July 5, 2019

"This isn’t a question of property rights. This is a question of fraud. In this modern era, social media networks are the new public square."

"Banning – and worse, secretly banning while deceiving the user into believing their content is being shared equally – excludes individuals from public life.... Social media companies cannot eat their cake and have it too. They cannot enjoy the privileges of being a platform, such as immunity from liability for users’ content, while also enjoying the privileges of being a publisher to control what everyone may or may not say on their network."

Said John Reilly, a Republican in the Michigan legislature, about a new bill. He's quoted in "Michigan Bill Would Ban ‘Viewpoint Discrimination’ By Facebook, Google" (michigancapitolconfidential.com)(via Instapundit).
The legislation would amend the state Consumer Protection Act to explicitly prohibit “a provider of an interactive computer service” that represents itself as “viewpoint neutral, impartial, or nonbiased” from taking certain actions based on a user’s political views. It could not: “block a user's speech; censor a user's speech; ban a user; remove a user’s speech; shadow ban a user; deplatform a user; deboost a user; demonetize a user; otherwise restrict the speech of a user.”
Based on that language, I'm going to assume that Facebook/Google could maintain their independence and avoid endless litigation by making a clear statement that they retain the right to censor and minimize any speech that in their sole judgment violates their terms of service and that — because judgment is unavoidably subjective — they cannot and therefore do not promise to operate in a manner that is viewpoint neutral, impartial, or nonbiased.

If the law is premised on fraud, Facebook and Google could simply eliminate what Reilly is characterizing as fraudulent. If what they want is to force the private companies to uphold freedom of speech, they run into the problems of the free speech rights that the companies themselves can claim.

84 comments:

Ralph L said...

What about their liability if they censor one "hateful" side but not the other?

tim maguire said...

The law already knows how to deal with the privately owned public square (as you might see in a mall or a planned development). Social media seems to me to be analogous to that and the law should require viewpoint-neutral policies as it does for any other public square.

Letting social media companies off the hook if they stop pretending to support free speech is a step in the right direction in terms of being clearer to the public what's going on, but IMO it does not go far enough.

Kevin said...

If what they want is to force the private companies to uphold freedom of speech, they run into the problems of the free speech rights that the companies themselves can claim.

What they want is for these companies to put themselves on the record as not being viewpoint neutral.

It’s only for the purposes of appearing viewpoint neutral that they must resort to shaddowbanning.

Bring the banning into the public square and see how that changes things.

Dave Begley said...

This Michigan man is seeking a solution to a real problem. Google, Facebook, Twitter and the rest of them are hardcore Leftists and they do everything within their power to eliminate or suppress conservative views. They either have a monopoly or a near monopoly in their categories. The ultimate goal, of course, is to convince the people in the middle or on the margin to vote Democrat and be liberals.

This is a serious problem.

I know Althouse's blogging vehicle, Blogger, is owned by Google. I submit that her blog, as a Facebook feed, would be censored for a number of reasons. Facebook is not the same medium as a blog, but Facebook would never tolerate the minority views expressed by Ann and her commenters.

I will say that the Left is in for a big surprise when Trump wins re-election.

Dave Begley said...

Yesterday I was at a public square in Council Bluffs, Iowa. If I could have asked my question of Senator Kamala Harris about her activities during the Brett Kavanaugh hearing I would have been shouted down and possibly attacked.

The Left can't tolerate any opinions that differ from theirs.

JCA1 said...

As I understand it, your solution arguably makes them publishers (with the accompanying legal liabilities). This is what the social media companies have, so far, been successful at. Claiming the are not publishers while still reserving the right to censor users. I think this bill is designed to get them to take a side. Whether or not it is drafted we’ll enough to do so, I can’t say.

rhhardin said...

If they're not viewpoint neutral, they're open to libel suits for what they do publish. Presumably they can't afford that.

Instugator said...

They should have to bake the cake.

Birkel said...

They're publishers.
Sue them for all the libel they allow.

Narayanan said...

Political ads often end with "I support / approve this message".

Can users/market request demand these platforms to simply append a negative message to all content and stay out of the fray altogether?

Which is what is implied in the claim * I is just publisher*

tim in vermont said...

“Claiming the are not publishers while still reserving the right to censor users. “

And Uber is not a taxi company, they are a “ride share” service. It’s kind of astounding the kind of stuff they get away with.

Narayanan said...

Or can't posters proactively append such message and let publisher off the hook

Bruce Hayden said...

Big problem. Nice try here. But I suspect that with what we have seen here that it will be found interfering with interstate commerce. Which means that we should have federal legislation, maybe like this, addressing the problem. But I think that is unlikely because the tech giants have more money than probably anyone else to buy DC politicians.

Birkel said...

Bruce Hayden,
I would guess drug cartels and oil producing countries have similar amounts of free cash.

Of those three, which do you think spends the most on lobbying?

Swede said...

Some other states will follow suit.

But the Feds are the one's who need to make this kind of legislation/regulation.

These companies have all sat in front of Congress, on several occasions, and lied their asses off about what they are and what they do.

They say they're content neutral but show otherwise time and time again. Regulate them and force them to play by their own rules.

Narayanan said...

Is shadow banning like delete-trash binning file but not actually writing over with null-zero

tim in vermont said...

They actually could do a better job of providing more neutral content without going into the abyss of violent extremism if they could stand the idea of hiring Republicans to help them judge material. But they really are pushing a particular political viewpoint, and pushing that viewpoint is more important to them than anything.

Not to mention that the companies like Google have extensive files, such as the Stasi would have envied, on every politician, from what kind of porn he watches, to whether he ever had a retrograde thought in his entire life. It’s not just regulatory capture, it’s capture of the government.

rehajm said...

Its a strategy what works for lefties. Michigan judges will have power comparable to Hawaiian judges.

Fernandistein said...

Meanwhile France just passed a law trying to do just the opposite: companies are required to censor based on content.

Kevin said...

They should have to bake the cake.

They should have to stop others from baking their own cakes.

Ann Althouse said...

"Big problem. Nice try here. But I suspect that with what we have seen here that it will be found interfering with interstate commerce. Which means that we should have federal legislation, maybe like this, addressing the problem. But I think that is unlikely because the tech giants have more money than probably anyone else to buy DC politicians."

Laws passed using the commerce power are unconstitutional if they violate the First Amendment.

Yes, obviously, Congress has the power to address fraud on the internet.

Work through the fraud model of dealing with this problem. That's what I'm asking you to do.

Wince said...
This comment has been removed by the author.
Wince said...

Bruce Hayden said...
Big problem. Nice try here. But I suspect that with what we have seen here that it will be found interfering with interstate commerce. Which means that we should have federal legislation, maybe like this, addressing the problem.

States have broad consumer protection authority (e.g., California product labeling requirements). Unless bill favors Michigan companies, dormant commerce clause case unlikely. Only when congress attempts to "occupy the field" does federal supremacy matter, and they haven't, yet. Facially, this bill simply requires the tech giants to come clean on their status under federal law that offers exemption from liability for defamation if their platforms are "neutral".

Seeing Red said...

That California Product Labeling requirement affected every company probably in the world who does business with Cali. At minimum every company in the other 49 who do biz with Cali.

Wince said...

One of the reasons why California fancies itself as a consumer protection leader is that it's such a big market that it's cheaper for companies to comply with its onerous regulations nationwide rather than segment their goods and services as California compliant.

For example, that's why you see all those labels intended to inform/scare you that this product contains possible carcinogens according to California regulations. While those regulations invariably advantages California companies in some measure, I'm unaware of a successful dormant commerce clause challenge.

BleachBit-and-Hammers said...

Leftist progressive democratics are natural speech killers and liars.

Wince said...

Coincidentally, look at the two states mentioned at the top of Wiki's Dormant Commerce Clause entry!

The Dormant Commerce Clause, or Negative Commerce Clause, in American constitutional law, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the US Constitution.[1] The Dormant Commerce Clause is used to prohibit state legislation that discriminates against interstate or international commerce.

For example, it is lawful for Michigan to require food labels that specifically identify certain animal parts, if they are present in the product, because the state law applies to food produced in Michigan as well as food imported from other states and foreign countries; the state law would violate the Commerce Clause if it applied only to imported food or if it was otherwise found to favor domestic over imported products. Likewise, California law requires milk sold to contain a certain percentage of milk solids that federal law does not require, which is allowed under the Dormant Commerce Clause doctrine because California's stricter requirements apply equally to California-produced milk and imported milk and so does not discriminate against or inappropriately burden interstate commerce...

Seeing Red said...

Consumer protection except for typhus and bubonic plague.

BleachBit-and-Hammers said...
This comment has been removed by the author.
Dave Begley said...

Professor says work through the fraud model. Okay.

Facebook at al. hold themselves out to the public as a neutral forum where all voices can be heard and political issues are discussed. That's what the average person believes. Facebook is the new public square and it has near monopoly status.

But in truth and in fact, Facebook censors and suppresses conservative and other viewpoints it disagrees with it. One way it does that is to characterize some minority viewpoints as "hate speech." This is especially problematic when it comes to some religious views which Facebook disagrees with.

BleachBit-and-Hammers said...

Problem is - they are lying about so-called abuse. They often lie and let other platforms lie about so-called "abuse!" when it's merely something they do not like, or something that doesn't fall in line with the leftist group-think.

BleachBit-and-Hammers said...

For example - now some sites are banning content based on a nudity charge. Thing is, there is no nudity being used. It's a lie. The platform is run by fascist leftists who have no problem lying to use their power to stomp on free speech.

Angle-Dyne, Servant of Ugliness said...

David Begley: This Michigan man is seeking a solution to a real problem.

Unfortunately there are still a lot of "conservatives" out there who won't see this, and just keep bleating the "private company" or "start your own social media" line.

Though I'm more concerned about wrongthinkers being shut out of access to financial services. (Private companies doing it, so no problem, right?)

Chuck said...

I can’t imagine a better, more concise blog post on this, Althouse. Kudos.

Your post was news to me. I like MiCapCon a lot, but I had not seen that story about the proposed legislation. I think you captured the issues very well. Better, clearly, than most of your Q-anon affiliated readers. (Q-anon seems to have had a good 4th of July on the Mall.)

I see this as a pure stunt, with no possibility of passing both houses (both narrowly held by Republicans, including several moderates) and being signed into law by Governor Whitmer (D).

tim maguire said...

Narayanan said...
Is shadow banning like delete-trash binning file but not actually writing over with null-zero


Shadow-banning is a practice where you don't know you're banned. Everything looks normal to you, but nobody else can see your posts.

The typical outcome is that you post as normal for a while, but after getting no likes or responses, you get frustrated and eventually stop posting at all. It's worse than regular banning because the mechanism is built around your not knowing what's going on and wasting your time.

Seems like a fraud case is easy to make there. Fraud for bias in censorship seems like a harder case to make given that these are free services given by private companies. I'll stick with my analogy above to the public square in a private space--a legal concept that already exists in the real world.

Birkel said...

Well if anybody knows Michigan politics, it's Smear Merchant Chuck, self-admitted racist and self-denying drunkard, who happens to be a fopdoodle extraordinaire.

That guy never gets anything wrong about Michigan politics.

TheThinMan said...

If they Block speech they don’t agree with, they’re not a user platform, a mere conduit, they’re a publisher. Fine. So make them liable for all content they don’t ban and see how fast they’re sued for defamation, libel, threats, and “hate speech.” Every time they allow someone to call someone on the right a white supremist, get the litigation going. See how fast they mend their ways.

Birkel said...

Republicans love to declare a loss before the fight is joined.
Democratics don't ever do that.

Hagar said...

All these publishers, except Fox, are owned by corporations that are not "publishers."

And publishers or not, I think the Sherman Anti-trust Act would apply if they act in unison.

Dave Begley said...

Restated, the Left wants to crush any dissent by any and all means possible. That's a fact.

All the people who are only marginally interested in politics are the targets of the Left. With the constant drumbeat of Orange man bad, who could vote for the guy?

Bay Area Guy said...

Break up Big Social Media!

Douglas said...

The solution is to make the immunity from libel under section 230 of the Communications Decency Act contingent in the platform (a) being completely transparent about its practices in censoring or limiting or banning or demomonetiziing speakers (including making public all algorithms, protocols, standards, etc.) and (b) proving publicly accessible, neutral, third party appeals to adversely affected speakers. The platforms would have a choice: transparency or immunity.

Howard said...

Blogger Birkel said...

Republicans love to declare a loss before the fight is joined.
Democratics don't ever do that.


Shorter Birkel: Republicans behave like cucks, Democrats take-charge men

Narayanan said...

Shadow-banning is a practice where you don't know you're banned. Everything looks normal to you, but nobody else can see your posts.

So why can't you have schizo personae for back up and redundant reliability review of service provider?

Is that prohibited by provider EULA ?

This reliance on legislation is very worrisome to me. Totally vitiates dynamism of free wheeling interaction and innovation.

rhhardin said...

The fraud model is that the user is putting labor and creativity into that platform and that's taken from him without compensation, or sometimes even knowledge.

Birkel said...

I do shorter me better than do you.

Republicans pretend there are rules.
Democratics only want power.

Greg P said...

If the law is premised on fraud, Facebook and Google could simply eliminate what Reilly is characterizing as fraudulent. If what they want is to force the private companies to uphold freedom of speech, they run into the problems of the free speech rights that the companies themselves can claim.


Simon and Schuster, and the New York Times, have the right to only publish the viewpoints they prefer. And the rest of us have the right to sue them for libel, if one of the viewpoints they chose to publish libels us.

If Google, Facebook, etc. chose to publicly state they are not "public squares", but private publishers, then someone is going to sue them for libel. And they're going to argue that they have a State protection against libel that exceeds their Federal protection for libel. And the Trump Administration will refuse to protect section 230 of the Communications Decency Act. In fact, they might come in and argue that the Court should overturn it, because that's a game both sides can play.

So if Michigan could pass that law, and get the Democrat Governor to sign it, it would be great.

But I think Ohio has a better chance

Earnest Prole said...

Facebook and Google could simply eliminate what Reilly is characterizing as fraudulent.

And would thereby assume billions in liability. The government has given them something exceedingly valuable in exchange for acting as a neutral platform. They are violating the terms of that deal.

As I’ve noted before, if a private provider of a public utility cut off power to someone’s house in the middle of winter because a
person inside espoused some unfashionable belief, we’d all understand it as a violation of their civil rights and the agreement the utility company made with the government to provide power to its citizens.

rcocean said...

Why not just amend the law to add "Political beliefs" to attributes which we can't discriminate against? We've added "sexual orientation" and "National Origin" why not "Politics"

rcocean said...

"Republicans love to declare a loss before the fight is joined.
Democratics don't ever do that."

Plus, they love to give up at the drop of a hat. Why fight, we'll lose anyway!

buwaya said...

Social media sites fall into the de facto standards model that Bill Gates has often explained as Microsofts own business model. That is, if large numbers of customers select technoligy x, that in itself becomes a crucial advantage in attracting more customers, because of the attraction of a technology standard. Nobody wants to have to write more device drivers than they need to, or have parallel IT staffs. The process of consolidation of standards is a natural one, and Gates made sure (or got lucky) in that they consolidated to his. In many ways the endpoint is as much a natural monopoly as an electric utility, or a port authority.

So also with social media. If a service has a large audience it attracts both publishers and audience simply because it is large. Publishers and advertisers want a large audience and the audience wants lots of publishers. The process of consolidation rewards the biggest, until there are no practical alternatives. More even than general IT, this is also a highly centralized service with enormous economies of scale. A competitor will have to invest massively to provide plausible competition as well as absorbing operating losses until it gets its scale up. But the odds of success are very low.

This has enormous cultural-social-political implications if the practical means of political speech are controlled by a single private entity. They become kingmakers.

The process of partisan division over the last fifty years in the US may have been driven, partly, by a similar business phenomenon, that of consolidation of city newspapers. The stress of TV competition, reducing readership, made the model of a large number of competing papers obsolete. There were much smaller operating margins, so they had to chase economies of scale to survive. Which led to a generally uniform ideoligical basis for the surviving papers, which led most city populations, or their newspaper reading portions, into a near uniform liberal ideology, and this has only intensified into a solipsistic echo chamber.

Which has led to a largely mute but often personally intense reactions, and etc.
These are very quiet (because of few or poor platforms) expressions of opposition, given an effective lack of representation in public speech. Aming them is a huge increase in the arming of the public. All of these phenomena fit together.

Economic and technology shifts can change culture and politics as well as personal world views. We are ourselves AND our circumstances after all (Ortega y Gassett).

MB said...

Internet companies are entitled to free speech, but should not be allowed to claim immunity from being sued, under various neutral platform laws. They are responsible for their horrible content. It represents their point of view.
This has been a fraud at least as massive as the sales tax scam that enabled Amazon's rise, until around 10 years ago. Everyone knew that Amazon's customers do not pay sales taxes, which was supposedly their duty to pay, but somehow it turned out that Amazon didn't have to pay it either or even make a good-faith effort to collect it.
Same for the big Internet discussion platforms, their rise was enabled by a similarly transparent legal fiction. You shouldn't be able to have it both ways.

buwaya said...

The scale and channel issues were there from the outset with TV.
And to a large degree with cable.
The only reason conservative talk radio made it was because the entire technology was being abandoned, and startup costs were very low.

Narayanan said...

Why not Work up a challenge that declaring someone ban-worthy ==>>> is libel defamation etc.

Are there no lawfarer able to do that?

Michael K said...

Shorter Birkel: Republicans behave like cucks, Democrats take-charge men

Especially if there is enough graft involved.

It's the Chicago Way,.

Leland said...

making a clear statement that they retain the right to censor and minimize any speech that in their sole judgment violates their terms of service

This would certainly help, since right now it is very unclear what is and is not a violation of terms of service. In this, there are two problems:

Shadow banning; when one supposedly violated some terms of service, but instead of being notified of the violation; the person is censored and in a manner that keeps them uninformed of the violation.

Bias; when one gets banned for some violation that another doesn't. For example, someone says they don't agree with a homosexual lifestyle, which gets banned as violent hate speech. And then someone says they think Republicans are Nazis that should be confronted and beaten, which is deemed acceptable content not in violation as violent hate speech.

Annie C. said...

Pardon my non-lawyer ignorance, but...

Are there not different rules on libel/slander for famous, or public, people? Could Facebook use those differing rules by claiming a person is "famous, or public" on Facebook?

Just wondering.

Narr said...

There is precisely zero chance that Faceborg, Googog, and their ilk will EVER have anything they do limited by the present or any reasonably plausible future establishment.

You can quote me.

Narr
Zee-Roe

PM said...

The social media companies will make their editorial decisions the way the NYT's does.

Big Mike said...

Isn’t he basically saying that Facebook, et. al., are now public utilities and need to be regulated as such? Washington Gas can’t decide to cut off service to George F. Will’s house because they don’t like what he wrote in his latest column, nor can it decide that Ward 3 should get lower pressure because of the way it voted in the last election.

Achilles said...

This is just standard National Socialist activity.

Giant Corporations team up with a political party.

The Giant Corporations censor/persecute their allies political enemies.

The political party protects the giant corporations from taxes/competition.

Yancey Ward said...

They have to choose what sort of entity they are- they are either publishers, or they are view-point neutral, open forum free speech media. The former makes them open to libel and slander torts, the latter shields them from such suits. You can't sue the NYTimes for libel/slander by going after the paper and ink providers- you have to sue the publisher itself, and with that the publisher gets the right to determine what appears under the publisher's name. Facebook, Twitter, and Google get the same deal, but here is the difference- to date, they have claimed immunity from libel and slander suits. They can't have it both ways, and this bill is designed to force them to openly declare one or the other.

rcocean said...

If you want to know why Conservatives and the Right constantly lose you only have to look at this issue. The Conservative "principled" idiots don't even want to fight the Left-wing people/companies who are censoring them and driving them out of the public square. 'Cause "Free Enterprise" or some stupid crap.

What a bunch of maroons. Its also reason no. 567 why Libertarians are either fools or secret Leftists. The "wealth of nations" and Capitalism isn't a suicide pact.

Howard said...

Deplorable stupidity is what makes you people non-competitive, Achilles. You putting on your brownshirt when you call for more government regulation of successful businesses because politics

Michael K said...

Blogger Howard said...
Deplorable stupidity is what makes you people non-competitive, Achilles.


I enjoy seeing Howard revel in his belief that he is the smartest guy around.

Bubbles and pins, Howard. Bubbles and pins.

Seeing Red said...

It’s more like the government is deregulating said businesses/monopolies.

Kirk Parker said...

Douglas @ 9:02am,

I think you're mingling two completely separate approaches; not sure if that's useful.

The transparency avenue relates to the consumer-fraud aspect that Althouse's original post here is about.

Libel immunity under the CDA seems irrelevant to that--i.e. even if a provider is totally transparent about what kinds of speech they allow and what kinds they don't, the very act of doing so should make them a publisher under the CDA. No matter how honest and transparent they are about it.

robother said...

I'm not sure I follow Ann's First Amendment argument, or Hayden's Commerce Clause argument. A newspaper enjoys First Amendment protection from federal or state action to dictate content. But State libel protections (at least for non-public persons) are not violative of the First Amendment, or undue burdens on interstate commerce. It seems to me that the proposed bill forces Facebook to choose between acting as a purely neutral platform (with presumably no liability for libelous statements made by its posters on their pages) or as a publisher, who is potentially liable for publishing, say, a letter to the editor containing clearly libelous statements about a private citizen.

Howard said...

Right, Mike, we get it. You people get your bubble burst by the slightest pressure. I'm definitely taking advantage. It keeps me from ripping off he wings from flies.

Michael K said...

we get it. You people get your bubble burst by the slightest pressure.

Proof you didn't get it, Howard. Another 250,000 jobs added this month. Plus another 20,000 leaving California.

n.n said...

Google speaks truth to fascism and the other internet utilities with Pro-Choice corporate charters.

Rabel said...

"If the law is premised on fraud, Facebook and Google could simply eliminate what Reilly is characterizing as fraudulent."

If it was that easy the scorpion and the frog would have both made it across the river.

Char Char Binks said...

The internet was developed by DARPA, a US government program. Zuckamuck didn't build that.

Char Char Binks said...
This comment has been removed by the author.
Char Char Binks said...

And Rosa Parks didn't build that bus.

Howard said...

It's nice that California is sharing it's low-wage jobs with Red states

Static Ping said...

I would think the issue you bring up is the point. Free speech platform or publisher: pick one.

Gk1 said...

https://www.pressdemocrat.com/business/9738997-181/three-twins-ice-cream-ceasing this is a typical California story. I know the owners and the other truth not in the article is their kids want to take over the business but think California is a terrible bet for their future and want to move out now. So they move while they can. But don't worry, Federal, State and local regulations had nothing to do with this. Just the "greed" of the three twins owners who want their business to survive after they retire.

n.n said...

Free speech platform or publisher: pick one.

Also market position, not the least of which is due to the gray market (i.e. other than market forces). They are effectively monopolies in their space and technically utilities subject to dismemberment... breakup and regulation.

narciso said...

when they don't merely to shut you down online,


https://hotair.com/archives/john-s-2/2019/07/03/bret-weinstein-andy-ngo-illiberal-authoritarian-left-keeps-resetting-bar-irony/

Bunkypotatohead said...

How is this different from your ISP denying you a connection to a conservative website?
You pay the ISP in cash and you pay facebook/Twitter with personal info...that's all.

Achilles said...

Howard said...
Deplorable stupidity is what makes you people non-competitive, Achilles. You putting on your brownshirt when you call for more government regulation of successful businesses because politics

Deplorables are uncompetitive.

Kinda like the Jews were.

But we are better armed than the Jews and this fight wont go as you wish it would.

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Kirk Parker said...

Achilles,

"Juden haben Waffen!"