May 28, 2020

"In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet."

"This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.... Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see. As President, I have made clear my commitment to free and open debate on the internet.... Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act... [T]he immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints....  Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike. When an interactive computer service provider removes or restricts access to content and its actions do not meet the [statutory] criteria... such a provider should properly lose the limited liability shield... and be exposed to liability like any traditional editor and publisher that is not an online provider."

From "Executive Order on Preventing Online Censorship" (at whitehouse.gov).

ADDED: This order isn't just about immunity in defamation lawsuits, it's about fraud. I'll do a new post to highlight the language that I think points at the argument that the companies are committing fraud by holding themselves out as a neutral free speech forum and amassing users who they are in fact treating differently based on viewpoint.

67 comments:

A Voice of Reason said...

Damn we're SO lucky Trump is President.

Oso Negro said...

We will see.

Marshall Rose said...

I have seen this debated on others blogs.

What would a roll back of section 230 protections mean for the ability of a blog owner to censor comments?

What would be the exposure to liability for published comments on a blog that selectively censors?

Lewis Wetzel said...

And there go the business models of FB, Twitter, and Youtube.
These business models were based on the idea that they could be used a platform for its users to spread libel to hundreds or millions of readers, and not be held accountable.

mccullough said...

This is excellent politics.

The Silicon Valley Billionaires Boys Club are now The Economic Royalists.

Trump is also going after Big University and their ties to China and Iran. Again, excellent politics.

steve uhr said...

The order says that "free speech is the bedrock of American democracy." This includes of course the free speech of private corporations, persons, such as Twitter. I guess Citizens United only applies when the corporation speaks ill of democrats.

Just yesterday the DC Circuit affirmed the dismissal of a case brought by Freedom Watch against Twitter, Google and others alleging they violated the First Amendment by suppressing conservative viewpoints. A four page unanimous decision said:

Freedom Watch’s First Amendment claim fails because it does not adequately allege that the
Platforms can violate the First Amendment. In general, the First Amendment “prohibits only
governmental abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails to point to additional facts indicating that these Platforms are engaged in state action and thus fails to state a viable First Amendment claim.

How bid can a blog get before it can be prohibited from not publishing political comments the blog owner disagrees with? Ann better watch out.

If the usual gang here thinks that here it is okay for the government to control the speech of private businesses, it is laughable.

Josephbleau said...

From his mouth to God's ear.

Sebastian said...

So, IS this "the worst way to fight for freedom of speech"?

Methinks not.

Josephbleau said...

I bet his new Press Sec wrote it.

Leland said...

And there go the business models of FB, Twitter, and Youtube.
These business models were based on the idea that they could be used a platform for its users to spread libel to hundreds or millions of readers, and not be held accountable


I don't think you understand the order. If FB or YouTube would allow all its users to equally spread libel, then they have limited liability. What Twitter has decided is to advocate and promote a particular view. That means they are choosing to publish certain information over others. Until this week, all of them played games with algorithms but they were careful not to be so easily overt, which allowed them to get away with it for awhile.

Michael K said...

If the usual gang here thinks that here it is okay for the government to control the speech of private businesses, it is laughable.

So, if Steve is against it, I guess it is OK.

Plus, there is this.

But the general pre-§ 230 tradition was that platforms were entities that didn't screen the material posted on them, and indeed were generally (except in Lunney) legally forbidden from screening such materials. Phone companies are common carriers. Cities are generally barred by the First Amendment from controlling what demonstrators said. Federal law requires broadcasters to carry candidate ads unedited.

Will that stand ?

I Callahan said...

Bake that cake, Steve Uhr. Goose, gander and all that.

Yancey Ward said...

A good opening shot.

The social media companies need to be forced to choose- they are either simple conduits for speech free from libel and slander lawsuits, or they are not. To date, they have tried to have their cake and eat it, too. This cannot be allowed to continue.

Steve Uhr, what do you suppose the NYTimes would do if all the newsprint manufacturers decided to not sell to them- rollover and stop printing newspapers? I don't think so.

If Twitter, for example, wants to dispute the content of The President's tweets, they are free to use their own Twitter feed to do so, just like the DNC, Joe Biden, Hillary Clinton etal. did.

Jersey Fled said...

When he's right, he's right.

n.n said...

Large is a criterion and limited number identifies the set. He's addressing what these platforms classify as "rational" but have redefined with a special and peculiar purpose. So, it will not be the selective, opportunistic, or politically congruent apology of the last administration.

TheOne Who Is Not Obeyed said...

Uhr seems to miss the point deliberately. All this order is doing is re-assessing the special consideration these companies get under section 230. That isn't "restricting the free speech rights of private corporations", they still have their free speech rights under Citizens United as private entities just like other private entities. What they won't have is the special protection they received. They broke their side of the deal that put them under section 230, and consequences will happen.

Live by the administrative state, die by the administrative state. Too bad that liberal companies are getting the same treatment as everyone else, instead of special treatment.

Bill, Republic of Texas said...

What does it mean? Can a president revoke a protection provided by Congress? Wouldn't he have to go back to Congress and get their immunity revoked?

I'm guess this is more theatre than law.

Now if he invoked his authority as commander-in-chief and said they were agents of a foreign government, that might have peeked my interest.

YoungHegelian said...

Jack Dorsey (CEO of Twitter) continues to step in it. He & Twitter just dropped a golden political opportunity in Trump's lap, and, for what? Dorsey just seems to be clueless as a CEO.

Silicon Valley needs to rein in the lefties in its corporate midst. They will ultimately destroy the companies where they work from within. The problem of jumping on every political opportunity for short-term gain even at the cost of long-term political & ideological coherence has long bedeviled the left (e.g. how the zig-zags of the Soviet Party Line made it very difficult for Communist parties in other countries to keep their members who actually expected, you know, coherence in their ideology). I don't expect the companies of Silicon Valley 2.0 to resolve this problem. I actually expect that it will play heavily into their eventual demise.

Dave Begley said...

I had 30 years of book reviews on AMZN removed and reviewing privileges terminated (with extreme prejudice) because I satirically suggested that the USAF should bomb coal-fired power plants in China in order to save the Earth from our existential threat of global warming.

Gospace said...

In another thread in this subject Lewis Wetzel states Facebook and Twitter would become a vile cesspool if pornography and spam . I can’t speak for Twitter. As for Facebook, I wouldn’t ever see those sections, if indeed they came about. As of today I have a whopping 186 Facebook friends. I have defriended a grand total of one person over the years. And unlike the numerous liberals who’ve defriended me, it wasn’t about politics. Or because I wouldn’t signal approval of their SSM. That one person defriended over 20 relatives.

I belong to 8 public groups, all controlled by their moderator, 23 private groups. At least 3 of the groups have right in their rules that if you report any post or any other member to Facebook, you’ll be thrown out of the group.

As far as Facebook fact checkers go, every day thousands of liberals post something similar to “Hillary should be president because we’re a democracy!” And they get really upset when someone points out, “No, we’re not, we’re a republic.” And the big lie that the United States is a democracy is never taken down by the fact checkers. Hmmmm- maybe I should report those posts.

I’ve long been of the opinion that Facebook, Twitter, MySpace, Gab, and any other platform purporting to be open to everyone be treated as a common carrier. Having all those 186 friends on Facebook makes it a lot easier to communicate rather than having to find them all on competing platforms. MySpace came first, Facebook is more user friendly. I don’t think there’s a way to merge them all together seamlessly like all the phone companies work together. I can call anyone’s landline from my Cricket phone, and people on Verizon can call me.

One thing Sykes.1 got wrong is the customer comparison. I am a phone company and a fiber optic company customer. I am Facebook’s product. Advertisers are their customers. They sell their advertisers access to me. And lately they’ve been letting through a lot of fraudulent companies, offering to sell me a product I want for a fraction of the retail cost. I’d love to get a $200 hammock tent for $49 or a $2000 vinyl shed for $150. I’m not stupid enough to give my credit card information to a website 2 weeks old.

The defense of platform censoring always comes down to “But they’re private companies and can do what they want”, a courtesy not provided to lunch counters.

D.D. Driver said...

"If the usual gang here thinks that here it is okay for the government to control the speech of private businesses, it is laughable."

That's not at all what the debate is about. The government gave internet platforms a special privilege and now the government is considering eliminating that special privilege. Thus, if a random internet user defames you using an internet platform, you can sue the random user (good luck with that) but you cannot sue the platform. The rationale is that we want to promote free speech on these private platforms to which the First Amendment does not apply. However, if a platform is not committed to free and open speech, why should we continue to shield them from suit if the platform is negligent in policing its users?

I'm still on the fence about this, and probably lean hard the other way. But, there is logic to the argument.

deepelemblues said...

In an age of lockdown and like it, the ability to speak freely on the internet is rather important.

I reject the reasoning of courts dismissing lawsuits concerning censorship and suppressive practices on the internet. A majority of Americans get at least some of their news on Facebook. A majority watches videos on YouTube. Twitter drives, at the least, the elite debate that commonly frames the debate as a whole on all types of issues. Whatever the intent of their owners and administrators, they function in reality as public forums. They provide a public good. As such, discrimination in their domain of the kind we have seen is not acceptable.

Ignorance is Bliss said...

steve uhr said...

If the usual gang here thinks that here it is okay for the government to control the speech of private businesses, it is laughable.

Nobody is suggesting that the government control the speech of private businesses. Trump is simply noting what you state in your comment: The act of censoring some content turns what they publish into their speech. As such, they are liable for the content they choose to publish, and can be sued under existing libel law.

steve uhr said...

Let’s not forget what twitter did. They didn’t censor trump. They just commented on his comment. I.e, they exercised their first amendment right to speak on their own platform. In Trump world twitter must allow any political posts and can’t even flag one that doesn’t pass the truth test.

mandrewa said...

This is wonderful. Thank you Donald Trump!

rhhardin said...

The legal way in would be monopoly power. Like what they should have done with the civil rights act, making it apply only in cases of monopoly markets instead of to association in general. (Including monopoly state violence - nice bus you have here it would be a shame if anything happened to it.)

Monopolies have to take all comers at a reasonable price, as a general principle. In particular where competition doesn't make sense. One telephone system, one power system, etc.

Monopolies in this case are the result of Zipf's law. The market winds up mostly in the hands of very few and there are thousands of others in a long low tail, just from everybody going where everybody else goes. Not easy to break into with a startup.

rhhardin said...

Richard Epstein goes into the affair in today's podcast
Epstein podcast

steve uhr said...

If a platform can be sued for libel if any post is defamatory obviously the platform will shut down. The alternative is to defend hundreds if not thousands of suits every day.

Lewis Wetzel said...

"Steve uhr said...

. . .
If the usual gang here thinks that here it is okay for the government to control the speech of private businesses, it is laughable."

Says the guy who would have no problem at all with the private businesses that carry his telephone conversations tell him who he could call & what he was allowed to talk about on their platform.

Lewis Wetzel said...

YoungHegelian said...

Jack Dorsey (CEO of Twitter) continues to step in it. He & Twitter just dropped a golden political opportunity in Trump's lap, and, for what? Dorsey just seems to be clueless as a CEO.


What is the purpose of a CEO like Dorsey? I think it is to convince his investors that he is going make them richer than Croesus. That's it. Everything else is offloaded onto hired help.

steve uhr said...

I’m not missing the point. the purpose of the order is to impose a burden on Twitter because trump took issue with something Twitter said. Seems unconstitutional to me.

n.n said...

Someone summarized the position of the social platforms (with girth) succinctly as they want to be both host, publisher, and editor, previously under an air of shared responsibility with third parties and self-appointed authorities (e.g. SPLC, Wikipedia). It's a case of wanting to abort the baby and keep her, too.

JAORE said...

Didn't the courts rule Trump could NOT block Twitter posters because he used it for political purposes? How would that square with Twitter interfering with that political speech?

Birkel said...

The analogy, of course, is that if a newspaper receives a letter to the editor that is defamatory - and the newspaper chooses to publish it - then the newspaper can be sued for defamation. That is clear. Newspapers are free to send defamatory letters to the trash bin without any liability.

As a common carrier, any letter can be printed. And for that openness and transparency the common carrier cannot be sued for defamation. The common carrier exercises no editorial control. Therefore, only the letter writer may be sued.

If a newspaper exercises editorial control, it can be liable for libel.
If an online entity exercises editorial control, it can be liable for libel.

Trump's position returns the tech companies back to the status quo for other real world entities.
This is equity.

And steve uhr is so wrong that it cannot be assumed it is a sentient life form.

Drago said...

Uhr: "If the usual gang here thinks that here it is okay for the government to control the speech of private businesses, it is laughable."

D. D. Driver: "That's not at all what the debate is about."

It is pointless trying to get Uhr to understand what is being discussed.

readering said...

If Twitter were actually subject to litigation (not from this junk EO), one of the first accounts they would tweet would be Trump's.

bagoh20 said...

Just like everything else they touch, the left is ruining the internet. They simply can't play fair with anything. They always need to cheat, to gain advantage, to control.

If Trump is as obviously bad as they tell us every goddamned day, ad nauseam, then let him run. Give him the rope to hang himself. Either they don't believe their own charges, or they don't think the rest of us are smart enough to decide without their oversight. I bet both.

I don't see the right censuring anyone. They love to have lefties expose their ideas to the public. I get to hear left-wing ideas everyday on right-wing sights. I hear them un-edited, and expressed passionately, which is why I'm a right-wing guy.

Zach said...

You know, for as long as Twitter has been publicly edging toward this kind of outright censorship, I don't know if I've ever heard of the company considering the political backlash.

And yet here we are, one day after their first fact check, and Trump's got an Executive Order ready to roll. Executive Orders don't get written overnight; the implication is that Trump was waiting for this.

The tech companies have benefited from a halo for so long, I don't think they're ready to be political targets.

Stephen said...

Short translation:

If a social media platform exercises its free speech right to point out that I am lying, I will loose the full might of federal law enforcement on them.

Ditto if I should happen to be engaged in slander or intentional infliction of emotion distress on a private citizen. https://www.nytimes.com/2020/05/28/opinion/twitter-trump-scarborough.html

Sorry, but these are the actions of a petty tyrant.

Zach said...

Tech companies have had a halo effect because of people's belief that they are enabling their users' free speech.

But that reputation lags reality. Many people have gotten demonetized, had tweets deleted, accounts suspended. Twitter just unilaterally attached a company approved fact check to a tweet by the President of the United States!

It's funny, because I would think the tech companies are highly vulnerable to political attacks, but they always act like they're everyone's darling.

Andy said...

Reason has a write up on the executive order.
The first provision tells NTIA (the executive branch's liaison to the FCC) to suggest a rulemaking to the FCC. The purpose of the rule is to spell out what it means for the tech giants to carry out their takedown policies "in good faith." The order makes clear the President's view that takedowns are not "taken in good faith if they are "deceptive, pretextual, or inconsistent with a provider's terms of service" or if they are "the result of inadequate notice, the product of unreasoned explanation, or [undertaken] without a meaningful opportunity to be heard." This is not a Fairness Doctrine for the internet; it doesn't mandate that social media show balance in their moderation policies. It is closer to a Due Process Clause for the platforms. They may not announce a neutral rule and then apply it pretextually. And the platforms can't ignore the speech interests of their users by refusing to give users even notice and an opportunity to be heard when their speech is suppressed.

So if I understand this correctly the order is concerned with whether or not the social media companies consistently and fairly are enforcing their own terms of service. So they are screwed. Tim Pool is reporting that Twitter today added fact checks to some months old tweets made by Chinese government officials to claim they aren't biased. That just proves that Jack Dorsey is a bozo.

Drago said...

Birkel: "If a newspaper exercises editorial control, it can be liable for libel.
If an online entity exercises editorial control, it can be liable for libel.

Trump's position returns the tech companies back to the status quo for other real world entities.
This is equity.

And steve uhr is so wrong that it cannot be assumed it is a sentient life form."

You think Uhr is bad (you're not wrong), just take a gander at readerings missives.

Drago said...

steve uhr: "I’m not missing the point. the purpose of the order is to impose a burden on Twitter because trump took issue with something Twitter said."

There is no way you are this cluelessly dumb. It has to be an act.

Twitter is making editorial decisions. They admit they are making editorial decisions. Their editorial decision-making is made plain for all the world to see.

And then Uhr comes along and says no they aren't!

I do believe that Uhr once or twice claimed to have been a lawyer (and possibly a prosecutor)......how funny is that?

Drago said...

Steve Uhr: "In Trump world twitter must allow any political posts and can’t even flag one that doesn’t pass the truth test."

LOLOLOLOLOLOL

Twitter allows ISIS commentary to flourish, publishes without comment propaganda straight out of the ChiCom propaganda organs and has not flagged a single tweet by any poster over the last 4 years claiming Trump is a russian collusion traitor.

The entire democrat party and deep state has been lying for 4 straight years over the collusion hoax and even after the sworn testimony of those same actors was released showing no evidence Twitter has not flagged a single one of their comments.....and just today more of them were infinity-tupling down on collusion.

Sorry dummy. Twitter has chosen to go the path of the NYT and CNN (see Covington Kids) and nobody forced them to do it.

Drago said...

steve uhr: "If a platform can be sued for libel if any post is defamatory obviously the platform will shut down. The alternative is to defend hundreds if not thousands of suits every day."

Bake that cake dummy.

Bake. That. Cake.

Bruce Hayden said...

“Let’s not forget what twitter did. They didn’t censor trump. They just commented on his comment. I.e, they exercised their first amendment right to speak on their own platform. In Trump world twitter must allow any political posts and can’t even flag one that doesn’t pass the truth test.”

They published their own opinion (that Trump tweeted inaccurate information). That is content. That makes them a publisher, instead of just a common carrier. That means that they should be treated like the NYT, that can be sued for defamation, as contrasted to Sprint, that doesn’t create content, so can’t be sued for defamation (under CDA §230).

Yes, under Citizens United, Twitter has a 1st Amdt right to free speech. But with their use of their right of free speech, comes the liability for defamation. Their choice is/was to utilize their 1st Amdt right of free speech, and be liable for defamation, whenever it occurs, or to not utilize their right to free speech, and act as a mere conduit, in trade for §230 immunity from defamation. They chose poorly.

Note, the “truth checkers”, their officers, etc, can/could always respond to Trump’s tweets with tweets of their own, as individuals. That wouldn’t abrogate their §230 immunity. But, instead, Twitter, itself spoke, when it questioned the accuracy of the President’s tweets. And that speech is what arguably is abrogating their §230 immunity.

Bruce Hayden said...

“If Twitter were actually subject to litigation (not from this junk EO), one of the first accounts they would tweet would be Trump's.”

Not quite sure what you are saying here. But you could always sue Trump if he defamed you. He isn’t a common carrier, so isn’t protected by §230 immunity.

Drago said...

LOLOLOLOLOLOLOLOLOLOLOLOLOL

How much better can it get?

Joe Biden, December 2019: "Section 230 should be revoked immediately" for tech companies. "It should be revoked. It should be revoked."

Joe Biden Campaign, May 28, 2020:

NEW: @JoeBiden's campaign is out with a new statement from @BillR on Trump's EO, saying it "not only constitutes an extreme abuse of power, it also demonstrates a complete misunderstanding of the role and function of the federal government.

https://twitter.com/AZachParkinson/status/1266187699603623938

Birkel said...

steve uhr and readering are both so wrong as to the core issue, it throws into doubt either's claim to be an attorney.

They are incapable of correctly analyzing the issues outside the political scope. I wouldn't pay a nickel for the legal thoughts of either.

If no editorial control is maintained, then there cannot be liability for the common carrier.
AT&T is not liable for the defamation spoken across the phone lines, after all.

Michael McNeil said...

Volokh Conspiracist Stewart Baker reviews the new Trump executive order re social media censorship, and finds that it's really pretty innocuous.

steve uhr said...

If Twitter is liable for every defamation on its platform the smart business decision is to pull the plug on realtrump. He is a walking libel machine, most recently against Joe Scarborough. But it won’t come to that because they will shut down entirely, silencing many conservatives who thrive in the site. Ditto Facebook and YouTube.

wholelottasplainin' said...

steve uhr said...
***********

If you think the DC Circuit's decision is the end of this matter you are stark raving mad.

Did that court address the Section 230 issues?

If so, tell us how.

If not....there you go....

steve uhr said...
I’m not missing the point. the purpose of the order is to impose a burden on Twitter because trump took issue with something Twitter said. Seems unconstitutional to me.
**********

You're not paying attention. Twitter has been censoring many conservatives, not just Trump.
They do NOT censor Democrats. During the Russia collusion bullshit, they were very happy to use their platform to push that seditious political fantasy. Ditto Kavenaugh's alleged sexual predations.


wholelottasplainin' said...

I'd love to have Uhr explain why Section 230 was written in the first place, if Twitter was really "just a private business".

Give it a go, Steve!!

wholelottasplainin' said...

readering said...
If Twitter were actually subject to litigation (not from this junk EO), one of the first accounts they would tweet would be Trump's
*****************

Ok, I'll bite: what is a junk EO? One you don't agree with? Pretty obvious to me that Trump is setting up a predicate for withdrawing Sec 230 from Twitter, because they are NOT behaving like a carrier.

But c'mon...give it a shot. Junk? why?

are you claiming that Trump, if he wins re-election and retakes the House, could not remove that protection?

Stand and deliver!

Kirk Parker said...

Marshall Rose,

What rollback? The way I read, it this is just asking for that section to be fairly enforced. You either are a platform, which means you perform absolutely no editorial functions, or else you are a publisher. No more playing in both ways.

Bill RoT,

Same reply as to Marshall: He's not revoking anything; just seeing that the laws are faithfully enforced.

Kay said...

So what does the executive order actually do? Can people now post porn on Instagram without it being taken down?

jeremyabrams said...

This blog isn't a social media company. We don't post our family photos on our Althouse accounts and essentially run our own blogs under the Althouse umbrella.

The product here is the professor's thoughts, and to some extent our voluntary additions, which she should remain free to remove.

FB and Twitter, by contrast, are strictly platforms for their users' content. That makes them broadcasters of multiple narrow-cast personal blogs. Their ability to remove or reject content therefore does threaten our liberty.

wendybar said...

steve uhr said...
Let’s not forget what twitter did. They didn’t censor trump. They just commented on his comment. I.e, they exercised their first amendment right to speak on their own platform. In Trump world twitter must allow any political posts and can’t even flag one that doesn’t pass the truth test.
5/28/20, 8:43 PM

AND, they were proven wrong by Wall Street Journal fact checkers and their fact check was removed. Once again...we need fact checkers to fact check the progressive fact checkers.

wendybar said...

https://twitchy.com/brettt-3136/2020/05/28/wall-street-journal-fact-checks-twitters-fact-check-of-president-trumps-tweets-about-mail-in-ballots/

Kevin said...

The first rule of arguing against what Trump does is to grossly misrepresent it and call anyone who agrees with his actions stupid and hypocritical.

Actually that’s the only strategy.

And the entirety of it.

Kevin said...

Biden, December 2019 to the NYT:

"Section 230 should be revoked immediately" for tech companies.

“It should be revoked. It should be revoked."


Biden yesterday:

@JoeBiden's campaign is out with a new statement on Trump's EO, saying it "not only constitutes an extreme abuse of power, it also demonstrates a complete misunderstanding of the role and function of the federal government."

Roger Sweeny said...

Eugene Volokh, a free speech expert (and neither a Democrat nor a Trumpist), provides background on 47 U.S.C. § 230 and the Publisher/Distributor/Platform Distinction.

Bruce Hayden said...

“FB and Twitter, by contrast, are strictly platforms for their users' content. That makes them broadcasters of multiple narrow-cast personal blogs. Their ability to remove or reject content therefore does threaten our liberty.”

No. That assumes the conclusion. “Factchecking” Trump took Twitter out of merely being a broadcaster (they probably did that by deplatforming and shadow banning conservatives). But I will agree that it is their ability to remove or reject content that is problematic. I disagree though that it really impacts liberty, since the company does have 1st Amdt Free Speech rights.

Maybe I am beating a dead horse here, but this is my analysis. The Twitter business model requires that the company be considered essentially a common carrier, similar to an ISP, or even a phone company. These were the types of companies that §230 was designed to protect. The danger addressed by §230 is that a common carrier, such as an ISP, be sued for defamation by people harmed by content that they rebroadcast. They are, after all, the ones actually relaying the content. They are very vulnerable because people are routinely defamed on these platforms. §230 says that if all that a company does is pass through content unmodified by them, they will be treated pretty much like the phone company is treated for defamation transmitted across their platform. (Because of their different structure, they are allowed to remove pornography, and obligated to remove material infringing copyrights). Imagine the situation of someone calling up your boss and telling them that you are a child racist. That would be defamatory, unless it is true - made for example about a Dem politician or Hollywood producer. You could sue the one making the call for defamation. But you can’t sue the telephone company for actually transmitting the defamatory material. Now, instead, assume that person sends email to your boss containing the same defamatory content. Should the email provider, owners of the email servers in between, or the ISPs involved, be liable for the defamatory content? Contrast that situation to that of them sending the defamatory content into a newspaper, such as the NYT, as a letter to the editor, and the paper choosing to publish the letter. They very well might be liable for the defamatory content.

The two extremes are fairly easy. The telephone company probably shouldn’t be liable for defamatory content transmitted across their network. We really don’t want anyone listening in on our calls to make sure that we don’t defame anyone, and back when operators could do so, they pretty much had to mostly pretend that they hadn’t. And since the newspaper essentially chose to publish the defamatory letter, then they probably should be liable for it, since their broad reach likely makes the damage much higher. Email, SMS text messages, etc sit between these two situations. I can remember the debates at the time. (I was interested, because I started off my law practice in cyber law, but moved defensively into patent law, which was much more lucrative at the time). Transmitting and storing email and text messaging had aspects of both. They had the semi-permanence of a paper, but the lack of editorial content of the phone company. And that was why Congress was convinced by the big ISPs and network providers to draw the line where they did, with CDA §230. And the line drawn was that if someone providing electronic transmission acted like the phone company, and merely passed material through, from point A to point B, they were treated like the phone company in terms of defamation liability. But if they did look at the data they were transmitting, and made any editorial decisions about it, they were treated like a newspaper. This wasn’t a problem for ISPs, etc, since they typically merely acted as passive content transmitters - similar to the phone lines they replaced.

Bruce Hayden said...

(Continued)

Then Twitter, Facebook etc, came along. Because of their structure, their likelihood of transmitting defamatory material went way up over that of ISPs. Most of the defamatory content on the Internet is never litigated, because the creators of such rarely have the wealth to justify the expense- they are judgment proof. Not Twitter, Facebook etc. They are multi billion dollar companies, so are nice juicy targets. Which is why they desperately need to stay within the §230 safe harbor. And there are somewhat similar services that have no problems staying on the right side of the line. But these companies are based in the heart of wokedom, so are staffed by hard left SJWs. They have to #Resist. The result is that they have been pushing the envelope for some time, by shadow banning, deplatforming, etc. But “fact checking” the President seems to have blatantly crossed the line this time. They moderated his content, and created their own, declaring his false (it wasn’t, of course). They acted more like the newspaper whose editor commented on a letter to the editor they published, than the phone company that is unaware of the content they are transmitting. And with that very obvious and egregious crossing of the line, they could possibly face billions in defamation damages for material that they transmit daily to millions of people - esp since these products act as megaphones, often greatly increasing the number of people seeing defamatory material.

Scott Patton said...

Follow Roger Sweeny's Volokh link.
Also Mike Masnick at TechDirt is a good resource for knowledgeable info on § 230

Bruce Hayden said...
"Twitter, itself spoke, when it questioned the accuracy of the President’s tweets. And that speech is what arguably is abrogating their §230 immunity."
And that (Twitter's) speech is not immune.
Likewise, my speech on Twitter or this comment section is not immune from claims against me. However, our gracious host is immune from claims against my speech, even if she chose to not block it and even if she chose to block other comments by me or others.
Seems fair to me.

Bruce Hayden said...

Someone above essentially asked why, if Twitter is so essential to Trump’s success, he hasn’t been deplatformed by the company. I have little doubt that it has been considered, and routinely reconsidered, by the SJWs staffing and running the company. I expect that they haven’t because they were told by their lawyers that it would very possibly be catastrophic for the company. I see us now at a point where Twitter has been escalating tensions for some time now. This was an overflight by one of their warplanes over Trump territory. He responded by moving in an aircraft carrier, and maybe overflying their territory with one of our stealth bombers. It’s their move now. They can step back a little, and calm tensions, or they can escalate. But if they pull the trigger, they now know that the boomer subs parked offshore will likely launch. Followed by the carrier air wing, and then bombers from as far away as the US.

What do I mean here? The EO yesterday is similar to the sort of thing that he has done with China. Strong, but very measured. Trump has the entire Executive Branch at his disposal. That includes the DOJ, with its antitrust section, FBI, Homeland Security, ICE, IRS, etc. Opening up an antitrust investigation alone would probably crash their share prices. Because, of course, a good argument can be made that they are a monopoly, and are abusing their monopoly power.

Looking back at the conflict. One of Trump’s greatest strength is his ability to use Twitter and excite his base. The Dems (including those wielding power at Twitter) know this, and want desperately to neuter, if not eliminate, this threat before the November election. I see this action by them as a foray in force, to discover the limits of what they can do later on this year. He reacted quickly and decisively, telling theM not to push it too hard. If he had dithered, like Obama tended to do, that would have sent a different message.

The pressure on Twitter, both internally and externally is going to ramp up over the next 6 months to do something to make Trump’s Twitter threat go away. The strategic problem is that if they do after a Labor Day, it will be known to much of the country, and the Trump voters who were questioning whether they were willing to crawl across broken glass to vote for him, would now be ready to crawl across a bed of nails to do so. But if they move too quickly, that would give Trump and the Republicans ample time to reply.

Keep in mind another of Twitter’s vulnerabilities - that their power and wealth come from network effects. No competitor can get going because everyone already has a Twitter account. But if President Trump publicly moves his tweets to another platform, after being deplatformed by Twitter, he will likely be followed by tens of millions, many of whom will cancel their Twitter accounts in disgust. This would likely create a split in the market with a liberal and a conservative system (think FNC vs CNN, etc).

It should be an interesting six months.

Bruce Hayden said...

“Eugene Volokh, a free speech expert (and neither a Democrat nor a Trumpist), provides background on 47 U.S.C. § 230 and the Publisher/Distributor/Platform Distinction.”

I mentioned my Cyberlaw days earlier. Starting around 1990, maybe a year earlier, I got involved in that part of the law. I had come out of a career designing and implementing data communications protocol stacks and utilities to run on top of them. I was trying to leverage my experience in software in general, and data communications in particular, with my newly acquired law degree. There was an active Listserve group, Cyberia-L, that discussed these issues intensely. Great fun. Then another participant, Mark Lemley, and I moved to Austin about the same time, him to teach law at UT, and I as an in-house patent counsel to a large electronics company. We hooked up over lunch, and continued the relationship as long as I was there. He taught IP law, and was interested in what actually happened in the patent world. He later moved to Berkeley, about the time I left Austin, thence to Stanford, mostly based on his statistical work in patents.

Lemley put on a yearly Cyberlaw CLE conference in Austin, sponsored by UT, that was later followed by a yearly Patent Law CLE conference. I spoke at both as a friend of his. For the yearly Cyberlaw conferences, he recruited a number of the better minds on Cyberia-L. One of them was Eugene Volokh. Amazingly bright. Graduated from UCLA with a CS degree at 18, started his own software company after that, went back to UCLA for LS, and ended up as a SCOTUS clerk, before going back to UCLA to teach. He has the distinction of being cited by the Supreme Court as a expert in both 1st and 2nd Amdt jurisprudence (much of the historical work behind the Heller decision was from him).

I should add that most of the time, I wasn’t a speaker at Lemley’s conferences. I just got in a time or two out of friendship. But his Cyberlaw conference was the high point of the year for me. There was always a speaker’s dinner after the second day, and a bunch of the speakers would then get together and go downtown to East 6th Street to hang out. I knew the routine, so would be hanging out in the lobby waiting for the dinner to end, and EV was one of those who participated. Great fun, hanging out with a bunch of guys much smarter than I.

I discovered blogging one day when EV sent me an email chiding me for in civility in Cyberia-L. He had a link to his nascent Volokh Conspiracy in his .sig, and ultimately found this blog from his blog roll. It’s been over twenty years since then, but I try to keep his admonition in mind about civility.