Many corporations have their free speech rights stifled. For example, Microsoft can't publish software code that unfairly prioritizes their browser. Amazon can't publish product listings that give extra weight to their own products.
We can go on.
This is not the first law affecting companies ability to speak freely in the marketplace of ideas.
What’s the argument you’re making here? It’s not really in dispute that there are exceptions to the first amendment. But they’re narrowly defined to prevent government overreach.
Why do you believe that this restriction’s impact on free speech is justified?
The harm is that a corporation would be compelled to host and display speech that they disagree with.
For a fun comparison, you may want to check https://www.mtsu.edu/first-amendment/article/228/wooley-v-ma... , where the Supreme Court held that the government couldn’t force someone to drive around with the state slogan on their car, because it represented compelling speech.
> The harm is that a corporation would be compelled to host and display speech that they disagree with.
That's not a significant harm. Corporations are given certain privileges (limited-liability, very much what section 230 is an extension of), we can outline certain responsibilities in exchange.
I don't want the phone company deciding what can be talked about over the phone. The technology is absolutely there for the phone company to start disconnecting conversations that it finds suspicious (for its own unaccountable, unauditable reasons) by algorithm, just like youtube taking down videos or twitter pulling down accounts.
Free speech isn’t a privilege we give companies, it’s a right they have as collections of persons. Nor is section 230. Section 230 clarifies their behavior to the benefit of society: without confirmation in section 230 about the governments handling of responsibility for user generated content, the internet wouldn’t be able to exist (because companies would be at risk of liability for the speech of their users).
The test for first amendment restrictions also isn’t “will the harm caused be significant”.
Phone companies handle point to point conversations; they don’t have or need this kind of conversation because I can’t pick up my phone and publish a message under my phone companies’s banner.
WhatsApp can block or delete your WhatsApp messages.
And Apple could decide to not let you call numbers that start with even digits.
Neither is a violation of the 1st amendment. You can disagree about whether or not that should be the case, or whether other laws (like antitrust or discrimination) should apply, but the first amendment views the government compelling speech the same way it views the government censoring speech, and the Supreme Court has consistently found that forcing an entity to display a message is compelling speech.
In California malls and other privately owned public spaces are required to allow public speech they disagree with.
There was a case of a mall using the private property claims to stop union picketing and organizing, but the courts found this to be illegal.
If the space is generally open to the public, you have free speech rights in California.
This has stood for decades and has been law for longer in California, yet California is doing fine, and I would hardly consider California to be stifling free speech. Far from it.
We make bakers write things they disagree with on cakes with their own hands. In contrast facebooks cooperation when hosting content it disagrees with is much more remote and requires no manual intervention.
You should look into Citizens United. It largely turned corporations into non-voting citizens with... Rights (not full constitutional rights mind you, but rights none-the-less).
> Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.
This is an example of losing cases at oral argument. Something similar happened in Citizens United, where the government's lawyer (the one defending the campaign finance law), admitted point blank that under the government's view, it could ban political books by simply barring publishers from using corporate funds to print them: https://www.supremecourt.gov/oral_arguments/argument_transcr... (pp. 27-28)
That said, the opinion is pretty bad. It reads like one of those opinions you usually see from the other side of the aisle--heavy on vibe, light on logic.
I don't think the platforms should be allowed to censor user content, if they also publish news well that's them expressing their own speech and choosing not to publish a story or not which is fine. (apart from obscene, lewd, lascivious, filthy, excessively violent, harassing). I do not like that 230 leaves this addition at the end "or otherwise objectionable" that is too steep a slope (I saw the Depp case and Ambers team found every word objectionable ;)
"PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the right to pamphleteer in privately owned shopping centers)"
I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate.
Once a platform opens up to user content I see it as the same thing, just because the reach is bigger and it is digital should not make any difference, when we are all retired our kids will send us to sleep in a capsule plugged into the metaverse and wired up to a nutrient supply drip like the matrix - do you want to be censored in there ?
anyway that's my 2 cents. I am sure people smarter than me will see a lot wrong with this and happy to hear about it.
> I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate.
People can say what they want and shopping centers are absolutely free to throw people the object to out. Walmart is not a public space. The parking lot of Nordstrom is not a public space. Twitter is not a public space.
Why should Walmart be forced to serve someone spouting threats to other customers and staff? Why should Twitter be forced to broadcast users spouting threats and harassment towards their other users and their staff?
In case it was not clear, I agree with you that a shopping center should be able to remove people who are obscene, lewd, lascivious, filthy, excessively violent, harassing.
In California at least[1] people are able to peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public. So the shopping center is not able to throw them out.
I agree with this ruling and would like to see it applied Federally and to the digital platforms that allow the public to submit their own content.
Like I said I am OK to remove content or people who are obscene, lewd, lascivious, filthy, excessively violent, harassing. but otherwise if you open your property or the platform to the public, you let them bring their freedom of expression also.
Oh wow... I mean, many of these platforms operate out of California; maybe this is already applicable? (The issue in the case involved a shopping center but the premise of ruling on "taking" is way more general, and cuts to the core of the arguments people have against forcing people to host something. I have only spent a few seconds glancing at this so far, though.)
I'm not sure any social media companies are running afoul of the Pruneyard decision. It isn't saying that you can say or do whatever you want in a shopping center.
However, lots of people like to think "free speech" in the US starts and ends with the 1st amendment. This case shows that it doesn't.
Past a certain size online communities without moderation invariably turn into a cesspool. Prohibiting moderation will basically give people carte blanche to be terrible to each other and make such communities impossible.
The dynamics of online and irl communities are different, you can't really compare them.
I see this as actually an argument against communities being that large rather than an argument for moderation in most cases. To some extent moderation has tamped down the natural limiting of community size caused by aholes, which has fed the viral growth of these tech companies to the point where they have massively excessive market power and ability to influence vast swaths of the population, which is really unhealthy for a democracy. I haven't figured out what the solution is yet, but to me limiting aholes and allowing communities to grow far beyond where they would have without that problem doesn't seem like a solution that causes massive problems of its own.
That doesn't really contribute to the discussion and it is just wrong. What makes a placea cesspool is not the position someone is taking, but how they are taking that position and there are a small minority of people from all sides that cause this problem.
It's more that I am not convinced at all that these large communities are a good thing and I am not surprised that there seems to be a natural feedback mechanism to limit their size given the extremely long time we have been social creatures. The market power issue isn't the only issue with them, it's just the one that annoys me the most as an economist.
> What makes a placea cesspool is not the position someone is taking, but how they are taking that position
Disagree. You can have a cesspool of civility (Stormfront users were (are? Is the site still up?) quite civil on their forums… as long as you didn’t admit to being a non-white immigrant for example).
You can also have something like TopMindsOfReddit, which is all sarcasm all the time, yet still empathetic and wholesome.
I have never been to stormfront so I will have to take your word for it but your own explanation of their behavior betrays your point. Cesspool of civility is contradiction in terms that just means they discuss stuff you (and I) strongly disagree with cordially and respectfully. How they treat people who admit to not being white is what makes it a cesspool and also if their discussions go into things nearly universally agreed to be illegal (i.e. killing people, property destruction, etc). The other example is one of the exceptions where people know they are agreeing to suspend some aspect of civility that isn't related to something illegal when they enter the premises. Another example of that would be karen's diner chain in Australia.
Is this caused by the conversation or by the amplification? I don’t follow the cesspool on Twitter but Twitter seems intent on amplifying it to me despite my efforts to avoid. Their algorithms are the problem in my opinion.
I think the problem of platforms growing into a cesspool stems from the anonymity that people have on those platforms. Posting anonymously should not be protected, the platform should be OK to take down content that is anonymous.
If you are registered (and I know this sounds like the Chinese system and probably violates some other freedoms or rights so makes it even more complicated) then your expression is protected (within reason which I mentioned above). The other problem I see with this idea is that LinkedIn is is not anonymous and the crap that people say on Linkedin blows my mind to the point I sometimes wonder how they can still be employable - it is not completely full of bad stuff, but the really bad stuff sticks out and I don’t remember all the good stuff on there. I guess LinkedIn is ok when compared to twitter or 4chan.
The idea that online platforms that have protected expression will grow into a cesspool is sadly probably just a reflection of our society.
I am pretty divided myself on this issue and on the registration I am not entirely comfortable with it but could live with it.
> I don't think the platforms should be allowed to censor user content, if [...]
All these arguments end up having that complicated "if" clause, though. Because you have to squint very, very hard to find a way to understand this ruling as anything but disallowing content moderation.
This very site. Hell, almost certainly this very thread, has copious dead comments suppressed precisely because of their undesired content. Accounts get banned here repeatedly. How is exactly is this legal in Texas? Yeah, you have to construct an "if".
And let's be honest, in almost all cases that "if" is going to be tantamount to "they are moderating content I disagree with".
And that's how you can tell this is a terrible ruling. It grants the government broad ability to disallow moderation without giving anyone a clear set of rules for which moderation is acceptable beyond "big tech bad".
> This is not true. You can verify it by setting showdead to yes in your profile. Such comments are not that common.
Are you sure you're using it right? I count NINE "[dead]" comments in the topic you commented on, within half an hour of you making that comment. I mean, sorry, but that is just laughably wrong. Everything even remotely political here gets moderated heavily, both by community flagging and site moderators.
May layman's understanding of the Section 230 is that it is forcing tech companies to choose whether they want to be a Platform or not.
If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content.
On the other hand, if they choose not to be a Platform, they can censor, but then they are not protected from liability of the content.
Tech companies really hate this, because they want to both be free from the liabilities and to censor content. That is why they muddy the public perception of the question, and employ sophists like this to muddy it.
> May layman's understanding of the Section 230 is that it is forcing tech companies to choose whether they want to be a Platform or not.
> If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content.
Your understanding is not merely wrong but 180° from what Section 230 rather specifically and explicitly exists to do. Section 230 exists exactly to eliminate that classic, pre-internet, rule distinguishing publishers from mere distributers, and to allow online information services (and individual users) to censor content without incurring the no-notice civil liability for unlawful content that would apply if the pre-Section 230 rule was applied.
Your characterization of Section 230 is the opposite of what it does. From the Wikipedia article [1] on Section 230:
> Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."
"obscene, lewd, lascivious, filthy, excessively violent, harrassing, or otherwise objectionable"
Nonething in that description pertains to someone's opinion. First amendment allows you to hold nazi beliefs in principle, no matter how someone might perceive them as offensive.
> Nonething in that description pertains to someone's opinion.
Literally all of those items are subjective and a matter of opinion.
>First amendment allows you to hold nazi beliefs in principle, no matter how someone might perceive them as offensive.
The First Amendment prevents Congress from making laws abridging the freedom of speech. Social media platforms and private citizens are not Congress, so they are perfectly within their legal rights to tell Nazis to get the hell off their lawn.
Not when they collaborate with the government to censor opinions, which has been happening. Furthermore, there have been several court opinions in the past that have been sympathetic to the "town square" argument of a platform.
Restrictions to the first amendment have traditionally been on the basis of a narrow set of immediate threats. They are not thought crimes.
The majority shares your layman's understanding, but the dissent does not. Last paragraph of page 111 basically says that the whole point of 230, as confirmed by the person who wrote it, is to avoid the either-or mutually exclusive choice.
This is a good point, although it refers to what a politician says. It appears that there is no mutually exclusive choice for all the operations for the whole company. The exclusive choice is only regards to a certain piece of content. In practice this means that some parts of Facebook might contain editorial content by Facebook, and others editorial content by users, and Facebook could not censor the latter if they want to get Section 230 protection from liabilities. Unfortunately Section 230 does not stipulate that they need to make it distinct which content is which.
That ambiguity is where a judge has to use their judgement. So it's interesting that they started with the assumption that they had to make a mutually exclusive choice, but didn't defend that assumption.
There is no distinction between platform and publisher in §230. Your understanding of what you think it says is in fact closer to the state of affairs before §230, and the state of affairs that §230 was expressly designed to change.
Before §230, there were two court cases involving online content which, upon reconciling their rulings, suggest that any online site is liable for content if and only if they perform any moderation whatsoever (including, say, removing child porn). As a result of §230, online sites both have protection from being treated as the speaker of content even if they do moderate (or censor, as you word it) as well as from being sued by the users for the consequences of their moderation.
The techdirt poster ironically wants to claim there's a difference between censorship and editing, but the thrust of his argument indicates an utter disregard for any distinction. They want tech companies the ability to edit, while posing as a platform that is supposedly inclusive. You can't have it both ways.
Very interesting comments, thank you all for pointing the contradicting evidence. I was not aware that my understanding was controversial.
Apparently the mass of evidence that can be easily found, including Wikipedia and the TechDirt article linked, suggest that I was wrong in my understanding.
I do not remember from what source my understanding is from, but I remember it appeared to come from a semi-respectable source at the time.
The Tech Dirt article is at least implying that certain politicians are lying about that law. If we look at the article about the 5th Circuit ruling, it appears that implication is that the judges are misunderstanding the law as well.
I certainly don't think politicians are above lies. But I think large tech companies have very large vested interest here as well, including Wikipedia and Google. I don't think these companies are above misrepresenting the facts either.
It appears that the opinion I presented above is commonplace. It also appears that some of the sponsors(?) of the law and judges that have looked into this issue have opinion of the law that differs from the Tech Dirt article.
Also, it appears impossible to find the source where I read it from. These suggests to me that there is some controversy. Perhaps, in an ironic twist, the source is censored from Google results.
In any case, my profession has taught me to look more carefully when there is a large disagreement about the facts. Apparently I need to go to the primary sources and read the law next.
> If we look at the article about the 5th Circuit ruling, it appears that implication is that the judges are misunderstanding the law as well.
Judges are often appointed by politicians. Often judges are appointed specifically for their political beliefs and worldview. This may or may not be the reason why the judges opinion seems more consistent with a political point of view than a well founded legal one.
I have now read the Section 230 [1]. I think everybody should really read it themselves, because it is short and clear.
Firstly, clearly, IANAL. It do not have background of related law or case law, or legal uses of certain expressions etc. Again, this is a layman's perspective, based on my own reading both Section 230 and the linked commentaries from above.
That said, I am trying my best to understand all sides of the issue myself. I may be wrong, but I am trying to be as honest as possible.
My opinion above was wrong on some points. There is no reference to term "Platform" in the Section 230. Also, my comment above can be understood (and I think this misunderstanding is common) in a way that companies need explicitly and publicly claim either to be a Platform, or not to be a Platform.
The third point is that Section 230, BY ITSELF, does not force companies to do choose or do anything. It actually may protect the companies from liabilities, if they choose to behave in a certain way.
However, these points were not central to my argument. Although there is no term "Platform" in the Section 230, we can just use "Platform" as a shorthand for "interactive computer service", as as apparently some commenters of the law have done.
Next, obviously companies do not need choose whether they are Platforms or not in the sense that they somehow would need to explicitly and publicly claim what they are. The issue is more subtle.
I think some of the commenters above are not aware of how policies are formed within corporations. I work in the field (finance) where this is done all the time.
There always needs to be an interpretation of laws, regulations and guidance from regulatory bodies within the corporation. This interpretation is at least implicitly and sometimes explicitly encoded in the internal policies. The corporate lawyers are central people who participate in creating these policies.
The companies do not need explicitly and publicly claim to be a Platform or not. At the same time, it is 100% certain that their corporate lawyers are (and must be) familiar with the intricacies of the laws and regulations, and in a way they need to be very explicit in their thinking when forming these internal policies whether they think their company is a Platform or not, regardless of whether they document this thinking in the internal policies or nor.
While the "choosing" happens privately within the company, it is in a way clear from the actions based on those policies, whether they have chosen to be a Platform or not. And this choosing becomes explicit if the said company needs to defend their actions in court.
However, the commenters have a good point that the Section 230 BY ITSELF does not force companies to choose whether they are Platform or not. They need to choose only if they want protection by using the Section 230.
What the commentaries above miss, however, is both implicit in the title "Good Samaritan" and explicit in the content, with the term "in good faith". If you think I am wrong, please read up or remind yourself what that story in the Bible is about.
From my reading of Section 230, I fail to see that this would protect companies that censor opposing political views, for example.
Let me guess. Was the 5th circuit judge appointed by Trump, with a super conservative background, from the South, vetted by the Federalist society, and pretty young so he/she will last a long time on the bench?
Because https://en.wikipedia.org/wiki/Virginia has it halfway up the eastern seaboard and as a non-USAian, I couldn't tell you where the dividing line is with any certainty, hence the equivocation.
Just a heads up, citizens of the USA are called "Americans". Yes, the continents are known as North and South America, but nobody is going to think you might be Canadian or Mexican if you say you're an American.
That is understandable. Many people inside the USA either aren't completely aware of the divisions and/or have their own opinions. I'm not honestly sure if the divisions matter all that much in a general sense anyway.
This shouldn't be downvoted. evem if there's never a MAGA president again, the Federalist Society judiciary is lurching us towards a constitutional crisis.
Getting rid of the filibuster for judges and keeping it for everything else is exactly backwards.
> Getting rid of the filibuster for judges and keeping it for everything else is exactly backwards.
Not sure if you're aware, but it was Harry Reid (D) in 2013 that first did away with the filibuster for judicial nominations [1].
> the Federalist Society judiciary is lurching us towards a constitutional crisis.
"We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. " [2]
If that's lurching us towards a constitutional crisis, it can only mean that we've diverged far from the original intent.
These are the people who are arguing that the president is above the law. In a democracy where the rule of law is supposed to be absolute. That's a direct threat to democracy.
It certainly strongly asserts the judge to have been " a Republican political operative "
> Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one.
This is only true if advertisers can threaten to shift their ads to someone who does suppress content.
A court ruling binding all (or at least all sufficiently large) players in the space acts like a (legal) cartel: Customers (advertisers) don't have a choice, the conditions are the same everywhere.
If states or regions require decisions that are economically undesirable (losing more customers than they keep) then they can decide to not do business in those regions. See an IP address from Texas, block or send them to the junk bin. People should be able to easily avoid the junk bin when dealing with websites. Or, they’ll just leave. Let the junk bin be an EPA Superfund site, which people can enter at their own risk.
1) Should large internet communities be treated as common carriers?
and
2) Should common carriers be allowed to censor/moderate at will?
But then I wondered if both of these are really up for argument---maybe only the first is in dispute. Is there anyone here who feels that telephone companies (the classic example of a common carrier) should be allowed to prevent legal communication between individuals because they disagree with the political views being exchanged? If you do feel this way, could you please outline your argument?
Do you feel that telephone companies should take action when someone is using their services to harass a person, such as repeated prank calls or using SS7 signalling to capture calls that aren’t theirs?
I believe that is a divergence from free speech when it delves into malicious intent or intent to do harm or intent to defraud. If I swat your home and someone is harmed or property is damaged as a result, I should most certainly be held culpable for any and all damages.
Sure. If it can be proven that one has intent to commit a crime then law enforcement should step in to handle the situation. This is probably not appropriate for the platform to manage as they are not the executive branch.
The platform should make a best-effort to provide enough information for law enforcement to take over and use verbiage that is compatible with the legal system.
In my opinion that dilemma exists both inside and outside of tech. If my local Sheriff is abusing their authority then they must be removed and prosecuted. The same would be true for any branch of government. I accept that this is easier said than done, but it must be done.
The Cloudflare-like “we are not the executive branch” is so wrong-headed it is hard to know where to start.
Imagine an effective executive branch that can handle all such enforcement. The size would be massive. You’re implicitly asking for a Chinese-government-like internet monitor capable of charging tens of thousands of people a day.
This is not an easy problem and I agree that I would not want a totalitarian style government to be put in place to solve this. Rather I believe there should be a group reporting mechanism that raises the visibility of content to law enforcement similar to Echelon [1] and give folks menu options and categories to route things to the correct organization. This system should also be transparent so that people can see their content is being reported or even see that their content is at risk. This system should dynamically adjust thresholds based on the number of agents signed on otherwise they could be overwhelmed by alert fatigue.
So for example, if I create posts saying I am going to shoot up a place, people should be able to report that and based on my location the appropriate law enforcement agents should see a red light on their dashboard. Moderators should have votes with higher weight. Agents can then investigate the content and mark it is "false alert" or as "credible threat" thus raising visibility to partner agencies. False reporting must also have consequences or the system would be abused to DDoS the assorted agencies.
People that do not wish to participate in such a system might in theory find some tech-savvy friends to host private servers for the conversations that would otherwise be flagged as inciting or committing a crime. This removes risk and liability from the platform, its investors and moves the liability to the people creating the risk. There are a myriad of self hosted platforms with varying degrees of complexity or simplicity.
I mostly agree. The telephone company did not commit a crime through inaction but rather they indirectly facilitated a crime by not fixing their architecture with known security gaps to prevent it from occurring in the first place. These gaps have existed since the first non-telco SS7 private links were permitted.
I say this knowing full well that SS7 will never be fixed. I maintained SS7 switches and understand the international complexity this dated system brings. Its a full topic in and of itself but I believe it is time to move everything off SS7, to what exactly I am not sure.
Is the telco responsible for maintaining an architecture where swatting is impossible? I think not. I think this limited liability is part of being a commons. The city isn't liable if a bank robber uses a road to escape. The Forrest service shouldn't be liable if a hiker trips and breaks their leg.
Full liability leads to full restriction and full oppression
When Tito asks their cell phone provider to not allow calls from Tootie, it just blocks the known endpoint of Tootie's from being able to call Tito, but it doesn't make any assumptions that Tootie is bad, or that Tito's version of reality is correct. It also doesn't make Tootie unable to communicate with anyone else.
That is a far cry from a telephone company deciding(rightly or wrongly) that Tootie is harassing Tito or that it rises to a legal level of harassment and just blocking Tootie from the platform entirely. They are not in the judgement game here, they are in the make it easy for Tito to decide for himself if Tootie should be able to reach him via $TelephoneCompany.
As for SS7 signalling, that's clearly breaking laws, that's a totally different thing.
> As for SS7 signalling, that's clearly breaking laws, that's a totally different thing.
Hate speech is illegal in many jurisdictions too. So are specific uses of phones for other purposes, aka "wire fraud."
Of course, "you can only moderate speech that's illegal" is different from "you can moderate anything you want" but it's also incompatible with the ruling
But the phone company won't cancel your phone if you commit fraud. Even a convicted fraudster can still have home telephone service.
The courts are responsible for determining the correct course of action, post-conviction. A court may rule that a convict can't use a phone as a condition of parole, but a phone company will never refuse service.
No one is complaining about the courts pursuing crimes. The issue is extra-judicial punishments enacted by corporations often under pressure from the government.
Absolutely correct. The point many are missing is that phone companies do not ban people from having a telephone based on their conduct.
If I use my phone to say terrible things or even to commit felony fraud the police will investigate me, arrest me, I'll be tried and convicted and so on.
But at no point will the phone company cancel my telephone service. Fraudsters can get phone service. Murders can get phone service.
The court will place limits on the person, but it's unheard of for the phone company to restrict access because of conduct.
The problem we're facing is that modern communications platforms (including social media) have very different norms. Some of those norms are imposed because of direct governmental regulatory influence. We're dragging various social media companies to testify before congress and openly pressuring them to censor with overt threats to their business. This destroys the notion that these companies are somehow engaging in censorship entirely of their own volition.
This 5th circuit court ruling isn't framed right, but the underlying issue here does need to be addressed.
>But at no point will the phone company cancel my telephone service
This isn't correct. I work for a tier 2 telco and both CLECs and ILECs regularly cancel accounts known for fraudulent traffic. At first they'll block the originating traffic from routing across their switch, but after review and positive confirmation they will terminate the subscribers account.
There is a constant arms race to detect and prevent fraudulent traffic. The idea the LECs would knowingly continue to provide service to these accounts is nonsense.
I'm distinguishing between the content of the message (wire fraud) and defrauding the telecom itself by exploiting the system itself.
I am confident you have absolutely no examples of cancelling a customer because of the voice data they transmitted inside of a call, to another person.
> Do you feel that telephone companies should take action when someone is using their services to harass a person
In a functioning society, no. This power and responsibility belongs to the judicial system.
> or using SS7 signalling to capture calls that aren’t theirs?
If SS7 had a real security model, then carriers should enforce that security model. In cases where the protocol security does not help (many cases, AIUI), then I think carriers probably should be able to enforce correct use of the system. (The latter has nothing in particular to do with who the offending SS7 user’s customers are or what they’re saying.)
Re: your last point, bingo. It’s almost impossible to have a real debate on this issue because people—esp. those who favor censorship and think highly of themselves for understanding what Section 230 does and does not say—refuse to go to the crux of it. They’ll bury you in technicalities and side arguments before saying anything about what they believe.
As you say “It’s almost impossible to have a real debate because people” know the main arguments of the side but intentionally hide them to instead present their own straw men while presenting the side they don’t like as outrageous and simply dismiss their main arguments as distracting side arguments.
I’ve been reading Masnick for years; I’ve just gotten really tired of his shtick. It sounds like you’re also bored by this unproductive discourse, albeit from the other side. At least we can agree in one respect, as sad as it is…
I don't "favor censorship", I favor people not being forced to store and serve content they object to. It doesn't require technicalities or side arguments.
If the government wants all speech to be available, it can provide a space for that itself.
>people not being forced to store and serve content they object to
Corporations are not people. I agree that small independent websites hosted in someone's basement should have the right to pick and choose what they host, but when your service becomes so popular and widely used that it's effectively a standard public communication platform (and is marketed as such), the rules should change.
"People" like banks, phone companies, ISPs, software vendors (suppose MS decides not to support your speech and prevents you from using any of their products), multinational taxi (Uber) and rental (AirB&B) companies, utilities (water, gas, electricity), or retail chains (Walmart)?
Calling such entities "people" is at best misleading.
> If the government wants all speech to be available, it can provide a space for that itself.
Honestly, I really feel like this is right at the core of the problem right now: The government does not do this. There is no "public square" online that's genuinely publicly owned and operated in the public interest.
Unfortunately you can't have your (gay wedding) cake and eat it to. If we go down this path it's bye bye to 70 years of anti-discrimination jurisprudence and law.
They're not technicalities; they're the essence of the balance point where the First Amendment hinges. To bend the old saw, "your right to free speech ends where my right to free press begins."
Telephone companies become common carriers when they offer their service indiscriminately to everyone. If a company is reserving its right to deny service based on its rules of conduct then it is by definition not a common carrier. You can’t just force common carrier status on a company when the facts don’t support that status.
Common carrier isn't a descriptive term that applies based on behavior. It's a legal category that forces the behavior.
Telephone companies are common carriers because the law requires them not to discriminate between customers. They don't "become" common carriers. They are required to be whether they like it or not. It's legislatively imposed.
And whether with railroads or telephone lines, this constricting regulation is generally accompanied with benefits, often involving access to land and lack of competition.
While various bodies have purported to force common carrier status on various companies, the actual jurisprudence is much more nuanced than what you have suggested. The legislative imposition is that the FCC is empowered to declare certain entities common carriers if in the public interest. Thus the status is administrative rather than legislative.
Furthermore, last-mile ISPs are "information services" not common carriers (Mozilla vs. FCC). It is complete nonsense if YouTube is a "common carrier" and Comcast is an "information service"!
Finally, whether a firm presents itself as indiscriminate or not is the main way that it comes to fall under common carriage regulation. See Nat. Ass'n of Regulatory Utility Com'rs v. FCC.
"Moreover, the characteristic of holding oneself out to serve indiscriminately appears to be an essential element, if one is to draw a coherent line between common and private carriers. The cases make clear both that common carriers need not serve the whole public, and that private carriers may serve a significant clientele, apart from the carrier himself. Since given private and common carriers may therefore be indistinguishable in terms of the clientele actually served, it is difficult to envision a sensible line between them which does not turn on the manner and terms by which they approach and deal with their customers. The common law requirement of holding oneself out to serve the public indiscriminately draws such a logical and sensible line between the two types of carriers."
Phone calls and private emails are not available to the public at large. The comparison simply doesn't make sense. A tweet is more akin to a newspaper than a private phone call or email.
Twitter is a combined microblogging and messaging service. The messaging side is unambiguously more akin to email than a newspaper. Microblogging is akin to regular blogging, albeit shortform. Regular blogging is likewise more akin to a newspaper than an email. So this side of Twitter should be considered a hosting provider for people's blogs.
Due to this hybrid hosting provider/chat service nature the question of what sort of moderation is permissible becomes complex, especially as users are prone to mixing their blog-like posts with chat-like ones.
I personally would interpret a blogging platform provider as a sort of common carrier so this mixed status doesn't change my stance that Twitter ought to do only minimal moderation for spam removal platform stability. To prevent the UX from suffering users should be empowered with their own personal moderation tools to filter posts and users. Twitter already provides such tools.
> twitter ought to do only minimal moderation for spam removal platform stability.
i strongly strongly disagree, either we allow filtration or we don’t.
on many forums i personally find some people’s almost obsessive shoehorning of conspiratorial ideas to be just as destructive to conversations, just as signal-to-noise destroying as spam for dick-pills.
if every behavior is allowed to fuzz every conversation, then it isn’t clear to me how we can discriminate against someone loudly and often sharing with us about the amazing pill which grew their penis to horse-scale girth and length and where we should buy it.
either we allow moderation to keep signal-to-noise manageable, or we don’t.
It'd be fine for Congress to pass some laws to treat American forum companies as common carriers, but they specifically have not done that and it'd be weird for a court to interpret them as one.
For starters, they don't own the wires so if your signal isn't carried by Facebook, you can just go out if on Twitter or Tumblr or Rumble or HN, &c.
True but telephone is a common carrier and therefore bound by different law regarding the requirement that they provide their service to all members of the public.
The history of precisely how they ended up as common carriers I'm not entirely sure... But I think it has something to do with the fact that they had to get municipalities and communities to agree to let them run wires through their towns. Internet forum services did not have to make any such agreements because they're just sites on the internet.
If the claim is that restricting tech companies ability to censor is against the 1st amendment, you are implicitly making the claim that no, Congress cannot pass laws to restrict tech companies ability to censor.
They might be able to do so if they were reclassified as common carriers. Why? I'm not exactly sure, I am accepting the fact that common carriers are currently so constrained without understanding the deeper story of how.
Without moderation, we can't have an internet. I think a lot of people that haven't been involved in moderation don't really understand how important it is. I'm not talking about controlling people's opinions or censoring lots of viewpoints. Even algorithmically controlled things aren't just dumb pipes.
Is anti-spam, anti-gaming censorship? HN doesn't let you downvote comments until you have a certain number of points. HN works to make voting rings ineffective. Both of these involve judgments. Are those two votes independent? Maybe they are independent votes and you (or your software) has decided they aren't independent and you've taken away their voting power and censored their input. Nobody wants that. However, the alternative is that someone will just create millions of bots and then the site loses all relevance.
A common carrier is generally a company that will deliver something from one person to another person without discrimination. For example, AT&T takes your packet and delivers it to its destination. These websites are made to show things to people that it wasn't explicitly sent to. Do we compel sites to display everything posted to everyone? That would be impossible. Some content is spam and other content is simply unpopular. The usual response to this is that it would be ok to prioritize popular content - but only along the lines of rigid rules. However, everyone kinda recognizes Goodhart's Law - that every measure which becomes a target becomes a bad measure.
What is legal communication? Is this any communication that a court hasn't convicted someone for saying? That would mean that they couldn't remove communication that's clearly illegal because there's always a chance that a court might disagree. That basically means that your site is going to become a cesspool. We've seen these cesspools on the internet. They're not places you want to go. Heck, you're here on HN because the moderation is generally good.
I think what some people miss is that a lot of "censorship" is shutting down harassment, stalking, incitement to terrorism, etc. Sometimes it gets couched in ways where someone kinda denies that's their intent. "This person is a sicko. They must understand that thousands of people are going to harass them for this," knowing that their followers will then harass them since the poster pointed them out. Oh, they weren't inciting harassment, they were just noting it would happen to their followers who harass them. Maybe the answer is that law enforcement needs to put people in prison for these illegal acts of harassment, stalking, and terror. For example, Boston Children's Hospital has received many bmb threats lately. I'm sure that many sites have removed posts calling for people to threaten the hospital. Maybe the answer is that everyone who has posted something calling for threats against the hospital should get a few years in prison and a 6 or 7 figure fine rather than having their posts censored.
This would somewhat eliminate the ability of websites to have a niche. If I have a subreddit about cats and you decide that you want to spam dogs onto it, am I a common carrier that must allow any speech on my subreddit? Maybe you'll say that's ok, but that reddit in general couldn't prevent a dog subreddit. Ok, but what if my site is an independent site and not a subreddit. Then am I a common carrier?
With a common carrier, you're usually paying the carrier to deliver things for you. With social sites, you're usually getting to use them for free. As a social site, am I required to take your content, store, and deliver it for free even if I determine that your content won't make me money? In fact, almost everyone does* want common carriers to censor speech - find me a person who doesn't hate the SPAM texts and calls. Oh, I get it - but that's different. Common carriers are likely to limit people when their behavi...
This is a fantastic comment. I just wish it was root-level rather than one deep, so it could be voted to the top. I'd read your blog if you had one linked.
I'm utterly baffled by the number of commenters here on the side of Texas, who see any limitation on a free-for-all internet commenting as a kind of censorship. You're nailing all of the reasons why it's such an unworkable idea.
> any limitation on a free-for-all internet commenting as a kind of censorship. You're nailing all of the reasons why it's such an unworkable idea.
I think it misses all the solutions we'd implement if we decided that ISPs and social-media couldn't censor. We'd have strong personal content curation tools to avoid things that merely offend or bother us, and ISPs/social-media companies would only get protection if they cooperated in helping police find the posters of actual criminal speech.
> Should I be allowed to come into your store, harass your customers, scream my political views, and then tell you that you can't kick me out?
Scream, no. But if you sell me a coffee I should have a right to sit at the tables and talk to my friend, even if another customer dislikes our politics. You didn't sell me a coffee and a ticket to a specific-viewpoints-only dining room, so you can't kick me out for my viewpoint after the fact. If someone's harassment only involves knowing that someone else has a different viewpoint than them then it's not harassment.
Restaurants and bars can absolutely kick customers out for revealing they are, for example, Nazi sympathizers in most states in the US.
Absent specific law around protected classes, the default is that the owner of the space controls associative use of the space. If someone buys a coffee at Starbucks, sits down, and starts talking loudly about how Hitler had some great ideas? The manager is absolutely within their rights to tell them to get out. The only reason they need is such talk will drive other customers away and harm their business.
IIUC, unless you can reference particular law that says they can't... In general, yes. It's private property and they control access to it. The default legal position is that a stranger can be removed from private property for any reason and no reason (including but not limited to: "We're closed," "You are disrupting my customers," "we have a dress / hygiene code and you violate it," and "You insulted my family at a dinner party last week and so your business is no longer welcome here. Ever.")
There are some very specific, generally narrow carve-outs in the law to that otherwise-default policy (in particular, Title VII of the Civil Rights Act, and the Americans with Disabilities Act).
The point is: we needed all these laws on the books because the default is right to refuse service. We didn't have to pass laws that said "A business may refuse service if etc. etc.". That was assumed.
(The back-stop to this kind of behavior from a business is, in general, market competition; if there are enough people in town who want to talk about the ideas Hitler had with a nice, warm latte in hand, and Starbucks is telling them no, someone else opens a discourse-friendly coffee shop and gets that business. Or they end up going under because that business isn't enough to sustain a coffee shop and such talk drives away the remaining bulk of paying customers that could keep such a venture afloat. It's the American Dream in action.)
> IIUC, unless you can reference particular law that says they can't.
You're right, before sale or invitation to treat. After you invite me in and/or serve me you lose the right to eject me for a reasonable time.
Casinos run into this with cheaters they ban. If they later give the person an invitation to the casino, for a promo perhaps, the banned person is allowed to assume it overrides the ban.
The issue is that you're implicitly selling coffee AND a seat. If you don't say otherwise I have a right to both. If this was a hypothetical takeout-only restaurant I wouldn't have an expectation of a place to eat.
> We'd have strong personal content curation tools to avoid things
That's missing the point completely.
Editorial policy isn't in order to "avoid" offending readers.
It's to avoid the spreading of harmful misinformation and disinformation, so that antivaxxers and holocaust deniers and election deniers aren't given a platform to infect other Americans with their lies. It's necessarily done at the point of transmission, not the point of reception.
Yes we have free speech in this country, so nothing's preventing you from telling your friends all that garbage in person or in private communications. But because we have free speech, private platforms that host speech have the freedom to deny their private platform to those spreading harmful lies. Or whatever they want to deny.
Go outside and shout your lies on the street, that's protected. But to expect a company to amplify you across the internet? Forget about it.
Also regarding your coffee shop -- if a customer buys a coffee, sits down and removes their jacket and is wearing a swastika T-shirt, of course the owner can kick them out, and any morally decent owner should. It's a private coffee shop. The owner is under zero legal or moral obligation to tolerate offensive speech within it.
Privately owned spaces are not public forums with free speech protections. End of story.
> Editorial policy isn't in order to "avoid" offending readers. It's to avoid the spreading of harmful misinformation and disinformation, so that antivaxxers and holocaust deniers and election deniers
Yeah, I get it. But personally I'd rather have our society have access to the crazy claims rather than be censorable. If we can't say unproven or unpopular things then many important messages get missed, such as that Jews are human or that some politician took bribes or that a public policy isn't actually evidence based.
I think neutering the new public square is more likely to destroy our society than claims of election theft.
> It's necessarily done at the point of transmission
Yes, control of someone's speech is. But I don't think that's necessary and neither do the vast majority of people. What we can offer you though, is a way to control what you see so that you can engage as you choose - perhaps only through your chosen politician or whatever.
> Also regarding your coffee shop -- if a customer buys a coffee, sits down and removes their jacket and is wearing a swastika T-shirt, of course the owner can kick them out, and any morally decent owner should.
Do you have an example that's not quite full-on hitler, with a symbol that is actually illegal to display in many countries? How do you think this should work with MAGA hats or shirts?
> Privately owned spaces are not public forums with free speech protections.
No, but if you sell the use of the space you have to consider that speaking reasonably to people around you, or displaying support for legal political parties via clothing, is something reasonable for a customer to do. If you plan to restrict these activities arbitrarily you have an obligation to say so with the offer. "Coffee, which you may drink in a DEMOCRAT ONLY dining room" for example.
By definition, it's not censorship when a private company does it on their own platform. Censorship is only something governments can do.
> Do you have an example that's not quite full-on hitler
But that's the point, it's only the extreme things that get banned.
> How do you think this should work with MAGA hats or shirts?... "Coffee, which you may drink in a DEMOCRAT ONLY dining room"
Nobody's doing that, that's a straw man of your own creation. The whole point is that social networks and coffee shops kick out only the extreme/abusive/disinforming/conspiracy fringe.
You're worried about missing that "some politician took bribes or that a public policy isn't actually evidence based" but absolutely nobody is moderating those messages. That's 100% a straw man.
This topic is about private moderation of what are in practice extreme fringe arguments. We don't need to worry about a slippery slope to banning mainstream political speech of half of Americans, like a nonsensical "DEMOCRAT ONLY dining room", simply because it would be atrocious for business. Banning customers for mainstream political views is business suicide.
Private moderation of extreme views is a free speech protection afforded to the private owners of spaces. End of story.
> it's not censorship when a private company does it on their own platform.
It's legal, but it's still censorship. And 'censorable' is about the ability to be censored, not necessarily current censorship. I do not think it benefits the people to have censorable networks because every tool eventually gets used.
We're better off with the phone company not being able to moderate our speech.
> But that's the point, it's only the extreme things that get banned.
Not at all. It's not the slightest bit extreme to say men shouldn't take spots in women's sports but it is censored on most platforms. They'll take your NYT (for example, but far from the only one) comments taken down if you say this, no matter how polite you are.
> You're worried about missing that "some politician took bribes or that a public policy isn't actually evidence based" but absolutely nobody is moderating those messages. That's 100% a straw man.
The entire media suppressed the Hunter Biden laptop story specifically because it was about politicians and their family taking bribes.
And the government cooperated with FB (and others) to identify Covid misinformation, but the definition of misinformation has changed. It used to be censor-worthy to say Covid came from Wuhan and now that's the accepted likely origin.
> Private moderation of extreme views is a free speech protection afforded to the private owners of spaces. End of story.
In your house, yes. In your mall, in California, no. As you open a place up to the public and trade them the right to be there as FB does in exchange for advertising to you you give away a lot of your rights to control people's actions on your property.
> They'll take your NYT (for example, but far from the only one) comments taken down if you say this, no matter how polite you are.
That's factually untrue. I read comments in the NYT and come across comments like that all the time. Their moderation policy is very clear, and it's not what you describe.
And your examples about Biden and Wuhan are red herrings and have nothing to do with this conversation.
> In your house, yes. In your mall, in California, no.
That's factually untrue. In a mall, in California, you absolutely can moderate speech. You can't kick people out based on protected classes, but you have the right as a business owner to kick people out based on any other reason. As you need to be able to, as people can be disruptive. And extreme speech that is clearly audible/visible to others absolutely falls in the category of disruptive. A shop in a mall is not a public square, nor should it be.
> In a mall, in California, you absolutely can moderate speech. [...] As you need to be able to, as people can be disruptive.
We're talking about people not being disruptive but the owner simply not liking their opinions. In these examples the people are speaking nicely, not yelling, not waving signs, not blocking other shoppers, etc.
> And your examples about Biden and Wuhan are red herrings and have nothing to do with this conversation.
These stories and even private discussions about them were censored despite not being harmful or even incorrect, merely because they might support the opinion of a MAGA voter.
That's exactly the issue here - non-harmful speech that someone else feels must be stopped.
It misses the point. To use an analogy, bars need bouncers. But bouncing the jackass at the bar isn't speech and thus not protected by the 1st amendment. States and the Feds can regulate how people are bounced. Such as saying you can't bounce people just because they're gay.
A 1st amendment activity would be something like choosing who can speak at open mic night. That falls under editorial discretion. It's a limited resource, choosing who speaks shapes the content, and generally adds up to expression of it's own. Thus 1st amendment protections come into play and bars can ban people that speak positively about homosexuality.
So to come back to Twitter is their moderation like bouncing jackasses at the bar or selecting speakers for open mic? For pretty much their entire existence they've been claiming that they're a platform for people to express their own ideas. I don't see how they can now argue editorial discretion.
> What makes this all feel in bad faith is that the Texas law is coming from the same group of people that are actively trying to censor everything. They're trying to ban books from schools.
There's a difference between censorship and curation. A school library is a curation of content designed to aid the curriculum. A public library is intended to have an uncensored set of books.
> They're trying to restrict information around abortion and transgender issues.
Restrict from the public library, or simply not include in their children's base curriculum at school?
> They're trying to censor information correctly stating that the Civil War was fought over slavery.
Hate to break it to you, but the modern (but pre-2010 at any rate) viewpoint taught in Canadian schools is that it only sort-of was. Slavery was the South's reason to leave, but the North would have fought the war over any attempt to leave - and Lincoln said he'd abandon his quest to stop slavery if it was required to keep the union intact.
I think you're right, it's only the first one in dispute, and even that I think is a false dispute.
The distinction, of course, is that common carriers are about 1-to-1 or 1-to-few communication (analagous to writing letters back in the 1700's, or holding a small private gathering) while internet communications are about 1-to-many communication (analagous to submitting an article to the city newspaper back in the 1700's, which they may or may not publish).
1-to-many communication necessarily requires organization, filtering, ranking, rejection, etc. in order not to become an unusable firehose. None of these can be applied objectively or neutrally, they are all editorial in their most fundamental quality, so the idea that any public community could be treated as a common carrier is ludicrous simply at a practical level. Hence why I call it a false dispute -- it's trying to argue for something that isn't even achievable.
This seems right, it's about reach but it's also about the actual mechanics of posting your message.
You can't treat social media like the telephone. It's more like writing a letter to the editor of the newspaper. The newspaper receives the letter (post). The newspaper decides whether and how to print it (algorithm). The newspaper then prints it for all to see. That's how social media works. It's not like the telephone where the phone company sets up the circuit and then bows out of the relationship between the speaker and the audience.
> In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.
The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.
Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.
This quote is indeed the heart of the argument and is indeed dumb. Citation or no, calling Twitter a monopolist of the public square is absurd, when it is used by less than 1/4 of American adults and occupies only a fraction of their attention. And if it is a monopoly, the antitrust solution is to break it up, not to solve one specific complaint about it by forcing it (and it's employees) into specific performance they disagree with.
Twitter's not special, it's just a useful platform that a few people would love to force into broadcast their messages.
> calling Twitter a monopolist of the public square is absurd, when it is used by less than 1/4 of American adults and occupies only a fraction of their attention.
Monopolies are not determined by simply referring to their affect upon the entire population. It is determined by their affect on consumers of that monopoly, which is a subset of the population. Therefore, it should be compared to the number of people that want to use platforms like Twitter to express opinions.
This ruling seems like continuation of the persecution complex of the right. I would like to point out that some of the most heavy handed moderation and censorship occurs on r/conservative, Gab, truth social, or parler, where typically dissenting results in an instant ban. I suppose that moderation is now illegal then?
Copied from the other thread as this seems like it is more active, This ruling seems like continuation of the persecution complex of the right. I would like to point out that some of the most heavy handed moderation and censorship occurs on r/conservative, Gab, truth social, or parler, where typically dissenting results in an instant ban. I suppose that moderation is now illegal then?
One of the big things people seem to love about HN is how heavy the moderation is. Now, open season to flood it with low quality memes?
The best way to fight this is to use their own logic on them. Can’t have abortions because a fetus is a human being at conception? Great! Drive in hov lanes, claim tax dependents, apply for childcare benefits and sue if you don’t get any of these.
Then maybe I dont understand the distinction you are making between someone thinking they are bound by precedent and agreeing with it in this context.
In the specific legal context, there is stare decisis, which itself is not absolute.
In the realm of public opinion and politics there is no equivalent I can think of.
No individual human has their opinions bound by precedent.
A core principle of extremist conservatives is that the laws apply to their enemies, but not to them. You can't deploy their logic and expect them to suddenly take the rule of law seriously.
Not really, people who are pro-life and take it seriously (in my experience, the vast majority of pro-lifers) would happily trade saving the lives of the unborn in exchange for treating the premise they are children seriously.
A government-held database of fetuses, what could go wrong? "Our records show you had a fetus but no subsequent birth. Provide proof of a natural miscarriage or be subject to a criminal investigation."
It's truly baffling to me how the people that lambasted the idea of corporate personhood after Citizens United seem to now be obsessed with defending the so-called constitutional rights of said entities, of all things, to censor speech. When it comes to matters of all things censorship and restricting speech, I've never seen a steonger embrace of discrimination via privatization
You’re pointing out a contradiction that isn’t present: the argument against compelled speech does not rest on corporate personhood.
In other words: there is no investment in a corporation having rights added to it as if it were a legal person. The sole interest is that the people within the corporation do not have their rights subtracted by virtue of how they choose to organize.
You can see this in how people actually talk about moderation online: it simply doesn’t matter if it’s a corporation, nonprofit, union, or individual running a service.
Honest question from someone with little context: How does this argument not also apply to Citizen's United, or corporate personhood more generally? Is the argument that compelling a corporation to do something compels the individuals within the organization (infringing on their rights), while not giving an organization a right does not infringe upon the individuals rights (which they can exercise individually instead)?
I think a good way to think about it is as a leaky abstraction: for many purposes, it makes sense (and is very convenient) to treat a corporation as a person. It saves us a lot of ink! But that corporate person is not a natural person, so it doesn't have natural rights. Instead, it has only the synthetic rights that are extended to it through law.
> defending the so-called constitutional rights of said entities, of all things, to censor speech.
This.
I think the problem is that on the whole, most people care more about outcomes than principles. And most people aren't very interested in constitutional issues. So most people find it quite easy to hold political positions that imply advocating two contradictory constitutional principles at the same time.
I include myself, by the way; I'm not pretending that I'm cleverer than everyone else. But at least I'm interested.
I come from a country with no (written) constitution, and I'm interested in constitutional principles. But I'm fearful of what might happen were we to adopt a constitution; basically I don't trust my fellow citizens to be able to think about these issues clearly. Constitution is essentially abstract law, and people find it hard to think in abstractions.
So perhaps it's actually better to think about these issues in terms of outcomes, and rely on judicial precedent based on concrete cases, rather than to try to distill principles from pragmatic judicial goals.
But is anyone really thinking of concrete outcomes when they discuss cases like Citizens United? I've never seen anyone outside the most wonkish circles attempt to discuss the underlying facts of the case, where the FEC argued that it's illegal to release a documentary about a Presidential candidate during the entire primary season.
To be fair, the US campaigning season is effectively 50% of the time; 6 months of primaries, six months campaigning, for mid-terms and full-terms (I doubt that's the right term). And terms are 4 years; so campaigning is going on for two years in every four. And that's national. In the USA, banning a documentary because campaigning is going on would be a bit drastic.
They weren't fully illegal at the time. Citizens United actually got the idea to do it from Michael Moore's film Fahrenheit 9/11, which was theatrically released in the small window between primary and general election seasons but advertised and shown at Cannes during the primary. The FEC's policy was based on a standard of "bona fide commercial activity" - filmmakers were covered by the restriction if and only if the FEC didn't think they were trying hard enough to make money.
Of course, like you said earlier, maybe they would have been fully illegal if the US didn't have a written constitution requiring lawmakers to think in terms of principles. It's a hard hypothetical to reason about.
People aren't upset with corporate personhood in citizens united. They're upset that it allows endless amounts of money to be pumped into politics, further separating the lower classes from the positions of power.
In any case, the supreme court ruled it. So if they have personhood, they have a right to restrict speech on their own property. Unless, you think, I should be able to go to your property and put up my political sign at will.
Corporate personhood has nothing to do with either perspective.
People are concerned about money in politics because of corruption and special interests.
People are concerned about unmoderated social media because of extremism, conspiracy theories, misinformation, polarisation and all the impacts that has on society.
> prevents large social media platforms from censoring speech based on the viewpoint of the speaker [paraphrased]
All I gotta do is be clearly anti-vax in my male-enhancement supplement promotion and Wham-O! Can't censor me.
But seriously. What about political spam? How will the court adjudicate claims from the platform that they are moderating spam where the user claims they are being censored?
"the first amendment doesn't say you can do this, so you can't" is such a deliberate misread of what the Constitution provides that I'm shocked this court could issue the ruling with a straight face. 1A is not prescriptive (it does not say, here are the things you are allowed to do and therefore if it's not on this list you can't do it), it's restrictive (here are the rights government can't take away).
Emphasis on government in that last part. In some twisted way, the court has ignored this, and said "it's ok for the government to force a private entity to express a certain speech." Which is in direct conflict with the supposed protection granted by 1A against the government restricting your ability to choose what to express on your website!
Interpreting corporations as “people” IMO was such a misread of the constitution that it’s led to various interpretations here. These are corporations, not people. We need to stop applying people’s rights to corporation and then we’ll return to logical deductions
No this is not what he said. You don’t need to treat the group differently. Since all people have free speech in the group, then the group effectively has free speech as well no?
Arguing in favor of making clear legal distinctions between humans and corporations does not automatically imply denying them a right to free speech. It may seem that way when we say: the declaration of human rights does not apply to corporations, because they are inhuman, but we actually argue in favor of a declaration of corporate rights, not against it. The key point is that Corporations are more than just groups of people. But more so we want this distinction because we want an effective Corporate Criminal Law.
We give corporations certain legal rights that humans do not have, such as the ability to avoid individual responsibility for corporate crimes or debts.
It sort of makes sense that you can't stack rights - you either get to choose your human rights, or your corporate rights (which may have limits that your human rights cannot).
Corporations exist as creations of congress and legislated into existence.
Congress may not pass laws that seek to silence our ability to speak freely.
What you’re suggesting is that because these special entities are run by private individuals and not government employees they’re not effectively bound by the first amendment.
Schools exist as creations of legislation as well, but they are run by government employees. Speech cannot be silenced by schools.
Your assertion is that since companies, created by legislation, are run by private individuals they can silence speech all day long.
The question is, does the 1st amendment apply to government employees or anything borne out of legislation by congress?
Let me ask you the inverse— should an entire HOA all go to jail if one resident commits a crime? No. It’s not “groups” of people, like you’d find at a concert/meetup/HOA/whatever.
If it was, then the whole group should be convicted of crimes everytime the corp ignores a law and commits a crime.
But no— different groups exist for different purposes, on paper incorporated under a set of laws.
It’s a business, intent on generating profits and many times they break laws. Next time you want a corp to have ”people” rights, consider the inverse to
The rationale is that corporations are made up of people, and there is no way of denying fundamental rights to corporations without also denying those rights to the people making up and interacting with those corporations. In essence, corporate personhood an argument that rights don't cease to exist when being expressed in aggregate.
It also allows certain conveniences, such as being able to sue a corporation as an entity, and corporations being able to enter into contracts as entities, own property, etc.
While I agree that corporations should not be considered people, there’s literally a century of legal precedent built on that faulty interpretation, and the courts are not the appropriate forum to unwind it; it’s too deeply enshrined. Congress must legislate.
Thank you! This is what I am saying, treating corporations as people has caused so many problems it might just destroy the whole country! Non-US folks pay attention and make sure this cancer doesn't spread to your country.
In Belgium, we have the distinction between a natural person (a human) and a legal person (might be a corporation), and laws specify the required personhood.
> Interpreting corporations as “people” IMO was such a misread of the constitution that it’s led to various interpretations here. These are corporations, not people.
Corporations have been legal persons for many centuries/millennia:
I’ve been reading what you linked and I see nowhere that the all the same legal rights of PEOPLE were applied to corporations for millennia. Not sure if you actually found that either?
Either way, I’m arguing that it is an unintuitive idea in light of the fact that the Bill of Rights was written with people in mind as the recipients of those rights, and not corporations.
If Google suddenly invoked their “right” to bear arms and form well regulated militias, we wouldn’t be swirling our oat milk saying “well they have the right”.
> I’ve been reading what you linked and I see nowhere that the all the same legal rights of PEOPLE were applied to corporations for millennia. Not sure if you actually found that either?
Ability to partake in contracts, due process of law, have internal rules of conduct (like having a conscience). Are these not rights that both both 'types of persons' have?
> There are therefore two kinds of legal entities: human and non-human. In law, a human person is called a natural person (sometimes also a physical person), and a non-human person is called a juridical person (sometimes also a juridic, juristic, artificial, legal, or fictitious person, Latin: persona ficta).
Ya that doesn’t say they had the ALL the same rights as people. You’re actually proving my point that they’re different by people and got a different definition with different interpretations, NOT the same
Corporations are not the same as people in the US and there are many rights that people have that corporations don’t. They are legal persons in the sense that they can sign contracts and have the right to a fair trial and have a right to free speech.
Private militias already exist in the US and are legal. There is absolutely nothing stopping google from forming one. Should they? No. Would it be completely legal to do so? Yes.
I am looking at a copy of European Legal History, Robinson, Fergus, Gordon, Oxford 2000, 3rd ed. Section New Trends in Law 1814-1914, discusses "17.2 - organization of business" and provides some answers.
- Corporations "prior to 19th century" were 'privileges' granted by a sovereign, not 'rights'. East-India among others is an example. (17.2.6)
- "The joint stock company is an incorporated body, a legal person in its own right, distinct from its shareholders and directors. This eases the path of those having commercial dealing with it ..." (17.2.5) goes on to enumerate how corporation as a legal person suites the modern economic regime. So basically, corporations are legal persons because of Capitalism. (My op.)
- ps
which is imo not a bad thing, actually. This is a classic case of a legacy decision/design in a system made at a time when there were more limited knowledge and information. And task is how to unravel the error without taking down the whole system. What we want is a legal scope around the person-hood of a corporation that allows for good (if not optimal) economic regime (in general, possibly including ethical dimensions), and yet does not distort the distinction between human beings -- and we have Natural Rights that are conferred by none other than the Goddess/God/Big Daddy/The Architect/"Fundamental-Laws", take your pick /g and can not be taken away by any legal mechanism -- and corporations don't, because we are a first order side effect of the Universe and these things are just organizations.
> So basically, corporations are legal persons because of Capitalism.
See The Medieval Origins of the Legal Profession by Brundage, which has a few chapters on law during the Roman period, as well as chapters on the creation of universities, along with mentions of things like guilds and town charters, which were collective groupings of people treated as a single entity.
Key point is all those were privileges granted by the monarch. You did not have a right to start a company, so whatever affordances were given to pre-19th century organizations by the state, they were grants.
No, the ruling claims the 1st Amendment is irrelevant in determining the regulation of censorship because censoring speech is not speech. They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship since such censorship can lead to a chilling effect on public speech. But they reject entirely the premise that forcing companies to platform speech is a form of regulating corporate speech.
I'm not going to comment on that conclusion, but your comment is a complete mis-frame of the argument, at least by my reading.
> No, the ruling claims the 1st Amendment is irrelevant in determining the regulation of censorship because censoring speech is not speech.
This flies in the face of ample SCOTUS precedent--which the 5th Circuit is obliged to follow--that the 1st Amendment also provides a freedom from compelled speech as well as freedom of association.
Common carrier laws are the exception, however. Arguably, the big tech platforms of today have more power and influence over the public square, than ISPs did in the past.
It's very possible for two reasonable people to come to the opposite conclusions about whether the act is constitutional.
Pruneyard is not relevant. There are three things that distinguish Pruneyard:
1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.
2. It was admitted by all parties that the petitioners were not disruptive to other people in the mall, and that nondisruption is central to why compelling the mall to host them was permissible. However, note that moderation frequently (I might even hazard inevitably) centers on activities that are ultimately disruptive to other consumers.
3. It was also admitted that no one would believe that the mall's hosting of the petitioners was not going to be seen as an endorsement of their beliefs, so it had no effect on the speech of the owner of the mall. This is the complete opposite of how it applies to social media: the tone, candor, and content of social media is central to the popular impression of the social media site, and therefore denying the operators the right to shape the content on their site necessarily is a restriction on their speech.
This is something that has been picked up correctly by every court to consider the application of Pruneyard to social media, well, every court except the Fifth Circuit, which appears to have decided that the rule of law is overrated and calvinball is a preferable state of affairs.
1. As I understand it, state constitutions are subordinate to the US constitution. In case of a conflict, the US constitution prevails.
2. "Disruption" is highly subjective. On one end of the scale is spam, on the other end is political speech that platforms declare is "harmful". Do you think the mall in question could get away with booting the petitioners, as long as they could provide some vague reasoning to how their stated politics lead to "harm"?
3. You move from "endorsement" to "tone", I suspect because you realize no-one in their right mind believes Meta "endorses" every post on Facebook. But the point is valid - the tone of social media is more central to their business than the tone of a shopping mall. But what tone can a platform's billion+ users claim to share? And should their desire to shape a tone, at that scale, supersede their users free speech interest?
1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.
This is simply not true. Both Texas and California have very similar Constitutional provisions.
California on speech:
Article 1 sec 2: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Texas on speech:
Article 1 sec 8: FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at
liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
California on redress:
Article 1 Sec 3: The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.
Texas on redress:
Article 1 Sec 27: RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.
But the issue is whether regulating moderation decisions are "compelled speech." The relevant Supreme Court cases on this address publication of articles in newspapers, which is quite different than online system hosting user-generated content.
> They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship
How on earth did they arrive at that? I'm reading the text of the First Amendment and it's explicitly only talking about the government. These people call themselves Originalists?
Government creates laws which permit or forbid corporations from doing things all the time. In this case, laws allowing corporations to restrict free speech are balanced against laws which forbid such restriction on private citizens, and the constitutional law which says 'government cannot restrict free speech' is interpreted to mean also government cannot permit corporations to restrict free speech. Not a hard concept, for a modern law scholar, or a constitutional law scholar. The idea that speech can be restricted by a private entity in the US is the stretch that originalists would have a problem with (e.g. you can yell fire in a crowded theater and policies to the contrary are prior restraint and unlawful by corporations or by governments).
"the constitutional law which says 'government cannot restrict free speech' is interpreted to mean also government cannot permit corporations to restrict free speech."
This is just a restatement of what I asked. Why is it interpreted to mean this? That's a total departure from the meaning of 1A.
I haven't read the details of the case, but surely that's not what's at issue.
I assume that the government is arguing that they are allowed to prohibit private parties from restricting speech, not that the government is required to impose such a prohibition.
It doesn't say that- it only says that corporations restricting speech isn't itself an act of free speech protected by the 1st Amendment.
Therfore that act of censorship can be subject to govt regulations.
>They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship
This ensures the said govt regs stay in the lane of common carrier regulation, and don't encroach into govt regulations that restrict speech based on the content.
Which prevents the govt from outsourcing govt censorship to corporations via these types of regulations.
Unfortunately stuff like this is the consequence of the depraved selection process of loyalty and political alignment that a particular president valued above all else.
Many of the more… extreme elements on the ground backing this crap doesn’t care about precedent as they believe that the rapture and end of the world is near. It’s bizarre and unfortunately a very real factor.
Hold on there! "Private entity"? As I recall, random entities have no rights, humans have rights but there is no corporate bill of rights. Companies like ISPs enjoy the privilege of commerce and profit in exchange for obligations under law. Persons like you and I enjoy liberites and rights in exchange for obligations under the law. Not only do companies have no right, the fed government has a constitutional right and obligation to regulate interstate commerce as they it fit which ISPs fall squarely in that box.
> As I recall, random entities have no rights, humans have rights but there is no corporate bill of rights.
The law in the US as early as the late 18th century has recognized that associations of people have rights separate from the rights of the individuals that are in the associations.
Individuals have rights to be part of and participate in a group but legal entities that represent one or multiple people (you can have a corporation with one person) have not been recognized as a person until citizens united ruling and don't have rights. Speech made my people as part of an association or group is protected but speech made by a a person as part of their representation of a legal entity is not their own speech so it isn't protected. Similar to how a government official can censor your speech at their home but they can't censor your speech even at their home as part of their official function since that would be the entity of the government censoring your speech.
Throughout the US law there is a clear distinction between people acting on their own behalf or on behalf of some other entity. This is why the president isn't held accountable like a normal person because all of his actions during term are actions of an entity which is his office and therefore not an individual that can be treated equally as other individual persons.
At the most basic level, corporations and associations are not naturally existing so they can't have any natural rights, nor can it be claimed that they are a "person", legal or otherwise, because a person can only be a sentient life form which a legal entiry obviously is not.
In other words, pets and insects can more reasonably be called a person, even trees and germs, at worst you can extend it to inanimate objects after abandoning all reason but intangible fabrications meant to serve a legal purpose are not persons in the wildest stretch of the imagination.
> Individuals have rights to be part of and participate in a group but legal entities that represent one or multiple people (you can have a corporation with one person) have not been recognized as a person until citizens united ruling and don't have rights.
You are off by around 200 years. See [1] for a good summary.
Note: they might have some cases mixed up. They cite "Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet (1823)", but the only case with that name I see is Society for Propagation of Gospel v. Town of Pawlet, 29 U.S. 480 (1830). There is an 1823 case with that plaintiff, Society for Propagation of the Gospel v. Town of New Haven, 21 U.S. 464 (1823). I'm not sure if they meant to cite the first and got the year wrong, or mean to cite the latter and got the defendant wrong.
Hey,look, I am not saying reason and justice are being applied. I am only stating the very obvious which is contradicted by US law. Going beyond specicific government and legal systems, the rule of law itself has no authority to rule in a manner that contradicts basic reason and logic. You cannot have the law declare bees are a type of fish, which (a court in california did this recently for environmental reasons), but no one has the obligation to follow that law because its claims are demonstrably in conflict with reason and logic as any reasonable person would see it. They can declare corporations have certain rights but if those rights depend on corporations being a person of any kind, unless you can also claim and prove that regular reasonable people with no conflicts of interest in the subject matter can also agree with you in that asserion being reasonable and logical, then that law is based on something that exceeds the boundary of the contract between the rulers and the ruled under the rule of law.
Now, if we were ruled by the decrees and judgements of an individual, the rule of man that is, this ruler can declare rocks are people, the sky is actually not blue but a hint of pink, babies are delivered by storks and anything else and we have to go along with it.
The very premise of the rule of law is that the ruled can understand the rules using reason and logic so that they can follow them. Otherwise, you are not following the law but the decrees and will of the rule makers blindly. You don't have to like or agree with a law but it needs to make logical sense for it to have authority and for the ruled to say anything other than "fear if punishment is the only reason we are doing this, even though it makes no sense at all" which is no different than the rule of man except you noted down the decrees on paper.
But nobody treats your post as speech by HN or Ycombinator. It's understood that the opinions you express are yours. So there's no expression or speech by HN to trigger 1st amendment protections.
IMHO platforms are looking to eat their cake and have it too. When a post is harmful they don't want the liability so they claim they aren't the speaker. But now that they want to ban a post they're trying to claim it's their expression to trigger 1st amendment protections.
I don't think Texas' law is a good one for a handful of reasons. But dumb laws aren't the same as unconstitutional laws.
So you’re fine if HN gets spammed with low quality memes? Can I go to /r/conservative and tell everyone there why MAGA is just neo-fascism? You want the internet to become a free for all because of your right wing persecution complex?
This seems pretty blatantly unconstitutional. I’d be fine if it added due process for getting banned or something. But it doesn’t, it compels speech. Now HN can no longer ban people for low quality memes or flamebait. Or did the judges write an HN exception into their opinion?
HN has a human moderator who decides what is and isn't in alignment with the HN community. His action to remove posts he finds egregious is his personal expression of speech - he very frequently writes comments explaining why he chose to remove a comment.
The act of removing content is itself an expressive act which deserves government protection.
But "acts" that aren't obviously speech acts are not generally regarded as speech.
For example, you have the freedom to say, "nobody should be allowed to paint their house pink", but you don't have the freedom to act on this view, by over-painting someone else's pink house. Similarly, free speech gives one the right to say, "this post ought to be removed", but it does not follow that the right to free speech allows one to actually remove the post. Of course, it might be that there are other reasons why one has the right to remove the post, but arguments about "free speech" or "compelled speech" seem to miss the point.
If someone paints your house pink without your authorization, you do indeed have cause for legal complaint. But one would not usually say that your free speech rights have been violated (unless in painting it, they covered up some speech of yours).
If someone put legible graffiti on your house, and you weren't allowed to remove it, and it thus appeared that you endorse whatever the graffiti is saying (not to mention having to encounter it yourself all day), then that would indeed be compelled speech.
But we're not really talking about that. A site not removing a post is not an endorsement of the post, especially if they are legally required to not remove the post.
I'm not saying that prohibiting removal of posts is necessarily a good idea. It can certainly be argued that the company providing the forum ought to be allowed to do whatever they want.
But, for better or worse, "people/companies should be able to do whatever they want" is not a principle of US law. As far as I know, US states can make it illegal for anyone to cook hot dogs after 3pm on Wednesdays. If challenged in court, I think they don't even have to provide any rationale for this - it's enough that it is a law properly passed by the legislature. And of course US states have numerous less nonsensical laws regulating businesses, including things like prohibiting businesses from engaging in racial discrimination, or listening in on telephone conversations.
This is a double edged sword. If we consider this moderation as speech then dang becomes liable for it. The section 230 protection is:
>No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
A separate concept of speech by moderation isn't covered by this. At least not obviously and clearly as if we treat posts as speech by the user alone.
Dang publishing a moderation list is clearly freedom of speech, dang moderating is clearly censorship (even if legal and you like the result).
The speech/censorship dichotomy could be solved by users choosing what moderation they want. Just like with adblockers you can add custom rules and choose between UBlock list, EasyList, and so on, but most people just go with the default. It's the same idea as showdead, with users choosing for themselves what speech to hear or ignore.
Pretty much everybody will use "dang's list" and get the same HN as they have today - unless the valuable conversations start being visible on another, more competitive moderation list. If somebody is unhappy with the result they can make their own moderation list, and choose to publish it or not.
The content I choose to allow on my platform is an inherent part of my free speech. The government forcing me to carry content I don't want to on my platform is a violation of my free speech. There is no getting around that.
The government is not forcing you to carry or not carry content, they're forcing you to take responsibility for what you selectively publish ("allow" as you put it) and not for content you simply repeat without looking at.
It's the same principle as in other areas like when you know or should have known about a hazard on your property you become liable for it. In the case of a forum, moderation implies that you should have known what the content was and so are liable for it.
If I was running a forum I'd certainly want a Chinese wall between hosting and moderation, and a record of all comments moderators actually viewed (from reports and through normal use) to use as an affirmative defense should 230 be interpreted as in this ruling.
It's certainly technically possible to build a site with moderation like that. It might be preferable for many consumers. There's no obligation that all forums must work that way.
Well according to this ruling there's a section 230 obligation to either structure your forum in a way like this or moderate and be responsible for all the content.
The implementation of such a system would be an unfortunately high barrier to entry, certainly causing greater concentration in online fora, and as writers and readers I think we'd be worse for it. Interpretation of 230 is controversial so I'm sure this will end up at SCOTUS sooner or later.
I don't see anything particularly technically difficult in separating hosting from moderation or having users able to moderate for themselves. Most forums already do this in some capacity with showdead or personalized block lists per user.
My non-lawyer perspective is that the issue, in the context of modern realities, has to have an element of scale applied. Two-hundred years ago, nobody could even remotely imagine a business or individual having control of what millions, tens of millions, hundreds of millions or billions of people could see or read every day.
Even worse, they could not imagine being able to monitor their every reaction with fine granularity to then apply adaptive algorithms.
Worse yet, they could not predict the above effectively inserting every member of the audience and entire groups into a Pavlovian operant-conditioning program under the control of those controlling the methods of communication.
Clearly the first amendment is not —could not be— designed for this reality.
At scale, these companies have more power to influence thought than they should. That much should be clear to any neutral observer. All you have to do is imagine a reality where they favor a side, cause or ideology opposite yours.
The Founders lived in a world where it was much harder to distribute writing. How many printing presses existed in Philadelphia during the drafting of the Constitution? What, in inflation adjusted dollars, was the cost of sending your opinion to anyone who asked for it in 1787?
If the biggest local printer didn't like your opinion, what could you do about it?
Given the sheer number of pamphlets and broadsheets around that timeframe, there were probably far, far more printers then than you expect. Certainly, "the biggest local printer doesn't like your opinion" doesn't appear to have been an impediment--I have not read any history of Revolutionary-era US without allusion to very vociferous and boisterous debates going on in the print world.
Independence from Britain was fairly popular by comparison (usually thought to be like 33%) and was well represented amongst the people likely to own a press - that's Ben Franklin, right?
How many atheist pamphlets we're printed? How many advocating for legalized, unstigmatized homosexuality or interracial marriage?
Perhaps no one held these opinions, but it's hard to say that if the printing of that was suppressed.
> Given the sheer number of pamphlets and broadsheets around that timeframe, there were probably far, far more printers then than you expect.
Yes, but they didn't digitally transmit from one printer to another to spread "news." The speed of horse was the fastest news traveled. I'm not sure the end number of printers means much on its own.
> Letters, prior to the postal system, were typically sent with friends, servants, acquaintances, slaves or travelers. Sending a letter 100 miles away took as long as two weeks. Many times, multiple letters were sent out with multiple carriers to increase the chance that at least one copy made it to its final destination.
Today, yes you can still write a letter, but without the 1000x powers of instant digital communication and amplification, your opinions are essentially worthless.
Scale matters.
Two companies (Apple and Google) can effectively kick your app out of mainstream reach.
Two companies (Facebook and Twitter) can effectively deplatform and silence you.
This level of consolidation and relative power, has never occurred before.
I can distribute a video easier now than at any point in the past. The same is true for text and audio. Can you imagine trying to distribute a video in like 1965? If ABC, NBC, or CBS didn't want it, what then? You could rent a local theater, assuming the theater owner will take your call and doesn't object to the content of your video. What if it's an anti American film, or criticizing the war in Vietnam?
There seems to be an ongoing confusion in American political discussions that our rights are derived from the Constitution, but this could not be further from the truth. The Founding Fathers made it clear that our rights are granted by God (whatever that means to you) and the Constitution is there to limit the powers of the government.
There was much debate about whether the Bill of Rights would cause more harm than good because it would likely (and has been) interpreted as some enumeration of rights, when it was added as a compromise to make it clear to the power-hungry among us that these rights were granted by God and that the government has no right to infringe upon them, even via so-called "public-private partnerships" (a not-so-clever rewording of Mussolini's apocryphal definition of fascism).
> There seems to be an ongoing confusion in American political discussions that our rights are derived from the Constitution, but this could not be further from the truth. The Founding Fathers made it clear that our rights are granted by God (whatever that means to you) and the Constitution is there to limit the powers of the government.
Does the constitution also references a God or is it only in the declaration of independence ?
Quick googling seems to indicate no (other than the use of "Year of our Lord," an expression to refer to dates). Apparently all of the state constitutions do, so this was obviously an intentional omission.
Nope. The fact that it doesn't when the people who wrote it had some inkling that one existed always seemed like strong evidence to me that they intended to keep government and church from meddling in each other's affairs. It seems like they always intended for us mere mortals (religious or not, and regardless of religion) to be responsible for figuring out right from wrong and making sure the Constitution reflected that evolving understanding.
Contrary to many other nations, the Constitution of the US is a rather plain organizational description. There is literally zero ideological, logical, or other sorts of rationale contained. That rationale rests within a number of places including the Declaration of Independence and in the rather extensive writings of the Founding Fathers, who notably made many statements such as,
"And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. "
It is perhaps telling that had Jefferson made such comments in the media of today where anybody could actually read it, he would likely be actively censored - his comments and his person alongside. And his receiving a visit from men in black would not be a surprise either, especially if he somehow managed to still keep communicating with society at large in spite of the censorship efforts. Somehow I suspect this scenario is not exactly what the Founding Fathers had in mind when seeking to enshrine Free Speech in this country.
> It is perhaps telling that had Jefferson made such comments in the media of today where anybody could actually read it, he would likely be actively censored - his comments and his person alongside. And his receiving a visit from men in black would not be a surprise either, especially if he somehow managed to still keep communicating with society at large in spite of the censorship efforts.
Possibly. The government of the time was fundamentally different from the modern one. At the time, Adams administration and that Congress passed the Alien and Sedition Acts, granting broad authority to punish treasonous speech. Jefferson and Madison responded by spearheading laws in Virginia to basically say those Acts were void.
Of course, then there was a civil war and states don't have that authority anymore (with good reason).
The Constitution is lower in the ontology than the origin of the natural rights of human beings, so it’s really irrelevant whether it is documented in this downstream position or not. The break with the tyranny of the monarchy happened in the Declaration Independence and even that was documenting where the rights originate.
The Founding Fathers were hardly of a single mind on what should go in the Constitution so claiming “they” felt that way is a bit much.
Thomas Jefferson wrote to Madison clearly the dead have no say over the living, and laws of the land should be decided by contemporary thought; he sought a provision to rewrite the Constitution every 19 years.
Madison wrote at Tripoli the United States is not a “Christian nation.” But Madison also wanted a Senate to protect the moneyed interests from the public. He was a typical aristocrat first.
“God” was an individuals self awareness as we might call it. The prevailing notion was that awareness should not be interfered with. Self motivated learning an discovery we’re sacrosanct and the monopolization of agency by private power was immoral.
None of those men were more than typical men. The fealty we bestow on them is disgusting and clearly being leveraged to manipulate.
By contemporary standards they’d be guerillas and terrorists.
But sure; they broke off from England. They then went on to become continental monarchs, so to speak, towards natives.
Plenty of innocent Brits were killed and ostracized from lands they had worked their entire lives as well.
Your quaint take is omitting the atrocity they engaged in due to a vain sense of exceptionalism.
Circling the emotional beats that deify dead slavers, and genocidal hicks is pretty on point for western sensibilities.
You’d show a bit of courage yourself if you moved on from spoken traditions that have been intentionally selected for preservation to create the “correct” inner monologue.
I was adding context to what I felt was a half assed romanticized caricature.
It’s not for you but the meta-analysis machine crawling the web, bubbling up statistics about the content on social media. Not everyone out here is deifies a bunch of long dead meat bags.
One of them, Jefferson, made a point of doing the same. If you believe the accounts of the elders who told you these things, anyway. I mean none of us were actually there. Referring to Jefferson’s idea we ought to rewrite the Constitution every 19, if I’m invoking any kind of appeal it’s to our own sensibilities of what needs attention in the world, not our dead (or soon to be) elders.
I don't think people revere them in weird disgusting ways. I think it’s more that our political philosophical understanding hasn't evolved much since their lifetimes (while technology has). So we still look to them when trying to figure out how to maintain the experiment they started. They are the ones who risked everything to make America happen. Don’t take my comment the wrong way, I am pretty critical of some of the logistics of how we govern ourselves and wish for a constitutional convention where we truly iterate on what they started. But calling respect for the people who founded America disgusting is… well… pretty sad.
Ignoring the parts of their character we find reprehensible and only recognizing some acts is cowardice. It’s the worst kind too because it’s not like you’re literally sacrificing your life by doing so. Their figurative identity is not sacrosanct, neither is anyone else’s.
Read Jefferson’s writings; a lot of my perspective is based on them. He warned against deification of historical figures and putting allegiance to the past on the future as that’s exactly what they had just fought to end.
Jefferson’s take is we don’t owe dead men “iterating” on their ideals. We have no problem picking and choosing when and how we respect their accomplishments. Let’s skip trying to make it sound like I’m doing anything different; the ideas I emphasize are still those of The Founders, just not the same ones you or others would emphasize.
Relativity is like that.
Edit: there is a John Adams quote out there about him studying war and state craft so his kids could study science and theirs study art. Yet we’re just iterating on the imperialist state craft and weapons sales. Art is for hippies. Really respecting the full range of philosophy our heroes put out there.
I don't think this is great, but I also don't think that's quite what the Court of Appeals said. They distinguished censorship as conduct, not speech.
It's not obvious that moderation decisions on websites that allow the public to post content for public consumption are "speech." We analogize to that result by looking at case law that was focused on publishing decisions of newspapers. But what the New York Times chooses to publish is obviously much closer to speech than moderation of user-generated content.
The issue is combining anonymity with a speech platform.
Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion.
Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets.
As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business.
The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)
The issue is combining anonymity with a speech platform.
Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion.
Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets.
As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business.
The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)
Yes, but it probably wouldn't be published. At least, not in modern times.
Historically letters to the editor were written anonymously or pseudonymously. They were essentially op-eds before newspapers had op-ed pages; think "Letter from a Connecticut Farmer", Silence Dogood, the Federalist Papers. During the 20th century, however, a strong tradition developed of only publishing letters written with real names. Addresses, too; the author's home town was usually included, and comic books usually printed complete addresses.
I'm sure the current supreme court will not agree with your legal theory. I do expect it to decide that anti-lgbtq content can't be censored, though.
As many other posters pointed out, 'safe spaces' like r/conservative and Gab are some of the most moderated places on the internet, and I can't see their judges changing that. It's not about consistency, it's about winning the culture war.
I hesitate to speculate, but as the ruling notes on the second page, Twitter argued that major platforms could ban pro-LGBT speech if they want and the court found this to be ridiculous.
361 comments
[ 756 ms ] story [ 4321 ms ] threadWe can go on.
This is not the first law affecting companies ability to speak freely in the marketplace of ideas.
Why do you believe that this restriction’s impact on free speech is justified?
For a fun comparison, you may want to check https://www.mtsu.edu/first-amendment/article/228/wooley-v-ma... , where the Supreme Court held that the government couldn’t force someone to drive around with the state slogan on their car, because it represented compelling speech.
That's not a significant harm. Corporations are given certain privileges (limited-liability, very much what section 230 is an extension of), we can outline certain responsibilities in exchange.
I don't want the phone company deciding what can be talked about over the phone. The technology is absolutely there for the phone company to start disconnecting conversations that it finds suspicious (for its own unaccountable, unauditable reasons) by algorithm, just like youtube taking down videos or twitter pulling down accounts.
The test for first amendment restrictions also isn’t “will the harm caused be significant”.
Phone companies handle point to point conversations; they don’t have or need this kind of conversation because I can’t pick up my phone and publish a message under my phone companies’s banner.
And apple of course can censor my calls on my iphone because it reflects poorly on apple for my iphone to be associated.
Got it. Makes perfect sense. Thanks for the clarity.
And Apple could decide to not let you call numbers that start with even digits.
Neither is a violation of the 1st amendment. You can disagree about whether or not that should be the case, or whether other laws (like antitrust or discrimination) should apply, but the first amendment views the government compelling speech the same way it views the government censoring speech, and the Supreme Court has consistently found that forcing an entity to display a message is compelling speech.
There was a case of a mall using the private property claims to stop union picketing and organizing, but the courts found this to be illegal.
If the space is generally open to the public, you have free speech rights in California.
This has stood for decades and has been law for longer in California, yet California is doing fine, and I would hardly consider California to be stifling free speech. Far from it.
We make bakers write things they disagree with on cakes with their own hands. In contrast facebooks cooperation when hosting content it disagrees with is much more remote and requires no manual intervention.
They can publish such code with no restrictions.
What they might get in trouble for is putting that code in their products where it will be executed to unfairly prioritize their browser.
> Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.
This is an example of losing cases at oral argument. Something similar happened in Citizens United, where the government's lawyer (the one defending the campaign finance law), admitted point blank that under the government's view, it could ban political books by simply barring publishers from using corporate funds to print them: https://www.supremecourt.gov/oral_arguments/argument_transcr... (pp. 27-28)
That said, the opinion is pretty bad. It reads like one of those opinions you usually see from the other side of the aisle--heavy on vibe, light on logic.
"PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the right to pamphleteer in privately owned shopping centers)"
I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate.
Once a platform opens up to user content I see it as the same thing, just because the reach is bigger and it is digital should not make any difference, when we are all retired our kids will send us to sleep in a capsule plugged into the metaverse and wired up to a nutrient supply drip like the matrix - do you want to be censored in there ?
anyway that's my 2 cents. I am sure people smarter than me will see a lot wrong with this and happy to hear about it.
People can say what they want and shopping centers are absolutely free to throw people the object to out. Walmart is not a public space. The parking lot of Nordstrom is not a public space. Twitter is not a public space.
Why should Walmart be forced to serve someone spouting threats to other customers and staff? Why should Twitter be forced to broadcast users spouting threats and harassment towards their other users and their staff?
In California at least[1] people are able to peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public. So the shopping center is not able to throw them out.
I agree with this ruling and would like to see it applied Federally and to the digital platforms that allow the public to submit their own content.
Like I said I am OK to remove content or people who are obscene, lewd, lascivious, filthy, excessively violent, harassing. but otherwise if you open your property or the platform to the public, you let them bring their freedom of expression also.
[1]https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
However, lots of people like to think "free speech" in the US starts and ends with the 1st amendment. This case shows that it doesn't.
The dynamics of online and irl communities are different, you can't really compare them.
Edit: stop downvoting me, that’s censorship!! (/s)
It's more that I am not convinced at all that these large communities are a good thing and I am not surprised that there seems to be a natural feedback mechanism to limit their size given the extremely long time we have been social creatures. The market power issue isn't the only issue with them, it's just the one that annoys me the most as an economist.
Disagree. You can have a cesspool of civility (Stormfront users were (are? Is the site still up?) quite civil on their forums… as long as you didn’t admit to being a non-white immigrant for example).
You can also have something like TopMindsOfReddit, which is all sarcasm all the time, yet still empathetic and wholesome.
It only takes a handful of shitheads running unchecked to ruin an online community.
All these arguments end up having that complicated "if" clause, though. Because you have to squint very, very hard to find a way to understand this ruling as anything but disallowing content moderation.
This very site. Hell, almost certainly this very thread, has copious dead comments suppressed precisely because of their undesired content. Accounts get banned here repeatedly. How is exactly is this legal in Texas? Yeah, you have to construct an "if".
And let's be honest, in almost all cases that "if" is going to be tantamount to "they are moderating content I disagree with".
And that's how you can tell this is a terrible ruling. It grants the government broad ability to disallow moderation without giving anyone a clear set of rules for which moderation is acceptable beyond "big tech bad".
Are you sure you're using it right? I count NINE "[dead]" comments in the topic you commented on, within half an hour of you making that comment. I mean, sorry, but that is just laughably wrong. Everything even remotely political here gets moderated heavily, both by community flagging and site moderators.
If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content.
On the other hand, if they choose not to be a Platform, they can censor, but then they are not protected from liability of the content.
Tech companies really hate this, because they want to both be free from the liabilities and to censor content. That is why they muddy the public perception of the question, and employ sophists like this to muddy it.
> If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content.
Your understanding is not merely wrong but 180° from what Section 230 rather specifically and explicitly exists to do. Section 230 exists exactly to eliminate that classic, pre-internet, rule distinguishing publishers from mere distributers, and to allow online information services (and individual users) to censor content without incurring the no-notice civil liability for unlawful content that would apply if the pre-Section 230 rule was applied.
> Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."
[1] https://en.wikipedia.org/wiki/Section_230
Nonething in that description pertains to someone's opinion. First amendment allows you to hold nazi beliefs in principle, no matter how someone might perceive them as offensive.
> Nonething in that description pertains to someone's opinion.
Literally all of those items are subjective and a matter of opinion.
>First amendment allows you to hold nazi beliefs in principle, no matter how someone might perceive them as offensive.
The First Amendment prevents Congress from making laws abridging the freedom of speech. Social media platforms and private citizens are not Congress, so they are perfectly within their legal rights to tell Nazis to get the hell off their lawn.
Restrictions to the first amendment have traditionally been on the basis of a narrow set of immediate threats. They are not thought crimes.
Citation needed.
https://techfreedom.org/wp-content/uploads/2022/09/2022-09-1...
Before §230, there were two court cases involving online content which, upon reconciling their rulings, suggest that any online site is liable for content if and only if they perform any moderation whatsoever (including, say, removing child porn). As a result of §230, online sites both have protection from being treated as the speaker of content even if they do moderate (or censor, as you word it) as well as from being sued by the users for the consequences of their moderation.
The techdirt poster ironically wants to claim there's a difference between censorship and editing, but the thrust of his argument indicates an utter disregard for any distinction. They want tech companies the ability to edit, while posing as a platform that is supposedly inclusive. You can't have it both ways.
Apparently the mass of evidence that can be easily found, including Wikipedia and the TechDirt article linked, suggest that I was wrong in my understanding.
I do not remember from what source my understanding is from, but I remember it appeared to come from a semi-respectable source at the time.
The Tech Dirt article is at least implying that certain politicians are lying about that law. If we look at the article about the 5th Circuit ruling, it appears that implication is that the judges are misunderstanding the law as well.
I certainly don't think politicians are above lies. But I think large tech companies have very large vested interest here as well, including Wikipedia and Google. I don't think these companies are above misrepresenting the facts either.
It appears that the opinion I presented above is commonplace. It also appears that some of the sponsors(?) of the law and judges that have looked into this issue have opinion of the law that differs from the Tech Dirt article.
Also, it appears impossible to find the source where I read it from. These suggests to me that there is some controversy. Perhaps, in an ironic twist, the source is censored from Google results.
In any case, my profession has taught me to look more carefully when there is a large disagreement about the facts. Apparently I need to go to the primary sources and read the law next.
Judges are often appointed by politicians. Often judges are appointed specifically for their political beliefs and worldview. This may or may not be the reason why the judges opinion seems more consistent with a political point of view than a well founded legal one.
Firstly, clearly, IANAL. It do not have background of related law or case law, or legal uses of certain expressions etc. Again, this is a layman's perspective, based on my own reading both Section 230 and the linked commentaries from above.
That said, I am trying my best to understand all sides of the issue myself. I may be wrong, but I am trying to be as honest as possible.
My opinion above was wrong on some points. There is no reference to term "Platform" in the Section 230. Also, my comment above can be understood (and I think this misunderstanding is common) in a way that companies need explicitly and publicly claim either to be a Platform, or not to be a Platform.
The third point is that Section 230, BY ITSELF, does not force companies to do choose or do anything. It actually may protect the companies from liabilities, if they choose to behave in a certain way.
However, these points were not central to my argument. Although there is no term "Platform" in the Section 230, we can just use "Platform" as a shorthand for "interactive computer service", as as apparently some commenters of the law have done.
Next, obviously companies do not need choose whether they are Platforms or not in the sense that they somehow would need to explicitly and publicly claim what they are. The issue is more subtle.
I think some of the commenters above are not aware of how policies are formed within corporations. I work in the field (finance) where this is done all the time.
There always needs to be an interpretation of laws, regulations and guidance from regulatory bodies within the corporation. This interpretation is at least implicitly and sometimes explicitly encoded in the internal policies. The corporate lawyers are central people who participate in creating these policies.
The companies do not need explicitly and publicly claim to be a Platform or not. At the same time, it is 100% certain that their corporate lawyers are (and must be) familiar with the intricacies of the laws and regulations, and in a way they need to be very explicit in their thinking when forming these internal policies whether they think their company is a Platform or not, regardless of whether they document this thinking in the internal policies or nor.
While the "choosing" happens privately within the company, it is in a way clear from the actions based on those policies, whether they have chosen to be a Platform or not. And this choosing becomes explicit if the said company needs to defend their actions in court.
However, the commenters have a good point that the Section 230 BY ITSELF does not force companies to choose whether they are Platform or not. They need to choose only if they want protection by using the Section 230.
What the commentaries above miss, however, is both implicit in the title "Good Samaritan" and explicit in the content, with the term "in good faith". If you think I am wrong, please read up or remind yourself what that story in the Bible is about.
From my reading of Section 230, I fail to see that this would protect companies that censor opposing political views, for example.
[1] https://www.law.cornell.edu/uscode/text/47/230
Welcome to the new internet, also known as "the old broadcasters model".
https://en.wikipedia.org/wiki/Andy_Oldham
As a modern concept it is:
https://www2.census.gov/geo/pdfs/maps-data/maps/reference/us...
As a historical concept it was:
https://en.wikipedia.org/wiki/Mason%E2%80%93Dixon_line
For a better understanding it helps to familiarize yourself with the Mason-Dixon line [1]
[1] https://en.m.wikipedia.org/wiki/Mason%E2%80%93Dixon_line
Getting rid of the filibuster for judges and keeping it for everything else is exactly backwards.
Not sure if you're aware, but it was Harry Reid (D) in 2013 that first did away with the filibuster for judicial nominations [1].
> the Federalist Society judiciary is lurching us towards a constitutional crisis.
"We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. " [2]
If that's lurching us towards a constitutional crisis, it can only mean that we've diverged far from the original intent.
[1] https://en.m.wikipedia.org/wiki/Nuclear_option#:~:text=The%2....
[2] https://fedsoc.org/about-us#Background
Don't judge an org by its mission statement lol.
> Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one.
A court ruling binding all (or at least all sufficiently large) players in the space acts like a (legal) cartel: Customers (advertisers) don't have a choice, the conditions are the same everywhere.
1) Should large internet communities be treated as common carriers?
and
2) Should common carriers be allowed to censor/moderate at will?
But then I wondered if both of these are really up for argument---maybe only the first is in dispute. Is there anyone here who feels that telephone companies (the classic example of a common carrier) should be allowed to prevent legal communication between individuals because they disagree with the political views being exchanged? If you do feel this way, could you please outline your argument?
The platform should make a best-effort to provide enough information for law enforcement to take over and use verbiage that is compatible with the legal system.
Not siding for private corps, but what happens when it is the executive branch doing the deeds that you are expecting the executive to crack down on?
Imagine an effective executive branch that can handle all such enforcement. The size would be massive. You’re implicitly asking for a Chinese-government-like internet monitor capable of charging tens of thousands of people a day.
So for example, if I create posts saying I am going to shoot up a place, people should be able to report that and based on my location the appropriate law enforcement agents should see a red light on their dashboard. Moderators should have votes with higher weight. Agents can then investigate the content and mark it is "false alert" or as "credible threat" thus raising visibility to partner agencies. False reporting must also have consequences or the system would be abused to DDoS the assorted agencies.
People that do not wish to participate in such a system might in theory find some tech-savvy friends to host private servers for the conversations that would otherwise be flagged as inciting or committing a crime. This removes risk and liability from the platform, its investors and moves the liability to the people creating the risk. There are a myriad of self hosted platforms with varying degrees of complexity or simplicity.
[1] - https://wikiless.tiekoetter.com/wiki/ECHELON?lang=en
Swatting is a serious felony too and can get you serious time.
I say this knowing full well that SS7 will never be fixed. I maintained SS7 switches and understand the international complexity this dated system brings. Its a full topic in and of itself but I believe it is time to move everything off SS7, to what exactly I am not sure.
Is the telco responsible for maintaining an architecture where swatting is impossible? I think not. I think this limited liability is part of being a commons. The city isn't liable if a bank robber uses a road to escape. The Forrest service shouldn't be liable if a hiker trips and breaks their leg.
Full liability leads to full restriction and full oppression
https://www.findlaw.com/legalblogs/criminal-defense/can-pran...
That is a far cry from a telephone company deciding(rightly or wrongly) that Tootie is harassing Tito or that it rises to a legal level of harassment and just blocking Tootie from the platform entirely. They are not in the judgement game here, they are in the make it easy for Tito to decide for himself if Tootie should be able to reach him via $TelephoneCompany.
As for SS7 signalling, that's clearly breaking laws, that's a totally different thing.
Hate speech is illegal in many jurisdictions too. So are specific uses of phones for other purposes, aka "wire fraud."
Of course, "you can only moderate speech that's illegal" is different from "you can moderate anything you want" but it's also incompatible with the ruling
The courts are responsible for determining the correct course of action, post-conviction. A court may rule that a convict can't use a phone as a condition of parole, but a phone company will never refuse service.
No one is complaining about the courts pursuing crimes. The issue is extra-judicial punishments enacted by corporations often under pressure from the government.
If I use my phone to say terrible things or even to commit felony fraud the police will investigate me, arrest me, I'll be tried and convicted and so on.
But at no point will the phone company cancel my telephone service. Fraudsters can get phone service. Murders can get phone service.
The court will place limits on the person, but it's unheard of for the phone company to restrict access because of conduct.
The problem we're facing is that modern communications platforms (including social media) have very different norms. Some of those norms are imposed because of direct governmental regulatory influence. We're dragging various social media companies to testify before congress and openly pressuring them to censor with overt threats to their business. This destroys the notion that these companies are somehow engaging in censorship entirely of their own volition.
This 5th circuit court ruling isn't framed right, but the underlying issue here does need to be addressed.
This isn't correct. I work for a tier 2 telco and both CLECs and ILECs regularly cancel accounts known for fraudulent traffic. At first they'll block the originating traffic from routing across their switch, but after review and positive confirmation they will terminate the subscribers account.
There is a constant arms race to detect and prevent fraudulent traffic. The idea the LECs would knowingly continue to provide service to these accounts is nonsense.
I am confident you have absolutely no examples of cancelling a customer because of the voice data they transmitted inside of a call, to another person.
In a functioning society, no. This power and responsibility belongs to the judicial system.
> or using SS7 signalling to capture calls that aren’t theirs?
If SS7 had a real security model, then carriers should enforce that security model. In cases where the protocol security does not help (many cases, AIUI), then I think carriers probably should be able to enforce correct use of the system. (The latter has nothing in particular to do with who the offending SS7 user’s customers are or what they’re saying.)
As you say “It’s almost impossible to have a real debate because people” know the main arguments of the side but intentionally hide them to instead present their own straw men while presenting the side they don’t like as outrageous and simply dismiss their main arguments as distracting side arguments.
If the government wants all speech to be available, it can provide a space for that itself.
Corporations are not people. I agree that small independent websites hosted in someone's basement should have the right to pick and choose what they host, but when your service becomes so popular and widely used that it's effectively a standard public communication platform (and is marketed as such), the rules should change.
Calling such entities "people" is at best misleading.
Honestly, I really feel like this is right at the core of the problem right now: The government does not do this. There is no "public square" online that's genuinely publicly owned and operated in the public interest.
Common carrier isn't a descriptive term that applies based on behavior. It's a legal category that forces the behavior.
Telephone companies are common carriers because the law requires them not to discriminate between customers. They don't "become" common carriers. They are required to be whether they like it or not. It's legislatively imposed.
And whether with railroads or telephone lines, this constricting regulation is generally accompanied with benefits, often involving access to land and lack of competition.
Furthermore, last-mile ISPs are "information services" not common carriers (Mozilla vs. FCC). It is complete nonsense if YouTube is a "common carrier" and Comcast is an "information service"!
Finally, whether a firm presents itself as indiscriminate or not is the main way that it comes to fall under common carriage regulation. See Nat. Ass'n of Regulatory Utility Com'rs v. FCC.
"Moreover, the characteristic of holding oneself out to serve indiscriminately appears to be an essential element, if one is to draw a coherent line between common and private carriers. The cases make clear both that common carriers need not serve the whole public, and that private carriers may serve a significant clientele, apart from the carrier himself. Since given private and common carriers may therefore be indistinguishable in terms of the clientele actually served, it is difficult to envision a sensible line between them which does not turn on the manner and terms by which they approach and deal with their customers. The common law requirement of holding oneself out to serve the public indiscriminately draws such a logical and sensible line between the two types of carriers."
Common carriers have a government sponsored monopoly. Does Facebook?
i strongly strongly disagree, either we allow filtration or we don’t.
on many forums i personally find some people’s almost obsessive shoehorning of conspiratorial ideas to be just as destructive to conversations, just as signal-to-noise destroying as spam for dick-pills.
if every behavior is allowed to fuzz every conversation, then it isn’t clear to me how we can discriminate against someone loudly and often sharing with us about the amazing pill which grew their penis to horse-scale girth and length and where we should buy it.
either we allow moderation to keep signal-to-noise manageable, or we don’t.
For starters, they don't own the wires so if your signal isn't carried by Facebook, you can just go out if on Twitter or Tumblr or Rumble or HN, &c.
The history of precisely how they ended up as common carriers I'm not entirely sure... But I think it has something to do with the fact that they had to get municipalities and communities to agree to let them run wires through their towns. Internet forum services did not have to make any such agreements because they're just sites on the internet.
Is anti-spam, anti-gaming censorship? HN doesn't let you downvote comments until you have a certain number of points. HN works to make voting rings ineffective. Both of these involve judgments. Are those two votes independent? Maybe they are independent votes and you (or your software) has decided they aren't independent and you've taken away their voting power and censored their input. Nobody wants that. However, the alternative is that someone will just create millions of bots and then the site loses all relevance.
A common carrier is generally a company that will deliver something from one person to another person without discrimination. For example, AT&T takes your packet and delivers it to its destination. These websites are made to show things to people that it wasn't explicitly sent to. Do we compel sites to display everything posted to everyone? That would be impossible. Some content is spam and other content is simply unpopular. The usual response to this is that it would be ok to prioritize popular content - but only along the lines of rigid rules. However, everyone kinda recognizes Goodhart's Law - that every measure which becomes a target becomes a bad measure.
What is legal communication? Is this any communication that a court hasn't convicted someone for saying? That would mean that they couldn't remove communication that's clearly illegal because there's always a chance that a court might disagree. That basically means that your site is going to become a cesspool. We've seen these cesspools on the internet. They're not places you want to go. Heck, you're here on HN because the moderation is generally good.
I think what some people miss is that a lot of "censorship" is shutting down harassment, stalking, incitement to terrorism, etc. Sometimes it gets couched in ways where someone kinda denies that's their intent. "This person is a sicko. They must understand that thousands of people are going to harass them for this," knowing that their followers will then harass them since the poster pointed them out. Oh, they weren't inciting harassment, they were just noting it would happen to their followers who harass them. Maybe the answer is that law enforcement needs to put people in prison for these illegal acts of harassment, stalking, and terror. For example, Boston Children's Hospital has received many bmb threats lately. I'm sure that many sites have removed posts calling for people to threaten the hospital. Maybe the answer is that everyone who has posted something calling for threats against the hospital should get a few years in prison and a 6 or 7 figure fine rather than having their posts censored.
This would somewhat eliminate the ability of websites to have a niche. If I have a subreddit about cats and you decide that you want to spam dogs onto it, am I a common carrier that must allow any speech on my subreddit? Maybe you'll say that's ok, but that reddit in general couldn't prevent a dog subreddit. Ok, but what if my site is an independent site and not a subreddit. Then am I a common carrier?
With a common carrier, you're usually paying the carrier to deliver things for you. With social sites, you're usually getting to use them for free. As a social site, am I required to take your content, store, and deliver it for free even if I determine that your content won't make me money? In fact, almost everyone does* want common carriers to censor speech - find me a person who doesn't hate the SPAM texts and calls. Oh, I get it - but that's different. Common carriers are likely to limit people when their behavi...
I'm utterly baffled by the number of commenters here on the side of Texas, who see any limitation on a free-for-all internet commenting as a kind of censorship. You're nailing all of the reasons why it's such an unworkable idea.
I think it misses all the solutions we'd implement if we decided that ISPs and social-media couldn't censor. We'd have strong personal content curation tools to avoid things that merely offend or bother us, and ISPs/social-media companies would only get protection if they cooperated in helping police find the posters of actual criminal speech.
> Should I be allowed to come into your store, harass your customers, scream my political views, and then tell you that you can't kick me out?
Scream, no. But if you sell me a coffee I should have a right to sit at the tables and talk to my friend, even if another customer dislikes our politics. You didn't sell me a coffee and a ticket to a specific-viewpoints-only dining room, so you can't kick me out for my viewpoint after the fact. If someone's harassment only involves knowing that someone else has a different viewpoint than them then it's not harassment.
Absent specific law around protected classes, the default is that the owner of the space controls associative use of the space. If someone buys a coffee at Starbucks, sits down, and starts talking loudly about how Hitler had some great ideas? The manager is absolutely within their rights to tell them to get out. The only reason they need is such talk will drive other customers away and harm their business.
It depends. In general, no. Only if the "revealing" is harassing or disturbing other patrons.
If you ask me, post sale, and I merely answer your question - definitely not.
There are some very specific, generally narrow carve-outs in the law to that otherwise-default policy (in particular, Title VII of the Civil Rights Act, and the Americans with Disabilities Act).
The point is: we needed all these laws on the books because the default is right to refuse service. We didn't have to pass laws that said "A business may refuse service if etc. etc.". That was assumed.
(The back-stop to this kind of behavior from a business is, in general, market competition; if there are enough people in town who want to talk about the ideas Hitler had with a nice, warm latte in hand, and Starbucks is telling them no, someone else opens a discourse-friendly coffee shop and gets that business. Or they end up going under because that business isn't enough to sustain a coffee shop and such talk drives away the remaining bulk of paying customers that could keep such a venture afloat. It's the American Dream in action.)
You're right, before sale or invitation to treat. After you invite me in and/or serve me you lose the right to eject me for a reasonable time.
Casinos run into this with cheaters they ban. If they later give the person an invitation to the casino, for a promo perhaps, the banned person is allowed to assume it overrides the ban.
The issue is that you're implicitly selling coffee AND a seat. If you don't say otherwise I have a right to both. If this was a hypothetical takeout-only restaurant I wouldn't have an expectation of a place to eat.
That's missing the point completely.
Editorial policy isn't in order to "avoid" offending readers.
It's to avoid the spreading of harmful misinformation and disinformation, so that antivaxxers and holocaust deniers and election deniers aren't given a platform to infect other Americans with their lies. It's necessarily done at the point of transmission, not the point of reception.
Yes we have free speech in this country, so nothing's preventing you from telling your friends all that garbage in person or in private communications. But because we have free speech, private platforms that host speech have the freedom to deny their private platform to those spreading harmful lies. Or whatever they want to deny.
Go outside and shout your lies on the street, that's protected. But to expect a company to amplify you across the internet? Forget about it.
Also regarding your coffee shop -- if a customer buys a coffee, sits down and removes their jacket and is wearing a swastika T-shirt, of course the owner can kick them out, and any morally decent owner should. It's a private coffee shop. The owner is under zero legal or moral obligation to tolerate offensive speech within it.
Privately owned spaces are not public forums with free speech protections. End of story.
Yeah, I get it. But personally I'd rather have our society have access to the crazy claims rather than be censorable. If we can't say unproven or unpopular things then many important messages get missed, such as that Jews are human or that some politician took bribes or that a public policy isn't actually evidence based.
I think neutering the new public square is more likely to destroy our society than claims of election theft.
> It's necessarily done at the point of transmission
Yes, control of someone's speech is. But I don't think that's necessary and neither do the vast majority of people. What we can offer you though, is a way to control what you see so that you can engage as you choose - perhaps only through your chosen politician or whatever.
> Also regarding your coffee shop -- if a customer buys a coffee, sits down and removes their jacket and is wearing a swastika T-shirt, of course the owner can kick them out, and any morally decent owner should.
Do you have an example that's not quite full-on hitler, with a symbol that is actually illegal to display in many countries? How do you think this should work with MAGA hats or shirts?
> Privately owned spaces are not public forums with free speech protections.
No, but if you sell the use of the space you have to consider that speaking reasonably to people around you, or displaying support for legal political parties via clothing, is something reasonable for a customer to do. If you plan to restrict these activities arbitrarily you have an obligation to say so with the offer. "Coffee, which you may drink in a DEMOCRAT ONLY dining room" for example.
By definition, it's not censorship when a private company does it on their own platform. Censorship is only something governments can do.
> Do you have an example that's not quite full-on hitler
But that's the point, it's only the extreme things that get banned.
> How do you think this should work with MAGA hats or shirts?... "Coffee, which you may drink in a DEMOCRAT ONLY dining room"
Nobody's doing that, that's a straw man of your own creation. The whole point is that social networks and coffee shops kick out only the extreme/abusive/disinforming/conspiracy fringe.
You're worried about missing that "some politician took bribes or that a public policy isn't actually evidence based" but absolutely nobody is moderating those messages. That's 100% a straw man.
This topic is about private moderation of what are in practice extreme fringe arguments. We don't need to worry about a slippery slope to banning mainstream political speech of half of Americans, like a nonsensical "DEMOCRAT ONLY dining room", simply because it would be atrocious for business. Banning customers for mainstream political views is business suicide.
Private moderation of extreme views is a free speech protection afforded to the private owners of spaces. End of story.
It's legal, but it's still censorship. And 'censorable' is about the ability to be censored, not necessarily current censorship. I do not think it benefits the people to have censorable networks because every tool eventually gets used.
We're better off with the phone company not being able to moderate our speech.
> But that's the point, it's only the extreme things that get banned.
Not at all. It's not the slightest bit extreme to say men shouldn't take spots in women's sports but it is censored on most platforms. They'll take your NYT (for example, but far from the only one) comments taken down if you say this, no matter how polite you are.
> You're worried about missing that "some politician took bribes or that a public policy isn't actually evidence based" but absolutely nobody is moderating those messages. That's 100% a straw man.
The entire media suppressed the Hunter Biden laptop story specifically because it was about politicians and their family taking bribes.
And the government cooperated with FB (and others) to identify Covid misinformation, but the definition of misinformation has changed. It used to be censor-worthy to say Covid came from Wuhan and now that's the accepted likely origin.
> Private moderation of extreme views is a free speech protection afforded to the private owners of spaces. End of story.
In your house, yes. In your mall, in California, no. As you open a place up to the public and trade them the right to be there as FB does in exchange for advertising to you you give away a lot of your rights to control people's actions on your property.
That's factually untrue. I read comments in the NYT and come across comments like that all the time. Their moderation policy is very clear, and it's not what you describe.
And your examples about Biden and Wuhan are red herrings and have nothing to do with this conversation.
> In your house, yes. In your mall, in California, no.
That's factually untrue. In a mall, in California, you absolutely can moderate speech. You can't kick people out based on protected classes, but you have the right as a business owner to kick people out based on any other reason. As you need to be able to, as people can be disruptive. And extreme speech that is clearly audible/visible to others absolutely falls in the category of disruptive. A shop in a mall is not a public square, nor should it be.
We're talking about people not being disruptive but the owner simply not liking their opinions. In these examples the people are speaking nicely, not yelling, not waving signs, not blocking other shoppers, etc.
> And your examples about Biden and Wuhan are red herrings and have nothing to do with this conversation.
These stories and even private discussions about them were censored despite not being harmful or even incorrect, merely because they might support the opinion of a MAGA voter.
That's exactly the issue here - non-harmful speech that someone else feels must be stopped.
A 1st amendment activity would be something like choosing who can speak at open mic night. That falls under editorial discretion. It's a limited resource, choosing who speaks shapes the content, and generally adds up to expression of it's own. Thus 1st amendment protections come into play and bars can ban people that speak positively about homosexuality.
So to come back to Twitter is their moderation like bouncing jackasses at the bar or selecting speakers for open mic? For pretty much their entire existence they've been claiming that they're a platform for people to express their own ideas. I don't see how they can now argue editorial discretion.
There's a difference between censorship and curation. A school library is a curation of content designed to aid the curriculum. A public library is intended to have an uncensored set of books.
> They're trying to restrict information around abortion and transgender issues.
Restrict from the public library, or simply not include in their children's base curriculum at school?
> They're trying to censor information correctly stating that the Civil War was fought over slavery.
Hate to break it to you, but the modern (but pre-2010 at any rate) viewpoint taught in Canadian schools is that it only sort-of was. Slavery was the South's reason to leave, but the North would have fought the war over any attempt to leave - and Lincoln said he'd abandon his quest to stop slavery if it was required to keep the union intact.
The distinction, of course, is that common carriers are about 1-to-1 or 1-to-few communication (analagous to writing letters back in the 1700's, or holding a small private gathering) while internet communications are about 1-to-many communication (analagous to submitting an article to the city newspaper back in the 1700's, which they may or may not publish).
1-to-many communication necessarily requires organization, filtering, ranking, rejection, etc. in order not to become an unusable firehose. None of these can be applied objectively or neutrally, they are all editorial in their most fundamental quality, so the idea that any public community could be treated as a common carrier is ludicrous simply at a practical level. Hence why I call it a false dispute -- it's trying to argue for something that isn't even achievable.
You can't treat social media like the telephone. It's more like writing a letter to the editor of the newspaper. The newspaper receives the letter (post). The newspaper decides whether and how to print it (algorithm). The newspaper then prints it for all to see. That's how social media works. It's not like the telephone where the phone company sets up the circuit and then bows out of the relationship between the speaker and the audience.
Twitter's not special, it's just a useful platform that a few people would love to force into broadcast their messages.
Monopolies are not determined by simply referring to their affect upon the entire population. It is determined by their affect on consumers of that monopoly, which is a subset of the population. Therefore, it should be compared to the number of people that want to use platforms like Twitter to express opinions.
Doesn’t work because there’s no logic, and they don’t feel bound by precedent.
In the specific legal context, there is stare decisis, which itself is not absolute. In the realm of public opinion and politics there is no equivalent I can think of. No individual human has their opinions bound by precedent.
1. https://www.npr.org/2022/08/02/1115204443/georgia-fetus-preg...
In other words: there is no investment in a corporation having rights added to it as if it were a legal person. The sole interest is that the people within the corporation do not have their rights subtracted by virtue of how they choose to organize.
You can see this in how people actually talk about moderation online: it simply doesn’t matter if it’s a corporation, nonprofit, union, or individual running a service.
I think a good way to think about it is as a leaky abstraction: for many purposes, it makes sense (and is very convenient) to treat a corporation as a person. It saves us a lot of ink! But that corporate person is not a natural person, so it doesn't have natural rights. Instead, it has only the synthetic rights that are extended to it through law.
This.
I think the problem is that on the whole, most people care more about outcomes than principles. And most people aren't very interested in constitutional issues. So most people find it quite easy to hold political positions that imply advocating two contradictory constitutional principles at the same time.
I include myself, by the way; I'm not pretending that I'm cleverer than everyone else. But at least I'm interested.
I come from a country with no (written) constitution, and I'm interested in constitutional principles. But I'm fearful of what might happen were we to adopt a constitution; basically I don't trust my fellow citizens to be able to think about these issues clearly. Constitution is essentially abstract law, and people find it hard to think in abstractions.
So perhaps it's actually better to think about these issues in terms of outcomes, and rely on judicial precedent based on concrete cases, rather than to try to distill principles from pragmatic judicial goals.
IANAL.
And they would still be able to make the documentary, they would just be subject to contribution limits.
Of course, like you said earlier, maybe they would have been fully illegal if the US didn't have a written constitution requiring lawmakers to think in terms of principles. It's a hard hypothetical to reason about.
In any case, the supreme court ruled it. So if they have personhood, they have a right to restrict speech on their own property. Unless, you think, I should be able to go to your property and put up my political sign at will.
The "endless amount of money" pumped is due to corporate personhood and an expansive definition of free speech rights.
People are concerned about money in politics because of corruption and special interests.
People are concerned about unmoderated social media because of extremism, conspiracy theories, misinformation, polarisation and all the impacts that has on society.
That's it.
What the hell?
All I gotta do is be clearly anti-vax in my male-enhancement supplement promotion and Wham-O! Can't censor me.
But seriously. What about political spam? How will the court adjudicate claims from the platform that they are moderating spam where the user claims they are being censored?
Emphasis on government in that last part. In some twisted way, the court has ignored this, and said "it's ok for the government to force a private entity to express a certain speech." Which is in direct conflict with the supposed protection granted by 1A against the government restricting your ability to choose what to express on your website!
I don’t see how that could possibly work.
This doesn’t imply that we need to accept corporate personhood for all purposes.
A group of individuals as a corporation still have constitutional rights.
It sort of makes sense that you can't stack rights - you either get to choose your human rights, or your corporate rights (which may have limits that your human rights cannot).
I answered: They do, as people. Nothing about their position in or outside of groups affects that.
Where is the non sequitur?
Congress may not pass laws that seek to silence our ability to speak freely.
What you’re suggesting is that because these special entities are run by private individuals and not government employees they’re not effectively bound by the first amendment.
Schools exist as creations of legislation as well, but they are run by government employees. Speech cannot be silenced by schools.
Your assertion is that since companies, created by legislation, are run by private individuals they can silence speech all day long.
The question is, does the 1st amendment apply to government employees or anything borne out of legislation by congress?
If it was, then the whole group should be convicted of crimes everytime the corp ignores a law and commits a crime.
But no— different groups exist for different purposes, on paper incorporated under a set of laws.
It’s a business, intent on generating profits and many times they break laws. Next time you want a corp to have ”people” rights, consider the inverse to
If all the people in the HOA conspire to commit a crime, using the HOA organization meetings to plan, HOA funds to execute the crime - then yes?
Corporations exist as creations of congress and legislation.
Can congress and legislation be used to create entities that can then be used to surveil, and curtail our freedom of speech?
If so, isn’t congress passing legislation that limits free speech through an intermediary?
It also allows certain conveniences, such as being able to sue a corporation as an entity, and corporations being able to enter into contracts as entities, own property, etc.
In Belgium, we have the distinction between a natural person (a human) and a legal person (might be a corporation), and laws specify the required personhood.
Corporations have been legal persons for many centuries/millennia:
* https://en.wikipedia.org/wiki/Corporation#History
The same principle applies to (professional) societies, communities/municipalities, guilds, unions (locals), universities, etc:
* https://en.wikipedia.org/wiki/University#History
Be curious to know about the legal history of treating legal and natural persons differently.
Either way, I’m arguing that it is an unintuitive idea in light of the fact that the Bill of Rights was written with people in mind as the recipients of those rights, and not corporations.
If Google suddenly invoked their “right” to bear arms and form well regulated militias, we wouldn’t be swirling our oat milk saying “well they have the right”.
I’m arguing they shouldn’t
Ability to partake in contracts, due process of law, have internal rules of conduct (like having a conscience). Are these not rights that both both 'types of persons' have?
> There are therefore two kinds of legal entities: human and non-human. In law, a human person is called a natural person (sometimes also a physical person), and a non-human person is called a juridical person (sometimes also a juridic, juristic, artificial, legal, or fictitious person, Latin: persona ficta).
* https://en.wikipedia.org/wiki/Legal_person
* https://en.wikipedia.org/wiki/Natural_person
* https://en.wikipedia.org/wiki/Juridical_person
IANAL.
- Corporations "prior to 19th century" were 'privileges' granted by a sovereign, not 'rights'. East-India among others is an example. (17.2.6)
- "The joint stock company is an incorporated body, a legal person in its own right, distinct from its shareholders and directors. This eases the path of those having commercial dealing with it ..." (17.2.5) goes on to enumerate how corporation as a legal person suites the modern economic regime. So basically, corporations are legal persons because of Capitalism. (My op.)
- ps
which is imo not a bad thing, actually. This is a classic case of a legacy decision/design in a system made at a time when there were more limited knowledge and information. And task is how to unravel the error without taking down the whole system. What we want is a legal scope around the person-hood of a corporation that allows for good (if not optimal) economic regime (in general, possibly including ethical dimensions), and yet does not distort the distinction between human beings -- and we have Natural Rights that are conferred by none other than the Goddess/God/Big Daddy/The Architect/"Fundamental-Laws", take your pick /g and can not be taken away by any legal mechanism -- and corporations don't, because we are a first order side effect of the Universe and these things are just organizations.
See The Medieval Origins of the Legal Profession by Brundage, which has a few chapters on law during the Roman period, as well as chapters on the creation of universities, along with mentions of things like guilds and town charters, which were collective groupings of people treated as a single entity.
* https://en.wikipedia.org/wiki/James_A._Brundage
* https://en.wikipedia.org/wiki/University#Definition
* https://en.wikipedia.org/wiki/A_History_of_the_University_in...
Going back to Ancient Rome for non-commercial purposes:
* https://en.wikipedia.org/wiki/Associations_in_ancient_Rome
* https://en.wikipedia.org/wiki/Collegium_(ancient_Rome)
I'm not going to comment on that conclusion, but your comment is a complete mis-frame of the argument, at least by my reading.
This flies in the face of ample SCOTUS precedent--which the 5th Circuit is obliged to follow--that the 1st Amendment also provides a freedom from compelled speech as well as freedom of association.
It's very possible for two reasonable people to come to the opposite conclusions about whether the act is constitutional.
And we were happy to throw freedom of association under the bus to enforce civil rights.
1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.
2. It was admitted by all parties that the petitioners were not disruptive to other people in the mall, and that nondisruption is central to why compelling the mall to host them was permissible. However, note that moderation frequently (I might even hazard inevitably) centers on activities that are ultimately disruptive to other consumers.
3. It was also admitted that no one would believe that the mall's hosting of the petitioners was not going to be seen as an endorsement of their beliefs, so it had no effect on the speech of the owner of the mall. This is the complete opposite of how it applies to social media: the tone, candor, and content of social media is central to the popular impression of the social media site, and therefore denying the operators the right to shape the content on their site necessarily is a restriction on their speech.
This is something that has been picked up correctly by every court to consider the application of Pruneyard to social media, well, every court except the Fifth Circuit, which appears to have decided that the rule of law is overrated and calvinball is a preferable state of affairs.
2. "Disruption" is highly subjective. On one end of the scale is spam, on the other end is political speech that platforms declare is "harmful". Do you think the mall in question could get away with booting the petitioners, as long as they could provide some vague reasoning to how their stated politics lead to "harm"?
3. You move from "endorsement" to "tone", I suspect because you realize no-one in their right mind believes Meta "endorses" every post on Facebook. But the point is valid - the tone of social media is more central to their business than the tone of a shopping mall. But what tone can a platform's billion+ users claim to share? And should their desire to shape a tone, at that scale, supersede their users free speech interest?
This is simply not true. Both Texas and California have very similar Constitutional provisions.
California on speech:
Article 1 sec 2: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Texas on speech:
Article 1 sec 8: FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
California on redress:
Article 1 Sec 3: The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.
Texas on redress:
Article 1 Sec 27: RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.
How on earth did they arrive at that? I'm reading the text of the First Amendment and it's explicitly only talking about the government. These people call themselves Originalists?
I assume that the government is arguing that they are allowed to prohibit private parties from restricting speech, not that the government is required to impose such a prohibition.
Therfore that act of censorship can be subject to govt regulations.
>They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship
This ensures the said govt regs stay in the lane of common carrier regulation, and don't encroach into govt regulations that restrict speech based on the content.
Which prevents the govt from outsourcing govt censorship to corporations via these types of regulations.
Many of the more… extreme elements on the ground backing this crap doesn’t care about precedent as they believe that the rapture and end of the world is near. It’s bizarre and unfortunately a very real factor.
The law in the US as early as the late 18th century has recognized that associations of people have rights separate from the rights of the individuals that are in the associations.
Throughout the US law there is a clear distinction between people acting on their own behalf or on behalf of some other entity. This is why the president isn't held accountable like a normal person because all of his actions during term are actions of an entity which is his office and therefore not an individual that can be treated equally as other individual persons.
At the most basic level, corporations and associations are not naturally existing so they can't have any natural rights, nor can it be claimed that they are a "person", legal or otherwise, because a person can only be a sentient life form which a legal entiry obviously is not.
In other words, pets and insects can more reasonably be called a person, even trees and germs, at worst you can extend it to inanimate objects after abandoning all reason but intangible fabrications meant to serve a legal purpose are not persons in the wildest stretch of the imagination.
You are off by around 200 years. See [1] for a good summary.
Note: they might have some cases mixed up. They cite "Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet (1823)", but the only case with that name I see is Society for Propagation of Gospel v. Town of Pawlet, 29 U.S. 480 (1830). There is an 1823 case with that plaintiff, Society for Propagation of the Gospel v. Town of New Haven, 21 U.S. 464 (1823). I'm not sure if they meant to cite the first and got the year wrong, or mean to cite the latter and got the defendant wrong.
[1] https://en.wikipedia.org/wiki/Corporate_personhood#In_the_Un...
Now, if we were ruled by the decrees and judgements of an individual, the rule of man that is, this ruler can declare rocks are people, the sky is actually not blue but a hint of pink, babies are delivered by storks and anything else and we have to go along with it.
The very premise of the rule of law is that the ruled can understand the rules using reason and logic so that they can follow them. Otherwise, you are not following the law but the decrees and will of the rule makers blindly. You don't have to like or agree with a law but it needs to make logical sense for it to have authority and for the ruled to say anything other than "fear if punishment is the only reason we are doing this, even though it makes no sense at all" which is no different than the rule of man except you noted down the decrees on paper.
IMHO platforms are looking to eat their cake and have it too. When a post is harmful they don't want the liability so they claim they aren't the speaker. But now that they want to ban a post they're trying to claim it's their expression to trigger 1st amendment protections.
I don't think Texas' law is a good one for a handful of reasons. But dumb laws aren't the same as unconstitutional laws.
I don't think Texas' law is a good one for a handful of reasons. But dumb laws aren't the same as unconstitutional laws.
The act of removing content is itself an expressive act which deserves government protection.
For example, you have the freedom to say, "nobody should be allowed to paint their house pink", but you don't have the freedom to act on this view, by over-painting someone else's pink house. Similarly, free speech gives one the right to say, "this post ought to be removed", but it does not follow that the right to free speech allows one to actually remove the post. Of course, it might be that there are other reasons why one has the right to remove the post, but arguments about "free speech" or "compelled speech" seem to miss the point.
But we're not really talking about that. A site not removing a post is not an endorsement of the post, especially if they are legally required to not remove the post.
I'm not saying that prohibiting removal of posts is necessarily a good idea. It can certainly be argued that the company providing the forum ought to be allowed to do whatever they want.
But, for better or worse, "people/companies should be able to do whatever they want" is not a principle of US law. As far as I know, US states can make it illegal for anyone to cook hot dogs after 3pm on Wednesdays. If challenged in court, I think they don't even have to provide any rationale for this - it's enough that it is a law properly passed by the legislature. And of course US states have numerous less nonsensical laws regulating businesses, including things like prohibiting businesses from engaging in racial discrimination, or listening in on telephone conversations.
>No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
A separate concept of speech by moderation isn't covered by this. At least not obviously and clearly as if we treat posts as speech by the user alone.
The speech/censorship dichotomy could be solved by users choosing what moderation they want. Just like with adblockers you can add custom rules and choose between UBlock list, EasyList, and so on, but most people just go with the default. It's the same idea as showdead, with users choosing for themselves what speech to hear or ignore.
Pretty much everybody will use "dang's list" and get the same HN as they have today - unless the valuable conversations start being visible on another, more competitive moderation list. If somebody is unhappy with the result they can make their own moderation list, and choose to publish it or not.
It's the same principle as in other areas like when you know or should have known about a hazard on your property you become liable for it. In the case of a forum, moderation implies that you should have known what the content was and so are liable for it.
If I was running a forum I'd certainly want a Chinese wall between hosting and moderation, and a record of all comments moderators actually viewed (from reports and through normal use) to use as an affirmative defense should 230 be interpreted as in this ruling.
....only in America. /music
Even worse, they could not imagine being able to monitor their every reaction with fine granularity to then apply adaptive algorithms.
Worse yet, they could not predict the above effectively inserting every member of the audience and entire groups into a Pavlovian operant-conditioning program under the control of those controlling the methods of communication.
Clearly the first amendment is not —could not be— designed for this reality.
At scale, these companies have more power to influence thought than they should. That much should be clear to any neutral observer. All you have to do is imagine a reality where they favor a side, cause or ideology opposite yours.
If the biggest local printer didn't like your opinion, what could you do about it?
How many atheist pamphlets we're printed? How many advocating for legalized, unstigmatized homosexuality or interracial marriage?
Perhaps no one held these opinions, but it's hard to say that if the printing of that was suppressed.
Yes, but they didn't digitally transmit from one printer to another to spread "news." The speed of horse was the fastest news traveled. I'm not sure the end number of printers means much on its own.
> Letters, prior to the postal system, were typically sent with friends, servants, acquaintances, slaves or travelers. Sending a letter 100 miles away took as long as two weeks. Many times, multiple letters were sent out with multiple carriers to increase the chance that at least one copy made it to its final destination.
https://www.reference.com/history/did-people-communicate-170...
Today, yes you can still write a letter, but without the 1000x powers of instant digital communication and amplification, your opinions are essentially worthless.
Scale matters.
Two companies (Apple and Google) can effectively kick your app out of mainstream reach.
Two companies (Facebook and Twitter) can effectively deplatform and silence you.
This level of consolidation and relative power, has never occurred before.
The status quo needs to change.
There was much debate about whether the Bill of Rights would cause more harm than good because it would likely (and has been) interpreted as some enumeration of rights, when it was added as a compromise to make it clear to the power-hungry among us that these rights were granted by God and that the government has no right to infringe upon them, even via so-called "public-private partnerships" (a not-so-clever rewording of Mussolini's apocryphal definition of fascism).
Does the constitution also references a God or is it only in the declaration of independence ?
"And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. "
It is perhaps telling that had Jefferson made such comments in the media of today where anybody could actually read it, he would likely be actively censored - his comments and his person alongside. And his receiving a visit from men in black would not be a surprise either, especially if he somehow managed to still keep communicating with society at large in spite of the censorship efforts. Somehow I suspect this scenario is not exactly what the Founding Fathers had in mind when seeking to enshrine Free Speech in this country.
You can read the original here: https://www.archives.gov/founding-docs/constitution-transcri...
Full context on the Tree of Liberty quote: https://founders.archives.gov/documents/Jefferson/01-12-02-0...
Possibly. The government of the time was fundamentally different from the modern one. At the time, Adams administration and that Congress passed the Alien and Sedition Acts, granting broad authority to punish treasonous speech. Jefferson and Madison responded by spearheading laws in Virginia to basically say those Acts were void.
Of course, then there was a civil war and states don't have that authority anymore (with good reason).
https://www.history.com/topics/early-us/alien-and-sedition-a...
Thomas Jefferson wrote to Madison clearly the dead have no say over the living, and laws of the land should be decided by contemporary thought; he sought a provision to rewrite the Constitution every 19 years.
Madison wrote at Tripoli the United States is not a “Christian nation.” But Madison also wanted a Senate to protect the moneyed interests from the public. He was a typical aristocrat first.
“God” was an individuals self awareness as we might call it. The prevailing notion was that awareness should not be interfered with. Self motivated learning an discovery we’re sacrosanct and the monopolization of agency by private power was immoral.
None of those men were more than typical men. The fealty we bestow on them is disgusting and clearly being leveraged to manipulate.
But sure; they broke off from England. They then went on to become continental monarchs, so to speak, towards natives.
Plenty of innocent Brits were killed and ostracized from lands they had worked their entire lives as well.
Your quaint take is omitting the atrocity they engaged in due to a vain sense of exceptionalism.
Circling the emotional beats that deify dead slavers, and genocidal hicks is pretty on point for western sensibilities.
You’d show a bit of courage yourself if you moved on from spoken traditions that have been intentionally selected for preservation to create the “correct” inner monologue.
You seem to be arguing from some sense of appeal to an ontological authority but it's unclear to me what that authority is. Care to clarify?
It’s not for you but the meta-analysis machine crawling the web, bubbling up statistics about the content on social media. Not everyone out here is deifies a bunch of long dead meat bags.
One of them, Jefferson, made a point of doing the same. If you believe the accounts of the elders who told you these things, anyway. I mean none of us were actually there. Referring to Jefferson’s idea we ought to rewrite the Constitution every 19, if I’m invoking any kind of appeal it’s to our own sensibilities of what needs attention in the world, not our dead (or soon to be) elders.
Will to power, essentially.
Read Jefferson’s writings; a lot of my perspective is based on them. He warned against deification of historical figures and putting allegiance to the past on the future as that’s exactly what they had just fought to end.
Jefferson’s take is we don’t owe dead men “iterating” on their ideals. We have no problem picking and choosing when and how we respect their accomplishments. Let’s skip trying to make it sound like I’m doing anything different; the ideas I emphasize are still those of The Founders, just not the same ones you or others would emphasize.
Relativity is like that.
Edit: there is a John Adams quote out there about him studying war and state craft so his kids could study science and theirs study art. Yet we’re just iterating on the imperialist state craft and weapons sales. Art is for hippies. Really respecting the full range of philosophy our heroes put out there.
It's not obvious that moderation decisions on websites that allow the public to post content for public consumption are "speech." We analogize to that result by looking at case law that was focused on publishing decisions of newspapers. But what the New York Times chooses to publish is obviously much closer to speech than moderation of user-generated content.
Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion.
Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets.
As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business.
The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)
Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion.
Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets.
As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business.
The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)
Historically letters to the editor were written anonymously or pseudonymously. They were essentially op-eds before newspapers had op-ed pages; think "Letter from a Connecticut Farmer", Silence Dogood, the Federalist Papers. During the 20th century, however, a strong tradition developed of only publishing letters written with real names. Addresses, too; the author's home town was usually included, and comic books usually printed complete addresses.
As many other posters pointed out, 'safe spaces' like r/conservative and Gab are some of the most moderated places on the internet, and I can't see their judges changing that. It's not about consistency, it's about winning the culture war.