amendment concerns, for example if a radio show or newspaper allowed such conspiracy theories you could sue them into bankruptcy as did Hulk Hogan versus Gawker.
A fairly simple argument for this position is: This speech (the content posted to social media) is either speech by the poster or speech by the social media company; you can't have it both ways. If the social media company isn't responsible for illegal content, then ipso facto it must be the user's speech. But then the company doesn't have first amendment rights attached to that speech itself, such as the right against compelled speech that would be implicated by this law. (Note that this law doesn't by any plausible interpretation limit anyone's speech acts.)
I think everyone intuitively understands you can't assert 4A rights on contraband held by the police while also denying owning that contraband to dodge criminal responsibility. This thing with social media is the same thing but with 1A instead of 4A.
I would consider myself a first amendment absolutist; and yet I don't have a 1A problem with the concept of this law [0] insofar as social media companies choose the position that user speech isn't their speech. The problem is that they won't come out and state that position, they intentionally flipflop on whose speech their websites host exactly depending on what is most convenient. So of course it looks like this is a massively overreaching law when the position flops to "company speech". And if a company came out and said okay we accept responsibility for what's posted on our platform, then I'd be the first in line to say that the government can't force them to publish certain content.
Contrast traditional publishers who definitely have first amendment rights to publish or not to publish things. Well, yes, they do, but they also have legal responsibility for what they publish. The rights follow the responsibility.
[0] Saying nothing of the wording; because I'm sure it was drafted by censorious assholes, like every other law.
In a world where Facebook doesn't have a freedom of speech right to remove a post without also losing section 230 protection do you think freedom of association could cover removing specific posts or only banning users outright? Would Twitter's model of banning a user until they delete their own unwanted tweet(s) be okay?
Freedom of association is rooted in freedom of speech. Otherwise all the Civil Rights Acts would be unconstitutional as they fundamentally impact association, but not in a way that dilutes speech which is what freedom of association covers, for better or for worse. So, social media corps lacking freedom of speech rights in their users content, they also lack freedom of association rights with regards to that content and those users. To push the metaphor too far, their users' speech and their own speech are like oil and water: they are too different to dilute each other.
Now, would an alternate universe in which freedom of association was actually a robust right on its own be a better one overall? Would I happily trade that for this social media thing? Quite possibly, quite possibly.
That's not freedom of speech. Freedom of speech is a general principle that covers more than government censorship. What you're thinking of is the first amendment, which covers government censorship (including by its agents). 1A neither invented nor set the absolute boundary of the principle of freedom of speech.
In that case freedom of speech is generally defined according to Mills in On Liberty which still doesn’t acquiesce to the application suggested of social media. They as a large business of many users should not be provided a greater speech mandate than a dissenting individual should speech be actually free.
At the time, websites were mostly just hosts of content. The individual is posting on the website but otherwise the website is a tool.
This changes with recommendation algorithms. Nearly all social media is based on some kind of recommendation algorithm. Should that be covered by 230? It could be argued that it starts to get closer to an endorsement of certain content (and indeed, some of that recommended stuff is ads.)
> It could be argued that it starts to get closer to an endorsement of certain content
But we know that isn't actually the case. The algorithms are designed to drive engagement, what they show you is a function of your behavior on the site, it's not an "endorsement" by the site creators, they're finely tuned machine learning systems optimized for ad dollars - that's it.
Once again, this is just another example of how the ad model incentivizes pernicious behavior. If these sites were under a subscription model they'd be happy to offer you the option to sort your feed with a purely chronological algorithm because they'd still be getting paid regardless of your engagement behavior.
Chronological is still fits the interface of a recommendation algorithm.
You can take HN as an example of a recommendation service - while they remove things that are off topic, you'd have to argue that YC endorses whatever is in the #1 spot on HN.
And at any rate, #1 on HN is not the product of any simple rule like "most upvotes per unit time with some decay function applied." There is significant judgment in expressed in the way that stories are ranked. The source code as of 2012 was enough to demonstrate this, but in my understanding yet more judgment has been applied since then.
Who is "they", though? Aside from the spam filters, posts largely make it to the front page (or not) due to community moderation. YC isn't the one making those endorsements, the moderating population of HN users as a whole are doing so.
The HN mods routinely give posts they feel are interesting a second chance [0], and posts deemed "controversial" via a combination of human and automated factors are deranked.
HN has more active, hands on moderation than most social media sites, and there's a stronger argument that dang "endorses" the front page of HN than that Steve Huffman "endorses" the front page of reddit.
Alternatively, if you want a free speech platform as a public square, you should convince your government to build and operate it, rather than delegating to private entities who aren't bound by the constitution
> If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model.
It's a bit more insidious than that, as they can still go and say "we don't censor it, see, it is not removed", all while the content is blacklisted from recommendations.
Still works essentially as censorship as nobody can see it until they look at channel directly but it is not technically censoring.
> I understand why people hate that opinion, because they want civil discourse and nearly free access to media online. Uncensored content pushes normal people out.
Nope. It pushes ad revenue out. Youtube, aside from not allowing porn and other 18+ stuff was for long time basically uncensored, you could post anything and algorithms wouldn't punish you.
Got to be biggest video platform regardless of that.
They started with demonetizing or lowering monetization for "controversial" stuff because of ad money, and companies not wanting to see their ads on the more controversial stuff for fear of being associated with it. But it wasn't for people, it was to please other corporations that gave them money.
Recommendation system makes sure that generally if you don't search for something and don't watch it, you won't get it, so the fact some content that might offend them is on the platform is irrelevant.
And after Trump won, the companies just used same systems to push the topics they don't want on the margins of search results
The distinction the court is drawing isn’t about corporations versus non-corporations, but speech versus moderation.
You say moderation is about “editorial control” but that’s exactly the debate. Is Facebook moderation equivalent to the NYT deciding what to publish and not publish?
When someone reads a Facebook post, does anyone think that Facebook is the speaker? That legal fiction is attractive for various reasons, but I don’t think it’s such a slam dunk. I think there is a fair argument that Facebook is a pipe for someone else’s speech.
Even if you subscribe to the viewpoint that Facebook is a "pipe" rather than the speaker, it seems hard to avoid the idea that Facebook's choice of which speech it is a pipe for constitutes free speech by Facebook. Nobody should be confused as to whether a newspaper is the author of letters to the editor, but it has a 1st amendment right to choose which letters to publish.
If it is Facebook's speech, and this is equivalent to a newspaper, then why shouldn't we hold Facebook liable for the speech they do choose to publish — just like a newspaper?
Has the "1st amendment right to choose which letters to publish" in a newspaper ever been tested in a court? Or could it also be challenged by the same kind of legislation, if it didn't apply only to "social media companies with at least 50 million monthly active users"?
It doesn’t seem that hard to me to say that what Facebook does with millions of messages flowing through its pipes every day is “conduct” not “speech.”
A better foundation for this seems to be property rights—it’s facebook’s pipes, and their business what they do with it.
> When someone reads a Facebook post, does anyone think that Facebook is the speaker? That legal fiction is attractive for various reasons, but I don’t think it’s such a slam dunk. I think there is a fair argument that Facebook is a pipe for someone else’s speech.
I do, in a sense. By the nature of its design, Facebook has a feed of virtually every opinion in the world and can show any of them to any user. Facebook could express any opinion it wants by choosing what content gets shown.
As a sort of analogy, let's say I want to say "I like dogs." If I read from a random character generator until it says "I like dogs" and then I send that to the internet, have I published it or am I merely a pipe for the random number generator?
Technically the random character generator "created" the content, but it would be a totally different work without my involvement.
It's not really relevant, though, because Section 230 applies regardless of whether FB is a publisher or not.
How is Facebook different from a book store and posts different from books? Or a newspaper and the letters to the editor? When somebody buys a book, do they think the bookstore is the speaker? Now should that bookstore be compelled to sell every book just because someone puts it there?
The NYT doesn’t write content. They hire writers. Is that the difference? NYT publishes content for which they pay? What happens when writers start getting paid ad revenue through Facebook or Twitter, etc?
It’s not so much about getting paid by NYT, but rather about NYT going through every word they paid for, and deciding whether to publish it or not after all. Facebook and Twitter do not do that: while they do have some very basic automated filters, they are extremely hands off with the large majority of the content on their platform, only reviewing maybe a single digit percentage of published stuff, and only after a fact. Because of this, they claim that they shouldn’t be legally liable on content published on their platform, as they weren’t making any decisions whether to publish it or not. This is the major difference with NYT: NYT does not claim that it’s just random writers publishing in it, and they don’t pay much attention to what is inside.
They're only originalists until you ask to see where the Constitution grants them judicial review. Then they need to start pointing at the Federalist Papers.
1st amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
Note, it does not say anything about corporations. It simply says the government cannot put you in jail for freedom of expression. Ergo, it's totally within any establishments rights to ask you to leave if they don't like what you have to say. That is very different from the police coming in and arresting you.
> How the 1st Amendment might protect a corporation's religious POV but not its exercise of editorial control is a very good question
I don’t think this court buys the idea that the platforms exercise editorial control. For example:
“But the more fundamental problem with the Platforms’ reliance on Herbert is that they do not have an “editorial process” that looks anything like a traditional publisher’s. See supra Part III.C.2.c. Herbert involved discovery into how an editor selected, composed, and edited a particular story. See 441 U.S. at 156–57. But the Platforms, of course, neither select, compose, nor edit (except in rare instances after dissemination) the speech they host. So even if there was a different rule for disclosure requirements implicating a newspaper-like editorial process, that rule would not apply here because the Platforms have no such process.”
Or:
“ The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content.8 And then virtually everything else is just posted to the Platform with zero editorial control or judgment. “Something well north of 99% of th[is] content . . . never gets reviewed further. The content on a site is, to that extent, invisible to the [Platform].” NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike newspapers, are primarily “conduit[s] for news, comment, and advertising.” Miami Herald, 418 U.S. at 258. And that’s why the Supreme Court has described them as “the modern public square.” Packingham, 137 S. Ct. at 1737; see also Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring) (noting Platforms are also “unlike newspapers” in that they “hold themselves out as organizations that focus on distributing the speech of the broader public”).
The Platforms’ own representations confirm this.9 They’ve told their users: “We try to explicitly view ourselves as not editors. . . . We don’t want to have editorial judgment over the content that’s in your feed.”10 They’ve told the public that they “may not monitor,” “do not endorse,” and “cannot take responsibility for” the content on their Platforms.11 They’ve told Congress that their “goal is to offer a platform for all ideas.”12 And they’ve told courts—over and over again—that they simply “serv[e] as conduits for other parties’ speech.”13“
They kind of have a point. The platforms seem most interested in minimizing financial costs like the hiring of moderation staff and loss of advertising and reputational costs like PR damage and pissing off sensitive users. They don’t seem to have any particular editorial mission. They seem to mainly want to grow and profit. I actually wonder if they would have a stronger case if they were avowedly advancing a leftist agenda. IANAL
> They don’t seem to have any particular editorial mission.
I don't think you have to have an editorial mission, as you say. But one could easily say our editorial mission is outlined in our terms of use.
> They seem to mainly want to grow and profit.
CBS News wants to grow and profit too? I don't know if there is anything wrong with the social media "editorial process" being different from the newspaper editorial process, because they are different things. For example, someone in a comment above said something like -- "Social media is obviously like the telephone system." Which just ignores the multitude of ways it's just extremely different, and perhaps even less like social media than a newspaper.
Reasonable people can disagree on whether retroactively enforcing a very broadly written legalistic TOS is sufficiently similar to editing a newspaper to qualify as editorial control (no sarcasm).
My point was to the question (paraphrasing) - how can the courts rule that corporations are entitled to opinions expressed via donations but then take away their right to express opinions through moderation?
This court’s answer, which I find entirely plausible, is (paraphrasing) that the opinions tech platforms express through moderation at least do not constitute a real coherent viewpoint. Instead they are haphazard and fairly random responses to stimuli, for example, they are sometimes the side effects of algorithms designed primarily to promote engagement, and they are sometimes the result of pressure from members of Congress or other politicians, and they are sometimes the result of attempts to mitigate bad PR. I think the court is essentially saying something most people can largely sympathize with: that Facebook and YouTube don’t actually have anything resembling a genuine point of view, they are just out for their own growth and profit, and are claiming editorial coherence right now because it suits them, but will say the opposite tomorrow when they need a different legal shelter in a different court case.
CBS News tried to make money but there is no question the driving force of that division was to gather and present accurate news of some high minded importance. 60 Minutes had its flaws but it had miles more integrity than say Facebook. At what point are we going to allow just any old company to claim to be essentially a journalistic enterprise? Do you genuinely believe Facebook has a point of view to justify its moderation? If so, what is it?
Will this apply to bots? What if I have a big list of a complaints about a certain politician (use your imagination, there's more than one politician to complain about), but the "other party" doesn't follow me, in fact, I have very few followers overall.
So I create a bot that spreads my opinions by replying to millions of other Tweets. Anyone who mentions the politician of interest will receive a reply from "me" (my bot) within 2 minutes. Now I will be heard by millions, and my lawyer is ready should I be banned from the entire site.
Now imagine many people doing this, what a cesspool, you make a Tweet and the bot flood gates open. You Tweet about your grandchild and 30 seconds later you have 400 replies expressing "political opinions" about shady websites with cheap Viagra. Twitter can't ban them though. Welcome to truly free speech. You better learn to code if you want to be heard.
We're already at the point where websites can't control bots. AI that can write better than most humans is knocking on the door, and it can run on my personal computer. This law will only make it worse by adding real legal risk to banning suspected bots.
Am I exaggerating here, or is this actually possible? This feels like a loss in the humans vs bots battle more than a political one.
I'm not a lawyer but I don't think this would apply to bots.
The Texas law text[1] says it only protects 'users' which are defined as people. And even then the law only prohibits censorship for specific reasons.
It doesn't say companies can't ban users for running bots.
Even if the messages the bot is posting are protected the fact of running the bot itself should still be a bannable offense if it's not allowed in the TOS.
> So can I hire someone from a low cost-of-living jurisdiction and get them to behave like a bot for me?
For some definitions of low cost-of-living, sure. In this law specifically:
Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter
applies only to a user who:
(1) resides in this state;
(2) does business in this state; or
(3) shares or receives content on a social media
platform in this state.
There are, of course, plenty of low-cost-of-living "users" in Texas.
> This chapter
applies only to a user who:
(1) resides in this state;
(2) does business in this state; or
(3) shares or receives content on a social media
They forgot (4) can afford a lawyer.
This law will only benefit those with deep pockets.
Oh, there will be plenty of pro se complainants with barely-intelligible filings. I would almost put money down that there will be a comical period where Texas' civil court is DDoSed by people filing pro se complaints around this law.
It's already being done by reputation management firms. As someone who worked as a resource liaison manager at one, it is not uncommon to see the majority of our social media operators are from diverse cost-of-living locations such as Nepal, rural Pakistan, and parts of Africa.
"..to improve the living conditions of our valued employees and members of the family, we sent them some plastic water bottles. They can hydrate themselves with clean water and then they can make a hole in their tin roof ceiling and stick the bottle through and this way it will act as a lightbulb and improve conditions in their dwellings."
Probably, but I don't they that should be allowed. I suppose someone with an applicable disability could also use software/automation to they point where they can post more than someone without that disability.
The line between "user" and "bot" would get very murky very quickly. If you write a tweet and then use a bot to post it at a certain time of day, is your speech still protected, even if it was posted by a bot? What if you have the bot post it at the same time every day? What if you have the bot post it in reply to all tweets with a certain hashtag? Or just all tweets?
In each of those cases, the original speech is a user's, and the bot is merely following the human user's publication instructions.
That's my point as well. Twitter's terms of service allow automated users, so I have a hard time seeing how anyone would successfully convince a court that "users" under this law means "humans who write the content on twitter.com and then press a button on the same site to post it."
The law only disallows viewpoint-based censorship.
Twitter remains free to write and enforce an acceptable-use policy that disallows "bot-like" behaviors, as long as the policy and enforcement is viewpoint-neutral.
Twitter has no obligation under this law to disprove accusations of bias that arise due to disparate outcomes.
Furthermore, such a requirement would backfire spectacularly on the conservative right; consider all the other areas where disparity of outcome arises today.
What you're describing is possible would be a pretty big shift for Twitter and would make it simultaneously less pleasant and less useful. Under the policy you propose that would comply with the new Texas law, a bot that automatically posts new state regulations as they come into effect would be banned, but human Nazis could freely advocate for ethnic cleansing.
The problem of course being that this ruling violates hundreds of years of cases and frameworks (and probably the constitution!), saying "we can rely on precedent" when this law flips precedent on its head is unhelpful.
How does this law violate previous cases and frameworks when similar laws did not in the past (e.g. the Fairness Doctrine for TV and common carrier regulations for phones)?
The fairness doctrine relies very specifically on licensure of radio and broadcast TV frequency use (the government is the provider of all radio frequency licenses, and if you wish to use one, you must agree to certain additional terms. This is not the case for cable TV or the internet).
As for common carriers, one of the usual differences between a common carrier and a not-common-carrier is that a common carrier can't tell what they're transporting. If I throw a box onto a fedex truck, they don't know what's in it. Same for a train (and they're allowed to refuse if they believe it's something they can't transport successfully or safely). The same general concept applies to telephone operators, in that they can't wiretap you, and often ISPs, since they're just transporting opaque encrypted bytes. But tweets and posts on public facebook pages or on reddit are public, the company can see them.
> a common carrier can't tell what they're transporting
They can tell what they're transporting, they're just not allowed to. Telephone operators could wiretap you (and use speech recognition to censor), ISPs could monitor unencrypted data, and even for encrypted data, monitor metadata like which server you connect to. Even FedEx could x-ray packages, or use drug sniffers.
Anyway, you claimed this law violated previous precedents, but you've only responded about how it's different from previous precedents.
Sure there are some differences, but how are those differences material to the question of whether governments are allowed to regulate "fair" or universal access to communications tech?
> monitor metadata like which server you connect to
Common carriers have to do this (they have to know who you're connecting to or shipping to etc.).
> Anyway, you claimed this law violated previous precedents, but you've only responded about how it's different from previous precedents.
No, I said the ruling violated previous precedents, which is obvious, up until today (and in other circuits), the very clear and obvious precedent was that the 1st amendment covered corporations. The first line of this ruling contradicts that.[0]
"Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say" is a fundamental misreading of the constitution, and flies in the face of first amendment precedent. This ruling isn't about the government's particular ability to regulate particular industries, it's "corporations aren't protected by the constitution".
[0]: Aside, yes the law is also bad and likely is unconstitutional for much the same reason, but that's not the argument I was putting forward.
The court isn't arguing that the first amendment doesn't apply to corporations, it's arguing that censorship isn't speech. The core is: "[there is no] freewheeling First Amendment right to censor what people say".
And that is completely consistent with precedent that the First Amendment actually protects people from censorship. The companies are using the twisted logic that there is a first amendment right to restrict free speech.
> And that is completely consistent with precedent that the First Amendment actually protects people from censorship.
This is not the precedent! The first amendment absolutely allows citizens to engage in editorialization and "censorship".
The first amendment protects you from the government! And it gives me the right to assembly, including assembly with others in the form of a joint business venture! And if I assemble with others, very importantly: I don't lose my constitutional rights. Because even when I am assembled, I am protected from government overreach.
The Bill of Rights doesn't protect you from me, and it never has. The Bill of Rights does not protect you from censorship, and it never has. The Bill of Rights does precisely one thing: it protects you, and me, from the government and government overreach. And the government preventing me from speaking against you is government censorship of me.
Like, the ACLU, EFF, and Cato Institute all filed amicus briefs supporting NetChoice (previously when the even dumber part of this ruling was before the Supreme Court).
Edit in response to the below:
no, social media sites aren't common carriers, and you've already admitted that your whole fairness doctrine schtick is a stretch, since the internet's infrastructure isn't licensed by the government (and of course, it cannot be: I don't need a license to upload things!) Treating point-to-point social media, such as instant messaging, like a common carrier might make sense, but a reddit comment or a tweet don't resemble what common carriers carry or how common carriers work. They don't have a destination.
It's also, of course, important to note that there is no constitutional right to ship goods, so while it may be reasonable to regulate such industries, regulating a company whose product is speech is much more tenuous, so while the government can absolutely do common carrier things to a shipping company, it is enjoined, by the constitution, from making a speech company a common carrier.
Edit again:
Phone companies don't produce speech. I cannot hear what you say on the phone. I can see what you tweet. You might rephrase it as publishing vs. messaging. The regulations on a company whose product is publishing cannot be treated the same way as anything else (cue irrelevant arguing about a misunderstanding of section 230). Reddit and twitter and such allow me to publish what I say. T-mobile ships what I say. Common carrier regulations apply only to shipping companies, not publishing companies.
The only reason the First Amendment is in this discussion at all is because the companies are claiming that the First Amendment forbids laws like this, which is clearly false, since such laws have existed for a long time (as mentioned above).
I didn't mean to imply that the First Amendment forbids private censorship (other laws do that). What I meant was, the First Amendment protects people from censorship, when it applies. It's perverse logic to claim that an amendment that prevents government censorship really means that there's a right to censor.
And everything about corporations is an irrelevant distraction; the law would also apply to an individual who owned and operated a social media network entirely by themselves as a sole proprietor.
Edit in response to edit:
> you've already admitted that your whole fairness doctrine schtick is a stretch
No, I admitted that there are some differences. The essential argument, that the First Amendment does not forbid such laws, remains relevant.
> social media sites aren't common carriers
They are if the government says they are, as recently happened to ISPs. This law doesn't exactly do that, but it has similar effect, and that's relevant because it shows that laws with this effect are constitutional.
> [the government] is enjoined, by the constitution, from making a speech company a common carrier.
Phone companies transmit speech, and are considered common carriers.
Edit again:
Whether the communications tech is one to one or one to many, the speech is still the speech of the person communicating, not the tech company. Any free speech rights belong to the writer, not the company that owns the wires or software involved in transmission.
Publishers are something different entirely. Their core business is content creation, not operating the printing press or website. They pay their writers and tell them what to write about. They own the content they publish. And yes, they are responsible for what they publish.
Publishers were historically (and still are!) literally the people who owned the presses, lol. Like you went to a publisher to get your manuscript printed. All the other things, like editing and marketing were secondary to these were the people who could actually mass produce your book. The NYT and WaPo own their presses.
The core business of a publisher, historically, has been the facilitation of scalable access to content created by other people. Even newspapers don't really "tell them what to write about", they hire (or use freelancers!) people who work on their own stories and submit them to the paper. And while newspapers do usually own the content they publish, they don't always, and book publishing houses rarely do.
So the WaPo's and HarperCollins's of the world are a lot more like the YouTube's and Reddit's than you seem to think.
And yes, the individuals who write the articles have first amendment (not "free speech", nobody in the US has a "free speech" right, that isn't a thing) rights. But so too do the Washington Post, and Penguin RandomHouse.
And even though lots of people have had OpEd's in the NYT, and even though Hachette has published books by tons of authors, they're under no requirement to publish my works, because they fully and totally have the right to not enter into a relationship with me, and have the right to not assist me in broadcasting my content. And the first amendment protects their right to associate with and how they want to, and that includes not associating with me.
I want to emphasize this by the way, because earlier you said
> it's arguing that censorship isn't speech
And this fundamentally doesn't matter, because the first amendment protects a number of things that aren't speech, including assembly. I can assemble with whom I want to (and also refuse to assemble with those I don't want to). I cannot be forced into service of any particular individual, and this is true for common carriers, they're not in service of an individual, but of an item. As soon as the thing you're doing is promoting an individual's words or brand, you're not doing what a common carrier is doing.
Shipping a box is exactly the same whether it is your box or Donald Trump's box. But broadcasting a speech on my loudspeaker isn't the same if its your speech or Donald Trump's. As much as you wish it to be, you cannot make those two situations the same.
> I can...refuse to assemble with [meaning doing business with] those I don't want to
> I cannot be forced into service of [again meaning doing business with] any particular [party]
In many cases you are free to refuse to do business with someone, simply because no law exists against it. But you don't have a right to refuse; the government can pass a law punishing you for refusing; and they have passed many such laws.
For example, in many states, you are forbidden to refuse to do business with Israel.
And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. The list of such characteristics has grown quite long and includes (in some states) political affiliation, belief, or activity.
From that standpoint, this law is not unusual at all.
> And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. (One of which is, in California, political affiliation.)
Due to a constitutional amendment! And even in California, companies are free not to do business without you based on your political beliefs they just can't retaliate against you in the workplace. And of course, the whole discrimination thing only applies if there's not a legitimate non-protected class reason, as we know from masterpiece cake shop.
> For example, in many states, you are forbidden to refuse to do business with Israel, and have been for many decades
Those laws would be unconstitutional and unenforceable. Actual on the books anti-bds laws are much more limited, usually only banning government contractors from boycotting Israel, and even that much more limited stance may be unconstitutional (see a recent Texas anti-bds law that's currently enjoined by the district court due to it's infringement on a corporations first amendment rights!...https://www.salon.com/2022/02/02/anti-bds-law-in-texas-free-...)
There are lots of unconstitutional laws on the books (miscegenation is illegal in a few states, technically), they just can't be enforced, but you aren't doing yourself favors by citing exaggerated, clearly unconstitutional versions of dubiously legal laws as a defense of this one.
That's quite a weak example in which a single low-level judge issued an injunction but "stopped short of fully blocking a state law" and an advocacy group claimed the law was unconstitutional.
Anti-BDS laws have existed in many states for quite some time, under many different courts, and not been overturned. So until a SC decision finally finds such laws unconstitutional, I will continue to accept that they are, even though I am strongly against them.
> the whole discrimination thing only applies if there's not a legitimate non-protected class reason
Protected classes vary by state. In Texas, because of this law, political belief is now effectively a protected class, at least w.r.t social media.
As you said, Twitter can still claim "a legitimate non-protected class reason" (like, the account is a bot) for terminating accounts, but can't "discriminate" against political views.
The California version forbids retaliation in the workplace, the Texas version forbids retaliation on social media. They aren't so different.
> Anti-BDS laws have existed in many states for quite some time, under many different courts, and not been overturned. So until a SC decision finally finds such laws unconstitutional, I will continue to accept that they are, even though I am strongly against them.
That's fine, but they still don't do what you claimed. Your said the laws prevent me from choosing but to do business with Israel. That's not true. That law has the government put a particular line in it's contracts. The government, when acting more or less as a private actor, can do what it wants with it's contracts, even things that would be unconstitutional if passed as a blanket law.
> As you said, Twitter can still claim "a legitimate non-protected class reason" (like, the account is a bot) for terminating accounts, but can't "discriminate" against political views.
It already does: threats of violence are like the primary reason accounts are removed. Being republican isn't carte blanche to threaten or harass people, and neither is being a tankie, and that's why Twitter removed accounts from all sides of the political spectrum without discrimination!
> In Texas, because of this law, political belief is now effectively a protected class, at least w.r.t social media.
No, that's not at all what that means. For one just no. But second, this law goes beyond that and bans speaker neutral, content based policies that aren't indented to discriminate, like for example saying "you're not allowed to threaten to kill people on our platform".
By "publisher" I would assume there is some editorializing going on that makes the publisher legally liable for what they publish. GAF(AM)s are trying to have freedom of a common carrier with the power of a publisher (see my comment in parallel).
Yep, when Facebook first started moderating messages and/or selecting what users view with an algorithm more complicated than "what has been posted last", it was predicted that they were opening themselves to the "publishers are responsible for what they publish" legal attack.
And here we are. These corporations want to have their cake and eat it too...
At the time a lot of people have considered the very concept of platform as evil for this reason ("protocols not platforms"), but this was also related to issues coming from their use of closed source software, and more importantly : antitrust - the mere size of these corporation makes them at the very least "friendly elephant in a china shop" kind of evil, but the USA didn't want to shut down the GAFAMs considering the immense not so soft power their monopolies give them in the world.
A less radical proposal was to have some allowed middle ground between common carrier and publisher : "displayer", but this would still need to come with severe restrictions to what these companies are currently enjoying in the current "lawless" void : again, restrictions on size, kind (think Wikipedia or archival), running as a for-profit, forced usage of interoperable protocols, use of open source software, have been suggested and even somewhat put into practice in recent EUropean laws (though it is suspected that due to the heavy lobbying that the GAFAMs have done, the end result is more that the current laws are helping them by making it harder for new competitors to emerge, while they are so big they can bear the regulatory brunt).
(P.S.: It's kind of amusing to see Texas Republicans to be a shining beacon of liberalism...)
This is a non sequitur. It is legal to repeal section 230. It would be bad, but it is legal. But in either case, the law under discussion is unconstitutional. And it'd be doubly unconstitutional if you're claiming that the point of this law is to get around a federal law. States can't do that, that's the point of the supremacy clause.
There is nothing stopping the federal government from arresting me, in California, for marijuana related crimes. And it regularly does (trafficking), because federal law supersedes state law.
The federal government choosing not to for most cases, and choosing to functionally defer to the states does not affect what it is allowed to do.
And there is a difference between making something illegal and making something legal. Once the federal govt says something is legal, supremacy prevents states from making it illegal (remember the Republican talking point about how the Dems could pass a national abortion legalization law? That works because of the supremacy clause).
Like it's really clear at this point you know basically nothing about how the us legal system works. Because you keep bringing up these things that just are not relevant. And I don't really want to teach you.
Corporations are people. This clearly defines bots hired by any corporation that is in, does buisness with, or communicates with a person in Texas as a "user".
Edit: Skipped a step: When spent by a corporation, the courts have ruled that money is speech. Therefore, the bot's output is clearly the speech of the corporation, which is definitely a person.
No they are not. They share some specific rights as people, but are not people. A corporation can’t be murdered, can’t vote, can’t be imprisoned, can’t marry another person, etc.
All very true, but at the risk of laboring the point, a legal person is not a person, just like a sperm bank is not a bank. A noun phrase is not necessarily a sub-category of the original noun. This is underlined by the use of the plural “legal persons”, rather “legal people” which is usually reserved for meat sacks with law degrees.
> A noun phrase is not necessarily a sub-category of the original noun.
This is actually something I had not fully considered. I had always considered odd modifiers to create a non-central example of the category, rather than creating a new category.
To take your example of a sperm bank, I had always considered that to be a kind of generalized version of a bank. A general "place you can deposit things for future use".
Do you have any other good examples? I'm gonna have to let this roll around in my head for a bit to see what the implications are.
One confounding factor is that some words have multiple meanings or connotations. A "bank" doesn't have to be a financial bank. Or sometimes names can be chained together, like maybe "sperm bank" is based on "food bank" or "seed bank".
Alright, so I finally went and checked, and (according to merriam webster), the following definitions of "bank" are reasonably commonly used (none marked with archaic or obscure).
> a supply of something held in reserve
> a place where something is held available (especially : a depot for the collection and storage of a biological product)
Both of which fit food bank, seed bank, and sperm bank.
Which means that a sperm bank probably is properly a bank, although used without qualification, most people probably mean money bank (or are being intentionally ambiguous to avoid the stigma of needing a food bank/going to a sperm bank).
Accoring to the citizens united finding, their rights extend to free speech (and specifically to otherwise-illegal political speech), and therefore presumably this law.
The term "bot" doesn't necessarily suggest something automated in the context of social media. I could pay a bunch of people overseas to do the same thing manually as well. They are all technically "users".
Since when ? I'm pretty sure that's called astroturfing - the difficulty of separating some of real people from bots doesn't change that legally there's a pretty big difference...
Let each user block what they don’t want to see. With filters, ai, etc. Don’t have a centralized “overlord” decide what an individual is allowed to see. That should be obvious and not controversial.
Having run a mail server, I don't think it's reasonable to expect most people to contain the deluge of spam and phishing attacks they would get if just told them to "sort it out" themselves.
A better comparison would be if Gmail placed emails you really want to receive in the spam for you. Actually, they wouldn't even put it in the spam folder; they'd just delete it permanently before you can read it, "for your safety".
With email, if you don't want to receive someone's emails anymore, you unsubscribe. Or put it in spam (equivalent to social media block) and you won't see those emails anymore.
"Platforms" claim that because they're platforms, they have a duty to "remove toxic elements from the platform". That doesn't work when they're practically monopolies for online speech, i.e. when if you get banned by one and you're famous enough, you get banned by all of them.
> A better comparison would be if Gmail placed emails you really want to receive in the spam for you. Actually, they wouldn't even put it in the spam folder; they'd just delete it permanently before you can read it
Gmail regularly does both of these things to me despite explicit filter rules to the contrary.
GMail does this with my absentee ballots if I don't get lucky and see them go to Spam instead, because the State of Texas gives counties that really don't care about citizens who live overseas a system for generating ballots that is so slapdash that emails are from a domain that doesn't have DKIM or SPF, and the link to click is HTTP and not even an FQDN, but an IP address.
Because US citizens have the right to vote in federal elections, no matter where they live, and which set of federal officials (senators and US House district, and state electoral votes for President) you are voting for is chosen by your last US residence before moving, or if you’ve never lived in the US (like my child might), by where one of your US citizen parents last lived. It’s then up to that state whether you can also vote in state and local elections.
If you are a US citizen, even if you’ve never lived in the US (born to a US citizen parent), get on over to https://fvap.gov to get yourself registered and request your absentee ballot. Hurry up, because the deadline for most states is rather soon, and a lot of them still require the registration to happen via paper mail - plus, you need time for the ballot to get to you and for you to mail it back.
As long as the US is going to insist I report all my German income and accounts that I’ve already paid Germany’s well-collected taxes on, you’re darn right I should have the right to vote!
You misunderstood. Don’t require users to build their bubbles, but have providers offer bubbles for a user to choose from. You could even have external bubble providers that offer different technologies and qualities of filters.
The platform is tied to the bubble. GP is proposing decoupling them, so the user can choose the platform and choose the bubble separately.
> Tying (informally, product tying) is the practice of selling one product or service as a mandatory addition to the purchase of a different product or service. In legal terms, a tying sale makes the sale of one good (the tying good) to the de facto customer (or de jure customer) conditional on the purchase of a second distinctive good (the tied good). Tying is often illegal when the products are not naturally related.
The bubble must by necessity have some sort of interface associated with it in order to get the content to the user. There’s a generic platform (HTTP, browser/mobile APIs) and then the “bubble service” implements against those to reach the user. Seems like a completely natural form of tying to me. Are you proposing we force another layer of middlemen to be added in between there?
I think there's a reasonable argument to be made that the problems surrounding platforms regarding their control of censorship & free speech would be largely resolved if that aspect were decoupled. You may also think that the tying that bell and the railroads did with their respective infrastructure is 'natural', but that was made illegal and those platforms were forced to break up, so I don't think its appropriate to dismiss this issue offhand.
I'm not interested in hashing out a complete argument and coming to a vacuous conclusion with some other random on an internet forum, I'm just saying that there seems to be a reasonable argument to be had in this direction.
Who decides which is the platform and which is the bubble? Seems like Twitter wants to define moderation policies (probably because they think that getting people to value Twitter means placing an some rules on the conversation). Who gets to say that they are a platform forced to carry all bubbles?
This seems like it could be substantially better than current systems.
It could be effectively a crowdsource / peer recommended model where you opt in to aspects of the bubbles. So my elderly parents could get some of the safety guidance mirroring mine (eg weeding out conspiracy thought or spam) but then also picking up aspects that mirror older peers (eg reflecting their more traditional tastes)
Right now there's a remarkable amount of undesirable content that gets through that ought to be easy to filter. On Twitter you see it a load with searches for regular terms that show up inappropriate content for the term, yet you don't want to set content filtering or it cuts things that are genuinely interesting but edgy!
It would be equally refreshing to see "moderation" advocates acknowledge that it's not just the "far right" being bullied and censored off of mainstream platforms.
That straw man incinerated and replaced with "mainstream conservative content", you still are not going to get any examples because the one providing that will be voted/flagged into invisibility, or if not that, the resulting discussion will be derailed into quibbling about the specific example rather than the much more important general principle.
It would be not at all honest to imply that this forum is anything but generally hostile to the American right, regardless of how extreme or not the take is. With that in mind, it is no surprise that specific positions are only ever mentioned indirectly, or negatively.
It is definitely federally illegal on the grounds of sanctions [1], if not treason, to knowingly provide service to the Islamic State. Twitter's hands are tied.
If you are in a democratic country, your society has explicitly granted your government authority through your voting systems to be the ultimate arbiter and parts of it can and does get revoked as the will of the society changes.
Whataboutism. Government passing laws on free speech is unrelated to internet platforms enforcing arbitrary rules depending on the outrage mob of the week.
I, for one, would like to hear far right takes just in case they're reasonable and good. I don't want to have to argue that any particular one is good without even being able to see them.
The context where those count as "far right" is when someone is lying about the actual issue.
Those three actual opinions are completely uncontroversial. But people pretend other issues are those issues so they can be the common-sense instant victor.
These takes are all over social media so if they’re supposed to be banned then the real crime is how bad social media giants are at tracking down this nonsense.
What mostly gets banned at big social media sites is spam and bots. The political speech that does get banned is overwhelmingly violent.
The right gets banned more because there is no liberal equivalent of the Christchurch shooter, the Buffalo shooter, the El Paso shooter, the Charleston shooter, the Tree of Life shooter.
The last president got kicked from Twitter because he tried to violently overthrow our government.
Kiwifarms was finally taken down by cloudflare only because of immediate threats of violence.
The right wing in the US has a violence problem. Culture war junk and social media moderation policies pale in comparison to this problem.
I'm not sure why you're trying to link Kiwi Farms to the far right. I wouldn't consider myself a fan of the site, but from what I've seen it's very much apolitical and political views from either side are generally frowned upon.
>Kiwifarms was finally taken down by cloudflare only because of immediate threats of violence.
A single threat of violence originating from a long dormant account which had posted once, in 2018. It was reported multiple times and removed by Kiwi Farms moderators within 30 minutes. It wouldn't be unreasonable to conclude that there might've been shenanigans at play. Possibly by the same actors behind the DDoS campaign.
Email and other Internet infrastructure is more analogous to the phone company than news publishing, because you do not need to "peer" with other newspapers to get published.
Imagine if Bell was touchy about letting "undesirables" use their service.
The internet infrastructure is completely controlled via local monopolies and bureaucracies, and this extends beyond ISPs. The entire DNS and PKI system for example is simply a racketeering scheme for registrars and CAs. In general the internet (from the hardware to application-level) is structured in such a way that is weak to sybil attacks, and this requires central (usually corporate) entities to discriminate on traffic.
EMail is one such example: there is no meaningful way to filter spam, so the peering relationships between mail providers break down unless they each implement some sybil-proofing on their own side. The end product is that everyone is forced to use a provider like Google, and play a corporate-political game to stay in good favor with their peers. This is because there is no spam-resistance on Email application level
We've seen a similar situation this week with a controversial forum called KiwiFarm taken down by DDoS. They need to maintain a political relationship with their DDoS-protection provider, CloudFlare, who also controls a massive chunk of the internet infrastructure. This is all so that there can be a central entity that discriminates on the traffic, as there's no spam resistance features on IP level.
You can set up your own mail provider, but if GMail blocks messages sent from your new provider, it will never overcome network effects needed for success.
I can already imagine how these totally neutral "providers" like Google and Twitter would implement this, much like Microsoft abuses their OS monopoly to ensure 90% of non-tech-savvy users will eventually be using Edge.
Sign up for Twitter. Immediately you're greeted with a list of "suggested filters" that will pop up again and again, using dark patterns eventually, until you either give in or are tricked into adding Twitter's highly recommended "safe filter plus package" that uses the exact same shadow bans and biased algorithms used by default today.
Good, and then we'll get the government to start banning dark patterns.
Actually, I suspect that such a law would be on even shakier First Amendment grounds, but here's a test that might bring this regulation into the realms of competition law rather than regulating speech:
Whenever a (sufficiently large) platform makes a UI change about which the FTC receive multiple negative comments, that platform is required to run a poll of (some random subset of) its users, with a wording specified by the FTC, asking the users if they like the change or they find it manipulative.
If most users think that the change is negative, then that's a de facto / prima facie case of the platform abusing its monopoly power to the detriment of its users, since if there were a free market then those users would simply move to a competing platform.
Thunderbird used to have a local spam filter. It was fine.
As for phishing attacks: Education is helpful. It would help if organizations with legitimate flows that are indistinguishable from phishing attacks were made liable. (Mortgage industry: I'm looking at you.)
Fair point, but if all accounts were given a standard default policy modeled around current moderation rules, and users were permitted to edit the policy from that initial point, this would be an effective solution.
Well, here in Guatemala journalists are being silenced, and it doesn't mean they're being kicked off Twitter. I really hate big tech censorship, but you're naivete about the impact of "being silenced" reminds me of this part from Days and Nights of Love and of War
>Perdí varias cosas en Buenos Aires... No me quejo. Con tantas personas perdidas, llorar por las cosas sería como faltarle el respeto al dolor.
Translates roughly as:
>I lost various things in Buenos Aires... I don't complain. With so many people lost, to cry over things seemed to lack respect for suffering.
In a kind of similar vein, you're complaint about Twitter users being silenced lacks some respect for people who are actually being silenced. Although I agree with your underlying sentiment.
Obviously, "silenced" has different meanings and weight depending on the context in which it's being used, but ... I never actually used the term, so it's an odd point of contention to raise.
The original statement I replied to — which was also the first time "silenced" was used in this thread — was:
> Being kicked off Twitter isn't the same as being silenced.
> do we really want the government to start dictating to private sector publishing companies what content they must publish?
Yes, I think we do, if it’s in exchange for their currently privileged position.
Currently, they operate with the privileges of a common carrier, and none of the responsibilities.
They shouldn’t have the privilege of being shielded from responsibility for what they publish on behalf of others, while also claiming that doing so represents their own protected speech.
If they want to editorialize, they can be treated like any other publisher, and be held responsible for what they publish — including disinformation, libel, harassment, et al.
> A common carrier in common law countries (corresponding to a public carrier in some civil law systems,[1] usually called simply a carrier)[2] is a person or company that transports goods or people for any person or company and is responsible for any possible loss of the goods during transport.[3] A common carrier offers its services to the general public under license or authority provided by a regulatory body, which has usually been granted "ministerial authority" by the legislation that created it.
Of course they’re not common carriers; that’s the whole problem.
They were granted the traditional privileges of common carrier status under section 230 of the CDA, but none of the responsibilities.
Refer to the “telecommunications” section of the Wikipedia page you’ve cited, where this specific topic is covered, along with additional references for further details.
Section 230 of the CDA never uses the term "common carrier". In fact, "Interactive computer service" was the exact phrase of language that ISPs successfully lobbied themselves to be classified as to avoid common carrier regulations.
Being a "Interactive computer service" != being a "common carrier". Pointing to Section 230 as an example of "common carrier" statues is massively misunderstanding the "ISPs as common carriers" debate.
As someone that doesn’t use Twitter, I can confirm that I am not silent and that any model where one is silenced by being removed from Twitter is similar to geocentricity.
I agree with the sentiment but a LOT of journalists seem to not only take Twitter seriously enough to report about the nonsense that its users are rambling about, but even use it themselves !
What about the “Net Centers” in Guatemala? Don’t they use platforms like Twitter to actually harass/silence dissidents? Obviously social media isnt everything, but Morales and his backers sure showed how important it is. Or do you disagree?
Oh completely agree. But to put this in the context of the current argument, the solution (from Twitter's perspective) would be to ban the net center accounts. And I don't think Twitter banning Net Centers would have "silenced" Jimmy Morales, for example.
Social media can definitely be used to silence people, but I don't think that's mostly what's happening (for the most part) wrt big tech banning certain controversial content on their platforms.
Sorry, I confused truth social with another website called gab.
In any case they are simply mastodon forks, are they not? I can't see why it would require massive funding. I don't think the failure of truth social speaks to the failure of "splinter" forums at large.
A private company gets to decide its own policy? If the government wants a platform where everyone can say whatever it wants it’s free to create a government funded platform.
Alternatively, conservatives are all about the free market. Let them create a platform where their views can be heard.
Why should we grant private companies the novel privilege of being shielded from liability for what they publish, if they're not willing to guarantee public access to their platform in return?
A private company has never been required to guarantee access to anyone as long as they don’t discriminate because of a “protected status”. Political speech is not a protected status. Does Christian mingle have to allow Muslims? Is RedState - that has banned me twice for not towing the line - forced to allow me to voice my viewpoint? Is the NRA forced to publish discussion about gun control?
Common carriers are private companies required to guarantee non-discriminatory access to the public.
They do this in exchange for a shield from liability for what the public says/does/transfers via their service.
The legal framework for this dates back to English common law, and applies to telephone companies, airlines, freight carriers, taxi companies, and just about any other company that provides public services under the privilege of a government-granted shield from liability.
The only companies of this type that this doesn’t apply to are ”interactive computer service” providers, because they were granted a special privilege cut out in the Communication Decency Act of 1996, while we asked for nothing in return [1].
That’s the issue, here.
If the NRA wants to launch an “interactive computer service” that publishes user content, then yes, I think they should be forced to either accept liability for what they publish, or accept they they must serve the public without viewpoint discrimination.
If RedState wants to host a comment section, then I think the same rule should apply to them, too.
ISPs, too. This is the fundamental concept on which all arguments for net neutrality rest.
[1] Not entirely true; the liability shield of the Communications Decency Act was intended to counterbalance the criminalization of user transmission of “obscene or indecent” material on the internet.
The indecency clauses were struck down by the courts, leaving the privileges and none of the responsibilities.
The whole law was a broken, idiotic idea and should have been scrapped entirely.
Yes, I know. I literally just articulated, in the comment you're replying to:
(1) That the invented classification was a mistake, and should be rectified, and
(2) How that invented classification — and the privileges it granted — was made in trade for something we never received (and never should have asked for): criminalization of “obscene or indecent” material on the internet.
I'm not sure whose arguments you believe you're rebutting, but they're not mine.
So now you want a law that if you host any type of comment section on the internet that the government can force you to allow any type of comments? You really don’t have a problem with the government taking your rights away?
It does when the block is for everyone, not just the people who asked to not see it.
Giving people option to filter out what they don't want to see is fine; but the moment when (aside from reporting illegal stuff) you block content for user B because user A asked, it quickly becomes picking a side and censoring the other side.
I have argued similarly, based on comparisons with editorial decisions of newspapers in the days of yore. You could pick which opinions were amplified or shunned by picking your newspaper. On Twitter, you are stuck with the decisions made by Twitter. Saying 'just start Twitter competitors' would lose us the universal platform of Twitter and create more walled gardens.
Instead, let people pick their moderators / editorialization.
This is a great answer, and I think it would be relatively straightforward to create filters for potential bot/spammer accounts that used this strategy (ex: high comment frequency, using similar text patterns and engaging mostly in an unidirectional way) and make it available for users to enable it.
Don’t think about this in the abstract. You have to make it concrete.
Go make a service. Like a photo-sharing service. A service like that should obviously feature user comments, right?
And, then users start posting millions of blatant racist, misogynistic, pedophilic and false shock propaganda comments. But, if you decide you don’t want to personally spend your own money propagating this repulsive material using your own servers, large men with guns and dogs will drag you into a cage.
That’s what these laws mean. Don’t sugar-coat them.
Yeah this makes the most sense. There’s probably enough local compute power to run these filters on the client. But that’s a huge power shift and the change is likely more political than technological.
Doubtful. With the rise of natural language spam, you have to analyze it in terms of networks or social graphs of bots reinforcing each other. E.g. a lot of bots will comment positively on other bots spam posts, in a manner very similar to my agreeing with some human. It is data bounded, not compute bounded. Will Twitter be forced to open their full internal conversation graph, including using real IPs probably for accurate targeting, to companies writing spam modules? It seems weirdly implausible.
If "social media" services aren't allow filter posts, could Twitter spin off the "social media" service to a new, wholly owned subsidiary company and retain twitter.com as a web client free to filter the service's posts?
Not the same. I pay for YouTube premium but the algorithm continues to push:
1. Political content that is not only unaligned, but diametrically opposed to political content I've previously consumed.
2. Random "Free" movie and youtube original content suggestions (effectively ads, on a supposedly ad-free account).
It's more like the web is a model and you pay someone to curate a personal view of it for you. Instead of going to different news/social websites, it is filtered by someone and streamed directly to you.
The problem here is accountability, with traditional solutions you can't have accountability and anonymity, anonymity encourages bad behaviour but also encourages sharing your thoughts without censoring yourself, maybe in future you will be only allowed to post when your account is registered using your special ID that every citizen will get from government saying "this is a real person" but you will not know who it is, and then appealing blocked account will be regulated by special law for social networks with more than x million users. This will limit bot usage to minimum, free speech problem would be partially solved because now you can be identified the same way as you would on the street IF you break the law but if you are not breaking any law then social network employees or other participants in the social network will not know who you are or know what's your name if you don't want them to. Maybe something like that would work?
One thing you can do, though it would take a lot of energy, is to add a "submit" button to your bot that you would have to click in order to tweet each tweet. That way it would be you who tweets it, though a bot did the hard work.
Then, as an optimization, you change the text to “submit 100 times”, and now it’s you that posted 100 of those tweets. Also, a little timer field where you tell it how long to wait until it tweets it. Perfect.
I've heard of a good idea to prevent this (besides captchas), which is that if a user/bot needs to be rate limited, the service starts to require a small proof of work task to be done, something that would take a typical device a few seconds.
If you have a genuine need to post something, waiting 5 seconds is not a big problem. But if your goal is to spam 1000 of something, now you need to wait 5 seconds between each post, and the task can be made progressively harder so that by item 1000 it's a 5 hour calculation rather than 5 seconds.
This does not sound to me like an issue of free speech more of one of you abusing an online service. Use of a bot maybe is against the services tos. So it’s not the content of your message rather the method you abused to spread it?
People should be able to opt into a variety of filters, some even provided by third parties, to clean their feed according to their views. That won't cause an issue with the senders as the receivers are entitled to filter what they read. People can have control but Twitter can't dictate.
Once they figure it out they'll write a special case against using bots, but troll farms will be alive and well. At which point the site will switch to more stringent sign up requirements, as another post said.
This ruling appears to apply to the content of speech. There's nothing that says you couldn't rate limit replies to prevent spam. Limiting posts to 1 per 30 seconds, or linking the number of replies you are allowed per day to your rate of organic interactions with other people would be a way to effectively eliminate these sort of bots without censoring based on content.
Source: search for "Peñabots". There are great detailed documentaries about how far this went. That's one example, but this is ongoing for every major (geo)political topic and big businesses / hedge funds and the media "news" companies they own.
I was assuming your question would be answered in the article but I guess they really didn't go into much detail. The short answer is no; the law is much more narrow than that, more about banning politicians to influence elections and bots are excluded.
I assume so, from reading this (posted in a deeper reply)
Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter
applies only to a user who:
(3) shares or receives content on a social media
platform in this state.
That's basically what Twitter is right now, with the exception that their moderators ban those they don't agree with. So you get millions of sockpuppets saying the same thing. What a great way to manufacture consent.
To use a bot you need to register an API key for it. Twitter or such could simply revoke the API access. The user is still free to post manually and their free speech is not impinged.
Doesn't it? Pretty sure the Terms of Service would say something about not accessing the service in an automated fashion, except through the official API. They would be banning you then based on a ToS violation, not because of any viewpoint.
The solution is an individual's freedom of association. Something more intuitive than the block function or setting account to private, would be nice though.
They're free to ban bots. That would clearly be a viewpoint-neutral restriction on content/behavior. "Using a bot" isn't a viewpoint, and banning bots is not a viewpoint-based restriction on user expression.
This is a very well-explored area of law, and nobody is confused about the definitions of the terms used here. Even the government has reasonable authority to restrict speech based on time, place, or manner (e.g. by disallowing amplified sound systems).
Isn't having access to Twitter similar to the use of a sound amplification system? Being removed from Twitter does not remove your ability to speak, move to another smaller platform or setup your own platform, it just reduces your potential audience/reduces your volume. While I'm not a fan of the concentration of power in a few big companies, this outcome is in alignment with current definitions of free speech (private entities get to choose who can use their property)
Your scenario makes no sense. The law isn’t a magic shield you can apply to any thing by just mentioning politics. Your bots could still be banned for abusing the platform or sharing links to malicious sites. The law just means that Twitter can’t ban you specifically for political opinions.
This is already happening basically and twitter aren't banning anyway. (Try mentioning any drug or being 'hacked' or needing an 'essay' written, you'll get a flood of replies in a few minutes.)
Most likely it'll apply in whatever cases Texas's govt wants. That is, the vague law will be basis for selective enforcement, like GDPR. There's no other way this can work.
They have social anxiety because they never went outside. “Outside” and “with other people” are our ancestral environment. Social media is abnormal and makes abnormal people.
I have social anxiety because of a lifetime of psychological and physical abuse from everyone I have ever considered “family”, with only two exceptions. It has nothing to do with “outside”, and your idiotic hot take discounts the lives and experiences of thousands who have been through similar situations and worse.
It discounts no such thing. Your unfortunate experience (for which I truly feel sympathy) has nothing to do with how evolution or socio-biology work or the significance of our ancestral environments or the statistically significant fact that even you, with your unique and very real burdens, if you went outside and met with other people would probably feel less anxiety.
"with other people" means family group. Society changed radically once the Industrial Revolution hit and people started living in environments where they didn't know well everyone around them.
In a non automobile culture you absolutely did know the people around you, Industrial Age or not. And if you think the people around you being family would somehow make it easier, I think you need a little more family. :)
Users should protect themselves from this. With the expectation that they will, there will be tons of tools available and this scenario will be a nonstarter.
Decentralized defenses against bots will be far more effective than the central planning of information ecosystems we have today. Just watch.
Do you really think the average non-technical user will have a clue as to what to do about this hypothetical problem? I don't think that's a credible take.
Consider that this situation isn't like email spam filtering. I can't run a spam filter on the Twitter app on my phone. And if Twitter is not allowed to filter spam, that's it: no spam filtering for Twitter users.
> I can't run a spam filter on the Twitter app on my phone
That's nothing fundamentally preventing this. It's Twitter themselves who've decided not to allow you to do this. Were their app more open to extension you would be able to download and configure a spam filter of your choosing.
This is it exactly: Apply the same rules that they have today for content moderation, but allow users to opt in to that filtering. Even if they apply it by default, that’s probably enough of an fig lead to get by this ruling.
They can provide a first-party/recommended filter, but like with default browsers, search engines, or other preferences, the app should present the user with the choice in clear terms rather than silently applying the default. Defaults are powerful, so having the app apply its default first-party filter and hide away the option to change it in some menu would be approximately equivalent to changing nothing but forcing Twitter to act as a datastore/api for competing microblogging platforms.
It’s really not this complicated at all, and arguments like this just come across like reaching for a rebuttal.
What these people want is very simple: a clear standard uniformly applied and not done so in a partisan fashion. Everyone is onboard with preventing the scenario you brought up: it’s not killing free speech, it’s stopping egregious spam. This is completely orthogonal to that.
This is about not getting banned for disagreeing with one side’s political ideology. We’ve managed to do that before - even just a decade ago, and manage to do it now on other platforms, all without ridiculous hypotheticals like this one every occurring.
One your last paragraph: yes, you’re 100% exaggerating. This scenario is as reasonable as saying “legal self defense is dangerous because just think of all the bad actors that will murder and call it self defense!”. It’s just nonsense and goes against all evidence.
Well, I know my political opinion is that you should check out my new product, and I'm going to express this political opinion a lot. If necessary I'll include a sentence about a US President.
I'm half serious here. I would love to tell people about a new game I have on Steam (let's say), so I code a WebDriver "tool". It searches out gaming related Tweets and then expresses my political opinion. I have to press enter once for each post it makes. It's not a bot, since it only responds to user input from a genuine Texan. I even do a captcha by hand every once in a while.
I guess it goes back to your excellent quote, nobody know what compliance with this law looks like.
The very fact that you made this comment implies that you expect the public to understand what it means. Therefore, so would a jury of your peers.
In other words, if you get that this behavior is just a twist on botting, it's safe to assume the courts will too.
If I have to run a thin thread of politics through my product from beginning to end I will. It won't be the first time a product is tied to a political identity, and it's often beneficial to do so.
Heck, I'll even make two similar products and tie each to a different political party, so everyone can buy the product that matches their political view. My products are political statements, and 1% of all profits go to political causes!
I'm not faking, if you give me an incentive to let my political opinion seep into every aspect of my life, I can do it; even without incentive I find it hard to avoid. Being able to spam social media about my product without punishment is a pretty big incentive.
If I genuinely believe that the most important thing people can do to support <politician> is buy my product, that is still far - far! - from the most extreme political views out there.
Someone out there is pushing their product as a supposed political view, you drag them into court and find that they actually believe it, and they also genuinely believe the world is flat and the government is run by lizard people. What are you going to do? All their speech about those things is now protected.
Sure, all of that's true, so long as you can convince a judge, or a jury of peers selected by a team of attorneys highly paid to make your life a nightmare.
The law is subjective, just like your spiteful view of it. And you can bet there are spiteful judges, just like you.
A lot of your comments seem to be in the realm of "it doesn't matter what the law is, judges and juries will do what they want", which I partly agree with, but within the context of this debate we should assume that judges and juries will uphold the law. Otherwise, why are we debating the pros and cons of the law if nobody is going to uphold it?
I read it more as ”you obviously understand the spirit of the law, and so will judges and jury members, even if the letter of it can be twisted if you argue in bad faith”. Not that the law would be intentionally ignored in favor of anyone’s personal agenda. A lot of people seem to love to try to poke hole in laws through nitpicking and technicalities in the written word, whereas in reality rulings are made by humans who are still allowed a modicum of common sense and discretion.
NB, I haven’t read the law and I wouldn’t be qualified to comment anyway, this is my interpretation of the comment you responded to.
But it's out of context. If you and I are arguing the pros and cons of 2 possible laws, and I counter your arguments with "juries will do whatever they want", and you counter my arguments with "juries will do whatever they want", we both have this free counter-argument that we can use without any thought at any time. That's not an argument anyone can win, so why are we here? Although, fair enough, maybe we should both take a step back and stop arguing because it really doesn't matter?
It's not about what juries want. Do you get a royal flush on every hand of poker? Why would you expect that in any given court room in America you'd land a case where the judge is stupid, and the prosecutor is stupid, and juror number one is stupid, and etc. It's unlikely. If you're really the smartest guy in the room, you're not going to be arguing semantics in there. And if you try, you'll quickly become the most unlikeable guy in the room. Which is a lot worse for you.
It's whatever your acceptable-use policy defines "botting" to be, as long as that definition is viewpoint-neutral.
A restriction against "paying a bunch of college kids $50 to spam reply this message to people for 3 hours a day" is clearly a viewpoint-neutral one, and so, yes, it would be obviously legal.
Well the difficult thing is that apparently every day mundane activities can be "political" depending on who is doing them and in what context. Even a character in a show or video game suddenly becomes a political statement (to some people) just by being female, or brown, or gay, etc.
Well, yes, everything is political whether we like it or not. Even not having a character in a videogame that represents a minority can be a political statement. It's far too broad a brush to paint to be useful for anything
But we’ve reached a political climate where anything characterized as political is so. It’s unavoidable, and I think that’s the intention of this law. It wasn’t created to provide some fair and balanced public experience for citizens on private platforms. It was created to threaten large tech companies that make some politicians uncomfortable.
I agree actually, that's fair. Assuming a default position to not be a political statement does complicate things when you try to classify what is political due to giving the status quo a bit to much leeway, but honestly this classification is a waste of time.
I kinda of want to go back in time when politics was sort of on the back burner. Both left and right wing politics is unrecognizable to me. Everything is politicized and taken into conflict where it need not be.
Maybe I was in college and didn’t pay attention to this stuff or maybe the world has really gone mad.
Start treating people as people and not some political entity embodied in an activist form. Most of my friends are on the sidelines, thankfully. I treasure my relationships more, there isn’t too much time to live.
Some might say that you and your friends' ability to sit on the sidelines is a form of privilege not available to everyone. Along with this idea that in the past, politics was more polite, or less bothersome or whatever.
Maybe for some people, participating in politics has been a matter of life and death - something they don't have the luxury to ignore.
This is a terrible argument - a secular Pascal’s mugging, conveniently invoked to force everyone and everything into politics; a currently un-ironic “think of the children”!
It is not healthy for our society to demand that 100% of things be politicized - to claim that not politicizing stuff is immoral because some issues are profoundly impactful for some people!
I want the good, the equitable, the right, the just and far, far less of the political! Politics deserves the deference due politics in any particular situation - not that derived from catastrophizing the most extreme outcome and then universalizing it into the quotidian!
| Some might say that you and your friends' ability to sit on the sidelines is a form of privilege not available to everyone.
I say the ability and demand to turn everything into politics and require the same of everyone else is itself a form of privilege!
True, it is the sign of bad times. Deglobalization is going to cause more hurt. I expect a rough ride for next decade or two until we come to our senses.
No one knows what pornography is either. But for some reason we've managed to keep going as a society for 60 years after it was declared that "I'll know it when I see it."
The Court talks about this in the decision[0]. It makes a strong argument that striking down the Texas law before it's ever been enforced makes no sense, because all discussions of its benefits or harms are in the hypothetical realm. Quoting from pages 9-10:
First, the judicial power vested in us by Article III does not include the
power to veto statutes. And that omission is no accident: The Founders
expressly considered giving judges that power, and they decided not to do so.
Several delegates at the Constitutional Convention suggested creating a
“Council of Revision” consisting of federal judges and the executive.
Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954
(2018). They wanted to empower this Council to veto Congress’s legislation,
subject to congressional override. Ibid. A veto would render the legislation
“void.” Ibid. But despite the best efforts of James Wilson and James
Madison, the Convention rejected the proposal—three times over. Id. at
957–59. That means we have no power to “strike down,” “void,” or
“invalidate” an entire law. See id. at 936 (explaining that “federal courts have
no authority to erase a duly enacted law from the statute books” but have
only the power “to decline to enforce a statute in a particular case or
controversy” and “to enjoin executive officials from taking steps to enforce
a statute”); Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas,
J., concurring in the judgment) (noting that “[c]ourts have no authority to
strike down statutory text” and that “a facial challenge, if successful, has the
same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh,
Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010) (explaining
that the Founders did not conceive of judicial review as the power to “strike
down” legislation).
Second, the judicial power vested in us by Article III is limited to
deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2.
A federal court “has no jurisdiction to pronounce any statute, either of a state
or of the United States, void, because irreconcilable with the constitution,
except as it is called upon to adjudge the legal rights of litigants in actual
controversies.” Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration,
113 U.S. 33, 39 (1885); accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178
(1803). This limitation on federal jurisdiction to “actual controversies”
prevents courts from “ancitipat[ing] a question of constitutional law in
advance of the necessity of deciding it.” Liverpool, 113 U.S. at 39; see also
Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973) (“[U]nder our
constitutional system courts are not roving commissions assigned to pass
judgment on the validity of the Nation’s laws.”). And it makes pre-
enforcement facial challenges a particularly nettlesome affair. Such suits
usually do not present “flesh-and-blood legal problems with data relevant
and adequate to an informed judgment.” New York v. Ferber, 458 U.S. 747,
768 (1982) (quotation omitted). Instead, they require the court “to consider
every conceivable situation which might possibly arise in the application of
complex and comprehensive legislation,” forcing courts to deploy the severe
power of judicial review “with reference to hypothetical cases.” United
States v. Raines, 362 U.S. 17, 21–22 (1960).
Third, federalism. Invalidate-the-law-now, discover-how-it-works-
later judging is particularly troublesome when reviewing state laws, as it
deprives “state courts [of ] the opportunity to construe a law to avoid
constitutional infirmities.” Ferber, 458 U.S. at 768. And “facial challenges
threaten to short circuit the democratic process by preventing laws
embodying the will of the people from being implemented in a manner
consistent with the Constitution.” Wash. State Grange, 552 U.S. at 451. The
respect owed to a sovereign State thus demands that we look particularly
askance at a litigant who wants unelected federal judges to countermand the
State’s democratically accountable policymakers.
I think what you're proposing is that major providers should have either obeyed the law (with all the claimed negative consequences taking place instantly through that compliance) or they should have disobeyed the law and waited for a "case or controversy" to emerge from that decision.
I don't think the court actually wants appellants to disobey the law, so I find it hard to take this argument seriously.
The decision talks about this. The law does not allow for damages, only injunctive relief. So any negative consequences from enforcement would be fleeting, potentially stayed while the actual case or controversy worked its way through the courts. Quoting from page 14:
This rationale for overbreadth adjudication is wholly inapposite here.
First of all, there are no third parties to chill. The plaintiff trade associations represent all the Platforms covered by HB 20. Additionally, unlike individual citizens potentially subject to criminal sanctions—the usual beneficiaries of overbreadth rulings—the entities subject to HB 20 are large, well-heeled corporations that have hired an armada of attorneys from some of the best law firms in the world to protect their censorship rights. And any fear of
chilling is made even less credible by HB 20’s remedial scheme. Not only are
criminal sanctions unavailable; damages are unavailable. It’s hard to see how
the Platforms—which have already shown a willingness to stand on their
rights—will be so chilled by the prospect of declaratory and injunctive relief
that a facial remedy is justified.
Third, the Platforms principally argue against HB 20 by speculating
about the most extreme hypothetical applications of the law. Such
whataboutisms further exemplify why it’s inappropriate to hold the law
facially unconstitutional in a pre-enforcement posture.
(c) If a social media platform fails to promptly comply with
a court order in an action brought under this section, the court
shall hold the social media platform in contempt and shall use all
lawful measures to secure immediate compliance with the order,
including daily penalties sufficient to secure immediate
compliance.
It does appear to allow for something akin to damages. Would an appeal preclude contempt charges?
Copied from a comment thread below. Because I feel this is the root of the issue/problem.
> I don't see how the heck my website is a public square but my home or café isn't, this argument sounds self-contradictory.
Yup. This is the exact problem that we’re (as a society/world) wrestling with.
The reason it is (not just seems) different is because of the scope. A message on a chalkboard cannot reach millions of people (without the internet, ignoring [mass] media because the way it amplified things like this was far more complicated and was intentional), but it can on a website.
That by itself distorts the public/private argument, but we as a society aren’t sure how or to what extent yet.
These lawsuits are the second step (the first step was arguing about it in public) of figuring that out.
(Going back to my side note on media, these arguments will affect media outlets directly/indirectly as well.)
The decision[0] gives different logic (quoting from page 85):
If a firm’s core business is disseminating others’ speech, then that should weaken, not strengthen, the firm’s argument that it has a First Amendment right to censor that speech. In PruneYard, for example, the shopping mall was open to the public—but for the purpose of shopping, not sharing expression. So it was perhaps tenuous for the State to use the public nature of the mall to justify a speech-hosting requirement. Cf. PruneYard, 447 U.S. at 95 (White, J., concurring in part) (noting that California’s hosting requirement involved communication “about subjects having no connection with the shopping centers’ business”). But here, the Platforms are open to the public for the specific purpose of disseminating the public’s speech. It’s rather odd to say that a business has more rights to discriminate when it’s in the speech business than when it’s in some altogether non-speech business (like shopping or legal education).
A point a lot of commenters here seem to be missing is that it would be perfectly legal under the law to ban all discussion of politics, regardless of viewpoint. The law just says that if you're a site with more than 50 million users, you cannot dictate which political parties your users are allowed to write favorably about and ban users for having opposing viewpoints.
If you say "we are going to restrict ourselves [at the Government's insistence] to only moderating non-political speech" then someone will insist that some part of your non-political speech is actually political. And from some perspective they will be right.
Then you get to negotiate with the government and the courts about what they consider to be political speech or not. And suddenly you no longer live in a country that has a meaningful First Amendment.
Contrary to what people often claim, the government making any decision at all about what is and is not speech, or political speech, does not cause immediate free speech violations.
Yes, the government decides all the time, in a long standing and well studied legal history, about what is or is not speech.
In fact, I would go so far as to say that the primary purpose of the court system, with regards to free speech cases, is deciding what does or does not count as speech.
> And suddenly you no longer live in a country that has a meaningful First Amendment.
The overarching issue is that I don't see what the first amendment has to do with this at all. Corporations have zero obligations to anyone under the first amendment, which only applies to the government.
The intent of the first amendment was to preserve free speech in the public square; "what the first amendment has to do with this at all" is a desire to preserve that underlying societal principle.
Section 230 was a give-away to corporations that allowed them to privatize and co-opt the public square; they reap the economic benefit of being shielded from liability for what people post, but none of the responsibility to carry everyone's speech.
If we want to preserve free speech in the public square, some form of balance has to be restored, either by:
1. Eliminating the section 230 liability shield that allowed them to privatize public discourse in the first place.
2. Requiring privatized "public squares" to operate more like common carriers.
Solution (1) — eliminating section 230 — would likely make it infeasible to run a private website carrying public speech.
Texas seems to have attempted a nuanced version of solution (2): in exchange for being granted the privilege of being shielded from liability for the speech they carry, platforms of a size large enough to justify treating them as a "public square" must meet common-carrier-like requirements that prevent them from discriminating based on viewpoint.
> platforms of a size large enough to justify treating them as a "public square" must meet common-carrier-like requirements that prevent them from discriminating based on viewpoint.
This sounds so reasonable and nuanced until you reach this final phrase: "prevent them from discriminating based on viewpoint." Doing that requires the state to determine what speech is "un-biased, politically neutral speech" and which speech has a political "viewpoint." And under this law a government will determine this at the point of a gun, not the people operating individual websites.
(Because obviously if you implemented this in a truly content-neutral way along the lines that you suggest for a common carrier, every platform would be overrun by spam. So there has to be a decision about what constitutes biased speech, and that means political figures will be making determinations.)
This isn't theoretical. Nobody in this country even agrees on what "political/biased" speech is. Things that used to be broadly accepted by our whole society no longer are. I'm not going to go into examples, but you know exactly what they are. And you probably disagree with half of them. This law means that you won't get to decide, the state and the courts will.
If your problem is the over-concentration of social networking companies, I'm happy to agree. I urge you to support laws that reduce the power and userbase of these firms in a content-neutral way -- without placing the government in charge of what speech is "ok".
> Wyden, now a Senator, stated that he intended for Section 230 to be both "a sword and a shield" for Internet companies, the "sword" allowing them to remove content they deem inappropriate for their service, and the shield to help keep offensive content from their sites without liability. However, Wyden warned that because tech companies have not been willing to use the sword to remove content, they could be at risk of losing the shield.
Given that hate speech (the context of that quote) is very often political and/or protected free speech, I don't think one of the two authors of the bill agrees with how you're interpreting it.
I’m claiming that section 230 is a fundamentally flawed construction that privatized the modern public square, while socializing the costs inherent in that privatization.
I’m not debating whether section 230 is functioning in accordance with its authors’ intentions; frankly, what they intended doesn’t matter.
Section 230 was a totally inappropriate give-away of unique privileges without requiring commiserate public value be returned in-kind, contrary to our long history of requiring that common carriers serve the public without discrimination in exchange for the unique privilege of being shielded from liability.
I see where you're coming from, but I frankly believe that the internet as we know it is fundamentally unworkable without the ability for some platforms to restrict the voices of some users. It's also fundamentally unworkable if we make the platforms liable for the users words.
I'm up for solutions like breaking up the larger platforms so that users have more choice, but I consider 230 to be integral in mass user interaction.
To put it another way: I'm uninterested in an internet where websites are legally forced to either be sterile and userless or act like 4chan.
(BTW, does 4chan even have the minimum 50M monthly users to qualify ?)
- it has that anonymous (rather than pseudonymous) social convention
I see a lot of "the sky is falling" reactions here, but even if large websites were prevented from banning content, nothing forbids them from allowing users themselves hide the (pseudonym-linked) content that they deem undesirable, a feature that is already widespread.
(Also, large platforms are not the Internet, and not even the Web, and I would be happy to see them gone.)
Which only applies to the Federal government. States have had rules about speech since forever.
Texas wants platforms with > 50M users to treat political speech equally. That's well within a State's right to acquire that protection for its citizens.
Other states can choose different rules, or to leave their citizens with less rights, it's up to them.
This is an interesting precedent! The big social network companies could make the legal argument that they are advertising networks, not free speech networks, and should be able to censor people in order to better fulfil their primary purpose. They would be telling the truth.
This is a very classic "the good of society balanced against the rights of the private citizen/organization".
This isn't about private corporate rights, it's about the good of society against those private corporate rights.
You may disagree with where exactly this lands, but I doubt you disagree with the premise that personal rights must be balanced against the greater good (queue hotfuzz reference).
If you think you do, ask yourself if you feel the very idea of hate speech shouldn't exist. There are those who do, but more typically, people just disagree with where that idea lands rather than the idea itself.
Current law doesn’t have machinery to represent this idea, so it makes sense their arguments won’t match.
But at the core of all the arguments this is the idea that’s trying to be settled.
And really it’s more complicated than all that because it boils down to the algorithm deciding who to show the posts too.
An unbiased algorithm is impossible.
Show all political messages to all people, now you’ve just incentivized politicians to have multiple people full time jobs be to produce more messages.
False. Twitter's original algorithm (everyone you followed in reverse insertion order) is trivially unbiased.
The bias creeps in when they analyze the content of the speech (or who specifically likes it or…). You can 100% do an unbiased algorithmic feed that re-orders (or omits) things.
Twitter and Facebook could do it today. They shadow ban and suppress all sorts of things (beyond kicking actual human users off the site).
That seems like a silly distinction. At a broad level, all discussion can be seen as political. And it is natural for events to be dominated by actions from a side for a time, such that it would be natural for more criticisms of a political party over others at any time.
This gets dangerously into the "whataboutisms" of toxic discourse. Especially when they are not presented in at all an even or good faith manner.
"I ran into Lucy at the supermarket, she told me everything is costing so much because of inflation. She said this is terrible for her family and wonders why the government won't fix it"
I agree, but you’re being pedantic. Most discussions people have not about political topics wouldn’t be viewed as such even if individual decisions, such as your brand example, were politically motivated.
I think this is the heart of the problem. These social media companies didn't merely build agoras, they built amphitheaters. They build amphitheaters so large that control over the amphitheater makes you a kingmaker. Now they can't let go of that control, because doing so would risk the wrong people using it.
They never should have built amphitheaters this large in the first place. Better if they had built thousands of smaller amphitheaters, or none at all. Stop giving anybody bullhorns that can reach millions of people. Let ideas reach millions of people the natural way. One person tells a few hundred people their ideas, using the un-amplified power of their own voice. If what they say has any sense, each of those hundreds can tell hundreds more, and each of those can tell hundreds more again. That's how one person can reach millions, without the existence of massive kingmaker amphitheaters.
The logical solution to this problem then, seems to be breaking up the amphitheatres. If these places are too big that we are forced to treat them as public squares, then we should pass laws that do not allow amphitheatres that large to exist.
That actually seems like a pretty reasonable solution.
It would solve all the issues with private people/companies having too much sway. And the disconnect people have trying to reason about someone with that kind of world altering influence.
It would be like monopoly laws but for amphitheaters. I think we’d need to be much more aggressive with the definitions though and having fewer than 10s would trigger these laws.
If people want there to be a public square online, lobby the government to build and maintain it. Call it "US GOV Civic Not-Facebook public square". Let your taxes pay for it and enjoy all the awesome freedom it'll bring. Otherwise, stop trying to dictate how a private company runs their own business. You already pay for literal, physical town squares, why not a digital one?
No need for a government-sponsored forum, when smaller forums are explicitly exempted from the Texas law.
The law at issue still allows forums with 49,999,999 or fewer users to discriminate based on political viewpoint. It only says sites larger than that need to allow all political viewpoints (but only if they allow any political viewpoints, and only if they have users in Texas).
Legal: Message board with 49 million users that says "no Republicans allowed."
Legal: Message board with 51 million users that says "no politics allowed."
Legal: Message board with 51 million users (none in Texas) that says "no Libertarians allowed."
Not legal: Message board with 51 million users (some in Texas) that says "no Democrats allowed."
It would indeed seem so, since the suggested cutoff of 25M/month that would supposedly include Gab and Parler was rejected.
You would think that the judges would realize that it's in their best interest if they want this to stick to throw their political opponents a bone, but... nope ?
I think moderation gets exponentially more difficult, the larger a community is.
There's probably something in the legislative history[0] as to why that particular number was chosen, but I keep getting 404s and certificate errors when I try to click on links to the remarks.
I just googled it and found that "With so many “small towns,” the average local jurisdiction population in the United States is 6,200." why not use that as the limit?
I'm not really interested in what the number is, there are going to be an infinite number of opinions on that but regardless there has to be some number defined.
In this case, these are platforms that don't target a local community specifically, so it does make some amount of sense that the number is based on the population as a whole.
> the number is based on the population as a whole.
One way to look at this is to consider that the 2016 popular vote difference between Trump and Clinton was 2,868,686 which means if your platform can change the votes of 3 million people then it can change the results of the biggest election (even if the bias of the electoral college were removed).
Of course that's begging the question, but it's not hard to imagine that on a site with 50 million active users, the most susceptible 10% could have their voting decision change based on the world they see and the arguments they read through social media.
This also assumes that there is an imbalance in terms of which side does more "influencing", or which sorts of arguments it is easier to convince susceptible people into believing.
When you can cram 50 million people into your local cafe, come talk to me.
This law is limited to platforms with > 50 million MONTHLY active users.
People talk about 2nd order effects all the time, here's the really interesting part.
These companies will suddenly be incentivized to clearly identify bots as not-real-people due to this law. Imagine how much power this will take away from those with the platform to scale bots.
You can disagree with the specifics, but the spirit is in the right place.
We should stop trying to find comparisons or analogies to other situations. Social media is its own totally unique phenomenon. We need to analyze it from first principles. If we try to draw comparisons to print media, cafes, or whatever, we are just going to confuse ourselves.
I thought that censoring speech in privately owned public spaces was fine. It's only when a government censors speech that the first amendment kicks in.
I do, as it happens, believe it is a problem that Twitter censors so much speech without 'legitimacy'. Not because they censor the wrong things, but because their censorship without legitimacy fuels a persecution complex.
This is mostly a problem because Twitter is so big. And I don't think starting alternative Twitters (like truth social) is a good solution, mostly because it partitions the conversation even more.
i don’t think the crux of the issue is determining how to legislate the priv/publ dichotomy, but rather how can we enable as many people as desire an ability to establish their own chalkboard.
legislation as its proceeding is serving to entrench big tech platforms, its disabling the common person from having their own chalkboard with its own moderation preferences.
let the market decide.
this, in my opinion, is not the place for law. you don’t like how twitter does things? use a different app. it doesn’t exist? build it.
this includes things like legislation determining how to “appropriately” handle user data. it would be very easy to make it too expensive for any one person to “appropriately” handle user data in their webapp, which is my concern with the current twitter drama
This would be very easy for ISPs to set up on their leased routers. In fact until recently most people would have their email come from their ISP ! Some would also have a personal website space - mine is somehow still up 20 years later ! (At the time, routers wouldn't be common, especially not full-blown Linux computers, so it was all on ISP's servers.)
The only tricky part (which is perhaps even worse already with the "cloud"), is that some legislation is needed to simplify transfers (and not just the file ones) from one ISP to another, like we already have with phone numbers.
> I don't see how the heck my website is a public square but my home or café isn't, this argument sounds self-contradictory.
If it's a website with over 50 million users, and it's designed explicitly as a place for these users to express themselves, then calling it "a public square" seems entirely warranted.
If you're not protecting free speech in the places where free speech actually happens, then you are not protecting free speech at all.
If speech has shifted online, to massive social media websites like Twitter, and you don't protect it there, then you have no free speech in your country.
Perhaps the problem is the definition of free speech. Free speech is you can't go to jail for what you say. It certainly doesn't mean speech without consequences of any sort nor does it mean that you automatically get an audience for it.
There is no Free Speech if you can't speak freely where speech is actually happening.
So if nearly all speech is moving online to massive social media sites, and you can't speak there freely, but instead your speech is subject to the whims of random employees - there is no Free Speech in this situation.
> It certainly doesn't mean speech without consequences of any sort nor does it mean that you automatically get an audience for it.
But it does mean you can speak. Even if there may be consequences, and even if you don't automatically get an audience.
That's the right I'm supporting here, against an alarmingly large group that seems to consider this right to be no longer necessary, and even undesirable.
That’s not the definition of free speech in the US. The reason you should care is that your definition is likely to produce a free speech absolutist counter-movement.
> Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.
As expression increasingly moves online, we will have to find ways to protect it online. A future in which the vast majority of speech happens in private online platforms, that may curtail it at will, is not just dystopian but goes against core American values, and the essence of freedom.
This is not in the constitution, you just pasted the opinions of others.
Core american values? There's massive censorship of pornography, there are noise laws, library books are being challanged and removed. A town voted to defund a library because they wouldn't remove a book. Explain to me how it's a core value?
Censoring and moderating and content, as it relates to this lawsuit, is very expensive. I wouldn't be surprised if it ranks pretty high in their cost chart. The only reason that social media platforms do content moderation is to manage the financial (advertisers), and the political risk. Well, if the politicians and the courts tell them they can't moderate political stuff, then the political risk has been removed. All that remains is the financial risk.
Advertisers aversion to controversy is based on, I assume, their adherence to cultural norms. These norms are fluid. So I actually think these laws will give them the cover they need to stop doing something that they would prefer not to do. I also believe that we'll be litigating this for eons.
It's not the only reason. Without any moderation, sites would degenerate into cesspools that only cesspool dwellers would want to visit. Few site owners want their properties to be cesspools.
Why not give users the power of moderation? Currently the website owner makes the decision for me about what content I should not be seeing. I want instead all or at least almost all content preserved and the ability to create and subscribe to blocklists. The website can have a default blocklist active to make it palatable for the majority.
This is an interesting model, and there's nothing stopping someone from starting a social media site that works like this. But that doesn't mean that existing ones should be forced to use this model. Let's try them both (and others) and see which ones work best for their users.
This is the model that social media had. Facebook, Twitter, Instagram... they all started of just showing you content from people your followed.
Or course they now all demand to show you "recommended" content and with that take on the responsibly of how "pleasant" that recommended content is.
Where did they do this? I bet few people truly know. My personal guess it's because injected ads and promoted content logged to out of place between your friends posts whereas there is little difference between ads and most popular posts.
Actually this model does exist and is pretty successful. Facebook Groups. The admins of these groups are not employees and have the power to limit whatever, whenever.
How Twitter used to be I think? If I remember correctly, I only got tweets from people I followed, in chronological order. I could unfollow someone and never hear from them again. Now the algorithm decides what I see.
The current model of social media is analogous to an email host DELETING all emails that are sent to you but it considers to be spam.
What I propose is that the email host preserves all emails sent to you, but puts them in your spam folder if it considers so. Moreover, I should be able to disable that and let my email client to do spam filtering on the rules I make.
There's a weird bias towards "we need a daddy to tell us how to talk". Maybe it's because moderation is too hard for mere crowdsource+algorithms and maybe it isn't. I dunno.
And maybe the owners just want to keep that sweet fascist option open.
Perhaps that's how it should be, though? Paid content -- even if I'm required to see it in my feed and can't filter it out -- should be marked as such.
HN has something similar to "paid" content: YC alum companies are allowed to post hiring notices that end up on the front page, and decay down the page according to a pre-determined algorithm. They're obvious in that you can't comment or vote on them, but HN does allow them to be hidden. I think that's the right way to do things; if HN allowed YC companies to post on the front page, and made it look like they were regular posts that got organically upvoted, it would reduce my trust in HN.
Any social media platform that puts paid content in a feed, while trying to make it look like regular content, would also lose my trust.
A possible solution to this is to allow any user to be a moderator, and to allow other users who want moderation to subscribe to one or moderation "feeds" from other users.
If one wants to wade through the degenerate cesspool of content, they'd have that option. If one wants to only see fluffy non-hateful things, they could subscribe to moderation feeds that achieve that.
The notion that we can impose a single perspective of "good content" and "bad content" onto millions of people, with different perspectives, is simply asinine.
On the contrary, moderation feeds would almost certainly be completely protected by free speech laws, as they would essentially be the expressed opinions of individual people.
This discussion is specifically scoped to the legal system in the United States.
If you, as a US individual, express the opinion that "I do not like post with unique ID X on platform Y because of reasons a,b,c", that would be protected speech. A moderation feed would be equivalent to a series of such statements.
If other users decide to subscribe to your moderation feed, and have matching posts automatically hidden, that would specifically be the choice of that individual user, and not a private company.
One of the greatest scams governments around the world have managed to pull is making "free speech" a politically partisan issue. There are two sides to it though, but it's not conservative vs. liberal, it's the common people vs. governments and corporations.
People say this, but not long ago Twitter/Reddit/Youtube were basically a free for all for anything except porn. And their user numbers were skyrocketing at the time.
That's moderation. Both because they are actively excluding certain content, but also because 'porn' can be subjective and so decisions have to be made about what does and does not qualify.
And after they attempted to clean up, they were able to attract more advertisers and mainstream users the advertisers wanted to reach. Doesn’t the story of those sites back the person above you’s point?
That’s just saying “until it became a problem, it wasn’t a problem”. Those sites were a free for all, up until it became a problem. And then they were no longer free for alls.
Yeah, this is exactly right. Stronger moderation started happening because more and more toxic/abusive BS became prevalent. I only really experienced true "hostile attacks from a complete stranger" on Twitter in the last year or two, and I've been a heavy user of it since 2007. (tbh my usage has dwindled and I'm wayyy more focused on Mastodon now, which thus far fosters a stronger sense of community than Twitter will ever be able to)
It's not even close, admins ban subs all the time, mods are under strict grip of admins on how they need to mod thing otherwise they get replaced, there are cases where admins straight up say that mod teams need to get more people in the team or they'll lose the sub, i've seen subs with automods straight up saying that they need to be careful with what is written otherwise they'll be banned.
The huge Aimee Challenor thing, that lead to people being banned anywhere the name was uttered is just the super high profile example I know, i'm sure reddit users would be able to show more smaller cases.
Just want to make it clear, I'm not claiming this control is good or bad, there are good reasons for and against moderation, but reddit is not even close to a free for all.
Exactly, grey zones can happen really quickly. For example if someone says "I think Candidate X from Party Y is a total a-hole." Is that a political statement or a cesspool comment? I see legitimate arguments for either.
Whether or not pineapple on pizza is acceptable can technically be brought to a political argument but anyone not turned into a rage monster by current social media can tell that it isn't a political debate in the current environment.
Perhaps in the technical definition of political, but not in the layman's definition of political.
The definition of political used by the populace is almost always the narrow subset of societal/cultural fights that are actively being argued. Generally speaking these arguments are headed by politicians.
There is also a space in the definition for arguments directly impact the structure/scope of the government. Although this may be separate enough that it may warrant being considered a second definition instead of an additional category within the first definition.
I often see this sentiment associated with those who wish to regulate political speech they find offensive. It's convenient if everything is political so that everything said can be regulated.
Regulating political speech for whatever reason (including offense), should be considered a legitimate exercise of moderation. It happens on Hacker News all the time - political speech is only considered on topic if and when it contains evidence of a "new or interesting phenomenon," and even then, users will mod down anything they don't like. And given the quality of most political threads here, I don't think many people here would prefer it if that were allowed to run amok.
If I'm running a car forum, I should be able to ban pro-Nazi rhetoric if I want, regardless of whether I find it offensive or merely technically off topic. Not every space on the internet needs to be /pol/.
Yeah, internet content laws are becoming increasingly conflicting. On one hand, you have places that are making it more difficult to legally moderate websites. On the other, you have legislation like SESTA and FOSTA where websites are being held legally responsible for content that others may post on the website.
Section 230 was an unusually great piece of internet legislation, and it's not great to see it start to crumble with these new changes. Just let every site be its own site.
I think quite literally lots of things are political. This discussion is political. Anything to talk about h1b visa is political. Immigration is political. The most offensive speech is arguably political speech, such as advocating for genocide.
Using the widest definition, "affairs of the citizens", it's literally about everything outside of your private home. The twist though, is that since pretty much everything has consequences (including inaction), you are not safe from eventually having an outside impact even there. As the meme goes, "we live in a society". (Also why you should want to keep good relations with the other citizens...)
If you want to sell X to group Y which coincides mostly with party Z and has little overlap with the opposite party, it is worth your while to make buying X a political activity, however you can go about doing that.
I think the only thing that is clearly not political is people sharing pictures of pets. Everything else including Insta Thotts and what have you have been co-opted.
Firstly, that is _not_ what reductio ad Hitlerum means.
More importantly, it's not a fallacy. It's pretty well documented by now that what you get when you have a social network with very little moderation is, almost inevitably, a social network for Nazis:
Just because people like bringing up Nazis a little too often doesn't mean every reference to Nazis is fallacious. Sometimes, it really is about [neo-]Nazis.
The exact fallacy that occurs (almost all the time) when you invoke Hitler is called poisoning the well (https://en.wikipedia.org/wiki/Poisoning_the_well). You are trying to make a position indefensible by associating it with an indefensible thing, without properly justifying the connection. In this case, it might also be a slippery slope fallacy.
The US has had unmoderated social networks, referred to as pubs, churches, clubs, and town squares, for the last few hundred years. Nazis never gained prominence in any of those fora. It is not a given that reducing the level of moderation leads to Nazis taking over. The truth is that Nazism is such a distasteful ideology that it pretty much never takes over the discourse in places where it is allowed. Rather, Nazis end up creating small hate groups in all sorts of fora, including the heavily-moderated ones (Facebook and Twitter) where they use euphemisms.
Here are a few other sources for you about Nazi communities on mainstream social networks:
I signed up for Gab in 2016 (internet drama voyeurism can be fun), and I got off in 2017. Neo-Nazis on Gab were about as prominent as neo-Nazis on Twitter: a few small neo-Nazi communities existed on both platforms. Gab had a lot of right-wing/pro-Trump users, and was also weirdly Christian, but there weren't many actual neo-Nazis. A platform for right-wingers isn't automatically a social network for Nazis.
The same is true of Voat, by the way. It was started when /r/fatpeoplehate and a bunch of racist subreddits were banned, and it attracted a ton of trolls and mean people, but very few actual Nazis. AFAIK /r/nazi migrated to Voat, so there were some Nazis there, but Voat was not a "social network for Nazis" by any means. Reddit still has many Nazi subreddits with far more users than Voat's Nazi groups at their peak.
I know that /pol/ on 8chan, at least, was full of Nazis and I think it was one of the biggest communities on 8chan. That was a social network for Nazis.
Gab and Voat (as well as other right-wing-focused social networks like Parler) ended up being the target of journalists and left-wing activists because there weren't many people they valued on those platforms, and a lot of people they wanted to hurt. They continue to largely ignore the presence of distasteful communities on Twitter and Facebook (see Jan 6 organizing as a good example of this - it was attributed to Parler, but most of it actually happened on Facebook and Twitter) and put other fora under a microscope to try to find Nazis - particularly if the forum has an overt right-wing bias. The presence of a small community of Nazis is then used to attack and take down the entire platform.
Nazis are on every platform in small, niche communities. They are surprisingly hard to ban. They don't take over platforms no matter how free their speech is. They are shitty people and their ideas are wrong, and everyone knows that.
So, what Voat was full of anti-Jewish slurs for fun?
Is your point that Voat may have been full of jew-hating racists but it's okay because they weren't actual Nazis?
I can't imagine most people caring about making that distinction at all. Except for jew-hating racists who don't want to be associated with Nazis for some reason.
No, that Voat had a small population of jew-hating Nazis, and another small population of racists. It had a large population of fat-shamers and trolls. It was not a "forum for Nazis" by any definition.
If OP had said, "a forum for terrible people," we wouldn't be having this discussion at all, and I would agree with you.
The same distinction I am drawing about Voat is what people routinely say about Facebook, Youtube, Reddit, and Twitter. All of which host far more Nazi content, by the way, than any side-show like Voat.
Toting out the token Nazi groups on a platform to say that every user is a Nazi is disingenuous at best and dangerous at worst.
Hugely expensive. Zuck mentioned in the rogan episode they spend roughly $5b annual on "Defense" aka moderation and safety. To put it in perspective, that's roughly in line with what the defense budgets of Switzerland and Mexico.
The consequences of this law aren’t very clear, especially in the post Citizens United world where scotus has established that corporations have first amendment rights that are protected by constitution. Now, if a corporation is in some sense required to carry someone’s message due to some law, that gets into (arguably) the realm of forced speech.
Don’t get me wrong, I think Citzens United is a horrible ruling, and this whole fiasco just further shows the “rules for thee but not for me” doctrine the Republican Party has been operating for the past 25 odd years.
And the Internet was created by the US government, so it's also a public resource.
Ok, it's been privatized, but can the government abdicate it's responsibility to protect freedom of speech by privatizing?
Edit because I'm "posting too fast": Paying for most of the infrastructure didn't make TV stations or phone companies exempt from similar regulation. I don't see why it would make social networks exempt.
To your edit: broadcast TV wasn’t under FCC jurisdiction because they paid to broadcast. The public over the air spectrum are considered to be owned by the government and licensed to the broadcast networks
I agree it's not an exact match for many reasons (including because TV didn't let many people broadcast). Phones are a much closer precedent - both phones and social media are tools for person to person communication.
The cell network also operates by having a license to the spectrum to the public airways and spectrum suitable for cellular service is limited because of physics and therefore is a natural monopoly.
There is no such limitation in someone setting up servers and connecting it to the internet and creating an alternate social media platform. Are there not enough conservatives with the finances and knowledge to create a Twitter alternative? I’ll gladly over charge them and lead the effort if they pay enough. Leading infrastructure and back end development is kind of my thing.
I'm not talking about cell networks. Common carrier also applied to POTS (i.e., copper wire), a system that (unlike the airwaves) was built entirely by private companies.
And once again, it's not about having alternative walled gardens (which already exist). It's about promoting open debate on all platforms. What's wrong with that? If censorship is the only way your ideas can win, your ideas suck.
Incidentally, this also protects the far left if Elon Musk ends up buying Twitter.
If the government wants to provide a place for open debate, it is free to create a taxpayer funded service to do so. If a Christian organization sets up social media website, should it be forced to host a forum to allow open debate about the existence of God?
Again, conservatives love “limited government” and the free markets until neither work in their favor.
Truth Social is an existence proof that the free market is working as it should.
They can also force a 11 year old to have a baby after she has been raped and leave a pregnant lady bleeding because the doctor is afraid to terminate the pregnancy. That doesn’t mean it’s right…
It's truly bizarre to see liberals argue that corporation have a right not to be raped, ergo we must let them decide what is and isn't acceptable speech.
There are many reasons why that won't work for a lot of people:
What if friends who have a variety of opinions just want to be able to communicate with each other?
Or what if someone wants to hear all the facts without censorship? Maybe the Hunter Biden's laptop story was true, but you wouldn't hear that on Twitter. Maybe Trump was very wrong about Invermectin, but you wouldn't hear that on Truth Social.
What if someone believes that open debate is better for democracy than a few alternative echo chambers?
Can I come to your private residence with a group of friends and spout any type of none sense? Isn’t it telling that conservatives can’t come up with a successful social media platform?
I don't have 50 million users, so no the law would not apply to my private residence.
The law instead applies to large social media companies. And the law is allowed by the court system.
If I get 50 million users at some point, running a multi-billion dollar company, then yes the law would apply to me.
> until it is overturned.
I'd recommend that you read up on the supreme court opinions on this. They have already made some statements, that is looking like they are not going to overturn the law.
So it’s only after you are a certain size that the government can take control over a private corporation? I thought conservatives were against “socialism”?
> So it’s only after you are a certain size that the government
We have all sorts of laws that only apply to large companies yes.
For example, a random example would be anti-trust laws. Literally they only start applying if you have a large enough effect on the market.
It is an established precedent in many parts of the law.
And similarly, common carrier laws haven't been that controversial. Parties from all sides of the political spectrum support our existing common carrier laws.
So Twitter of all things are a monopoly? Truth Social is proof that anyone can build a social network platform. It being a failure is an example of the free market at work.
Landline phones and the internet infrastructure and the cell network are all examples of natural monopolies, a website is not a natural monopoly.
This isn't actually true, in the US anti-trust laws don't take into account company size at all. A small company can engage in anti-competitive practices, and a monopoly isn't inherently in violation of anti-trust laws.
There are laws that only apply if a company has enough employees, and tax stuff that applies only above certain revenue, but I'm not actually aware of any other regulations that apply if a company has too many customers.
> in the US anti-trust laws don't take into account company size at all.
It takes into account market power.
> and a monopoly isn't inherently in violation of anti-trust laws.
Good thing that I didn't say that every single monopoly, ever, is in violation of anti-trust law then.
> A small company can engage in anti-competitive practices
It can, yes. But the law is much more likely to make these practices illegal if the company has a large amount of market power.
So yes, the more market power, or larger influence, that a company has, the more likely that some, but not all, laws will apply to them and regulate their behavior.
Yes. I’m sure conservatives would love it if the government also forced everyone to believe in the one true God and go to church every Sunday. They would also love the good old days when “America was great”, interracial marriage was illegal, women couldn’t vote, a President could claim by fiat that he won an election that he actually lost, and those durn colored people couldn’t drink out of the same water fountain.
If Texas was just blocked from posting to Twitter, nothing of value would be lost.
Does this mean that newspaper Information Service Providers are now obligated to must-carry opinion pieces from political viewpoints that oppose those of the editors in the given district?
Does this mean that newspapers in Texas are now obligated to carry liberal opinion pieces? Equal time in Texas at last.
How limited is the given district court of appeals case law precedent in regards to must-carry and Equal time rules for non-licensed spectrum Information Service providers? Are they now common carrier liability, too?
> The fairness doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented. The demise of this FCC rule has been cited as a contributing factor in the rising level of party polarization in the United States. [5][6]
Because the free flow of information is essential to democracy, it is in the Public Interest to support a market of new and established flourishing information service providers, not a market of exploited must-carry'ers subject to district-level criteria for ejection or free water for life. Shouldn't all publications, all information services be subject to any and all such Equal Time and Must-Carry interpretations?
Your newspaper may not regulate viewpoints: in its editorial section or otherwise. Must carry. Equal time.
The wall of one's business, perhaps.
You must keep that up there on your business's wall.
**
In this instance, is there a contract for future performance? How does Statute of Frauds apply to contracts worth over $500?
Holy shivers, guys! I've read about this on arstechnica.com and what surprised me the most is the amount of negative sentiment towards the absence of censoring. I highly doubt those are ordinary people writing comments. Most likely hired commenters or bots. (
I hope world's majority still appreciates freedom of communication.
I can't tell if this is supposed to be taken literally, but I like that it's a sort of self-demonstrating comment.
The decision seems like it makes it easier for bots who pretend to be humans to be protected as a side-effect, but in the same paragraph you suspect people of being bots. Damn bots, they're everywhere! :)
(Full disclaimer: I've actually no strong opinion on the decision. I like freedom of speech, and I also like clean forum spaces free of manufactured consensus. Seems complex to predict the impact.)
If this passes, basically what's going to happen is a lot of pre-filtering of people entering social networks akin to next doors strategy.
I've worked at a civic tech social network that had no rules, and eventually the extremists pushed out all the normal folks - it's just stupid shouting matches. We tore it all down and made isolated communities. It's basically the only way to have real discourse.
Yet Reddit, that follows this model, still manages to engage in suppression of on-topic viewpoints that moderators and/or Reddit employees disagree with.
Reddit banned /r/TheDonald, which would have certainly run afoul of this law. You may respond that there were policy based reasons for doing so (brigading, harassment, etc.) and you'd be right. But that's true of moderation decisions made by Facebook and Twitter too, or at least they would say so. In fact that ban was far more egregious than any of the moderation decisions that are being targeted by this law at the big platforms.
Prior to banning /r/The_Donald, Reddit created /r/popular as a default alternative to /r/all to prevent posts from /r/The_Donald from making it to the front page. Interestingly, they didn't ban any of the other obnoxious political subreddits that people were complaining about.
(Not a Trump fan or even right-leaning, just pointing out that Reddit administrators went to great lengths to suppress a subreddit they disliked long before banning it.)
Yeah I mean I think it is and should be within their rights. /r/TheDonald was not merely expressing a political viewpoint. It was doing a lot of other stuff. But the proponents of this law would view banning it was a violation.
> reasons for doing so (brigading, harassment, etc.)
This happens on Reddit all day along with pretty much every political sub on the platform. But they chose to only ban /r/TheDonald.
Reddit had a policy for banning accounts that were calling for violence. Yet during the 2020 riots they conveniently dropped this rule. This smells of massive hipocracy.
> This says an admin was accused of editing posts, it doesn't provide proof. It then says users down voted him not employees of reddit.
SubredditDrama is a meta-subreddit. They linked to the post by Spez where he admitted to editing the comment — unfortunately, it's no longer available due to Reddit banning r/the_donald, but you can find numerous news articles that include his original comment. E.g., https://www.bbc.com/news/newsbeat-38088712
> Also subbit reddit admins aren't employees , I believe most people can create a subreddit and be an admin
In Reddit terminology those are moderators. Administrators are site-wide and employed by Reddit.
That's the founder and CEO at the time, he created the reddit culture and he did the worst thing you can do in that situation: silently editing the posts of people you disagree with. Nobody said that post was proof that lots of admins do this, but it is proof that Reddits leadership is rotten to the core. If the CEO is fine with editing others speech to make it look like they said things they didn't, then obviously he is also fine with unfairly banning people or communities he disagrees with since that is a much lesser evil.
One look at r/worldnews or r/news? Those are not even some obscure subreddits.
It's a community ruled by progressives, posted into by progressives and mostly read by progressives. The content reflects that. This has been achieved by years of content filtering and banning of any centrist or right wing views. It's the definition of an echo chamber. Or another of the main subreddits, r/video, just recently I'm watching a post where a guy describes some valve or whatever and his little kid comes in yadda yadda cute video of dad with his daughter. In the comments it's all about how the guy said something about supporting truckers or whatever and how terrible that was. Yep. Meanwhile the video has basically no dislikes on Youtube..But by reading the r/video thread you'd think it's unpopular and the guy is a nazi or something. No. It's just that Reddit is a manufactured community of left wingers.
Btw try to talk about how "trans women are not women" and refer to transitioning people by their pre-transition name (because you don't recognize their transition or it is against your religion), which is absolutely a political/religious statement and 100% a point of view, see how long your account lasts :)
>It's just that Reddit is a manufactured community of left wingers.
After US election day 2016, it was actually possible for about a day to post non-leftist posts and comments to /r/politics without them being instantly downvoted or removed for being "off topic", because the mods hadn't received new marching orders. It was quite a change, albeit temporary.
I'm surprised to see this being downvoted. It was shocking to see how large /r/TheDonald was around the 2016 election. Now, whether they were real, voting US citizens is a valid question.
You still see on subreddits like /r/wayofthebern and /r/conspiracy accounts which are posting full-time (i.e. dozens of posts and comments a day) with pro-Russia, pro-China, anti-US content.
The admins, who are paid employees, also engage in similar suppression by banning subreddits they dislike.
Proof? Read about how reddit suppressed dissent during the pandemic.
I'm not going to post any particular link because the topic is too political and every source (left and right) spins things in some way that I dislike.
The facts, without spin, are these: reddit banned and/or quarantined many anti-lockdown subs. Initially, they said they would not, because "Dissent is a part of Reddit and the foundation of democracy", but ultimately, they did.
It already passed, it's a law on the books in Texas. And now it's been upheld at by both trial and circuit courts.
FWIW: there's one last chance at SCOTUS to undo this, but if that doesn't work out what we're almost certain to see instead of "pre-filtering" is just "No Tweeting from Texas".
It's kinda interesting how a world like "no tweeting from Texas" might jive with EU laws which want to restrict IO and data storage to just inside the region or country.
Are we about to get more decentralized just because the laws are accidentally forcing us to?
Imagine connecting to EU or Texas Twitter to see what's going on there.
It’s not accidental. I don’t see how the old “Wild West” era of the internet was ever going to be compatible with any two sovereign nations that had even a minuscule difference of opinion about any of copyright and database rights, privacy, obscenity, hacking, incitement, libel, or anything else that might come broadly under the heading of “free speech”.
As a not-Texan, almost all of what I hear about Texas is oil, conservatism, failed power systems during winter, anti-abortion-rights, and using immigrants as political theater by sending them to DC/NY. I don't know that the disdain is unexpected given the political leaning of people working in technology.
I get most of my national news from NPR. What news am I missing about Texas? I guess I forgot the Uvalde school shooting police response in my list.
I do hear bad things about California - homelessness, drug use, lots of petty theft that doesn't get prosecuted, ridiculously expensive housing, NIMBYs - but that's unrelated.
I'd better not get too involved in this because it's ugly politics nonsense, but it's easy enough to find criticisms of California for its power grid, leftism, pro-abortion-rights (which is obviously seen as a bad thing by many people), and political use of immigrants.
Because they are the state that implemented the law while at the same time is actually censoring information. A direct violation of the first amendment. A public library is a public space and the state government is an authority that can impose punishments.
The hypocrisy is insane
"Texas governor calls books ‘pornography’ in latest effort to remove LGBTQ titles from school libraries"
I am a Texan, and I think we deserve the disdain in this case - we elected those politicians who want to force the main platforms people use for all sorts of communications to allow themselves to become /pol/.
No tweeting from Texas sounds like a great idea! We can expand it to no tweeting from anywhere after we see the effects on Texans. Then I bknow the popular nexts step would be to get rid of FB and Instagram, but I'm in favor of dissolving Pinterest first. It is like charlie and the football everytime I follow a link from an image search looking for something only to notice it was Pinterest right afterwards but before it loads, realizing I am about to be hounded to load an app, then log in, and then be shown that image is no longer part of Pinterest.
Didn't happen with EU's internet laws. Instead, we get cookie banners all over the world. I don't think exiting a market full of money because of ideology is good business.
This year "Meta" basically said they might have to leave the EU. Some of the reactions were "and good riddance !".
To be fair, it's the USA, starting with the police-state-like Patriot Act, that basically made US companies illegal in the EU...
(I don't remember if there were any revelations in the Snowden scandal about Facebook helping the NSA to spy on EU citizens, companies, governments... IIRC the documents (we got) talked mostly about Google and Microsoft ?)
For there to be a parallel in that specific case, that community would’ve had to have had the power to prosecute and enforce judgments against any organisation that published blood libels.
“Othering” has moved from race to political viewpoint, but the human tendency to exclude others from discourse/commerce/society is still alive and well.
>“Othering” has moved from race to political viewpoint
No it hasn't. People have been othered for either reason for millennia, and continue to be so. This is probably one of the safest eras for having an unpopular political view in the US. For example, try being accused of holding communist views during most of the 20th century.
Lol. Are you for real? Try expressing any concerns about the excesses of the trans activists or concerns about the demographic replacement of europeans. People who do that wish they were treated like communists in the 50s!
>Try expressing any concerns about the excesses of the trans activists or concerns about the demographic replacement of europeans
People do this all the time. If their biggest complaint is being banned from privately owned social media companies, then they have it much better than the communists or anarchists of the past.
While I think the hate of Texas is unusual in this thread, this is an awful comparison. Please don't use comparisons that trivialize the horrors of the Holocaust.
The obvious byproduct is their happiness and productivity would increase, and other states would swiftly copy them to remain competitive. Then social media would have to respond to that.
I hope the internet returns to this model for like a dozen reasons. Insofar as we can be sure this kind of regulation gets there it should be celebrated imo.
The internet should be a common carrier. A private company that sits on top of the internet is not a common carrier. Why should the government be able to regulate what private companies publish?
I bet you dollars to doughnuts that neither RedState or Truth social would want to be under the same regulations. I’ve been banned from RedState twice.
How is Twitter a de facto monopoly? They have a monopoly on what exactly - communication forums on the Internet? Why is it that conservatives are unable to create an alternative?
So there is no other way that people can talk about politics without going on Twitter? If Twitter is a monopoly and doing is badly as they are financially. They must be doing something wrong.
I’m sure if Fox News or a billionaire ex-president wanted to start a social media platform he could. He has plenty of people coming to his rallies. He couldn’t get enough of his 75 million voters to come to Truth Social to make it successful.
Moderation is double edged sword sadly, you need it else the extremists will do exactly that, interpret the ideas of community in the extreme all while pushing out people that they think are not extreme enough.
But on other side... good luck looking for one. The people that volunteer to have a bunch of power over a community and decide who's allowed to stay and who have to go are usually exactly the type you don't want to moderate anything, or have any power whatsoever over anything.
I've seen few times where self moderation mostly worked but it was due to established culture there and any newcomer that misbehaved was just scolded by the more veteran members and that was usually enough. You can see it on smaller subreddits too.
I wonder if the underlying goal of all this is actually classic authoritarian restriction of freedoms. The big public platforms are much better for spreading progressive ideas than conservative ideas. Maybe this was the underlying reason they wanted to repeal section 230. It wasn’t a misunderstanding it was strategic.
The opinion of three journalists working for the same retail tech conglomerate is hardly "research." WaPo has suffered a Pulitzer Prize revocation in 1981 for fabricating stories, has continuously circulated advertisements from China Watch (operated by the CCP), repeatedly settled on libelous claims made for profit, and on numerous occasions assisted in providing platforms for anti-Western and anti-Semitic groups supported by Iran. It's a joke to imagine they would do research in hopes of drawing any conclusion but the one that makes them the most money.
It would take some time to fact check your assertions, so I only looked into the first one. It involved a single reporter, not systemic plagiarism by the paper, and she was fired when it came to light. The Post's ombudsman, who handles readers' complaints as well as internal problems, undertook an investigation.
You're too generous. It's all media, it's all for profit, and it's all unethical. No editor will willingly submit a piece that makes his/her company, or conglomerate overlords LESS money. That is, unless he/she plans to change careers. The circumstances imply that only the most submissive journalists, who are most willing to lie, are left in action.
Yeah, I guess I couldn't find any examples of journalism for profit since 1981.
Or maybe, I chose an old example to make a point about how it's always been for profit.
Interesting point, I guess I’m making the assertion that conservative ideas can spread better in small groups then liberal ideas since liberal ideas are trying to change the status quo they just have to plant a seed. Conservative ideas have to be fought for since “everyone already know them” (quotes for broad generalizations without data, but leaning into the fact that conservative ideas should be inherently more well known since they’ve been practiced in the past.)
So conservatives viewpoints spread in small groups better, a situation where you are less likely to be challenged and less likely to hear opposing viewpoints (because of the size)
Are you sure? Seems like Twitter&FB and the like were more likely to promote the reactions to conservative ideas, which by necessity gives more airtime to those.
I do think there's a rationale middle of the road here. Hear me out.
I think if you provide a service that basically creates a free public sphere, and you don't charge for it, it makes sense to consider what you're offering a public sphere and that just mean it has to be treated like one, where you should be free to speak up and mobilize peacefully.
If social platforms charge a fee, or subscription, then it is a private sphere, and I think platforms should be allowed to do whatever they want in that case.
Finally, the constitution only applies to lawful citizens of the US, which means that in order for platforms that would provide a free sphere of discourse, to be excluded from their enforcements, you would need to have performed full know your customers, and proven to the platform you are a real citizen of the US, with regularly having to re-proove that your account is still owned and used only by real citizen of the US. If you didn't provide this info and proved your status, the platform should be allowed to apply enforcement, because you could very well be a bot, or a foreigner.
Lastly, you should also have to speak non-anonymously, if you don't reveal your true identity to others in the public sphere, enforcement would still apply to you, because in a real-life public sphere people are not anonymous either, you should be able to know who is speaking.
Lastly, you shouldn't be allowed to make it look like you are more than one person, so use of multiple accounts and various pseudonyms if found should also make you eligible for enforcement again.
I think with these, it's reasonable on both front, prove you're a real US citizen, have a single public account that's not hiding your identity, go ahead and say what you want unrestricted, you're right to free speech applies. Otherwise, it's not clear you're someone who has a right to free speech, and therefore enforcement should be taking place.
Actually, the first amendment applies to the government, not people at all. Most of the bill of rights work that way. They're not things given to people, but things the government is barred from doing. So there's really no legal analysis necessary, the bulk of the bill of rights is pretty easily read and understood by the average person as intended. How can you stand for your rights if you don't know what they are?
Anyway, here's the US 1st amendment:
>Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I strongly recommend every American to at least read the bill of rights. It'll take you 5 minutes. Tangentially, you may notice while doing so that the TSA violates the 4th amendment millions of times a day.
People in the jurisdiction of America. Only citizens or naturalized citizens can vote, but the Bill of Rights has been held to apply to visitors and immigrants too.
There are many various alien statuses, so I would guess it depends, but that's fine, whoever it legally applies too, just you need to prove it applies to you first.
The constitution mostly applies to the US government ("Congress shall make no law" etc).
Also, people speak anonymously in public spaces all the time. I don't have to provide ID to stand on a street corner and shout about politics or Jesus etc...
I like the idea of separating public from private spaces based on charging.
Of course, none of this solves (at least one of the) core issue: if you have moderation, someone has to decide what is moderated, if you don't bad faith actors will lie, troll etc. Either way, real discourse is very difficult to achieve.
> "think if you provide a service that basically creates a free public sphere, " You don't provide any justification for this
My justification is two fold. Number one, I think there's a large amount of people who believe that these new media should be covered by free speech. I think you can disagree, but just the fact that a lot of people think so makes it legitimate in my opinion. The question is, is it reasonable for others who don't think so, and what's the right balance. It's one thing to say people can exercise there right to free speech on these new media platforms, and another to allow them to be abused by various bad actors, or for undemocratic political gain.
My second justification is that these platforms effectively steal public channels of their attention, through subsidization.
In my opinion, if you subvert public spheres by making spheres of discussion that are more enticing, but still free, but obviously you make money from secondary means from it. This in itself is against free speech.
People trying to exercise their free speech shouldn't have the added difficulty of having to compete with your platform to get people's attention and time of day.
My third justification is, we have to go back to what we even mean by the right to free speech.
> the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
Now logically, this implies an assumption that you can assemble and petition somewhere that will reach others and the government.
It would be silly to say, ok, you're allowed to do this, but only in some isolated room that's sound proof by yourself.
What that means is to me, it implies there has to be a way to do it that can reach others and the government, and that's also an implied right.
If people are now online and on some social media platform, and that's realistically the only place to reach others and the government, I think it makes it that that place now becomes the place where this right applies.
Finally, my last justification is on the public/private debate.
Public means:
> done, perceived, or existing in open view
> ordinary people in general; the community
I think even if you're a private space, but you open yourself to the public in that sense, it does make you a public sphere, and so again the right of the ordinary people you've invited now applies.
In the end though, I don't think all of this matters much, like I said, I think just the fact many people are asking for this can be good enough to consider a reasonable way of making it happen. And I think what I described is sensible, will protect the platforms from abuse, the people from having the platform subverted by bad actors or people looking to manipulate or control a narrative for their own interests, but also give an avenue for people to petition for changes in a fair manner.
"In my opinion, if you subvert public spheres by making spheres of discussion that are more enticing, but still free, but obviously you make money from secondary means from it. This in itself is against free speech."
This is an interesting argument. However, if you are conservative especially, where does such specific extras for freedom of speech come from?
This also isn't something that would just come about because of social media. What if it's extremely cold in the street that you are protesting on but there's a walmart nearby, nice and toasty. All the townspeople who aren't are home are inside it.
It's free to go inside and open to the public. Should walmart not be able to restrict what I say inside
"Now logically, this implies an assumption that you can assemble and petition somewhere that will reach others and the government."
I agree, however it doesn't say you have to be able to reach all or even a large percentage of the people, that they have to listen, and the like for the government.
When the first amendment was written if you were to go outside and protest in a public square how many people would hear your speech? As for the government, that's what elections are for. You can also contact your member of congress or send a letter. They ignore you? Don't vote for them.
"It would be silly to say, ok, you're allowed to do this, but only in some isolated room that's sound proof by yourself."
This is an appeal to extremes. Being censored by private companies does not lead to complete isolation of your speech because there are multiple private companies and other ways of expressing yourself.
----------------------------
"If people are now online and on some social media platform, and that's realistically the only place to reach others and the government, "
Why? Whatever method of reaching government prior to social media existing still exist now. Why is it "realistically the only place"?
---------------------------
"Public means:
done, perceived, or existing in open view > ordinary people in general; the community"
This is the definition of the word "public" in the public/private space debate we are talking about "public space" which isn't a word and doesn't have a defitinion in the diction however just a few lines from Wikipedia:
'A public space is a place that is open and accessible to the general public. Roads (including the pavement), public squares, parks, and beaches are typically considered public space.'
What a public space is or isn't is debatable. However what isn't is a private space. A business is a private space. A home is a private. Facebook's servers are private property on private space.
If I have an open house (because I'm selling) and invite the public that doesn't mean people can come in and say whatever they want. This is like a public area of Walmart, it's public per the companies rules not the state.
------------------------------
"I think just the fact many people are asking for this can be good enough to consider a reasonable way of making it happen"
The first amendment to the US condition is:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It doesn't say people or businesses can't make rules regulating free speech. You want to change this there is a process to amend the constitution.
Perhaps a quote from Gov Abbott -
"During my time as a judge, as a justice, and as attorney general, I've had one overarching goal, and that is a strict interpretation and application of the laws and the Constitution.
Assume enough people want the government to regulate certain private online communities like Twitter, so that those spaces can be used for 1st amendment purposes.
This in my opinion is the strongest justification. This is just democracy at play, a large amount of the populace thinks this is important. If you find a way for everyone to agree on regulation, governments can put in place such regulation. It doesn't even have to be about any constitutional rights.
I don't think everyone agrees completely, me as well, I don't want to see these spaces become complete shit-show, full of trolls, bots, duplicate accounts, spam, foreign farm content, etc.
This is where I suggest a compromise, I think what I put forward is a good middle of the road, I think it can please both sides, those who want to be free to say whatever they want can, as long as they do so non-anonymously, and after having been fully verified to be a real legal person, have only a single account, and it's not illegal what they are saying. There might need some rules about the speech needing to be in context and not spammy as well, but that can be ironed out later.
Similarly, this should also limit the platform from the abuse that could come from just arbitrarily allowing everything and force laissez-faire attitude which would come from just say banning all form of moderation.
Now the question is, is there a constitutional issue that would prevent such regulation?
So we're flipping the argument now.
Nothing I can see in the constitution really protects the right of a private platform to not have the government make laws that can regulate how it manages its platform.
So being a private space doesn't really protect them from the people demanding regulation from government and for the government to enforce it on the platform.
That means, if we want, we could regulate these spaces so they can be used as an avenue for 1st amendment like petitioning to the government or redress of grievances, without interference from the platform private owning entity.
It also means, it's probably not currently illegal for these platforms to do so, since like you said, the constitution doesn't really say that everyone has the right to say anything they want about anything to anyone and anywhere. But also, this isn't really an issue, to me, this case isn't about what the constitution says or is interpreted, it's just about what we as people want for ourselves as laws/policies/regulations.
I think this could also be welcomed by the platforms. Currently, the lack of clear rules around moderation often put them in precarious PR scenarios, some amount of agreed on regulation can provide the political stability around their own line of business that could allow them to thrive even more.
>This doesn't apply to people or busineeses making their own rules
It didn't apply to states either. Yet it now does. When something gets large and powerful enough it becomes a government regardless of how you try and spin it.
What about grocery stores? What if they declare that they won't sell you anything because your viewpoint is different from theirs? Surely groceries are not common carriers?
I don’t really understand the law, and I agree that big tech shouldn’t be able to regulate online speech. However one thing that I’m confused is, what about some dangerous stuff like radicalisation which then will produce terrorists or extremist? Other than that, I agree that no one should be censored for any reason
I guess it is a hard topic to define which one is the limit of freedom of “speech”
> However one thing that I’m confused is, what about some dangerous stuff like radicalisation which then will produce terrorists or extremist?
It is questionable whether or not censoring such views actually brings any benefit at all. One counterargument would be that people who are censored actually feel empowered to pursue their ideals more strongly, since it reinforces their belief that there is some conspiracy that they're fighting against. I believe that a similar effect has happened during Covid censorship.
On the other hand, censoring everyone else has many negative consequences on a free society, making it less free. One example would be the skewed image of the public opinion. If you go on Reddit, a majority of all (US) political posts seem to be blues. I'm fairly sure that reds are not a minority in the US (since they managed to win the election 2017), yet their public image is being distorted. And Reddit is big enough to actually influence masses' opinions.
The question is just whether or not the global censorship is a reasonable tradeoff. To me, personally, it doesn't seem so.
I think psychology and history is quite clear that sunlight isn't the best disinfectant. Ideas are like viruses, the more exposure they get the more they spread, irrespective of their truth value. Repetition and social proof directly cause idea contagion.
"negative consequences on a free society, making it less free"
This is an overly myopic and ideological view of freedom, in many respects. It privileges negative freedoms (right to spew hatred) at the expense of positive freedoms (right to not be genocided when hate speech consumes a society). And it ignores that bandwidth is limited, so kicking off crackpots can actually improve the negative freedom of everyone else to communicate.
"It doesn't seem quite clear to me. Would you care to provide some more information on the topic?"
There are a few areas of study that tease this out. The study of social contagion primarily. Studies of memetics. Studies of influence and persuasion that show the impact of social proof and repetition. Cultural histories that look at how fact-free mind viruses (such as nationalism or antisemitism) shaped societies. Studies about the neurological underpinnings of what kind of content people seek out (it's a part of the brain that's involved in pain). Studies into human tribalism and how our beliefs just mimic that of our in group.
"And who exactly should have the authority to decide which ideas are allowed and which are not?"
There's no easy risk free way to draw a line, but at the same time drawing no line poses incredibly large downsides, so I'd say something like Canada's approach where democratically elected people decide is the best.
> I'm fairly sure that reds are not a minority in the US (since they managed to win the election 2017)
The election in 2017 tells us almost nothing about whether reds are a minority in the US, since that year only saw the counting of electoral votes, which it was possible to win with 27% of the popular vote, or 23% in 2012 (assuming we're talking about the presidential vote).[0]
If you mean the presidential (non-binding) popular vote in 2016, then the blues won by 66 million to 63 million.[1] That may not be a big enough difference to explain the bias you think you're seeing on Reddit, but it's worth considering that there was less than 56% turnout in that election, and it's possible that non-voters are over-represented on Reddit (not least because Reddit users may not be old enough to vote).
I think the most reasonable argument against "What about radicalization?" is that we already allow radicalizing content. Both sides of the political spectrum, the lgbt communit, blm, everyone and their dog uses radicalizing content.
>what about some dangerous stuff like radicalisation which then will produce terrorists or extremist?
Is this the millennial version of boomers' "3d shooter games create school shooters"? "Tweets with bad words create terrorists"?
I thought this BS (both versions) has been disproved countless times. But here we are and the nu-conservatives (who call themselves liberals) are at it again.
I feel like I’m not grokking the point you’re trying to make. Twitter can be used to plan crimes. So can iMessage and Tor and gnupg and WhatsApp and IRC.
Can you clarify what you’re proposing is the right path forward?
And Parler let you prepare January 6th. But also let the FBI to know weeks in advance what was planned. And supposedly let them convince some of the most radical people to not participate after all. (I'm still baffled though why the police was so unprepared, it should have been a fort of police shields and water cannons...)
Even assuming that this cliché holds, I wouldn't have expected it to hold at the highest level of police (the ones that should have given the orders to build the "fort").
Sure, corporations have free speech rights in America. But the pressure to ban "bad people" comes from below; organized campaigns pressure Twitter/Facebook et al to ban certain people, and they oblige in order to protect their brand. That's a problem when we live under a "platform oligopoly" where high-profile people banned from one platform get banned everywhere at once. It's strange that people conflate corporations' free, voluntary actions, with corporations being pressured by an intolerant minority[0]. And before you respond with "we shouldn't be tolerant of intolerance", read this thread: https://twitter.com/nntaleb/status/1037273239347703808
I don't get it. Restaurants can choose their customers based on how they behave or even how they are dressed. Why shouldn't online businesses be able to reject some of their customers?
The difference is that you can go to other restaurant, but social medias are so big that if you're not on twitter/facebook you might as well not exist in public view.
Of course that does not apply to smaller forums and I think that if we had laws that force social companies to not censor people they don't like (let's face it, that's exactly what they want to do), it should be limited to anything that's actually big, not random joe shmoe forum about mushrooms.
"Social media companies are censoring people they don't like"
This is ridiculous. No one is banned for their opinions on tax policy. No one is banned for their opinions on abortion. People (including the former POTUS) were removed for inciting violence, for fomenting harassment campaigns, and for racism/transphobia/other forms of bigotry.
People have been suspended or banned for "misinformation" ranging from Covid treatments to perceived irregularities in the 2020 elections. The New York Post was censored by Twitter for its initial report on the Hunter Biden laptop, which was subsequently verified as factual. There are countless other such examples. Heck, a friend was suspended from Facebook for a political posting months ago, and he still hasn't been able to find out why.
I don't want to defend Facebook or any social media platform. I'm sure they are often wrong in who they ban.
But it makes sense to me that spreading misinformation about vaccines is a good reason for getting you banned. Vaccines are a matter of life and death not just for people who get vaccinated or not, but to everybody to whom they can spread the disease. If you tell people not to get vaccinated and they believe you, you put their lives in danger.
Similarly you can be prosecuted for shouting "Fire!" in a crowded theater causing people to panic and die being trampled and crushed. You could then try to argue that "It is just my opinion that I have the freedom of speech to shout 'Fire' anywhere and whenever I want to". But courts are not going to agree with you.
If two or three companies owned 99.9% of the restaurants in the world, then we wouldn't let them reject customers willy-nilly. If we mandated that Facebook and Twitter break up into several federated instances owned by different companies with no entity controlling more than one, like we did with Ma Bell into the Baby Bells, then your argument would apply to them.
It's not about willy-nilly rejecting customers. It's about rejecting customers who are offending or causing harm to other customers or preventing them from enjoying their meal.
You are not being banned because of your "opinions" but because of hate-speech. That means speech that can harm others. At least that should be the case, and the law I think.
That's the thing, it's not. If they specifically said that I'd be banned for having certain opinions different from Zuckerberg, I'd have never complained but they didn't. They are vague, they are disingenuous and I honestly cannot believe so many people are defending them for censoring others.
Politics aside, Facebook bans people for smallest of things. I got banned for 30 days for quoting someone's comment. It's a censorship dystopia that only people with short-sighted vision of the future could support.
Why are we acting as if the 2000s never happened? There was no large-scale censorship (what is now disguised as 'moderation') and the communities flourished independently. Turns out, people like to choose what they want to see.
These days, anything and everything that is slightly uncomfortable to groups is labeled as 'hate-speech'. If nobody can define what 'hate speech' really is and if the definition changes person to person, then you're arguing for the wrong reasons. What you're looking for is tightly-isolated communities with consent, bridging and moderation in their own spaces, not worldwide censorship.
I don't like it when others are disrespectful to me, but I always have a choice of shutting down the discussion and moving on. Online communities that spread dangerous ideas are going to form in their own space, no matter what we do so banning any opinions that do not adhere to certain political views is not only dangerous but also creates a division of 'you vs me' and that thing gets ugly quick. If we know 2 communities clash, we keep them separated, as simple as that and it already happens so no big deal. It's like having a work and family chat group, different purposes, different people, different ideas, 0 clashes.
The problem is you're looking at everything through the lens of offensive content. If you tell me that majority of the banned comments on the social media websites are illegal by constitution, you'd have a point but this isn't a reality. People are banned for the smallest of things, for disagreeing with someone else respectfully, for following certain political ideas.
> If nobody can define what 'hate speech' really is and if the definition changes person to person, then you're arguing for the wrong reasons ...
Hate-speech is like pornography. You know it when you see it. Of course one man's "pornography" can be another man's "erotica". But social media companies have the right to decide what they think is pornography vs. what is "erotica", and what they then share or not with all their customers.
Why are we not complaining that Facebook muzzles the free speech of people who want to spread pornography online?
Hate-speech is similar in concept to pornography but far more dangerous. It directly increases the risk of violence.
Should social-media companies be forbidden from blocking pornography on their site?
No. Hate-speech is illegal, not a "viewpoint we don't agree with".
Your restaurant analogy falls short too. Dress-code is the equivalent of "civility" in discussion, and is a neutral bar that is set. It doesn't favor cotton shirts over linen shirts, which is what censoring a viewpoint would be.
Is hate-speech illegal in USA? What statutes are you thinking of? I thought hate-speech was mostly allowed to exist as "free speech".
The question however is should social media companies not have the right to determine what THEY think is hate-speech, and thus not share it?
If hate-speech is vaguely defined then somebody has to make the decision as to what is or is not it, and whether to spread it online or not. Who better to make that decision than the companies whose business it affects, whether they share hate-speech or don't?
Yeh sorry, I forgot USA doesn't have hate-speech laws. I'm in Australia where hate-speech is technically illegal. To be hate speech, it needs to be a clear attack on someone using derogatory terms that target things like gender or religion.
I don't think there's been many cases here involving hate speech. More likely people will pursue defamation and discrimination laws. Many disagree that to be merely "offended" is not enough to establish a crime. Our hate-speech laws are not universally accepted as good laws.
The problem with social media companies deciding what is hate-speech, is they will get it wrong often. The moderator is human. They might be personally associated with a position or viewpoint in their own lives outside of work. They might decide to delete a post that presents a strong case against whatever position they align with, leading to an offended moderator. An offended moderator may not apply the same fairness in all situations. Too many grey areas.
Moderators often make me angry as well. But I don't know if there is a better solution for preventing bad things from being spread on online forums. I've read that Trump's Truth Social doesn't much moderate their content but maybe they do block the truth, who knows? :-) .
As Frederick Douglass, a former slave and writer, wisely stated, “To suppress free speech is a double wrong. It violates the right of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”
This analogy doesn't work. Social Media is not newspaper, they're a printing machine letting you publish your own newspaper. You can't just register with a newspaper and post opinions for free.
Social Media websites and platforms are acting as common carriers. They provide you an audience, without upfront cost.
If they discriminate against you for an opinion their 'experts' do not like, they should suffer the consequences for it because social media websites, let me publish my own newspaper.
Exactly. People keep ginning up false analogies to justify censorship.
If you create a service deliberately designed so that anyone can sign up and start posting things without so much as an employee approving their registration, then you've deliberately created what amounts to a public square.
To then selectively censor people on such a platform is tantamount to a bait & switch. You promised people a public square, and then revoked that mechanism for people you disagree with.
Social media like twitter and facebook aren't a newspaper. They're not a podcast. They're not a TV show. They're a digital public square. The sooner we collectively admit that, the better.
> If you create a service deliberately designed so that anyone can sign up and start posting things without so much as an employee approving their registration, then you've deliberately created what amounts to a public square.
That makes no sense. You can literally build something identical to a literal physical public square in the real world and still kick people out because it's private property. This is no different than that.
> If you create a service deliberately designed so that anyone can sign up and start posting things without so much as an employee approving their registration, then you've deliberately created what amounts to a public square.
So if I host an open-mic night in my comedy-club, i lose the right to reject applicants?
False analogy. Twitter et al deliberately encourage and sometimes try to force you to create accounts and join their platform. Instagram won't even let you look at stuff without creating an account and logging in.
Is your hypothetical comedy club deliberately and indiscriminately trying to drive people into coming in to increase the number of people inside it? And bragging about how many people are in there?
The analogy of the printing press doesn't work, because the printing press symbolizes a big clunky piece of machinery that a regular user can't build, maintain, run or afford. With the internet it's not like that is it? There are literally thousands of options for a regular user to create their own 'newspaper' without having to pay large sums up front or anything at all.
> There are literally thousands of options for a regular user to create their own 'newspaper' without having to pay large sums up front or anything at all.
That's like saying censorship is not censorship because the banned users can just write their opinions in a text editor.
They literally can write their opinions in a text editor and publish it on the internet for cost of ISP and a PC, and a public internet address.
You can skip the public address part potentially with more complex censorship resistant tech like Freenet.
Even the software is free. Now, the problem with social media is the network effects creating popularity and visibility, which cannot be replicated.
Sure you can ask a newspaper to publish an opinion for free. It's called "letter to the editor". Very old institution.
That said, analogies are just that, and social media are just not common carriers. By their design, they are selective about information they show you, whether by algorithm, your choice or the operator's choice.
Especially since they use user submitted data including social network structure to manage your feed, it's editorializing by design.
A common carrier version would have to make the algorithms public, well described, remove moderation and other more undesirable features that increase income. This is not what these private companies run.
You are reading something very weird into it, but the idea is that if I want to hear what you want to tell me it shouldn't be someone else's decision to prevent us both from doing that.
I can't believe so many people (or bots) here are defending the social media oligopoly.
This isn't forcing a mom and pop store to bake a cake, it's giant corporations that are picking and choosing which users and ideologies in the world can be heard.
We don't let ISPs or mobile carriers do this, why let giant social media platforms do it?
These platforms have government officials and even entire administrations solely using them.
> This isn't forcing a mom and pop store to bake a cake, it's giant corporations
what does it matter how big the company is? Rules should be the same for everybody regardless of how big they are.
> that are picking and choosing which users and ideologies in the world can be heard.
I don't agree with this at all. You act as if twitter is the only platform that allows people to post their opinions. It's not, it never was, and it never will be. If an oppinion is not on twitter doesn't mean that it 'can't be heard in the world'.
The cynist in me suspects that it's just people who are buthurt that bad orange man was banned, and these people rather bitch, moan and throw tantrums until people adjust to them, rather than get of their lazy ass and create their own platform.
Nothing stops this. You can hear what you want to hear.
What's funny is, y'all claim you should be able to hear what you want to hear, but when others don't want to hear it - you scream "cancel culture".
You can't have it both ways. Either grow up and run your own businesses/communities and attract revenue to support them or realize your ideas are bad and can't be sustained. This happens to everyone regardless of their beliefs.
You can't take successful companies and force them to be unsuccessful by embracing communities that fail.
"I disapprove of what you say, and I will fight to the death to stop others from hearing you say it." - pretty sure this is a historic quote made into todays language.
Its a persons right to have an opinion, its your right to not listen to it. Its not your right to stop everyone else from having the opportunity to listen to it.
"I disapprove of what you say, but I will defend to the death your right to say it." - Attributed to Voltaire but actually from SG Tallentyre 1906.
A more accurate quote for todays crowd may be "I disapprove of what you say, and I will fight to the death to stop others from hearing you say it."
That's easy enough, don't read it, turn off your computer, follow the people saying things you want to hear from, etc... Oh you mean you don't want ANYONE to potentially hear those things, so that you might not accidentally come across a position you don't like? Yeah, that's called being fragile, and the sort of people you will empower if you push for that as policy are those who are more than happy to control the flow of information to their own ends / enrichment.
You can equally make the argument that whining about a post removed is also being fragile, just go to a different website, turn off the computer, start your own blog, etc.
The difference now is that corporations have to allow this, and that if you don't want to deal with that content, you essentially have to not start a company because you can't moderate it, so it closes the door to the freedom of running opinionated companies, which is anti-thetical to conservative viewpoints.
Texas is setting itself up to be a huge regulatory counterweight to California.
1. We had the finance ruling related to fossil fuels.
2. We had the abortion ruling.
3. We now have this.
This is going to be a huge shift politically. California, given the size of its economy, has often been a defacto regulatory power across the US. Given California's energy issues and high debt levels, their influence may wane even further.
What I find even more fascinating is that Texas has a heavy libertarian bent coupled with cultural conservatism while California is the opposite. Neither, in my opinion, are bastions for freedom proper.
Regulatory counterweight I think may attribute outsized influence to the regressive state. I can't imagine the abortion ruling is going to have any impact on how California ever conducts itself, e.g. Even in the event of a federal ban California would likely protest and protect women's autonomy.
I find this particularly relevant because in a recent public debate in my state the pro-life proponent actually argued that an abortion ban wasn’t taking any rights away from women since they could just go to California.
I had to scroll way too far for this. You're a hero we don't deserve, but desperately need. One of the most infuriating things about the discussions here is the seemingly never ending supply of people with a passionate opinion on the subject of an article they didn't read because of a pay wall. It's likely due to how certain browsers / clients had the ability to hit the free trial by opening each link as a new session, and how that's not working like it used to, so people take what they can get. Thanks for archiving so people can access the original page and not overload the site because some sites sneak edit their content while others can't handle the amount of traffic HN generates. You're doing work in the name of goodness.
God forbid people have to think about whether the idea being communicated to them on the internet is true, after all, everything on the internet was true before this decision.
I made a comment that a lot of people are opposed to this because these platforms are censoring their political enemies and my comment was flagged/censored. Bravo.
This is all a distraction. This is only a problem because we live in monopoly/oligopoly world. If the platforms weren’t so centralized, this is a non issue.
As a free-speech absolutist, I got no problem with this. Unless the speech is threatening the direct physical harm of someone, or violating a law, it should be allowed.
At the same time, everyone else should have the tools to filter, block, and mute speech they do not like. If a tweet or a social media post has a certain word or phrase in it that I don’t like, I should be able to mute that and never see it.
Social media really has become something of a scourge on society.
So as a free-speech absolutist, would you let anyone walk into a Starbucks and start shouting about anything they wanted? Would it be okay for them to write a manifesto on the chalkboard next to the barista?
Starbucks is a privately owned location and has the right to enforce behavioral standards or kick people out. Social Media is the same. Privately owned and can set their own standards.
The internet has plenty of space for people to post their opinions on their own servers. They are annoyed because if you take away social media, you make it harder for them to get an audience.
Does Starbucks let random people come in and shout about some things, but not other things? Do they let anyone write on their blackboard at all? No. These are not things you can do in a Starbucks, because there are rules and they apply to everyone the same regardless of the content of their message or the thought they are wanting to express: sometimes you don't get to talk to other people in the way you want, and that's fine.
However, if I come to a Starbucks and I start having a conversation about something in a quiet voice similar to what is allowed of any other person at Starbucks--maybe because I am on a date with another guy--I certainly do not believe that the people who run the Starbucks should decide they will refuse to serve me or allow me to talk about our date with each other because they disagree with us being homosexual.
You are correct that the right to freedom of speech is not the same thing as a right to be heard by the people you want to talk at, regardless of whether they want to hear you or not... but that isn't what is in question here: people are being entirely banned from platforms such that even their explicit followers can't access their content, and messages with certain forms of content that are merely being sent between small groups of people are being "moderated" out of existence.
The court and statute in question specifically mention that censorship can happen for a variety of legal reason.
This ruling only denies the right to censor based on viewpoint, something which I believe Starbucks is also bound by. You can throw a customer out for being obnoxious and threatening. But probably not for sitting at a table and calmly discussing the pros and cons of various abortion laws, sharing opinions Starbucks disagree with.
> This ruling only denies the right to censor based on viewpoint, something which I believe Starbucks is also bound by.
In California this might be true, I believe political affiliation is a protected class in California. But political affiliation is not a protected class federally, so it should generally be legal for corporations to discriminate against people on the basis of political belief, as long as they don't do that in a way that could be construed as discriminating on the basis of something that is a protected class, like race.
> So as a free-speech absolutist, would you let anyone walk into a Starbucks and start shouting about anything they wanted?
Starbucks is on private property.
> Would it be okay for them to write a manifesto on the chalkboard next to the barista?
The Starbucks chalkboard is privately owned.
>Social Media is the same. Privately owned and can set their own standards.
No it isn't. Anyone can log into Twitter and Facebook and see tweets and posts. They're public squares that are closely related to a mall rather than a private Starbucks location.
> The internet has plenty of space for people to post their opinions on their own servers.
Up until other big tech companies like CloudFlare decide they don't want to be associated with you and stop offering you ddos protection.
> They are annoyed because if you take away social media, you make it harder for them to get an audience.
Exactly! And that's why Twitter, Facebook, and Google should be treated as public squares. It's not fair that one group can access a public resource that others cannot.
Yup. This is the exact problem that we’re (as a society/world) wrestling with.
The reason it is (not just seems) different is because of the scope. A message on a chalkboard cannot reach millions of people (without the internet), but it can on a website.
That by itself distorts the public/private argument, but we as a society aren’t sure how or to what extent yet.
These lawsuits are the second step (the first step was arguing about it in public) of figuring that out.
So, because any website can potentially reach millions of people, all websites must be considered public spaces and must be coerced to allow all legal speech?
I honestly don't think it distorts the public/private argument, any more than MacDonald's serving billions of customers distorts the question of whether it's a private corporation or whether its scale transforms it into a public service.
But the inevitable endgame of this is going to be the government regulating all speech on the internet, and most of the internet no longer allowing any kind of user content, and I don't think the free speech absolutists so willing to throw the baby of free speech out with the bathwater of consequence are going to like it.
Yes and no, because we’ve seen society wide effects from this over the last 15-20 years.
But all websites? To my knowledge, the only websites people agree on this are Facebook and Twitter. So probably probably not all websites, but that's one of the things that need to be worked out. When does a site reach a scale where it can no longer be treated solely as a private entity? What should happen then? How should we identify those sites? Then what?
There are tons of people who agree with you, tons who don't, and tons in between. But the majority seem to be on the side that things can't stay the way they’ve been. The effects on society over the last 20 years are not good. I haven't seen much disagreement on that. No one can agree on what to do about it though.
McDonald's is an interesting example because there are debates happening there too, but making people fat doesn't have cause the same visceral reaction as interfering with elections.
Which government? This is a global issue. It's going to be a long painful process of screwing up then trying to fix it.
>McDonald's is an interesting example because there are debates happening there too, but making people fat doesn't have cause the same visceral reaction as interfering with elections.
But no one is saying that, because of their scale and cultural influence, they have to be privatized and considered infrastructure.
>Which government?
I mean this is obviously an attempt by the US government to control speech on US web platforms, based on US politics since the election of the last President. The rest of the world seems to have settled the question of whether websites are allowed to moderate content, and it was a settled question in the US until a bit after 2016.
I’m not even saying that. My point was that when a company gets that large it has an undue amount of influence on public/private things and we as a society don’t know how to deal with that. I’m talking about things like banning trans fats from fast food or calories on menus. There are many levers you can pull beside the public/private switch.
Yes this is US specific, but they’re far from the only ones planning to do something about it. I disagree that this is settled anywhere. We’re still trying to understand what’s been happening.
> So, because any website can potentially reach millions of people, all websites must be considered public spaces and must be coerced to allow all legal speech?
Yes. When a few corporations dominate anything, they cannot be considered 'private' entities that can do whatever they want anymore. They are infrastructure, and they have to oblige by the democratic rules and regulations like how any large infrastructure company does.
Free speech is no different. After consolidating a majority of the social space and literally gaining the power to set the public discourse, no company can be let to do whatever they want with that power. That would invalidate any concept of free press. Not that current 'free' press is any different and that it does not need a major regulatory crackdown. But it has to start somewhere, and starting from the companies who literally ousted the traditional press from the helm of public discourse should be a good place to start.
>After consolidating a majority of the social space and literally gaining the power to set the public discourse, no company can be let to do whatever they want with that power.
>Not that current 'free' press is any different and that it does not need a major regulatory crackdown. But it has to start somewhere (...)
And so the mask slips and the agenda reveals itself. This is not about freedom, it's about control, and this is only the beginning. I wonder where it will end?
> This is not about freedom, it's about control, and this is only the beginning. I wonder where it will end?
Yeah, its not about freedom. Who told you that it was. Society exists only because there is a commonly accepted framework for making a society and keeping it. You cant just do anything you want. Try sh*tting on the road in front of your neighbor's house tomorrow. Try doing it naked. Look how freedom is limited.
That you internalized existing rules and restrictions does not make you any more 'free'.
>So, because any website can potentially reach millions of people, all websites must be considered public spaces and must be coerced to allow all legal speech?
The difference is that your site has some small non-zero chance of reaching millions in the future, while Twitter, Facebook etc are reaching millions or billions right now. The law doesn't have to work on your potential to reach millions of views, just like how taxes don't work by assuming you might become a trillionaire overnight.
Could you wake up tomorrow to your social media platform having grown to millions of users, yes. Is it a realistic situation that should roadblock regulation? no.
Your website isn't a public square because you're the one publishing content to it. We're discussing the public platforms that Facebook, Twitter and Google run, and I don't consider those three companies as publishing the content they host.
They are not public platforms, though. Not anymore public than a Starbucks. Just because "the public" can walk through a store's unlocked doors doesn't make the place public property. Same with social media. Just because "the public" can log into the platform's system doesn't make the place public.
Social media does, in my view, publish the content they host. It's not like the telephone, where you establish a direct connection to your audience and the mediator gets out of the way. When you post something to social media, there are three separate steps that happen:
1. You send the content to the SM company.
2. The SM company does some kind of processing on the content.
3. The SM company publishes that content (or not) somewhere on their site.
These things happen pretty much instantaneously, but they are still happening. Posting to Social Media is more like writing a Letter to the Editor of the newspaper. They receive the letter, decide whether to include it in the paper, then include it in the paper.
I’m personally not a fan of 230. I think if you exercise editorial control over the content of your site (and most web sites do) then you should be considered the publisher and endorser of that content. Can’t stomach that responsibility? Then don’t publish user-generated content.
>We're discussing the public platforms that Facebook, Twitter and Google run, and I don't consider those three companies as publishing the content they host.
Don't you consider it publishing when they express editorial control over what topics are allowed on their platform, without transparency or accountability of what the forbidden topics are at any given point of time? They also modify the user generated content and add labels and "fact checks" which are prominently displayed.
Every starbucks is a different place. If there was a single building 50 million people freely walked into every day, I'd say that should be considered a public place.
> Anyone can log into Twitter and Facebook and see tweets and posts. They're public squares that are closely related to a mall rather than a private Starbucks location.
Okay, so the mall is a better analogy. But it still doesn't mean I can do anything I want at a mall. If I run in there and start shouting slogans at passers-by, I am going to be removed by mall security "for my viewpoint" because it's bad for business. And no, there isn't a list at the mall saying precisely what kinds of crazy behavior you're not allowed to bring in.
It's hard for me to see how Twitter isn't the same.
> No it isn't. Anyone can log into Twitter and Facebook and see tweets and posts. They're public squares that are closely related to a mall rather than a private Starbucks location.
Fine. Nationalize them, remove all advertising, open up all the source code and infrastructure, and let open cyberwarfare commence.
Yet Facebook and Twitter literally base their business model on sorting out what you get to read. These companies manipulate access to speech when their algorithms decide what you like — and yes, this includes ads.
Why does it have to be either or? By your logic, we can bring back Kiwifarms, 8chan, and Stormfront. They are privately owned and have the right NOT "to enforce behavioral standards," but I think you're being disingenuous.
As someone who opposes free speech, would you be ok with Facebook allowing you to mute speech you do not like? The argument against "free speech absolutism" has more to do with one person wanting to exert power to silence another, and they are depending on social media to do that.
You can ban speech based on non-content criteria such as the volume of sound, but when you ban speech based on the content, it is a violation of the principle of free speech.
Whether private companies should not be able to discriminate speech based on content is still up to debate, but don’t compare this to shouting.
> when you ban speech based on the content, it is a violation of the principle of free speech
This is the sealion's argument, that you have to be willing to engage with them at all times in all contexts. It implicitly denies freedom of association. For example, if I am running doomermetalchats.com do I have to tolerate K-pop fanatics with their relentless positivity and sunny optimism?
Run a decentralized system akin to a modernized mailing list with a nice UI, where every person accessing the list gets to pick how their view of the list is filtered, choosing from competing filters or creating their own. Filters could be machine-based, competing human-moderator based, whatever.
The doomers and the stans can be talking right alongside each other and never see each other; effectively, the doomer 'site' only exists virtually, as a mutually visible consensus among a subset of the network.
This has been tried repeatedly, and it turns out nobody likes it. People either self-segregate into echo chambers following very simple patterns of assortativity, or complain about being 'shadowbanned' if they can't reach the audience they want to.
There are a few different motivations for social communication, both cooperative and antagonistic. People often want to be able to communicate freely with their peers and exclude non-members of their peer group (socially, algorithmically, or by fiat), but sometimes also to be able to push into and perhaps take over network territory of rival groups or that they consider should be common.
poor examples. a disruptive patron on private physical property can be removed on numerous other grounds such as trespassing, just as damaging private property has its own legal stipulations.
as it is now, virtual private property doesn't have parity with laws governing physical private property.
As a free-speech absolutist, the basic problem you should have with this is that as precedent, it would lead right into the legislature being able to force the press to publish certain things because not doing so would be 'censorship'.
In the hypothetical world, where press is a natural monopoly, we would be far less likely to allow the press to refuse to publish viewpoints they don't like. Or we would outright nationalize the press and lead to a different sort of problem.
I think this is a case where "free speech absolutism" is not perfectly aligned with "first amendment absolutism", but either is a logically consistent framework.
I've been wondering about a technical solution to this problem for a while now. It seems like a properly distributed social media network would still need moderation... but who is to say everyone has to use the same moderators? What if we distributed the task of content moderation and allowed users to subscribe to a moderation team the same way they subscribe to a friend's updates? In this way, users could tune their own bubble rather than being strictly required to adhere to a centralized set of guidelines.
I believe you are describing federated networks such as mastodon [1] and matrix [2] Individual servers/clusters can be moderated by their operators. I've not run either of those, but I have run IRC servers that can work in a similar model.
"When you vote in favour of a person, you are making that person a moderator for yourself, regardless of whether they win the vote or not.
In other words, you cannot vote yes for that person in public, and have them disabled as a mod in private. Your vote for a person is you making that person a mod for you. The reverse also applies, if you disable a person from being a mod, that is an impeachment vote.
Election makes it so that the people who come into a community, who have not chosen or disabled that particular mod by themselves, will use the mod list shaped by the elections. If a user has explicitly chosen a particular person to be a mod in that community, that takes precedence. Likewise, if a user has disabled a mod, that person will never be a mod for that user, regardless of the results.
If a mod you voted against (a mod you disabled / impeached / voted against) takes a mod action, that is ignored by your client, and has no effect. If a mod that you have taken no action on takes a mod action, it is accepted, but only so long as there is no action in reverse from a mod that you have explicitly voted for. If you don’t like actions of a mod you haven’t voted for is bothering you, you can easily disable that mod, and render them ineffectual."
Publish all content to blockchain and let the users create their own interfaces as they choose. But first make all content equally and indisputably available?
I'm unclear that this isn't a self referential attempt to redefine the centre rather than a genuinely held view.
> threatening the direct physical harm of someone, or violating a law
The laws already prevent the first by the way, it's called true threat
> At the same time, everyone else should have the tools to filter, block, and mute speech they do not like. If a tweet or a social media post has a certain word or phrase in it that I don’t like, I should be able to mute that and never see it.
Should a coffee shop owner be forced to hear words they don't like? Should the New York Times owner be forced to publish opinions they don't like? Why is Facebook's owner and employees different to a coffee shop owner?
> Should the New York Times owner be forced to publish opinions they don't like?
Yes, if they or their majority shareholders dominate a noticeable part of the press. Otherwise you end up how things are - a minority of the rich consolidating the press, setting the public agenda as they want to.
> Should a coffee shop owner be forced to hear words they don't like?
How does forcing Twitter to allow Donald Trump to post translate to forcing you to hear words you don't like? You're free to block him and not read anything he posts.
> Should the New York Times owner be forced to publish opinions they don't like?
No, NYT is a publisher and has always had full control over what they publish.
> Why is Facebook's owner and employees different to a coffee shop owner?
Because Facebook's owner decided to offer a platform that anyone can sign up to for free which allows them to share their content with friends and the world. Starbucks sells coffee.
Controlling what content is rendered on a site is speech itself. Government making rules infringes on my right what my software can and can’t display. It would be like the government telling Wikipedia can’t edit their articles.
No, it means that Wikipedia admins can't ban someone's account just because they disagree with that person's opinions. Wikipedia articles aren't supposed to contain (their user's) opinions anyway, so the admins should have no reason to base a moderation decision on such a criterion.
No, because the topic at hand literally includes Nazis. The speech being censored, which is being discussed, includes Nazis and the like being free to spout their shit on Twitter/Facebook or not.
(And they should not, I don't know how that's even a debate)
This isn’t a legal requirement to host spam, illegal, hateful or any other content. It says that if your site has more than 50 million visitors AND if you allow red team content, you must also allow blue team content
Each judge wrote their own opinion. You can see the first two judges are in agreement, the last writes, “ I concur with the judgment in Part IV of the majority’s opinion. I respectfully dissent from the remainder.” So they were 2-1, except for part IV, where they were 3-0. (I am confused about this part as I’ve read each section IV several times and it seems like they disagree here, one side arguing that the platforms are, and they other that they are not, entitled to pre enforcement relief. But IANAL.)
Transparently, part of the intent here is to expand protection for those who incite political violence in the USA. Among other things, increased political violence in the US will enable foreign states to more effectively intimidate US politicians and voters.
"Some conservatives have labeled the social media companies' practices abusive, pointing to Twitter's permanent suspension of Trump from the platform shortly after the Jan. 6, 2021, attack on the U.S. Capitol by a mob of his supporters. Twitter had cited "the risk of further incitement of violence" as a reason."
If you don't like this logic, there are two ways to proceed: (1) Downvote this message, or (2) consider expressing your concern to the politicians and pundits who have publicly supported exactly this logic.
Not related to the Texas law, but the RNC has already filed FEC complaints accusing the GMail spam filter of censorship. So I imagine a creative Texas lawyer will probably try to make the case you're describing.
I would think that users could be allowed to choose to have a spam filter on their own account--in the same way that I can choose to screen calls on my telephone service--but, if Google unilaterally decides that I am not allowed to receive the call even if I am interested (giving me no way to opt out of their spam filter or allow people I consider not spam), then that could be a problem.
I don't understand your point or what you are responding to :(. The issue at hand is whether the concept of a spam filter violates the position of these laws, and I do not think it does as long as the spam filter is not a universal configuration that is forced on everyone. As long as you can either deactivate the spam filter entirely or whitelist specific senders (though I can make more elaborate arguments where this isn't quite sufficient due to bias) / specific content (which should be sufficient), then I believe that Google's spam filter is not the same thing as "moderation" which deletes or blocks the content for everyone, whether they wanted to see it or not.
In which case I am saying that that seems dangerous for them to be doing under this law, but that the concept of a spam filter isn't fundamentally broken and so people--such as the person I am responding to--who seem concerned that they won't be able to filter spam going forward are off-base, as I would think the spam filter need only be configurable (and, certainly, it would not prevent a third-party spam filter from existing).
The language in the law says that email providers cannot do something "impeding the transmission of email messages based on content." So, they can probably give you tools to allow/deny emails from addresses you can enter, at least. Given that spam filters blocking fundraising emails from conservative groups is already something discussed among conservatives, it seems at least plausible that making spam filters illegal was actually intended here. I guess we'll find out as soon as someone sues (or the supreme court throws it out).
Surprisingly, I see no mention of DMCA in the comments here, even though the same company are actually mandated by DMCA to effectively regulate content. (And yes, the right or not to share cultural content freely on the internet is a political topic…)
I think the actual Texas law states that after your a certain size you’re considered the commons and then yes, you cannot ban people based on beliefs. That doesn’t mean you have to promote them, so you can probably create a “only see if you follow this person” or something.
People often want free speech when it favors their side, and they will likewise rationalize against free speech when it doesn't. We should be able to talk and think about laws outside the very specific political context of the day, but Reuters cannot help but remind the reader that free speech online may enable 'violence' and that this ruling is a win for all sorts of people associated with Republicans and Donald Trump - as if to say you are somehow associated with such viewpoints because you have libertarian views on what thoughts people are allowed to be exposed to. It reads very biased.
Free speech online in this context cuts both ways. People are allowed to espouse views online that may lead to "violence", and the people that work and pay to keep online platforms running are allowed to scrub words they don't like from the platform they own. It's absurd that they could be compelled to display the dumb shit some people say.
> A U.S. appeals court on Friday upheld a Texas law that bars large social media companies from banning or censoring users based on "viewpoint," a setback for technology industry groups that say the measure would turn platforms into bastions of dangerous content
There are many reasons why those companies censor content and they usually have nothing to do with "viewpoints". If some partner demands I shut some content down, should I be forced to refuse and ruin that partnership? Let's not forget that public facing sections of social networks are just fronts for huge B2B operations.
I want smaller, tighter knit, and moderated communites.
Why do we care about outcome anyway? The outcome of section 230 was arbitrary moderation, consolidation, and surveillance capitalism. It is unnatural for an entity to not be liable for what they publish.
The paper boy isnt knowingly distributing, say, child porn magazine. If he were, the. he'd be an accessory. Big Tech does knowingly transport illegal things.
If the paper that the paper boy distributing has the occasional libel, then the paper boy is not liable because he cannot have a criminal state of mind for something he doesn't know is in contained within his cargo.
Finally, the paper boy is a boy, that is a child. Depending on the age he is not criminally liable no matter what he's carrying. Big Tech are not "niños de pecho", suckling bebes. They are large corporate monopolies with immense power, money, political influence and top lawyers
Finally, my solution is to de-centralize everything.
No, repealing Section 230 means every site with user generated content is publishing the information, just like a newspaper or TV channel, which get successfully sued all the time.
In fact, Section 230 was passed explicitly because of successful lawsuits against forums and websites hosting user generated content.
> The court held that although CompuServe did host defamatory content on its forums, CompuServe was merely a distributor, rather than a publisher, of the content. As a distributor, CompuServe could only be held liable for defamation if it knew, or had reason to know, of the defamatory nature of the content.[2] As CompuServe had made no effort to review the large volume of content on its forums, it could not be held liable for the defamatory content.
I've read that if you moderate you are acting as an editor even if the content is user generated and that means you are a publisher. Publishers are liable for what they publish.
Section 230 basically erased the distinction between publisher and distributor.
When Section 230 goes every forum and smaller community becomes the legal wild west, open to being sued by any jackass claiming libel and to drag site owners into a years long legal battle.
Hacker News avoids political discussion, would this mean a site like hacker news(assuming it’s big enough) couldn’t moderate heated political discussion as off topic?
Im curious how this would apply to Reddit, will there just be constant brigading of the political forums?
Ironically as others have pointed out this will probably have a severe chilling effect on speech.
But isn’t disallowing political content discrimination once the post is flagged and deleted? I guess what happens if we allow discussions of SOPA but not bit a gay marriage bill, again it may be relatively easily grockable to an HN user, but a court? What if HN had to go to court every time they flagged a political post.
Because section 230 says content posted to online services is not the services speech - first ammendment cannot apply. Therefore what is and isn't allowed to be posted can be regulated. Same idea as what the FCC did for media. States and feds have the power, the problem is what we do with it.
If tech doesn't like it, blacklist states. There's going to be chaos one way or another. This is a very long time coming.
To the free speech absolutists here: would you not consider HN a "public square"?
Would you care to engage in some of that speech that you feel is suppressed elsewhere? Would you be surprised if you were admonished and ultimately "censored"?
>In May, the 11th Circuit, based in Atlanta, found that most of a similar Florida law violates the companies' free speech rights and cannot be enforced
Why should a _company_ have free speech guaranteed by the constitution? It's a company - not a person.
Depends on the state involved. I’m sure that would be perfectly fine in Austria, or other countries with nominal free speech rights like Germany. In the US the First Amendment is generally interpreted maximally.
1) Is there anything stopping them from simply blocking all of Texas from visiting their sites? Keeps them from violating both texas law as well as federal law
2) Does this translate to any business operating in the state of Texas or is it simply online companies?
That's a good goal for sure. The problem is that a private company gets to decide what is fact and what isn't. To me that is a 100 times worse than the problem they are trying to prevent.
> "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say," Judge Andrew Oldham, an appointee of former President Donald Trump, wrote in the ruling.
I don't really understand this; from my perspective, it sounds like this judge doesn't really understand the first amendment (hopefully this is not the case, and the quote is taken out of context). Corporations are not bound by the restrictions laid out in the first amendment; only the government is. And it seems like this Texas law is an infringement upon the corporation's free speech rights.
> The Texas law forbids social media companies with at least 50 million monthly active users from acting to "censor" users based on "viewpoint"
What does "viewpoint" mean? I assume it's written that way to be vague and enforceable whenever the state feels like it. Is it a "viewpoint" to spread false information? Is it a "viewpoint" to spam?
I do agree that social media companies need some sort of regulation, as they have (unfortunately) become the only place where some groups of people communicate and get their news and information. But this does not seem like the right call, or the right law.
Also, this is a Texas law; if Facebook closed down all of their offices in Texas, presumably they could just ignore it, as then Texas wouldn't have jurisdiction over them?
A trending example might be the viewpoint that British colonisation was an act of "settlement" vs "invasion". On one hand it can be argued that life improved for indigenous populations with the arrival of technology. On the other hand it can be argued those populations suffered and are owed compensation.
Choosing one or the other core viewpoint can lead to polarizing branches, such as celebrating the Queen's death with hateful tweets vs acknowledging the Queen's death with respectful mourning.
Both viewpoints can draw on valid arguments and data. Banning one of those viewpoints is not a good plan. It would be unhealthy for any society to ban a viewpoint because it conflicts with political agendas or the views of the owners of the platform.
>Also, this is a Texas law; if Facebook closed down all of their offices in Texas, presumably they could just ignore it, as then Texas wouldn't have jurisdiction over them?
AFAIK the law specifically forbids that kind of move, somehow ¯\_(ツ)_/¯
Presumably Texas can represent themselves as long as anyone within TX was using a service by a company violating the law. Now, if FB banned anyone with a geoip resolving to Texas, that'd be quite the firepower to claim that TX has no jurisdiction.
However, congress' ability to regulate interstate commerce might change this to something TX can rule on but can't enforce.
It is most certainly the judicial consensus. You might argue that it's not a social consensus, but that doesn't magically override existing constitutional protections. Much the same as social consensus on guns doesn't override the Second Amendment.
I wonder who will draw the line between right wing hate speech and islamic terrorist propaganda, for example. You have to draw the line somewhere, who's going to draw it? Who is going to enforce it? The current system is arguably not great but I fear that its replacement will be worse.
Seems like this is gonna get overruled, but who knows with this supreme court nowadays. Aside from that issue, I'd like to discuss why social media always seems so impotent in their response to misinformation. Seems Youtube, Facebook, etc, are all letting people post misinformation, it gains traction through whatever means and is shared to millions of people. Then after the damage is done they swoop in and block it after the damage has been done.
I think they could instead limit the possible exposure by building tiers/gates a post has to move through to truly go to a mass audience. First it would start with a mass audience of 10^1, mostly direct connections. If no keywords were triggered for misinformation, and none of the eyeballs on that post marked it as misinformation or offensive, then send it to 10^2 people outside their immediate social circle. Repeat until it hits 10^4, 10^5 or whatever and then it hits a tier of truly mass audience. Perhaps here it requires a real review by a moderator if it has keyword matches or isn't from a trusted source. Then it is let out to reach everyone because its just a kitty cat video, or about the best way to stain a table, or all the community content we actually want.
This approach is closer to an A/B test for a social post. If it is posted and highly offensive within a small group of close connections, then it never ripples out of those echo chambers. Again it's about uniqueness of the post, so grandma can click reshare or whatever, when she looks at her history she see's it in her timeline, but it's never massively put on others feed until its gone through above.
Ironically, the social platform killing it right now works somewhat close to this in terms of showing you others posts. My feed shows me a lot of big posters, but like 10% of the time I am reached by people i've never viewed, with a post with like 5-10 views. Then they measure engagement (how long did you watch, did you like, etc), before they decide to push it to more people. (My summary of their algorithm, not theirs). I'm advocating for similar but to gate for offensive/misinformation. Seems like it would work like a sieve where good/unoffensive content would rise to the top "in general" and the bad stuff would stay with a small amount of eyeballs.
What damage though ? Let's consider Covid and The Capitol riot.. In both cases, a$$-hat-ery by the vocal, idiotic minorities, whether it be meeting up to 'storm' the capitol only to get arrested after you realize inside the capitol that 'oh sh*t this doesn't do anything...' or after you die from Covid because you thought the vaccine had chips in it .. What damage is done in those cases ?
Ok we lost 1 police officer in DC due to some very controversial-linking to the riot itself (he had like a heart attack). And thousands of people die from not being vaccinated, but the majority of us do not..
I'm just having trouble seeing at least from these two 'disinformation' scenarios.. how damage is really being done to the rest of us, and I know the Covid one will be the far-greater point of contention with the argument not being vaccinated or convincing others to not be is dangerous to you/me .. I get that will be more of an argument..
But I'm just not able to see the 'damage' that really warrants so EASILY going down the path of censorship
What you have described is nothing short of a horror dystopian hell scape. My God, listen to your self man!
> If no keywords were triggered for misinformation, and none of the eyeballs on that post marked it as misinformation or offensive
Keywords? Who decides the keywords? What are you going to do when normal words get a coded meaning. Remember “milk” and the “ok” sign. 4chan is going to have a field day with this! What about the ((( echos ))). You gonna write a regex for potential use of non letter characters?
Marked as misinformation. What, you’re going to ask the ministry of truth for input? Do you think this will achieve anything except build an echo chamber and increase division? The same for offensive. What’s going to happen when all posts by trans people are marked as offensive? Or that doesn’t count cause you’re ok with it. Should we establish a Ministry of Morality, perhaps with a morality police like the saudis to tell us what’s offensive and what’s not?
Everything you wrote is, I don’t even know how to call it. It’s evil. It’s evil, that’s what it is. You have though up an evil system whose only outcome will be oppression, division and resentment.
What's funny is that none of the big tech firms would need to change their policies or behaviors, should this actually become the law of the land, as there are currently no policies that prohibit political speech from any of their platforms.
"proactive"... how? By making rulings that you agree with? Is it fair to say that your opinion on this matter boils down to "companies should ignore the courts if it's a ruling I don't like"?
I'm not claiming that the objections are of equal merit, but a moral/legal system is clearly not going to work on a societal level if it's just going to be "it's fine to disregard the legal system if you think there's a good reason for it".
A moral system that doesn't allow one to break the law for any reason, no matter how good the reason is, can hardly be called a moral system at all. Obedience to the state is not a functional moral code.
>Obedience to the state is not a functional moral code.
What's your bar for "functional moral code"? More importantly, what makes you think the alternative (ie. "it's okay to break laws if you think there's a Really Good Reason for it") is functional?
By shortening enforcement timelines. In the current system, it would take years for someone to bring a case before a court and even more years before the company would pay any fines.
Courts and the government in general should be more proactive by shortening execution timelines. Shorten the time it takes to go from "Maybe tech companies shouldn't censor people" to "We're arresting Mark Zuckerberg today and he's going to jail next week" from a decade to something resembling weeks.
I'm tired of slowness. I want events to happen quickly.
Tech companies can do whatever they want but it won't help them from becoming the scapegoat when the bubble bursts.
If they followed your advice, they would make the pending anti-trust lawsuit far easier for the prosecutor. ( Yes, a major anti-trust action is under works is what I'm hearing but first they will come for the crypto companies/exchanges who are officially allowing buy/sell of unregistered securities post-Ethereum merge)
The problem is that there is no common ground what should be censored and not.
The power of selecting the subjects for censoring gives more power to companies which they should not have.
Or someone can pay for them to censor some specific topics..
Or they can censor some specific topics to appeal some political decisions which touches only one party.
Seeing as the tech companies have no interest in censoring based on "viewpoint" I don't see what difference this makes. Their entire existence relies on being the single point where everyone goes.
No Republicans have ever been removed solely for being Republican. People are removed for promoting violence and harassing other users.
The fact that Republicans consider violence to be a "viewpoint", and their viewpoint rather than that of a few extremists who use their name -- that worries me. A lot.
Please don't take HN threads into political flamewar. Even by the (low) standard of the current thread, your comments here are standing out in a flamey way. It's not what this site is for, and it destroys what it is for.
I apologize. I was expressing my opinion on politics that seemed inherent in the article itself, but I certainly should not have replied in a hot-take way to an offensive reply, and I should have bowed out before I started.
I don't visit a single website that tries to serve me political content dynamically - no Facebook, no Twitter. Except YouTube, but I don't watch anything political there, and the algorithm seems to know it. I don't read the "MSM" news outlets, as they're called. But I observe the same trend the parent describes - in forums, in apparently objective news stories, in the previous US president, and in real life. I'm not saying this as a political cudgel. This personality "flaw" is common across the world and is just one of many on all sides, and it's not a surprise that people with any given personality commonality will bias to one side in any given two-party system, and in the US, this one appears to bias toward the Republican party. It's hard to talk about objectively and not invoke anger, which is reasonable. It is worrying, but there's rarely a time in polite conversation when it is relevant enough to bother pointing out. Content moderation is one of those times, I think. There's plenty of unfair moderation out there, but a lot of what people call a bias against the right in the US seems to usually just be a bias in the tendency of what they say to break seemingly reasonable content/behavior rules.
that's not so easy... there are some national bubbles which the internet used to be good as igonring, but not once it became the mainstream internet.
now the national barriers exist online too, in addition to the pre-existing language barriers. i.e. the information technology has been deployed as an extra tool to apply national-linguistic barriers between peoples.
Maybe there should just be a way to for people to opt in to censorship in their feeds. For example, one could click on a "no racism checkbox" in order to have racist content removed from their feeds. This way, platforms would be responsible for detection instead of curation. It seems like it would be better for the platforms as well.
You could always un-click all filters and get all views (including bots, etc). If the censorship selections are filtering more or less than what you want, it could be flagged to help train the algorithms.
The alternative is having the government decide whether or not a private company can block a particular person for a particular reason.
Everyone is generally ok with companies blocking content that is irrelevant/off-topic, but there is a very, very large gray area. Do you want the government deciding what is acceptable?
> Do you want the government deciding what is acceptable?
Yes. Entire world except the US does. People elect parliaments, who make laws according to their voters' agendas. Then the laws are enforced. What's acceptable and what's not acceptable are decided in the same manner. Like how going out naked in any city in the civilized world constitutes an offense unless you have a mental disorder.
You already obey with a zillion of things in which 'the government' decides to be acceptable or not acceptable.
I mean, sure. But there’s a reason this stuff was invented in the US and not elsewhere.
I want everyone to think about how increasing the difficulty in moderation will affect all your favorite forums/platforms, including HN.
And if you think these laws can be written so they easily apply only to “the big ones”, or that it will stop there, you are being naive. Government will always take a mile if you give them an inch.
> But there’s a reason this stuff was invented in the US and not elsewhere.
And that reason is the immense amounts of liquidity that both the US Federal Reserve and the private banks who are allowed to do fractional reserve lending, pump into the US economy. Thanks to the US dollar not losing value when that happens because it is (or was) used as the exclusive reserve currency due to the Gulf countries exclusively selling their oil for dollars until recently.
When you have THAT much free money, its impossible to not invest and innovate. And now that the reserve currency status of the US is challenged and some of the dollars that were used to buy stuff in the international trade is flowing back to the US and causing inflation, we are seeing how the investment landscape totally changed. With SV firms trying to reach profitability, doing layoffs, Twitter and Facebook being questioned as to the profitability etc.
This is before the fact that there is immense innovation elsewhere but you just are not aware of that since the US media need to sell US stocks. Therefore they drum the US businesses up. All of them talk about Elon Musk or whatever hot investment unicorn is coming up incessantly instead of what anyone in any other tech ecosystem is doing.
“the people” don’t elect anyone on the national level. If they did, Montana wouldn’t have the same number of Senators as California and the person who was elected President in 2016 would be the person who won the popular vote
The way it works absolutely everywhere else in the US is you hire a lawyer and sue the shit of them, but since they are immune from that alternative are worthy of consideration.
This is either dishonest or naive. Federal law enforcement "advice" always comes with a hidden message of "Nice company you've got there. It would be a shame if something were to happen to it."
Have you seen the typical social media censorship (bans, deletions, shadowbans... no explanations... secret forbidden words lists...) and appeals process lately? It makes 1984 look like a church camp.
At least the government has checks and balances. And a working appeals process. And is, ostensibly, democratically determined.
I'm very glad that there are people in the higher ups that are willing to uphold the constitution. I still have cynicism but its good to know that there is a ceiling.
Don't want to alarm any of you but what I'm hearing through the grapevines is that anti-trust lawsuit against the big T companies are coming and they will be the scapegoat once the nasdaq craters (extreme amount of puts purchased by people who are suspected to have advanced insider information).
People should be free to speak their mind. Bigots, supremacists, terrorists, racists people should be able to speak freely. It’s not as if these people don’t exist. Keeping their anger pent up is bad, and can lead to insurrection. I know foxnews and even youtube let them speak freely in the comments section. Twitter should just follow the same model.
At some point it's going to be too hard and too negative to be an online 'speech' company. If anything big enough to have to deal with this were to disappear (bankrupt, pivot to other business, shrink to a smaller niche, or just disband), that would be nice and quiet for everyone. At least there is no law requiring a business to continue to exist just so a screaming cesspool that depends on it can also exist.
On the one hand this clearly violates the 1st amendment. On the other hand, the 1st amendment is already out the window when the FBI is leaning on social media platforms to censor news stories that turn out to be true.
> when the FBI is leaning on social media platforms to censor news stories that turn out to be true
I’m impressed with Mark Zuckerberg… everyone was mad at him for blocking that story, yet with a single vague implication that people stretched into something very different, he managed to deflect all of the anger onto the FBI. Very smooth.
Good. This is especially welcome news in the context of the unprecedented attack on kiwi farms.
As I said in a different thread, we have laws preventing businesses from discriminating. We do not allow shops to put up “no blacks here” signs. Why do we allow infrastructure providers from doing essentially the same thing?
Censorship, of any kind from anyone, government or corporation is an abomination that must be stamped out. We cannot have a civilised society as long as censorship is accepted.
By your...train of thought. "Censorship of any kind" means that rejecting those leagues of boner pills and overseas wives ready to marry you is rejection of their right to speak freely to you
You can’t be serious. Are you serious? Spam is not censored. You have access to it. You click on the spam folder and you can read the spam email in all it’s glory!
And before you even mention auto deletion, you can disable that. I think that should be opt in not opt out but, yeah, spam in not being censored.
We have different definitions of censorship. To me that is not censorship.
Censorship is making information functionality unavailable or altering it. Delete it or deliberately make it very hard to access or change it’s contents.
If you click a button or even add a message ( apart from the content ) that is not censorship. That’s why for example I don’t consider it censorship when youtube added covid messages to certain videos.
No you just loosened the definition of censorship to fit your terrible analogy, then you insulted the GP accusing them of doing mental gymnastics. You're projecting.
But since you do want to stick to the spam filter in your email box analogy I would like to propose a solution.
Would you prefer users be able to manage block lists, filters, and such themselves instead of content being removed for all users?
Do you really prefer this large social media oligopoly to have have final say in what the masses should see? Why not let the users manage what they see?
Do you feel the same way about all subjects? Do you support the right of ISPs blocking porn for example?
This wouldn’t be my first choice of examples. Unmoderated swatting forums (as I understand that it was) goes beyond free speech. The first amendment does not protect death threats.
You understand wrong what kiwi farms is. The moderation there is far better to facebook for example. Not in small reason due to the fact they don’t censor. They comply with the law. Unlawful content is pulled down immediately, lawful content stays up. Cloudflare lied to you when they said “human life is in immediate danger”.
In matters like this, it’s best to actually look at how both sides present the issue.
Swatting is illegal. If Kiwi Farms or its members are implicated in illegal activities then it should be handled through the legal system where due process is respected.
It is weird that there is no country that allows such freedoms in the world. There is clearly a gap in regulation and constitutions when it comes to the internet because they could have never imagined it 400 years ago. But this needs to be settled in the positive direction and in an egalitarian way: speech that is legal should be free everywhere. and that's the basis upon which every tech business should be built . The fact that they were able to get away with censoring the public for so many years was the aberration.
I wonder what s the role of advertisers here, since they effectively demonetize platforms that are not strictly censoring (e.g. reddit)
Yes! This is precisely what should be the standard. Everything that is not explicitly illegal is legal and protected. No corporation should prohibit legal things.
You can't even post facts in /r/conservative without being banned.
Reddit also has a Terms of Service and it has banned hate groups under such terms of service. With a large bias towards far right hate groups because there really is no existence of far left hate groups.
So of course moderation seems biased when your views are hateful to begin with.
Advertisers generally want nothing to do with advertising on low quality networks unless those advertisers are targeting people because they profit from their misery.
> Moderators get rewarded with the rush of 'power'
Powermods have been detrimental to Reddit's health. There are some great communities with unpaid moderators who care about and foster their subreddits, but most of the prominent moderators don't care about their subreddits beyond the 'power'.
Reddit doesnt seem to care (hey it's free work , right?). There s literally nothing that users can do against bad moderation in grandfathered subreddits. It s really terrible that the same people "moderate" subreddits for 10+ years, while their audience has changed so much.
>Reddit also has a Terms of Service and it has banned hate groups under such terms of service.
>So of course moderation seems biased when your views are hateful to begin with.
It doesn't seem biased, it is biased. Reddit's policy on "hate groups" is both sexist and racist, according to one of their employees, and their actual practices.
"Our rule1 protects groups that are attacked based on a vulnerability, which doesn't pertain to white people or men as a group." Screenshot: https://i.imgur.com/NgOxEg0.png
What is rule 1?
"Remember the human. Reddit is a place for creating community and belonging, not for attacking marginalized or vulnerable groups of people. Everyone has a right to use Reddit free of harassment, bullying, and threats of violence. Communities and users that incite violence or that promote hate based on identity or vulnerability will be banned." (https://www.redditinc.com/policies/content-policy)
So in practice, the policy is actually:
"Remember the non-white male human. Reddit is a place for creating community and belonging, not for attacking non-white people or women. Everyone except white people and men have a right to use Reddit free of harassment, bullying, and threats of violence. Communities and users that incite violence or that promote hate against non-white people or women will be banned."
These days I automatically assume that anything reddit bans as a "hate group" was nothing of the sort. Hate groups are perfectly allowed on reddit, if you hate the correct people. Here's a sample of currently active ones:
There are a bunch of fragile$GROUP subs that redirect to FragileWhiteRedditor or FragileMaleRedditor too, here's a fun example: https://old.reddit.com/r/fragileblackpeople/ The sole post says "Nope. Nice try /r/FragileWhiteRedditor." These subs all make it really obvious that the real policy is not the one in the official policy, but the one that exempts men and white people as a group from any protections.
The people on that site are infuriating. I managed to spend about 60 seconds on that site before I saw someone say "racism = prejudice + power" in response to someone else saying you can be racist against white people. Why try to change the dictionary definition of a the word "racism" to mean "systemic racism", I wonder?
And this 5th Circuit opinion has very idiosyncratic reasoning [0, just the first few pages will blow your hair back]. A sample:
How the 1st Amendment might protect a corporation's religious POV but not its exercise of editorial control is a very good question. I'm not saying this very conservative SCOTUS won't adopt the 5th Circuit's reasoning, but it still seems unlikely. In my view -- much more likely is that they resolve the Circuit split by adopting the 11th Circuit's view wholeheartedly.[0]: https://techfreedom.org/wp-content/uploads/2022/09/2022-09-1...