Free Speech

[TexRex]

Two Internet Trade Groups Sue Texas Over a Recent Law Regulating Social Media Companies

On behalf of social media platforms, two Internet trade associations sue Texas over a new law regulating content.

firstamendmentwatch.org

Two Internet trade associations are suing Texas and its Attorney General Ken Paxton over a recent law that regulates social media companies’ ability to remove users from their platforms.

Filed on September 22nd in the U.S. District Court for the District of Texas Austin Division, NetChoice and Computer and Communications Industry Association (CCIA), which represent Facebook, Twitter, YouTube, and others, contend that House Bill 20 violates the First Amendment.

HB 20 “imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies,” the complaint reads.

Facebook, Twitter, and other social media companies “have First Amendment rights to engage in their own speech and to exercise editorial discretion over the speech published on their websites and applications,” NetChoice and CCIA argue. The First Amendment applies to government action regarding speech, and not to the content moderation of private entities such as Twitter and Facebook.

The complaint also alleges that the Texas law would require social media platforms to disseminate propaganda and misinformation. “At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.

The complaint further argues that the social media sites are protected from HB 20 by Section 230 of the Communications Act. Section 230, part of a federal law, shields platforms from liability for content that is posted to their sites by users. And as such, the trade groups argues, federal law supersedes state law.

The bill, which was signed into law earlier this month by Republican Governor Greg Abbott, comes in the wake of the permanent ban Twitter placed on former president Donald Trump after the January 6th insurrection. Trump has also been banned on Facebook until at least 2023.

Abbott and other Texas Republican lawmakers say that HB 20 is necessary because they believe that conservative ideas and viewpoints are being censored on social media sites.

NetChoice and CCIA are seeking to block the enforcement of HB 20, and want the court to declare that social media platforms are protected under Section 230.

Private companies hosting user generated content is itself an act of expression. The right of private companies to decide when it will not host specific content, or all content by specific individuals and/or groups, is protected aginst government action by the First Amendment to the United States Constitution. Legislation that seeks to punish private companies for not hosting specific content violates the First Amendment. Compelled speech is not free speech.

Additionally, the right to moderate user generated content, indeed the prerogative to do so, is codified in Section 230 of the Communications Decency Act of 1996. The first and most frequently cited provision of Section 230 guarantees those private entities who host content will not be liable for content it hosts in the way the traditional publishers may be liable for content they decide to publish (because it is very much a decision that a publisher makes, subject to its discretion, whereas hosted online speech gets published by individuals on the services provided and the only decision made by a provider is whether or not to leave content up in its original published state), but the second provision actually empowers service providers to remove content it deems offensive, subject entirely to its discretion, which may not be (and does not have to be) offensive to others. This action does not have to be "fair" or "neutral."

The parties who have filed suit in Texas may look familiar. Indeed, NetChoice and CCIA were behind a similar, successful suit against the state of Florida and its free speech-hating Republican governor Ron DeSantis.

 

[TexRex]

"I Eat Ass" Bumper Sticker Might Be Obscene and Thus Constitutionally Unprotected

I reasoned, in part, that the sticker wasn't obscene under the Florida statute, which tracks the Supreme-Court-approved definition of obscenity: (10)

reason.com

I reasoned, in part, that the sticker wasn't obscene under the Florida statute, which tracks the Supreme-Court-approved definition of obscenity:

(10) "Obscene" means the status of material which:
(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;
(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.

This couldn't constitutionally apply to Dillon's speech, because to be obscene, expression "must be, in some significant way, erotic," and must tend to arouse "lustful thoughts" or "sexual responses" and not just refer to sexual acts. Hard-core pornography might be obscene, especially if displayed in public; but this sort of vulgar verbal reference to a sexual act is far from hard-core pornography.

Well, "The State Attorney's Office for the Third Judicial Circuit ultimately determined Webb had a valid defense to the charges under the First Amendment and, as such, dropped the charges against him." But Judge Marcia Morales Howard determined that the matter was uncertain enough that the sheriff's deputies who arrested Dillon were entitled to qualified immunity:

Deputy English and Corporal Kirby subjectively interpreted the Sticker as depicting a sexual act and believed that the Sticker violated Florida's obscenity statute. While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker, albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated. Indeed, others in the videos similarly acknowledged, both directly and indirectly, that the Sticker described a sexual act. Given this evidence, including Webb's own statements, it is beyond dispute that reasonable officers possessing the same knowledge as Deputy English and Corporal Kirby could have thought the Sticker depicted a sexual act, and as such [was arguably obscene].

{The Court notes there is no inherent conflict between Webb's intention to elicit laughter with his Sticker and it being obscene. The two are not mutually exclusive and Webb's suggestion that his intent to bring about laughter forecloses any argument that the Sticker was obscene is unsupported by case law.}

If the Sticker depicted a sexual act, it would be protected speech under the First Amendment only if it had serious literary, artistic, political, or scientific value. {While Webb presents evidence that the phrase is widely used, such evidence does not mean the phrase has serious literary, artistic, political, or scientific value, see Luke Records (rejecting the notion that the value of a work depends on the acceptance it receives; finding instead expert testimony that a record's music contained oral traditions and musical conventions that had cultural and political significance to be evidence in support of the third Miller element).} However, in such an instance, Deputy English and Corporal Kirby had to make a value judgment on whether the Sticker had such serious literary, artistic, political or scientific value in deciding whether to arrest Webb. Notably, the Eleventh Circuit has recognized that value judgments are inherently difficult to review, which is why law enforcement officers are immune from suit if their value judgments are supported by arguable probable cause…. Here, Deputy English and Corporal Kirby's determination that the Sticker lacked serious value under Florida law was not inherently unreasonable under the circumstances. As such, the Court finds reasonable officers in the same circumstances and with the same knowledge as Deputy English and Corporal Kirby could believe Webb's Sticker was obscene, making it an arrestable offense under Florida law….

[C]iting Baker v. Glover (M.D. Ala. 1991), Webb argues that the constitutionally protected nature of his speech was clearly established because the Sticker merely contained non-obscene, though foul, language. However, this argument fails for two reasons. First, decisions at the district court level, like the one in Baker, are insufficient to clearly establish the law for purposes of a qualified immunity analysis. Instead, "only decisions of the United States Supreme Court, [the Eleventh Circuit], or the highest court in a state can 'clearly establish' the law." Second, the Baker decision is not particularly persuasive because it is distinguishable in important respects. In Baker, the plaintiff had a bumper sticker that read, "How's My Driving? Call 1–800–EAT ****!" [The bumper sticker actually spelled out "****." -EV] … Though the defendants in the case went to great lengths to correlate the consumption of feces with a sexual act such that it would constitute obscenity, the trial court rejected the argument noting that it was "unpersuaded that a facetious message employing a single profane word could be viewed as carrying such an abnormal appeal." In other words, the Baker court found Baker's "EAT ****" bumper sticker was not erotic in nature, and therefore could not be obscene expression falling outside the protection of the First Amendment. {As recognized by the Supreme Court, obscene expression that is not protected by the First Amendment "must be, in some significant way, erotic." Cohen v. California.} The language of Baker's bumper sticker, however, is materially different than the one displayed by Webb such that the Baker decision fails to qualify as "caselaw with indistinguishable facts." …

Critically, the Court does not have to determine whether Webb's Sticker was in fact obscene for qualified immunity to apply. And, the Court makes no such finding here. Rather, Webb's burden was to show that at the time of his arrest it was clearly established that his Sticker was constitutionally protected speech, i.e. not obscene. The lack of any case even closely on point dooms Webb's effort to make that showing. On this record, the undisputed facts establish the Sticker could be interpreted by the parties and others as describing a sexual act. If interpreted to refer to a sexual act, the Sticker is arguably obscene and unprotected by the First Amendment. The lack of comparable case law and the fact that the obscene nature of the Sticker is debatable is precisely why Webb's argument that he had a clearly established right fails…

I don't think this is right; obscenity is limited to "hard-core pornography," and it's hard for me to see how a short vulgar description of sex such as "I eat ass" would qualify. Still, Judge Howard wears the robe and I don't.

Law enforcement ostensibly exists to protect rights by enforcing laws that protect rights. Speech protections are very strong in this country (so strong that it may seem problematic at times, but I certainly wouldn't have it any other way) and while some may find expressions offensive, the right to not be offended does not exist as the right to free expression does.

Dropping charges against the defendant was the appropriate action, but government action against an individual or group for speech that isn't carried out fully still has a chilling effect on speech. Inappropriate enforcement of law itself isn't likely to be criminal in nature and so charges are unlikely to be brought against officers. This is where seeking a civil judgment against government actors for violating one's rights comes in, and in this instance it is where the government actors (the law enforcement officers who violated the individual's rights) being granted qualified immunity comes into play.

Qualified Immunity--since it's less likely to appear here than in discussion of police misconduct that results in significant physical or emotional harm--is a judical doctrine that holds that civil judgment against law enforcement officers (really, government actors in general) for civil rights violations may not be sought unless existing court precedent shows judgment against an actor in near identical circumstances. When an actor is granted qualifed immunity, as is terribly likely due to the absurd requiremet, a case simply does not go to trial. So not only are an individual's rights violated, but the rights violation is affirmed by the judge that denies the seeking of damages. Qualified Immunity isn't even codified. It's entirely subject to an adjudicator's discretion.

As a relevant aside, the standards Eugene Volokh applies for determining obscenity (because the term is terribly vague) at the top of the piece make up the "Miller test" for obscenity, first applied in Miller v. California (1973).

 

[TexRex]

The Texas Social Media Law Is Blatantly Unconstitutional

Texas Gov. Greg Abbott, who this month signed a bill that aims to restrict social media platforms' editorial discretion, says the new law "protects Texans

reason.com

Texas Gov. Greg Abbott, who this month signed a bill that aims to restrict social media platforms' editorial discretion, says the new law "protects Texans from wrongful censorship" and thereby upholds their "first amendment rights." The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.

Abbott, a former Texas Supreme Court justice who served as his state's attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party's base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.

"Too many social media sites silence conservative speech and ideas and trample free speech," Abbott complained in March. A like-minded state senator declared that "Texans must be able to speak without being censored by West Coast oligarchs."

Although the evidence supporting such complaints is disputed, let's assume they are justified. Or let's imagine a social media platform that explicitly caters to the left and bans dissenting posts.

Would that constitute a violation of conservatives' First Amendment rights, as Abbott claims? No, since the First Amendment applies to the government and imposes no constraints on private parties.

To the contrary, the First Amendment guarantees a private publisher's right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate's demand that The Miami Herald publish his responses to editorials that criticized him.

The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, "the Government may not…tell Twitter or YouTube what videos to post" or "tell Facebook or Google what content to favor."

Yet that is what H.B. 20 purports to do. The law says "social media platforms" with more than 50 million active monthly users in the U.S. may not "censor" content based on the "viewpoint" it expresses. That edict covers any effort to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."

H.B. 20 makes a few exceptions, including "expression that directly incites criminal activity" and "specific threats of violence" that target people based on their membership in certain protected categories. But otherwise the rule's reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 "would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation."

Every social media service—including alternative platforms such as Parler and Rumble, which are not covered by the law because they fall below its user threshold—moderates content to some extent. And while there will always be disagreement about the formulation and enforcement of those rules, H.B. 20 replaces private discretion with government dictates.

In addition to the First Amendment, H.B. 20 flouts 47 USC 230, which bars states from imposing civil liability on a website for "any action voluntarily taken in good faith to restrict access to or availability of material" it deems "objectionable, whether or not such material is constitutionally protected." H.B. 20 implicitly acknowledges that barrier, saying it does not authorize "damages or other legal remedies to the extent the social media platform is protected from those remedies under federal law"—a proviso that effectively nullifies its ban on "censorship."

In June, a federal judge issued a preliminary injunction against a similar Florida law after concluding that it probably violated the First Amendment and Section 230. The fact that supporters of H.B. 20 were unfazed by that ruling shows how readily Republicans sacrifice constitutional principles in their culture war against "West Coast oligarchs."

 

[Hayden]

Not a great way to celebrate First Amendment Day.

They have the audacity to call it the “Mind your own business act.”

Being part of social movements is investing in future profit. Aligning with people who care about the issue builds brand identity and brand loyalty, which is rewarded with decades of customer ship.

You’ll very rarely find a board-room company make a decision that they don’t want to make money off of at some point.

 

[Danoff]

They have the audacity to call it the “Mind your own business act.”

Being part of social movements is investing in future profit. Aligning with people who care about the issue builds brand identity and brand loyalty, which is rewarded with decades of customer ship.

You’ll very rarely find a board-room company make a decision that they don’t want to make money off of at some point.

PR, brand loyalty, investing in the trademark, advertising, establishing and protecting market stability... so many ways to call this one as coming back to profits.

That being said, companies do not have a legal obligation to maximize profit for shareholders:

https://www.washingtonpost.com/business/economy/maximizing-shareholder-value-the-goal-that-changed-corporate-america/2013/08/26/26e9ca8e-ed74-11e2-9008-61e94a7ea20d_story.html

https://www.washingtonpost.com/opinions/harold-meyerson-the-myth-of-maximizing-shareholder-value/2014/02/11/00cdfb14-9336-11e3-84e1-27626c5ef5fb_story.html

The Shareholder Value Myth

Shareholder-value thinking dominates the business world today. Professors, policymakers, and business leaders routinely chant the mantras that public ...

corpgov.law.harvard.edu

Corporations Don't Have to Maximize Profits - NYTimes.com

www.nytimes.com

Fact v. Fallacy: The Legal Duty of Public Corporations — The Sustainable Investor

The dogma that a pubic corporation has a legal obligation to maximize shareholder value has pervaded management thinking for decades. Consequently, Corporate America has, by and large, held the notion that the purpose of a public corporation is shareholder wealth maximization, which has long b

www.thesustainableinvestor.net

Here's the mission statement of a huge publicly traded company:

THE MEDTRONIC MISSION
1.To contribute to human welfare by application of biomedical engineering in the research, design, manufacture, and sale of instruments or appliances that alleviate pain, restore health, and extend life.

2.To direct our growth in the areas of biomedical engineering where we display maximum strength and ability; to gather people and facilities that tend to augment these areas; to continuously build on these areas through education and knowledge assimilation; to avoid participation in areas where we cannot make unique and worthy contributions.

3.To strive without reserve for the greatest possible reliability and quality in our products; to be the unsurpassed standard of comparison and to be recognized as a company of dedication, honesty, integrity, and service.

4.To make a fair profit on current operations to meet our obligations, sustain our growth, and reach our goals.

5.To recognize the personal worth of all employees by providing an employment framework that allows personal satisfaction in work accomplished, security, advancement opportunity, and means to share in the company's success.

6.To maintain good citizenship as a company.

Number 4 is to make a "fair" profit. Not "maximize" profit. And it's not number 1. I suppose Rubio would sue this particular company (Medtronic) for donating their ventilator design, schematics, software, and assembly instructions to the entire world during the pandemic to alleviate ventilator shortages.

 

[TexRex]

They have the audacity to call it the “Mind your own business act.”

Being part of social movements is investing in future profit. Aligning with people who care about the issue builds brand identity and brand loyalty, which is rewarded with decades of customer ship.

You’ll very rarely find a board-room company make a decision that they don’t want to make money off of at some point.

So, yeah, it's unconstitutional for government actors to subject private companies--even those that are traded publicly--to liability for [explicit or symbolic] speech with which they disagree, but it's also aggressively ****ing stupid because companies would also be subject to liability for speech with which they agree. But this isn't rational. This is emotional. They're aggrieved and they want those they believe to have wronged them to pay.

The worst part of this may not even be that it's unconstitutional or that it's laughably shortsighted, though these are certainly bad, rather that, if passed, it will almost immediately be subject to a facial challenge and will soon after be struck down as unconstitutional. Rubio et al know of and expect this outcome, but it doesn't matter because this is performative. They're putting on a show for the base, making it look like they're really sticking it to "woke corporations" and the "oligarchs" who head them. And in the process, they're undermining the courts and rule of law.

 

[HenrySwanson]

Two journalists share the Nobel Peace Prize for fighting to defend freedom of expression in Russia and the Phillipines.

 

[TexRex]

From Rep. John Curtis (R-UT) on the House Energy and Commerce Committee.

Sen. John Kennedy (R-LA) floated something like this fairly recently. The justification he provided was that the absence of anonymity would cause a lot of people to think about their words. From a member of Congress, this is disconcerting.

In authoring the majority opinion on McIntyre v. Ohio (1995), Justice John Paul Stevens wrote that "anonymity is a shield from the tyranny of the majority" and anonymous speech led to the founding of the United States of America.

Edit:



Of course that doesn't mean that social media platform providers can't require identification--they're private entities and such a requirement is a right that they're guaranteed--rather that government can't require it.

Such regulation isn't in keeping with conservative values either, but then Republicans dumped on those a long time ago. Garbage. On. Parade.

 

[TexRex]

Democrats have drafted a bill to target "big tech"; hand-wringing and however well-meaning, it's marginally better than Republicans' grievance-based performative efforts. Like legislation pushed by Republicans, it's unconstitutional and demonstrates the incontrovertible truth that they just don't understand...things. In the context of attempts at internet governance today, it's really a wonder that § 230 is as clean and generally good as it is.

House Democrats Decide To Hand Facebook The Internet By Unconstitutionally Taking Section 230 Away From Algorithms

Visit the post for more.

www.techdirt.com

We've been pointing out for a while now that mucking with Section 230 as an attempt to "deal" with how much you hate Facebook is a massive mistake. It's also exactly what Facebook wants, because as it stands right now, Facebook is actually losing users to its core product, and the company has realized that burdening competitors with regulations -- regulations that Facebook can easily handle with its massive bank account -- is a great way to stop competition and lock in Facebook's dominant position.

And yet, for reasons that still make no sense, regulators (and much of the media) seem to believe that Section 230 is the only regulation to tweak to get at Facebook. This is both wrong and shortsighted, but alas, we now have a bunch of House Democrats getting behind a new bill that claims to be narrowly targeted to just remove Section 230 from algorithmically promoted content. The full bill, the "Justice Against Malicious Algorithms Act of 2021", is poorly targeted, poorly drafted, and shows a near total lack of understanding of how basically anything on the internet works. I believe that it's well meaning, but it was clearly drafted without talking to anyone who understands either the legal realities or the technical realities. It's an embarrassing release from four House members of the Energy & Commerce Committee who should know better (and at least 3 of the 4 have done good work in the past on important tech-related bills): Frank Pallone, Mike Doyle, Jan Schakowsky, and Anna Eshoo.

The key part of the bill is that it removes Section 230 for "personalized recommendations." It would insert the following "exception" into 230.

(f) PERSONALIZED RECOMMENDATION OF INFORMATION PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER.—

‘‘(1) IN GENERAL.—Subsection (c)(1) does not apply to a provider of an interactive computer service with respect to information provided through such service by another information content provider if—

‘(A) such provider of such service—
‘‘(i) knew or should have known such provider of such service was making a personalized recommendation of such information; or
‘‘(ii) recklessly made a personalized recommendation of such information; and
‘‘(B) such recommendation materially contributed to a physical or severe emotional injury to any person.

So, let's start with the basics. I know there's been a push lately among some -- including the whistleblower Frances Haugen -- to argue that the real problem with Facebook is "the algorithm" and how it recommends "bad stuff." The evidence to support this claim is actually incredibly thin, but we'll leave that aside for now. But at its heart, "the algorithm" is simply a set of recommendations, and recommendations are opinions and opinions are... protected expression under the 1st Amendment.

Exempting Section 230 from algorithms cannot change this underlying fact about the 1st Amendment. All it means is that rather than getting a quick dismissal of the lawsuit, you'll have a long, drawn out, expensive lawsuit on your hands, before ultimately finding out that of course algorithmic recommendations are protected by the 1st Amendment. For much more on the problem of regulating "amplification," I highly, highly recommend reading Daphne Keller's essay on the challenges of regulating amplification (or listen to the podcast I did with Daphne about this topic). It's unfortunately clear that none of the drafters of this bill read Daphne's piece (or if they did, they simply ignored it, which is worse). Supporters of this bill will argue that in simply removing 230 from amplification/algorithms, this is a "content neutral" approach. Yet as Daphne's paper detailed, that does not get you away from the serious Constitutional problems.

Another way to think about this: this is effectively telling social media companies that they can be sued for their editorial choices of which things to promote. If you applied the same thinking to the NY Times or CNN or Fox News or the Wall Street Journal, you might quickly recognize the 1st Amendment problems here. I could easily argue that the NY Times' constant articles misrepresenting Section 230 subject me to "severe emotional injury." But of course, any such lawsuit would get tossed out as ridiculous. Does flipping through a magazine and seeing advertisements of products I can't afford subject me to severe emotional injury? How is that different than looking at Instagram and feeling bad that my life doesn't seem as cool as some lame influencer?

Furthermore, this focus on "recommendations" is... kinda weird. It ignores all the reasons why recommendations are often quite good. I know that some people have a kneejerk reaction against such recommendations but nearly every recommendation engine I use makes my life much better. Nearly every story I write on Techdirt I find via Twitter recommending tweets to me or Google News recommending stories to me -- both based on things I've clicked on in the past. And both are (at times surprisingly) good at surfacing stories I would be unlikely to find otherwise, and doing so quickly and efficiently.

Yet, under this plan, all such services would be at significant risk of incredibly expensive litigation over and over and over again. The sensible thing for most companies to do in such a situation is to make sure that only bland, uncontroversial stuff shows up in your feed. This would be a disaster for marginalized communities. Black Lives Matter? That can't be allowed as it might make people upset. Stories about bigotry, or about civil rights violations? Too "controversial" and might contribute to emotional injury.

The backers of this bill also argue that the bill is narrowly tailored and won't destroy the underlying Section 230, but that too is incorrect. As Cathy Gellis just pointed out, removing the procedural benefits of Section 230 takes away all the benefits. Section 230 helps get you out of these cases much more quickly. But under this bill, now everyone will add in a claim under this clause that the "recommendation" cause "emotional injury" and now you have to litigate whether or not you're even covered by Section 230. That means no more procedural benefit of 230.

The bill has a "carve out" for "smaller" companies, but again gets all that wrong. It seems clear that they either did not read, or did not understand, this excellent paper by Eric Goldman and Jess Miers about the important nuances of regulating internet services by size. In this case, the "carve out" is for sites that have 5 million or fewer "unique monthly visitors or users for not fewer than 3 of the preceding 12 months." Leaving aside the rather important point that there really is no agreed upon notion of what a "unique monthly visitor" actually is (seriously, every stats package will give you different results, and now every site will have incentive to use a stats package that lies and gives you lower results to get beneath the number), that number is horrifically low.

Earlier this year, I suggested a test suite of websites that any internet regulation bill should be run against, highlighting that bills like these impact way more than Facebook and Google. And lots and lots of the sites I mention get way beyond 5 million monthly views.

So under this bill, a company like Yelp would face real risk in recommending restaurants to you. If you got food poisoning, that would be an injury you could now sue Yelp over. Did Netflix recommend a movie to you that made you sad? Emotional injury!

As Berin Szoka notes in a Twitter thread about the bill, this bill from Democrats, actually gives Republican critics of 230 exactly what they wanted: a tool to launch a million "SLAM" suits -- Strategic Lawsuits Against Moderation. And, as such, he notes that this bill would massively help those who use the internet to spread baseless conspiracy theories, because THEY WOULD NOW GET TO SUE WEBSITES for their moderation choices. This is just one example of how badly the drafters of the bill misunderstand Section 230 and how it functionally works. It's especially embarrassing that Rep. Eshoo would be a co-sponsor of a bill like this, since this bill would be a lawsuit free-for-all for companies in her district.



Another example of the wacky drafting in the bill is the "scienter" bit. Scienter is basically whether or not the defendant had knowledge that what they were doing was wrongful. So in a bill like this, you'd expect that the scienter would require the platforms to know that the information they were recommending was harmful. That's the only standard that would even make sense (though would still be constitutionally problematic). However, that's not how it is in the bill. Instead, the scienter is... that the platform knows they recommend stuff. That's it. In the quote above the line that matters is:

such provider of a service knew or should have known such provider of a service was making a personalized recommendation of such information

In other words, the scienter here... is that you knew you were recommending stuff personally. Not that it was bad. Not that it was dangerous. Just that you were recommending stuff.

Another drafting oddity is the definition of a "personalized recommendation." It just says it's a personalized recommendation if it uses a personalized algorithm. And the definition of "personalized algorithm" is this bit of nonsense:

The term 'personalized algorithm' means an algorithm that relies on information specific to an individual.

"Information specific to an individual" could include things like... location. I've seen some people suggest that Yelp's recommendations wouldn't be covered by this law because they're "generalized" recommendations, not "personal ones" but if Yelp is recommending stuff to me based on my location (kinda necessary) then that's now information specific to me, and thus no more 230 for the recommendation.

It also seems like this would be hell for spam filters. I train my spam filter, so the algorithm it uses is specific to me and thus personalized. But I'm pretty sure that under this bill a spammer whose emails are put into a spam filter can now sue, claiming injury. That'll be fun.

Meanwhile, if this passes, Facebook will be laughing. The services that have successfully taken a bite out of Facebook's userbase over the last few years have tended to be ones that have a better algorithm for recommending things: like TikTok. The one Achilles heel that Facebook has -- it's recommendations aren't as good as new upstarts -- gets protected by this bill.

Almost nothing here makes any sense at all. It misunderstands the problems. It misdiagnoses the solution. It totally misunderstands Section 230. It creates massive downside consequences for competitors to Facebook and to users. It enables those who are upset about moderation choices to sue companies (helping conspiracy theorists and misinformation peddlers). I can't see a single positive thing that this bill does. Why the hell is any politician supporting this garbage?

 

[TexRex]

People absolutely get to be ****ing piece of **** bigots on the internet. The First Amendment to the United States Constitution protects that right. The First Amendment to the United States Constitution also protects private companies' rights to not carry the speech of ****ing piece of **** bigots, especially when those ****ing piece of **** bigots are state actors as ****ing Jim Banks is. Carriage of speech is speech itself.

 

[TexRex]

The Wisconsin Assembly passed legislation on a party-line vote Tuesday that would bar public schools from teaching critical race theory, the latest Republican-controlled legislative chamber to take action on a culture war issue that erupted in school board meetings around the country this summer.

The measure mirrors efforts in other states to block teachers from instructing students on concepts of racial injustice or inherent bias.

But in testimony before a Wisconsin Assembly committee considering the bill in August, one of the measure's lead authors went farther than in other states, spelling out specific words that would be barred from the classroom.

"It has come to our attention, and to some of the people who traveled here to Madison today, that a growing number of school districts are teaching material that attempts to redress the injustice of racism and sexism by employing racism and sexism, as well as promoting psychological distress in students based on these immutable characteristics," state Rep. Chuck Wichgers (R) said of his bill. "No one should have to undergo the humiliation of being told that they are inferior to someone else. We are all members of the human race."

Wichgers, who represents Muskego in the legislature, attached an addendum to his legislation that included a list of "terms and concepts" that would violate the bill if it became law.

Among those words: "Woke," "whiteness," "White supremacy," "structural bias," "structural racism," "systemic bias" and "systemic racism." The bill would also bar "abolitionist teaching," in a state that sent more than 91,000 soldiers to fight with the Union Army in the Civil War.

The list of barred words or concepts includes "equity," "inclusivity education," "multiculturalism" and "patriarchy," as well as "social justice" and "cultural awareness."

The measure would apply to both instruction provided to students in the classroom as well as training provided to school employees.

It would also require school boards to post curricula to its own websites, and to specific school websites if a school has one. School districts that do not comply would lose 10 percent of their share of state funding. Parents or guardians of students in a school that violates the bill by teaching critical race theory or its related concepts would be allowed to sue in state circuit court.

The proposal has virtually no chance of becoming law: It passed the Assembly on a party line vote, and even if it clears the Senate, it would almost certainly be vetoed by Gov. Tony Evers (D), himself a former superintendent of public instruction.

 

[TexRex]

Censorship by private actors on a private platform availed to the public is itself protected speech.

Why do these mother****ers hate free speech?

 

[TexRex]

 

[TexRex]

****in' A right!

 

[TexRex]

Josh Hawley: We oughta break up Twitter

Sen. Josh Hawley commented on Twitter's new privacy policy that allows the tech giant to take action against media posted without a user's explicit consent.

www.foxnews.com

Haw-Haw-Hawley is a conniving sack of **** and the people who latch onto this narrative are sharp as a sack of wet rats.

 

[TexRex]

I'll be diving into this shortly because there's basically no chance it won't be fun. Ari isn't known to pull punches (or bite his tongue, so language warning for the 277-post Twitter thread) when it comes to First Amendment ignorance, regardless of political leanings.



Here's the recorded livestream for convenience, though not as much convenience as if Ari had referred to timestamps during it (not faulting the decision not to). It's seven-and-a-half hours long.



The basics of Section 230 of the Communications Decency Act of 1996 is that it says anyone who engages in online speech (including those who carry speech) shall not be liable for the online speech of anyone else. There's some confusion over "platform" an "publisher" when it comes to carriage of speech (though much of this confusion is manufactured and the word "platform" doesn't actually appear anywhere in the text of the statute) but Reps Chris Cox (R-CA, ret.) and Ron Wyden (D-OR, now Sen.) based the "immunity" provided by the statute on distributor liability, as there's no way an online platform can review the contents of all speech it carries, much less determine what is and isn't permissible by law. The statute also empowers carriers to moderate user content freely, as the original intent was to limit accessibility of explicit content, but not punish parties for failing to do so (more likely to be subject to First Amendment protections than not).

That's pretty basic stuff. Section 230 protects speech and its absence is certain to result in less speech because the threat of lawsuits will mean carriers won't take any chances. Plus they just shouldn't be liable for injurious speech of others.

For more on Section 230, former federal prosecutor and current First Amendment attorney Ken White who authors the Popehat Report on Substack has a handy resource.

Section 230 Is The Subject of The Most Effective Legal Propaganda I've Ever Seen

Here Are Some Resources On What It Really Means, If You Care

popehat.substack.com

Jeff Kosseff has also addressed Section 230 at length.


And to say nothing of testimony itself (I haven't heard it yet), among those who provided it was Eugene Volokh who heads the Volokh Conspiracy column for Reason Magazine and he's already got an entry for his appearance today.

The Volokh Conspiracy

Mostly law professors. Sometimes contrarian. Often libertarian. Always independent. Est. 2002

reason.com

 

[TexRex]

It is fun and I'm still deep in it, but this has just been brought to my attention and it's just so...

🔥



I'd like to think Paxton and Abbott are feeling impotent and ineffectual right now but I know they don't actually care about this and I know they know the ****ing idiot base thinks they're fighting the good fight and "big tech" is somehow violating their First Amendment rights (they're not) and this decision is itself somehow unconstitutional.

 

[TexRex]

Josh Hawley: We oughta break up Twitter

Sen. Josh Hawley commented on Twitter's new privacy policy that allows the tech giant to take action against media posted without a user's explicit consent.

www.foxnews.com

Haw-Haw-Hawley is a conniving sack of **** and the people who latch onto this narrative are sharp as a sack of wet rats.

Josh Hawley Thinks We Should Break Up Twitter Because He Doesn't Like The Company's Editorial Choices

As I just made clear, I’m no fan of Twitter’s new “private media” policy, which I think comes from a well-meaning place, but will lead to widespread abuse by malicious actor…

www.techdirt.com

This was a really good read on the topic. Minor language warning for the piece as it appears linked above, but it's been subjected to GTP's profanity filter below.

As I just made clear, I'm no fan of Twitter's new "private media" policy, which I think comes from a well-meaning place, but will lead to widespread abuse by malicious actors seeking to hide evidence of bad behavior (indeed, there's evidence this is already happening). But that's no excuse for Senator Josh Hawley (supporter of the January 6th insurrection, and who seems to think his job as Senator from the confused state of Missouri is to product manage internet services). Hawley reacted to this new policy by saying that it's a reason to break up Twitter. He says "we oughta break them up" at the end of a very bizarre interview with Fox News host Pete Hegseth.

We'll get to the other nonsense from Hegseth and Hawley in a moment, but let's start by focusing on the "we oughta break them up" line. First off, he's clearly saying that the company needs to be broken up in response to the company's editorial decisions. That's... just a blatant violation of the 1st Amendment. Hell, just imagine how he (or Hegseth!) would respond to a Democratic Senator saying Fox should be "broken up" because of the company's editorial bias. I imagine both Hawley and Hegseth would go nuts about such unconstitutional overreach. But here, Hawley suggests breaking up Twitter in response to its editorial choices, and Hegseth seems happy to support that position.

That's because neither of them have any principles. They're fine with ignoring the Constitution if it allows them to attack their perceived ideological enemies.

Second, under what possible theory would you "break Twitter up" here. Twitter is relatively small as a social media player. Reports from about a month ago show Twitter as the 15th largest social media service globally. Even in just the US, it appears that Twitter comes in at least 7th place and possibly lower, depending on WhatsApp and TikTok's growth.

So the company, in no way, qualifies for any sort of antitrust treatment no matter how you look at it. The only possible reason to suggest that we should "break up" Twitter is because you disagree with their policies, which is a blatantly authoritarian position. Which, well, fits when we're talking about Josh Hawley.

As for Hegseth, his little bit of pandering is ridiculous as well. After mispronouncing both the first and last name of Twitter's new CEO, Parag Agrawal, he blames Agrawal for the new policy (that surely was planned much earlier). He then goes on a rant about how this policy is "meant to protect" antifa and Black Lives Matter protestors, but insists that it won't be used to protect conservatives.

Of course, as we showed in our original post, nearly all of the examples of enforcement so far have gone the other way. The policy has been used to takedown images and videos of Trumpists and white nationalists who didn't like being called out by others. But, never expect a Fox News host to let facts get in the way of winding up the ignorant base. Hegseth also fails to mention the fact that the policy doesn't apply to public figures or newsworthy events -- and names multiple public figures and newsworthy situations that he insists will be "censored" under the policy. Basically, pure disinformation.

He then says:

It gives the social media platform even more control, which is scary. More control over what can be shown. And more proof that they are, indeed, a publisher, and not simply (eyeroll) an unbiased platform.

Except basically all of that is ********. Twitter has always had control over what it does and does not allow on its platform. That's how terms of service work. It's no different from the fact that Fox News and Hegseth would never have me on Fox News to explain to his face why he's an ignorant, pandering fool. Because that's their editorial discretion. That's the right of Fox News, just as it's the right of Twitter. Hell, Twitter allows WAY MORE speech on its platform that its executives disagree with than Fox News ever has and ever will.

And to then trot out the bogus and meaningless "publisher" / "platform" distinction (and throwing in a gratuitous and meaningless "unbiased") makes no sense. A publisher has 1st Amendment rights to choose what to host and what not to. And Twitter was never an "unbiased platform." That's just something that people made up to attack the company.

Hegseth then claims that Twitter will now use this to censor content "they don't want you to see." Which is... not at all how this works. He then brings on Hawley, who rambles on bizarrely and disconnected from reality. He insists that this won't be used to "protect the privacy of conservatives," which is nonsense. Again, all of the examples we've seen of content being taken down are examples of it being Hawley's fans and supporters who are abusing this new policy to hide their own bad behavior. Hawley then flat out lies about how Twitter operates, claiming that Twitter "tracks us around the web" builds a "dossier" on us and "sells our information." Twitter... doesn't actually do that? None of these companies "sell our information." They sell advertising, which is targeted based on our information but that's very different. And while you could say that Google and Facebook "track us," Twitter really doesn't except in the most limited of ways.

This is just random rage from Hawley in which he throws in a bunch of catchy sayings that don't actually apply to Twitter, because it riles up his ignorant base (the only kind of people who would ever support Hawley, apparently) and then calls for the company to be broken up. It's cynical, hypocritical and disgusting -- or basically a Josh Hawley specialty.

 

[TexRex]

Continued from here.

Go on, then. Enlighten me, quote by quote.

I mean...okay. This began as what I thought was a pretty innocuous message that I posted on my profile. Though I didn't make it known initially, it was a response to efforts in the United States Congress to subject social network providers to liability for unprotected speech that it amplifies through algorithms, and the odds that any message is algorithmically amplified are high. This sort of amplification is neither unique nor meaningful, and members of Congress predictably don't understand this...or they do, which, in this particular context, is worse.

I've also gone ahead and screengrabbed the entire profile thread as of posting this, for a visual record not accessible only by site staff.

Regulating reach on social media is also regulating speech on social media.

Here's your first post in the thread:

The open inclusion of falsehoods and conspiracy theories is a vital function of the marketplace of ideas. Appointing people to selectively exclude voices that are deemed as undesirable only erodes everyone’s capacity for critical thinking. I could therefore never agree with the exclusion of even the voices that I hate the most.

It starts out sort of fine, I guess, even if the "marketplace of ideas" is too often invoked in a way that runs counter to its original intent.

Where a free market is one in which government does not intervene, so too is the marketplace of ideas. The analogy supports the argument that speech should be countered with more speech rather than be suppressed by a state actor.

The idea that the inclusion of falsehoods and conspiracy theories is vital in the "marketplace" seems a little dubious. They exist. The supposed function of the marketplace is to see that speech considered detrimental to a healthy society is weeded out by more speech. I don't know that it works (it certainly doesn't seem to have thus far), but at the same time I don't want government intervention with even a light touch, such as establishing that which is factual or appropriate, much less heavy-handed involvement through prosection of speakers or availing the courts to the powerful against the average speaker for speech not reasonably said to cause injury.

Finally, "exclusion of voices" not by state actor is itself speech that is protected against infringement by state actor...at least where it is, such as the United States.

I then responded to another's dubious assertion that falsehoods and conspiracy theories are themselves injurious:

Lies and conspiracy theories are protected speech except in very narrow circumstances when they are not, and in those circumstances that they're not, it's not because they're lies or conspiracy theories that they're unprotected.

Also, agency is a thing. People do have control over how they act in response to stimulus such as the information they take in, the veracity of which notwithstanding, and so it's actions that may be determined to have been illegal and punished appropriately.

The state, particularly as it has demonstrated itself to be deeply partisan, has no business serving as any kind of arbiter of truth, and so speech protections are robust even as speech may be deserving of condemnation.

You started off in agreement but quickly went off the deep end:

Good point on the state not being trustworthy as a controller of speech. It's exactly why I think that Facebook, Twitter and Google should not be able to stifle speech on their platforms: purely on the basis that they facilitate the majority of communication. Their size and growth now means that, morally, the people should have legal protections against being totally silenced by them

I hate to break it to you, but if the internet isn't a communications service subject to government regulation as telecomms are, and this is the holding of those who stand in opposition to government mandated net neutrality, then social network providers who depend on it simply cannot be either. They're information service providers.

As I've already said, they're also speakers. State actors punishing them for speech such as moderating content made available on their platforms or compelling them to moderate further with threat of liability for speech that wasn't their own not only constitutes infringement on their rights, but it's also antithetical to the "marketplace of ideas."

You then went on this all but irrelevant diatribe about these companies and privacy concerns to reinforce the notion that these companies can't be stopped and that people are subject to their whims despite alternatives (which aren't as convenient or inexpensive and may not have staying power) existing, and it's all so steeped in conservative victimhood. You even went so far as to type up a message that wouldn't easily fit the format of profile posts (not that the format's limitations have stopped me, because it's possible to post multiple messages consecutively) and screenshot it to post it as an image, and in that message you said these companies are hiding behind protections, though you were mistaken about what protections they have, and they actually have more than you suggested. But those protections are appropriate. They reinforce the rights of private actors that state actors have acknowledged they have. When rights are observed, those who have them don't actually hide behind them. They just have them.

Now, I don't actually know your political leanings, but because your part of this exchange piqued my curiosity, I had the idea to do a search of your postings for some conservative buzzwords. To your credit, you haven't used the term "woke" in public on GTPlanet. "Wokeness" is such a conservative bogeyman that I was certain it would come up in a conservative's postings here. Maybe the lack thereof is due in part to your having not participated in this subforum. But I digress. There was another term popular among conservative victims that I wanted to check for.

Oh, dear.

You, uh...you get that "cancel culture" (BOO!!!) is a manifestation of free speech, don't you? Not only free speech, but also freedom of choice and freedom of association. Without these things, it doesn't exist. An argument can even be made that "cancel culture" (BOO!!!) is itself a byproduct of the "marketplace of ideas." I mean...you can think people are quick to criticism and condemnation--I do (I tend to look at whatever drew the criticism and judge it as if I'd be bothered by it absent the criticism and condemnation of others)--but to decry it wholesale as conservatives do (all while engaging in the exact same behavior themselves) seems disingenuous.

...

Aaaaanyway...the right is now seeking to weaponize the courts against speech they don't like using tactics employed by Texas to deny women bodily autonomy.

Of course the rat ****ers are going after private businesses. Nobody is safe from their culture war posturing.

Nobody who has been paying attention should be surprised by this development.

[Edit] Whoops! A naughty word in the second embedded tweet slipped past me. I've replaced the embedded tweet with a screenshot edited to omit the naughty word.

 

[Pupik]

When I hear this crap, I just imagine that they're trying crack down on critical thinking: Independent thought is "bad" for the state, industry, and businesses. They are dependent on emotional reactions and pandering over rational thought and calm decision-making.

Never mind that most proponents of this bill are either sending their little dearies to private schools, parochial schools, or attempting homeschooling.

 

[Danoff]

Continued from here.

I mean...okay. This began as what I thought was a pretty innocuous message that I posted on my profile. Though I didn't make it known initially, it was a response to efforts in the United States Congress to subject social network providers to liability for unprotected speech that it amplifies through algorithms, and the odds that any message is algorithmically amplified are high. This sort of amplification is neither unique nor meaningful, and members of Congress predictably don't understand this...or they do, which, in this particular context, is worse.

I've also gone ahead and screengrabbed the entire profile thread as of posting this, for a visual record not accessible only by site staff.

Regulating reach on social media is also regulating speech on social media.

Here's your first post in the thread:

It starts out sort of fine, I guess, even if the "marketplace of ideas" is too often invoked in a way that runs counter to its original intent.

Where a free market is one in which government does not intervene, so too is the marketplace of ideas. The analogy supports the argument that speech should be countered with more speech rather than be suppressed by a state actor.

The idea that the inclusion of falsehoods and conspiracy theories is vital in the "marketplace" seems a little dubious. They exist. The supposed function of the marketplace is to see that speech considered detrimental to a healthy society is weeded out by more speech. I don't know that it works (it certainly doesn't seem to have thus far), but at the same time I don't want government intervention with even a light touch, such as establishing that which is factual or appropriate, much less heavy-handed involvement through prosection of speakers or availing the courts to the powerful against the average speaker for speech not reasonably said to cause injury.

Finally, "exclusion of voices" not by state actor is itself speech that is protected against infringement by state actor...at least where it is, such as the United States.

I then responded to another's dubious assertion that falsehoods and conspiracy theories are themselves injurious:



You started off in agreement but quickly went off the deep end:

I hate to break it to you, but if the internet isn't a communications service subject to government regulation as telecomms are, and this is the holding of those who stand in opposition to government mandated net neutrality, then social network providers who depend on it simply cannot be either. They're information service providers.

As I've already said, they're also speakers. State actors punishing them for speech such as moderating content made available on their platforms or compelling them to moderate further with threat of liability for speech that wasn't their own not only constitutes infringement on their rights, but it's also antithetical to the "marketplace of ideas."

You then went on this all but irrelevant diatribe about these companies and privacy concerns to reinforce the notion that these companies can't be stopped and that people are subject to their whims despite alternatives (which aren't as convenient or inexpensive and may not have staying power) existing, and it's all so steeped in conservative victimhood. You even went so far as to type up a message that wouldn't easily fit the format of profile posts (not that the format's limitations have stopped me, because it's possible to post multiple messages consecutively) and screenshot it to post it as an image, and in that message you said these companies are hiding behind protections, though you were mistaken about what protections they have, and they actually have more than you suggested. But those protections are appropriate. They reinforce the rights of private actors that state actors have acknowledged they have. When rights are observed, those who have them don't actually hide behind them. They just have them.

Now, I don't actually know your political leanings, but because your part of this exchange piqued my curiosity, I had the idea to do a search of your postings for some conservative buzzwords. To your credit, you haven't used the term "woke" in public on GTPlanet. "Wokeness" is such a conservative bogeyman that I was certain it would come up in a conservative's postings here. Maybe the lack thereof is due in part to your having not participated in this subforum. But I digress. There was another term popular among conservative victims that I wanted to check for.

Oh, dear.

You, uh...you get that "cancel culture" (BOO!!!) is a manifestation of free speech, don't you? Not only free speech, but also freedom of choice and freedom of association. Without these things, it doesn't exist. An argument can even be made that "cancel culture" (BOO!!!) is itself a byproduct of the "marketplace of ideas." I mean...you can think people are quick to criticism and condemnation--I do (I tend to look at whatever drew the criticism and judge it as if I'd be bothered by it absent the criticism and condemnation of others)--but to decry it wholesale as conservatives do (all while engaging in the exact same behavior themselves) seems disingenuous.

...

Aaaaanyway...the right is now seeking to weaponize the courts against speech they don't like using tactics employed by Texas to deny women bodily autonomy.

Of course the rat ****ers are going after private businesses. Nobody is safe from their culture war posturing.

Nobody who has been paying attention should be surprised by this development.

[Edit] Whoops! A naughty word in the second embedded tweet slipped past me. I've replaced the embedded tweet with a screenshot edited to omit the naughty word.

Let's think for just a moment on how innocuous the concepts are here that seem to warrant absolutely crapping on the 1st amendment. It's not just tossing freedom of speech under the bus, it's tossing it under the bus without even pretending to have a good reason.

 

[TexRex]

Let's think for just a moment on how innocuous the concepts are here that seem to warrant absolutely crapping on the 1st amendment. It's not just tossing freedom of speech under the bus, it's tossing it under the bus without even pretending to have a good reason.

Okay so it was innocuous insofar as it wasn't as "baity" as my having repeatedly asked, "Why do Republicans hate free speech?"

 

[UKMikey]

@TexRex, I agree with everything you've posted but would just like to warn you that there's some harsh language in one of JeSuisJortsHat's tweets which seems to have slipped past the language filter so you may want to stick it inside a pair of NSFW spoiler tags. cAnCeL CuLtURe!! (j/k) (Already rectified while I was typing this out)

Can't believe people want to argue that vaxxers are the ones acting like Nazis given the tactics being employed by the anti-woke crowd you highlight above.

When I hear this crap, I just imagine that they're trying crack down on critical thinking: Independent thought is "bad" for the state, industry, and businesses. They are dependent on emotional reactions and pandering over rational thought and calm decision-making.

 

[TexRex]

@TexRex, I agree with everything you've posted but would just like to warn you that there's some harsh language in one of JeSuisJortsHat's tweets which seems to have slipped past the language filter so you may want to stick it inside a pair of NSFW spoiler tags. cAnCeL CuLtURe!! (j/k)

I thought I got it with my screenshot substitute. Is there more? Am I blind?

Edit: Would you be so kind as to type out the message and censor the word yourself? I'm at a loss.

 

[UKMikey]

I thought I got it with my screenshot substitute. Is there more? Am I blind?

Edit: Would you be so kind as to type out the message and censor the word yourself? I'm at a loss.

I think you substituted it before I refreshed the screen so I'll cancel my own comment with the strikethrough tags. Sorry about that.

 

[TexRex]

 

[Danoff]

Okay so it was innocuous insofar as it wasn't as "baity" as my having repeatedly asked, "Why do Republicans hate free speech?"

I'd like to go back in time and let myself know about this:

Me: So in the future there's a big anti-free speech movement in the US
Younger Me: Crap. Hang on, don't tell me. It's the n-word. They're banning the n-word.
Me: No.
Younger Me: So maybe larger like hate speech or something?
Me: No.
Younger Me: So is it certain religious practices like terrorism?
Me: No.
Younger Me: It's not the Muhammad thing is it? We're not trying to appease religious wackos are we?
Me: That might be getting a tad closer.
Younger Me: ok just tell me. I'm sure it's some kind of road to hell is paved with good intentions situation...
Me: They're trying to legislate against schools and corporations teaching that some US laws have been rooted in, and perpetuate, racism.
Younger Me: 🤯

Of all the dumb reasons to go after the constitution. This has to be one of the dumbest.

 

[TexRex]

It is fun and I'm still deep in it, but this has just been brought to my attention and it's just so...

🔥



I'd like to think Paxton and Abbott are feeling impotent and ineffectual right now but I know they don't actually care about this and I know they know the ****ing idiot base thinks they're fighting the good fight and "big tech" is somehow violating their First Amendment rights (they're not) and this decision is itself somehow unconstitutional.

Texas Says Its Unconstitutional Content Moderation Law Should Still Go Into Effect While We Wait For Appeal; Judge: 'No, That's Not How This Works'

Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas’ silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely …

www.techdirt.com

Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas' silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely expected, Texas has appealed the ruling to the 5th Circuit (undeniably, the wackiest of the Circuits, so who knows what may happen). However, in the meantime, Texas Attorney General Ken Paxton also asked the lower court to have the law go into effect while waiting for the appeals court to rule!

A stay is also supported by the widely recognized principle that enjoining a state law inflicts irreparable harm on the state, and that the public’s interest is aligned with the state’s interest and harm. Plaintiffs, in contrast, will not be irreparably harmed if a stay is granted. This is evidenced by the fact that (1) their supportive members stated they either already comply with aspects of the law or could not explain how the law would be burdensome in practice; and (2) Plaintiffs’ other members, filing as amici in opposition to the Preliminary Injunction, have demonstrated no harm will occur by enforcement of H.B. 20. For all these reasons, as further set forth below, a temporary stay while the Fifth Circuit considers the merits of this Court’s Preliminary Injunction is warranted.

It is really incredible:

The Attorney General has also raised questions never considered by the Fifth Circuit or the Supreme Court as to common carriage and the First Amendment. Correspondingly, the Attorney General has demonstrated a likelihood of success on the merits regarding Plaintiffs’ claims. While this Court may have rejected the Attorney General’s arguments, it did so by relying on readily distinguishable First Amendment case law and giving dispositive weight to a novel “fact”: whether the entity “screen and sometimes moderate or curate” user generated content.
Therefore, given the novel nature of Plaintiffs’ claims and the substantial support for the Attorney General’s arguments, the Court of Appeals should have an opportunity to consider these issues before the injunction is implemented.

Basically, "even though we lost easily, we really made the better arguments, so therefore you should let the law go into effect." It's nonsense.

Remember, the key reason that the judge blocked the law from going into effect was because it so obviously violates the 1st Amendment, so letting the law go into effect fundamentally would violate 1st Amendment rights. Texas' argument here that blocking the law from going into effect "inflicts irreparable harm on the state" is positively bizarre. "If we can't violate the 1st Amendment rights of websites, then we're irreparably harmed" is a dumb argument. The plaintiffs in the case, NetChoice and CCIA fired back with the proper "LOL, wut?" opposition brief, though most of that focused on Paxton wanting the other parts of the case to continue to move forward in the district court while the appeal is happening (and basically to get into the intrusive discovery process).

The judge wasted little time in rejecting Paxton's nonsense:

The State largely rehashes the same arguments this Court rejected in its Order. The State’s new argument—that the preliminary injunction is overbroad—also asserts, again, that HB 20 is not unconstitutional. (Id. at 13). However, the Court already found that Plaintiffs are likely to establish that Sections 2 and 7 of HB 20 are unconstitutional and, as a result, fashioned a narrow, preliminary injunction. The Court is also not persuaded by the State’s contention that preliminarily enjoining the enforcement of Section 2—which contains disclosure requirements—was too broad a remedy because one of Plaintiffs’ members happens to already satisfy “several” disclosure requirements. (Id. at 13). Whether one of Plaintiffs’ members makes a business decision to publish certain disclosures, even if a few of those disclosures align with Section 2’s requirements, does not impact this Court’s decision that the State cannot constitutionally enforce Section 2’s many requirements imposed on social media platforms. Accordingly, the Court declines to stay its Order.

It also sides with NetChoice in staying the other parts of the case until after the appeal.

To preserve court resources and for judicial efficiency, whatever the posture of this case when it returns to this Court, the Court will exercise its discretion to stay this case and preserve its current posture

In other words, no, Paxton, you're not likely to succeed, and if you do, we can take up the issue then...

"Texas' argument here that blocking the law from going into effect 'inflicts irreparable harm on the state' is positively bizarre. 'If we can't violate the 1st Amendment rights of websites, then we're irreparably harmed' is a dumb argument."

 

[AbsoluteBarstool]

...seems disingenuous.

Off the beaten track? Maybe. Disingenuous? No. Don't know what you're to suggest or elicit by accusing me of that.

I might want to start by saying that I haven't chosen a discrete body of beliefs from the right or left wing. Doing so uncritically would be nothing short of thoughtless. I also think that institutions should be subject to conditions that serve people, rather than having people conditioned into states where they are merely subjects of institutions.

It starts out sort of fine, I guess, even if the "marketplace of ideas" is too often invoked in a way that runs counter to its original intent.

Where a free market is one in which government does not intervene, so too is the marketplace of ideas. The analogy supports the argument that speech should be countered with more speech rather than be suppressed by a state actor.

The idea that the inclusion of falsehoods and conspiracy theories is vital in the "marketplace" seems a little dubious. They exist. The supposed function of the marketplace is to see that speech considered detrimental to a healthy society is weeded out by more speech. I don't know that it works (it certainly doesn't seem to have thus far), but at the same time I don't want government intervention with even a light touch, such as establishing that which is factual or appropriate, much less heavy-handed involvement through prosection of speakers or availing the courts to the powerful against the average speaker for speech not reasonably said to cause injury.

Finally, "exclusion of voices" not by state actor is itself speech that is protected against infringement by state actor...at least where it is, such as the United States.

So I'll work with a definition that's as simplistic as it gets: "The marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some other authority."

I think that such a definition is robust enough and separates it from any influences such as contentions over what its spirit is or whether it should be tied to anything else. In this way, it becomes a principle that can be applied to a changing environment. My interpretation, therefore, of a good marketplace of ideas is one where you can hear everything that everyone has to say. I don't like people speaking behind my back and I don't like the idea of being in an environment where I am disallowed by design from knowing what others are thinking. As it goes, the kind of signal-boosting that these companies have been doing appears to have failed in stopping a lot of dogmatic echo chambers from reaching insanity.

As was a thread in what I was saying before you essentially told me you wouldn't read any further, I hold these companies as authorities right now because of their scale and that there are so many pressures that come under the table other than convenience and finance. I wouldn't, for example, be able to convince my grandparents in other countries to learn how to use services that Meta don't provide in order to keep in touch.

You started off in agreement but quickly went off the deep end:

Good point on the state not being trustworthy as a controller of speech. It's exactly why I think that Facebook, Twitter and Google should not be able to stifle speech on their platforms: purely on the basis that they facilitate the majority of communication. Their size and growth now means that, morally, the people should have legal protections against being totally silenced by them

So, it comes back to the idea of authority. Government authority is not worth trusting because it is too far-reaching and therefore dangerous in how prone it is to corruption. Authority as it is embodied by the whims of private companies is not worth trusting because it is driven completely by selfishness.

I completely stand by my opinion that the rights of individuals are the most important to prioritise protecting over those of public and private organisations. In my view, there's no other way to achieve as free a society as possible.

I hate to break it to you, but if the internet isn't a communications service subject to government regulation as telecomms are, and this is the holding of those who stand in opposition to government mandated net neutrality, then social network providers who depend on it simply cannot be either. They're information service providers.

As I've already said, they're also speakers. State actors punishing them for speech such as moderating content made available on their platforms or compelling them to moderate further with threat of liability for speech that wasn't their own not only constitutes infringement on their rights, but it's also antithetical to the "marketplace of ideas."

I didn't like it when net neutrality was shot down. I thought it was a heinous attack against the poor and those with unique issues and concerns that needed to be spoken out on. Therefore, you're trying to insert some kind of irrelevant cognitive dissonance. Rather than accusing me of having an opinion on the matter that you didn't know if I had, you could have simply asked. Hell, I'd even talk to you on Discord or Facebook if you were that interested.

Punishments for overreaching and silencing people when they aren't necessarily calling for actions that would be injurious or wrong otherwise are something that should be on the cards. The same for staying hands-off? Not so.

In a marketplace of ideas that fits the definition I've included here, those organisations may well be speakers - but when my words are all attributed to my name, there is absolutely no way that they can speak as me or that I can speak as them, hence:

You even went so far as to type up a message that wouldn't easily fit the format of profile posts (not that the format's limitations have stopped me, because it's possible to post multiple messages consecutively) and screenshot it to post it as an image, and in that message you said these companies are hiding behind protections, though you were mistaken about what protections they have, and they actually have more than you suggested. But those protections are appropriate. They reinforce the rights of private actors that state actors have acknowledged they have. When rights are observed, those who have them don't actually hide behind them. They just have them.

It's the best of both worlds for these companies. They're controlling basically all of the information that we're exposed to, including all of the content people are posting professionally - and then they make a mockery of this environment by both claiming that they own all of this content whilst simultaneously having nothing to do with it. One of the reasons why I've made myself busy for the last couple of days instead of giving you a reply is that the thought of this as a core theme is massively depressing.

So stating that they're hiding behind the protections that they have reflects their attitudes of treading on all feet at once and then pretending that we're getting in the way. They do simply have those protections, but those protections need to be updated in our favour.

Now, I don't actually know your political leanings, but because your part of this exchange piqued my curiosity, I had the idea to do a search of your postings for some conservative buzzwords. To your credit, you haven't used the term "woke" in public on GTPlanet. "Wokeness" is such a conservative bogeyman that I was certain it would come up in a conservative's postings here. Maybe the lack thereof is due in part to your having not participated in this subforum. But I digress. There was another term popular among conservative victims that I wanted to check for.

Why call my digressions about privacy irrelevant, but then spend minutes going along these lines? As I said earlier, this is me speaking as me and not as any kind of category that I may line up with, depending on the subject.

You, uh...you get that "cancel culture" (BOO!!!) is a manifestation of free speech, don't you? Not only free speech, but also freedom of choice and freedom of association. Without these things, it doesn't exist. An argument can even be made that "cancel culture" (BOO!!!) is itself a byproduct of the "marketplace of ideas." I mean...you can think people are quick to criticism and condemnation--I do (I tend to look at whatever drew the criticism and judge it as if I'd be bothered by it absent the criticism and condemnation of others)--but to decry it wholesale as conservatives do (all while engaging in the exact same behavior themselves) seems disingenuous.

I was trying to summarise some of the tactics that were involved. I wasn't excusing it.

I do not excuse cancel culture. I've personally been bullied into extremes of darkness that I still haven't fully recovered from by the children I went to school with. I hate seeing people being led to all sorts of different fates by massive mobs. I've never taken part in a person's cancellation and I've been as disgusted by people bullying LGBT people out of their spaces as I have by the same happening to straight blokes.

Is that why you waited for nearly two months to come into a separate thread and drag the whole thing up again? Just to remind me of how disingenuous you think I am? I took that cut-off as a cue to let it rest and not get too heated. While I really do respect the passion, I can't say much for the original engagement nor the massive delay.

 

[TexRex]

Off the beaten track? Maybe. Disingenuous? No. Don't know what you're to suggest or elicit by accusing me of that.

I might want to start by saying that I haven't chosen a discrete body of beliefs from the right or left wing. Doing so uncritically would be nothing short of thoughtless. I also think that institutions should be subject to conditions that serve people, rather than having people conditioned into states where they are merely subjects of institutions.

You're using rhetoric here to strip private actors of the private label so that you can justify the argument that the rights of some should be weighted against the rights of others. The former is deceitful and the latter is counter to free speech. Individual or "institution," private actors are private just the same and are therefore still subject to the whims of state actors when rights aren't recognized.

You want the rights of some to be weighted against the rights of others, as only government can accomplish. This isn't freedom, no matter what rights are being weighted.

So I'll work with a definition that's as simplistic as it gets: "The marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some other authority."

I think that such a definition is robust enough and separates it from any influences such as contentions over what its spirit is or whether it should be tied to anything else. In this way, it becomes a principle that can be applied to a changing environment. My interpretation, therefore, of a good marketplace of ideas is one where you can hear everything that everyone has to say. I don't like people speaking behind my back and I don't like the idea of being in an environment where I am disallowed by design from knowing what others are thinking. As it goes, the kind of signal-boosting that these companies have been doing appears to have failed in stopping a lot of dogmatic echo chambers from reaching insanity.

Why that definition? It certainly doesn't fit the free market analogy that spawned the "marketplace of ideas." Wanting some private actors to be counted among state actors for whatever reason doesn't actually make it so.

Ideas, the truth or acceptance of which notwithstanding, don't go away simply because some speakers don't discuss them and no speaker should be obligated to discuss that which they don't want to, much less argue in favor of that which they disagree.

Censorship is only censorship when state actors engage in it. "Censorship" by private actors is just speech referred to as censorship by those who disagree with it because censorship is widely recognized as being bad.

The distinction between private and state actor is important because only the latter has the capacity to pass and enforce laws. When punishment for violating said laws can mean fines, imprisonment and death, it's important that laws regarding speech are constrained.

Ideally, laws protect rights (and I mean legitimate rights rather than privileges) without violating rights (still referring to legitimate rights). If laws protect the rights of some while violating the rights of others, they probably shouldn't be laws. If laws fail to protect the rights of anyone while violating the rights of some, they absolutely shouldn't be laws. Since access to and use of social media platforms is a privilege and not a right, laws that constrain those who provide those platforms definitely fit into that last category.

Being denied access to social media platforms doesn't deny you speech (a right) even if it limits your reach (not a right).

Absent social media platforms and the internet as a whole, all ideas and information aren't readily accessible. They may still be accessible, but not without some effort. This isn't necessarily the result of government intervention (it certainly can be), rather it's likely the result of the world being so vastly large. No matter how earnest, the desire to have access to all ideas and information isn't a rational one, with or without social media and the internet as a whole.

Oh and insane dogmatic echo chambers have existed for millennia. It doesn't fall on private actors and whatever their medium to eradicate them or prevent more from forming. That falls on us. Of course many of us don't want them to go away. They're comfortable; easy. Dissent is hard. We don't want to be left out in the cold. The cold sucks.

I have to say, however, that dissent can be highly satisfying. I suppose I may only appreciate it because it's more likely to be protected than not. It's certainly not free from consequences, though. I'm actually newly private sector now, so I don't benefit from speech protections in the workplace that I had as a state employee. I can now lose my job for speech that is merely disfavored rather than that which can reasonably be said to be injurious. Where my previous employer was constrained as a state actor, my current employer is not. I have to accept this, and so I do.

As was a thread in what I was saying before you essentially told me you wouldn't read any further, I hold these companies as authorities right now because of their scale and that there are so many pressures that come under the table other than convenience and finance. I wouldn't, for example, be able to convince my grandparents in other countries to learn how to use services that Meta don't provide in order to keep in touch.

Not essentially. Explicitly. That's how inane the assertion that private actors are hiding behind their rights is. Rights exist. Some governments acknowledge their existence. Those whose rights are acknowledged by their government don't actually hide behind them. They don't have to.

That said, I wasn't totally honest. I take in information in bulk and sift through it as needed, for example if I intend to reply to it. I actually read what you had to say in that attachment, but my response was limited.

Since you bring up scale again, I recall you having said you accept the conditions of posting on GTPlanet because of the difference in scale. Why should the protection of rights be subject to the success of private actors, with protections decreasing as success increases? At what point are rights no longer protected? Why there?

So, it comes back to the idea of authority. Government authority is not worth trusting because it is too far-reaching and therefore dangerous in how prone it is to corruption.

If you don't trust government--and you absolutely shouldn't--why would you trust it to weight the rights of some against the rights of others in the manner that you wish? Government intervention is the only way you get the rights of platform users weighted favorably against the rights of platform providers, but government is corrupt, so when you give government the power to weight the rights of some against the rights of others, you can't reasonably expect them to stop when they do what you want or to even head that direction in the first place.

Authority as it is embodied by the whims of private companies is not worth trusting because it is driven completely by selfishness.

So don't trust it. Accept that it's selfish and acknowledge that it gets to be. But don't be stupid and give the government more control over speech.

I completely stand by my opinion that the rights of individuals are the most important to prioritise protecting over those of public and private organisations. In my view, there's no other way to achieve as free a society as possible.

You're still lumping private actors in with state actors. This is wrong. Private actors, be they the individual or the organization, don't possess the authority that state actors do. That which they avail is entirely opt-in (no matter how much of a necessity you want to insist they are) and they lack that capacity to legislate, enforce and prosecute.

I didn't like it when net neutrality was shot down. I thought it was a heinous attack against the poor and those with unique issues and concerns that needed to be spoken out on.

How? How was it that?

Therefore, you're trying to insert some kind of irrelevant cognitive dissonance. Rather than accusing me of having an opinion on the matter that you didn't know if I had, you could have simply asked.

You said a handful of companies that aren't telecomms control the majority of communication and you said this while telecomms still exist, as do countless other means of communication that may or may not utilize broadband. Ubiquitous as they may be, they don't have a monopolistic hold (if only because they don't rely on government intervention to stamp out competition) to justify them being subjected to common carriage regulations which are themselves antithetical to free market principles upon which the "marketplace of ideas" is based.

Social networks aren't communication service providers. They're information service providers. It's because they're the latter and not the former that they're capable of viewpoint discrimination as alleged.

Hell, I'd even talk to you on Discord or Facebook if you were that interested.

Though I've listened to and read commentary in which Discord has been brought up, I still don't really grasp what it is, and I don't use Facebook. I'm only on Facebook insofar as I appear in photographs shared on it by family and friends. I don't have a profile of my own.

I'm also not sure I understand Reddit or Snapchat. I know Instagram because my daughter's on it and if I want to see her between when she comes over to do housecleaning, I know I can hop on there and scroll a little ways before it asks me to sign in, at which point I stop because I don't want to sign up. Twitter is a little more accessible despite not having an account, except I have to use a secret tab on mobile if I want to browse. I just want to check out content from some people.

I use GTPlanet. I used to be on some other boards but I think most everyone migrated over to Facebook.

Punishments for overreaching and silencing people when they aren't necessarily calling for actions that would be injurious or wrong otherwise are something that should be on the cards. The same for staying hands-off? Not so.

"Silencing."

That's ****ing hilarious. It's also ****ing pathetic.

I don't know where you live, but I suspect you don't actually know personally what it means to be silenced. I don't and I'm thankful for that.

In a marketplace of ideas that fits the definition I've included here, those organisations may well be speakers - but when my words are all attributed to my name, there is absolutely no way that they can speak as me or that I can speak as them, hence:

It's the best of both worlds for these companies. They're controlling basically all of the information that we're exposed to, including all of the content people are posting professionally - and then they make a mockery of this environment by both claiming that they own all of this content whilst simultaneously having nothing to do with it. One of the reasons why I've made myself busy for the last couple of days instead of giving you a reply is that the thought of this as a core theme is massively depressing.

So stating that they're hiding behind the protections that they have reflects their attitudes of treading on all feet at once and then pretending that we're getting in the way. They do simply have those protections, but those protections

They're private actors that provide, conditionally, a non-essential service that isn't exclusive to them and has never been exclusive to the state. They carry speech in a specific manner over broadband, where lots of other speech is carried myriad other manners.

They're still speakers themselves, even as they carry the speech of others. Because they're speakers themselves and their speech is more likely to be protected than not (where speech protections exist), they get to decide when they don't want to carry the speech of others. As private actors, no matter their scale (see: "success"), they have a protected right to engage in viewpoint discrimination and they shouldn't be required to provide a space for viewpoints that run counter to their own.

You've made clear you're not interested in free speech. You want speech of which you approve by those whom you approve to be weighted favorably--by government, meaning it isn't free and isn't in the spirit of the "marketplace of ideas"--against speech of which you don't approve by those whom you don't approve. Calling that free speech is intellectually dishonest.

Why call my digressions about privacy irrelevant...

You...you get that words have meanings, don't you?

...but then spend minutes going along these lines? As I said earlier, this is me speaking as me and not as any kind of category that I may line up with, depending on the subject.

The topic of discussion was (and is) free speech. It was (and is) clear to me that you stand opposed to free speech, and I thought I might get a sense of how opposed to free speech you are by searching your postings. Of course an accurate picture can't be gotten doing this but it was a tool that I had at my disposal.

I was trying to summarise some of the tactics that were involved. I wasn't excusing it.

I do not excuse cancel culture.

I didn't get the sense that you excuse it and I don't believe I suggested you do. People who excuse "tactics" or "strategies" tend to not indulge in or endorse comparisons with those of the Third Reich, however forced the comparison notwithstanding.

I've personally been bullied into extremes of darkness that I still haven't fully recovered from by the children I went to school with.

That's unfortunate. I was a chunky kid and I endured slings and arrows as a result. Kids can be dicks, but words can't hurt you unless you let them hurt you and you don't have the right to be accepted into a particular peer group or to be made to feel good about yourself. I didn't like the verbal abuse but I used it as motivation to better myself (admittedly with an assist from nature).

I hate seeing people being led to all sorts of different fates by massive mobs. I've never taken part in a person's cancellation and I've been as disgusted by people bullying LGBT people out of their spaces as I have by the same happening to straight blokes.

Does this differ substantially from the marketplace of ideas? Lots of people think gay, bisexual and transgender individuals are deserving of condemnation. Lots and lots of people. A subset of that group also thinks gay, bisexual and transgender individuals are deserving of physical abuse and are willing to meter it out, but that's another matter even if it's related. I suppose a number of people thinks similarly of individuals who are heterosexual, cisgender and binary, even though I, a straight male from birth, have never personally encountered any. If a big enough group shares a belief, can they reasonably be said to be wrong?

And what of those who disagree with a particular belief? Must they associate with those who hold that belief? Must they hold their tongue and merely accept the difference in belief? Why? What of freedom of speech, choice and association? Why can't they compel others through speech (because doing so through force is wrong) to reconsider associating with those who hold that belief?

Is that why you waited for nearly two months to come into a separate thread and drag the whole thing up again? Just to remind me of how disingenuous you think I am? I took that cut-off as a cue to let it rest and not get too heated. While I really do respect the passion, I can't say much for the original engagement nor the massive delay.

What makes you think I waited? Time passed. It tends to do that. You spoke of not going through the motions as I sensed you had done in that discussion. I referred to the discussion (though I recognize in hindsight that my remark was ambiguous) and you solicited me to elaborate. I then did.

I'm sorry that you didn't like the original engagement but calls to disregard the free speech rights of anyone don't square well with me and I'm inclined to speak frankly.