Sec. 4. Federal Review of Unfair or Deceptive Acts or Practices....Elsewhere in the order, I'm seeing the suggestion that "large, powerful social media companies" have deceived people into thinking they will get a free speech forum, with the terms of service stating the limits on speech and giving the assurance that these are the only limits, when in fact there is a hidden practice of treating users differently based on their political orientation. So the order isn't merely talking about depriving the companies of immunity in private defamation lawsuits (immunity provided by the Communications Decency Act). It's talking about federal governmental action against the companies, accusing them of unfair trade.
(b) In May of 2019, the White House launched a Tech Bias Reporting tool to allow Americans to report incidents of online censorship. In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints. The White House will submit such complaints received to the Department of Justice and the Federal Trade Commission (FTC).
(c) The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by [providers of an interactive computer services] that restrict speech in ways that do not align with those entities’ public representations about those practices.
(d) For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.
Here's 15 U.S.C. § 45.
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I get kicked off both platforms (facebook and Twitter) fairly regularly, and they're both liars regarding free speech.
Hell, facebook once kicked me off for saying Americans have a right to be stupid - literally.
They'e begging for something to happen.
This ought to keep Twitter’s lawyers busy.
This is social media affirmative action for deplorables. The courts will mandate a Twitter short bus for you people.
Since Volokh focuses on free speech I immediately looked at his site, here's an interesting summary (from the site but not EV):
"What's interesting and useful in the order's focus on content derogation is that it addresses precisely the claim that anticonservative bias isn't real. For it is aimed at bringing speech suppression decisions into the light, where we can all evaluate them.
In fact, that's pretty much all it's aimed at. The order really only has two and a half substantive provisions, and they're all designed to increase the transparency of takedown decisions."
EV himself has multiple posts but these are limited to outlining current law and noting how the order might fit in or conflict.
Volokh
The legal way at them would be that they're a monopoly and so have to offer fair access to everybody. They lose certain private rights in the matter.
They're a natural monopoly, not like southern civil rights antagonists by threat of private or public violence, but by the dynamics of Zipf's law - almost all of the business goes to the top sites, with competitors sharing a long and quickly diminishing tail. Everybody goes to the site that everybody else goes to. That's why "start your own site" doesn't work. Like start your own telephone company if you don't like our service.
That analysis has the advantage of being true. It can be regulated, without affecting what happens to Volokh's comment section policies. He's not a big site.
"So the order isn't merely talking about depriving the companies of immunity in private defamation lawsuits (immunity provided by the Communications Decency Act). It's talking about federal governmental action against the companies, accusing them of unfair trade."
Both lines of attack seem plausible to me, particularly since the companies can avoid trouble by operating as an open forum.
Do you still think this is the worst way for the president to support free speech?
Is Twitter engaging in unfair trade by holding itself out as a neutral platform for free expression and then engaging in viewpoint discrimination?
Yes. That's been obvious and pointed out for years.
This is social media affirmative action for deplorables. The courts will mandate a Twitter short bus for you people.
It's all fine and dandy when it is YOUR viewpoint that is favored. What if Althouse began banning your posts simply because it was the wrong viewpoint? You ok with that?
Althouse, I think an object lesson would be helpful here. Let's put Howard in the P-box for a month and afterwards, every time he spouts liberal views, put him back in. I'd like to see whether he would be fine with it.
Memory fails as to who sued the President to keep access to his Twitter feed on the ground that the President's Twitter feed is a public forum. If that's the case, then Twitter can't then invoke private property rights to censor the President's Twitter account. The executive order is long overdue and a necessary corrective to Twitter, among other social media platforms, acting as publishers yet avoiding publisher liability. Sorry, Jack, you can't have it both ways.
I think one way to address the situation would be to require a Posters Bill of Rights. Something along the lines of requiring platforms that take down or suppress a post to inform the poster of the post taken down, the specific reason for the action, reveal any complaints that led to the action, etc. The platform also would be required to provide a means for the poster to promptly appeal, to a live person, any such action. The platform would also have to keep a public record of such actions.
If the platforms want to censor viewpoints, make it expensive or a hassle to do so. We might get less of it.
The legal way at them would be that they're a monopoly and so have to offer fair access to everybody. They lose certain private rights in the matter.
I think the monopoly angle is a good one. I've always been troubled by the notion that a firm is monopoly because they invent a better widget and everyone decides to buy it. I seem to be in the minority, certainly compared to the regulatory set...
...and if the monopoly argument doesn't work for you, break out the left's popular claim of stakeholder's rights. The legal argument goes something like: Twitter didn't receive express written consent from Republicans to suppress their speech, therefore a Hawaiian judge can shut Twitter down.
They DO treat their subscribers differently. Much like professors treat conservatives differently in the classroom. Conservative opinion has been censored in the classroom for years. Not just censored, but denigrated. Those students eventually graduated and became Journalists! Some became employees of Twitter, Facebook, Google, etc. Some even got to the position of 'Head of Site Integrity' at Twitter, whatever that Orwellian title is supposed to mean. Actually, I think we all know what it means. It means a snotty little far-left child gets to decide what passes through and what gets shadowed...or deleted, or cautioned.
There is nothing subtle about this. Ask Facebook why they cancel Prager U. Or better yet, explain the danger of Prager U to me.
If Twitter claims to be an open forum, that is now a species of fraud.
Either they do not censor except things clearly illegal, in which case they are a common carrier like the phone company or UPS.
Or, they do censor, in which case they bear responsibility for what they publish including things authored by others but which they allow on their sites.
In the end there is not a middle ground, really.
They let you post for free in hopes that they can sell ads when other people come look at what you posted. So they do have a commercial interest in the content that is posted. But if Trump gets what he wants, Althouse can be sued for the comments she censors.
Trump is now calling for the repeal of the Communications Decency Act. A new tweet today says: "Section 230 should be revoked by Congress."
I find that very threatening. Without the protection of the immunity described there, I could not have a comments section on this blog. If it were taken away, I would be forced to undisplay the comments here. There are hundreds of thousands of comments on my blog, and though I do some moderation, I cannot know what is in all of them and I can't expose myself to responsibility for everything published here.
"Is Twitter engaging in unfair trade by holding itself out as a neutral platform for free expression and then engaging in viewpoint discrimination?"
-- I think it is obvious they engage in viewpoint discrimination; I'm also not sure if the power of the government is the right way to punish them for that.
I think rather than repealing 230, it needs to be amended. There is a threshold where someone becomes the publisher of things. Moderating a forum? Not a publisher. Twitter that actively pushes tweets it likes and shadowbans content they don't like? Probably a publisher.
One of the problems driving much of the furious leftist press around this incident is that too many people either already believe or can be easily convinced that the Constitution and the laws of the land are basically no different from the rules deployed by Big Tech to govern its social media platforms.
Seeing such a committed denizen of social media become shocked and outraged when they discover that the real world and its law is actually something totally different and superior to their lotus land invariably reminds me of that scene in Being There where Chance/Chauncy Gardiner points his remote control at the threatening gang member and clicks it futilely, trying to change the picture.
All the social media giants need to do is to make an attempt to be fair-minded. That's not so hard. Since they make no effort to be fair-minded, Congress should make no effort to afford them the free protections of the law that they've been hiding behind. This is not an aggressive action by Trump, it's a defensive response to Twitter and Facebook's contrariness. When Twitter and Facebook act in bad faith by shadow-banning, or re-setting the counts, or by outright banning for things because of their conservative viewpoint, it's the definition of egregious. They are aggressively editing content; let them be publishers. James Woods gets banned for quoting an Emerson poem while Kathy Griffin exhorts the public to stab Trump with an empty syringe and kill him with an embolism. And then backs it up by saying yes, that's precisely what she meant.
End the selective impunity, end the arbitrary gulags and the problem goes away. Be the smart-ass and brag about your one-sided policies - as has been captured in discussion on tape - and suffer the consequences. Trump is right. Time for the hammer.
This:
"If Twitter claims to be an open forum, that is now a species of fraud.
Either they do not censor except things clearly illegal, in which case they are a common carrier like the phone company or UPS.
Or, they do censor, in which case they bear responsibility for what they publish including things authored by others but which they allow on their sites.
In the end there is not a middle ground, really."
is the whole of it, and the solution is for the courts hearing cases brought against ostensibly neutral platforms acting in fact instead as publishers to not automatically dismiss those cases on the basis of such defendants' aspirational fictions.
He's doing what he always does, negotiating, setting an anchor, establishing an extreme position. Which is not to say I think he wants anything close to revocation of Section 230, rather he is emphasizing that applying that law to Twitter needs serious investigation and consideration. This will get his critics to defend Section 230, as you are doing, which can, in turn, highlight why Twitter shouldn't fall under its protections.
Or maybe he's just stirring the pot to drive the focus of today's conversation.
Quotes from Trump: “The choices that Twitter makes, when it chooses to suppress, edit, blacklist, shadowban are editorial decisions, pure and simple, they are editorial decisions."
“What they choose to fact check and what they choose to ignore or promote is nothing more than a political activism group."
-- I mean, Trump isn't wrong that Twitter is political. I don't know if his solution is a good one, but I'm glad that we're openly acknowledging this.
Oh, wait. I must have missed when Twitter's fact check of Trump's statement about mail-in ballots increasing the risk of voter fraud by saying "experts say that's unlikely," even though just a few weeks ago we learned that... fraud actually happened, makes it clear.
Twitter took a political, editorial position there. That wasn't about violence or Terms of Service. It was a naked, partisan position. They're a publisher.
This is why we can't have nice things. Liberals always abuse their privileges.
Twitter’s updated terms to allow throttling and shadow banning of content
https://reclaimthenet.org/twitter-new-terms-throttling-shadow-banning/
Holy. I just went on Twitter. When you select report, it now gives you an option to report wrong think: "This is misleading about a political election or other civic event." I think it would be very interesting to see what's been reported and how Twitter has responded to that as a look at what are their biases.
"Ann Althouse said...
Trump is now calling for the repeal of the Communications Decency Act. A new tweet today says: "Section 230 should be revoked by Congress."
I find that very threatening. Without the protection of the immunity described there, I could not have a comments section on this blog. If it were taken away, I would be forced to undisplay the comments here. There are hundreds of thousands of comments on my blog, and though I do some moderation, I cannot know what is in all of them and I can't expose myself to responsibility for everything published here"
Art of the Deal. Start with the whole enchilada, work your way to the chips and salsa. Twitter, FB, YT are either open platforms or publishers, no middle ground.
And NYT is committing fraud when it says “all the news that’s fit to print”. And Fox says “Fair and balanced”
Don’t like Twitter? Stop whining and stop patronizing it.
“ I find that very threatening. Without the protection of the immunity described there, I could not have a comments section on this blog. If it were taken away, I would be forced to undisplay the comments here. There are hundreds of thousands of comments on my blog, and though I do some moderation, I cannot know what is in all of them and I can't expose myself to responsibility for everything published here.”
Isn’t going to happen. Too much money at stake. I lived through the onslaught, led by Google, and its billions, to get the AIA (America (dis)Invents Act) passed. Horrible legislation that weakened patent protection for individuals and small businesses in this country, to the benefit of huge international multinationals. The forces opposed had a handful or so of us volunteers go up on the Hill to lobby Congress. The other side had almost as many paid lobbyists as there were members, in both houses, there lobbying every day. It was WI Congressman Sensenbrenner who explained the facts of life to us. We got his vote but few others. Money speaks loudly in Congress, and many of the biggest companies in the country, starting with Blogger’s Google, in the lead, would oppose repeal of CDA §230. About the best that I think can be expected is darkening the line that Twitter in particular keeps seeming to cross. But, since that benefits the Democrats, I don’t see anything happening until Republicans can retake both houses of Congress, while remaining the Presidency, and making it a partisan issue.
Althouse, I think an object lesson would be helpful here. Let's put Howard in the P-box for a month and afterwards, every time he spouts liberal views, put him back in. I'd like to see whether he would be fine with it.
Isn’t that, effectively, what Twitter and Facebook have been doing? It’s a viewpoint penalty.
Howard is an ass with trolling tendencies. Who here doesn’t already ignore him? Cook and ARM are cut from different cloth. Freder is in his own class of leftie idiocy. Our hostess has no duty to penalize any of them for what they say here. While I hate the moderation, she does relieve us of burden of scrolling past the repetitive disrupters who are no bEtter than the Target looters.
- Krumhorn
“Twitter’s updated terms to allow throttling and shadow banning of content”
Someone’s lawyers were busy all night. This could, arguably, shield them from FTC (etc) liability. Probably wouldn’t affect antitrust liability though.
Humorous side story. Microsoft had, for a short while added to their shrink wrap user licenses a paid up royalty free license to all of the patents and copyrights of anyone (specifically, companies) utilizing their software. I interviewed there for a job as a patent attorney. They handed me their new license and asked my opinion. I was perfectly aware of these new provisions, since they had been extensively discussed on the Cyberia-L listserve I frequented. I told them that due to their monopoly position, that this was arguably tying, and thus violated antitrust laws. I didn’t get the job offer (these were probably the attorneys who had added those provisions to their standard EULA). And the DOJ filed an antitrust suit against them three months later.
They clearly discriminate against conservatives and Republicans- this is pretty undeniable at this point. A criminal or civil case is going to open these companies up to discovery, and their actual practices aren't going to look good for them.
Blogger steve uhr said...Don’t like Twitter? Stop whining and stop patronizing it.
There's absolutely no conflict between voluntarily not using any of the Big Tech platforms and stripping them of CDA 230 protection when they behave indistinguishably from publishers.
CDA 230 doesn't protect businesses by name, it offers them a special class of immunity only on the basis of their behavior.
Though obviously unlikely to be granted, any online media platform with subscriber accounts could claim it's a "platform" and lay claim to the protections Twitter now enjoys.
And, just for fun, maybe some of them should. Sheep and goats, celebrating togetherness.
Ms. Althouse wrote:
Trump is now calling for the repeal of the Communications Decency Act. A new tweet today says: "Section 230 should be revoked by Congress."
I find that very threatening. Without the protection of the immunity described there, I could not have a comments section on this blog. If it were taken away, I would be forced to undisplay the comments here. There are hundreds of thousands of comments on my blog, and though I do some moderation, I cannot know what is in all of them and I can't expose myself to responsibility for everything published here"
You have skin in the game. Twitter behaves like a publisher, but eschews the responsibility that those actions entail. Either Twitter is responsible for the content on its service in the exact same ways The NYTimes is, or it isn't responsible and can't censor it beyond certain well recognized legal limits on free speech.
Well that is what happened. On all of these platforms.
YouTube, Twitter, and Facebook all started out as free speech platforms and if any one of them had ever done anything like the stuff they are doing today, back in those early days when they were vulnerable and there were still real alternatives, they would have failed pretty quickly. (Note that Google bought YouTube, they didn't create it, but even so YouTube was a free speech platform for many years after Google bought it.)
But I don't think this was a conspiracy or a deliberate deception. The reality is that all of these organizations were originally run by people that believed in free speech. Certainly that was the case for practically everyone that had anything to do with inventing the internet.
What has happened is that these organizations have been taken over by the left. HR, and the universities, have had a huge impact. And I think that is true despite Jack Dorsey still running Twitter and Mark Zuckerberg running Facebook. Actually I'm not quite so certain about Zuckerberg, but I suspect that Dorsey is vulnerable and has been for some time and it's not so much a case of his leading Twitter as it is a case of him trying to hold on as CEO. If he followed or was able to follow his real inclinations, I suspect he would be pro-free speech.
I think all of the heads of these organizations are actually on the middle left politically speaking. Just imagine how bad things can get when someone from the far left is actually put in charge.
If I'm not paying for the service, is that trade? IANAL... so, in pseudo lawyereese, do I have standing?
I can bitch and moan till the cows come home, might as well go eat worms!
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