Wonderful news. If how the US Internet is regulated - how it functions at its core as a result of liability - is going to change, it should be done through actions by Congress.
If social media companies were guilty, then so is every newspaper that spreads news of terrorist events, supposedly providing a platform for terrorism (which would also be the argument in cases of eg mass shooters that seek attention, copying prior mass shootings that are heavily publicized by the press/media/news). It's an excellent outcome that they're not guilty in this case. I'm glad to see the justices so relatively united.
Where is the line between choosing what people see and exerting editorial control over what to print?
If a newspaper puts up a dark corner of their website that gives people labyrinthine access to all of the submissions that they decided not to publish, are they no longer liable for the content they post and promote on their main site?
> Where is the line between choosing what people see and exerting editorial control over what to print
The line is different online vs in print, because of Section 230, whose scope is pretty explicit...
> If a newspaper puts up a dark corner of their website that gives people labyrinthine access to all of the submissions that they decided not to publish, are they no longer liable for the content they post and promote on their main site?
Are you under the impression that the main content of newspapers (either in print or on the web) is third-party submissions that the newspaper chooses to print or not but does not actively assign and pay people to write, and/or actively purchase for publication?
Online newspapers do mix editorial and community content in the articles and comments. The difference between them is pretty clear as is the moderation.
Also, there are sites like Forbes that have editorial articles but also have blogs posted by users. These do get confused on Forbes.
Your question doesn't make any sense. If a newspaper creates an interactive computer service then they receive the same Section 230 protections as anyone else. The law doesn't define any line of editorial control.
This isn't all that surprising; for all the tsuris regarding 230, the statute and the intent behind it seem quite clear; the drama is that opponents of big tech companies don't like the statute, not that there's a real claim that it's been misinterpreted. It's not the court's job to fix that; that job belongs to Congress.
Reinterpreting a statute to reach a result they'd prefer, even if no one is pushing them to do so, is absolutely on-brand for SCOTUS (indeed, they did just that yesterday with Warhol v Goldsmith, reinterpreting the first factor to be about the use of the allegedly infringing work rather than the use of the allegedly infringed work within with infringing work).
But the Gonzalez v Google case taking direct aim at section 230 was just such a horrible vehicle that there was no point in even tackling the question it was supposedly raising (and which everyone was ignoring in favor of attacking or defending 230 outright). Even counsel for plaintiff there admitted that there was no point deciding anything if they didn't also win in Twitter v Taamneh, and Twitter v Taamneh was a real stretch for plaintiffs.
> indeed, they did just that yesterday with Warhol v Goldsmith
I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.
If legislatures were to pass actual legislation for them to interpret that would be a different thing.
> I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.
Its worth noting that the reason the fair use statutory language is the way it is is that it was largely a codification of the thn-existing case law on Fair Use as a Constitutional (stemming from the First Amendment) limit on the copyright power.
> If legislatures were to pass actual legislation for them to interpret that would be a different thing.
Congress isn’t really interested in expanding Fair Use beyond the Constitutional minimum, though.
This seemed to be a reasonable decision. The Obama Hope poster case was settled out of court but seems very similar. And the original image had been licensed previously.
Some of the dissenting opinion in these cases seems to be partly on the grounds of this is Andy Warhol (or Roy Lichtenstein, etc.) we're talking about here so their work is obviously important and transformational--in a way that my applying some Photoshop filters clearly isn't.
The precedent the Supreme Court actually set here is somewhat interesting. If the work had been used to advertise a magazine issue about Andy Warhol, there may have been grounds for fair use. But because it was an issue about Prince, stealing another artists' work and slapping colors on it doesn't excuse you for not crediting them.
The decision reached the right outcome (overall, the use was not fair) for really the wrong reason. What the decision probably should have done was to rule that what Andy Warhol did was transformative, and therefore the first factor favors fair use, but wasn't transformative enough to be overall fair use, as the other factors (in particular, the fourth factor) weighed against fair use far more strongly than the first factor weighed in favor.
However, the court essentially boxed itself into weighing in only one the meaning of factor one, so it tries to reach the decision by half-importing factor four (the degree to which it substitutes the original) into factor one analysis. Furthermore, it ties itself into a knot to argue why Andy Warhol's use in the original prints was transformative and overall fair use, but the use in the newspaper article wasn't transformative.
The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol. Oh, and taking as many potshots at the majority opinion as is possible. As bad as the majority opinion was, the dissent is even worse.
> The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol.
That's not how I read it. The gist I took was that Andy Warhol deserves fair use because the art establishment has consistently viewed his works, the Prince piece included, as revolutionary. And to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.
It's still essentially an appeal to authority. “Good artists copy, Great artists steal” and all that. If an artist is great enough, by definition they're doing transformative things with anything they touch.
>>to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.
that is not at all obvious to me--what is revolutionary in Warhol is not the art but the way people see it, like found art. but if you "found" the art in someone else's comic, and aren't substantially changing the actual image--the actual appearance of the work, the only part that could reasonably be described as being ripped off from someone else... it can be revolutionary without having meaningfully transformed the original, just the way people see it.
disclaimer: I don't have a lot of time for that kind of art, which no doubt biases me.
Some members of the supreme court need an explaination and explicit guidance in order to file forms for transactions, which in most countries on earth would constitute undefendable levels of corruption.
I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.
If they were concerned about such things they would hold themselves to higher ethical standards than other courts, not lower ones. If my countries supreme court behaved that way, I would expect weeks of protest till the court takes care of that.
I am not an US citizen, but the looking at the way the SCOTUS has both been conducting itself I am very worried about the state of democracy in the US. To someone outside the US it is already stunning that you can elect governments or political leaders that have the minority of the vote, but them then filling three live time supreme court positions?
Who thought that was a good system? They must have smoked the bad stuff.
In response to the prompt, "Given the comment, please characterize the author's implicit bias in a single sentence:"
> The author appears to have an implicit bias against the US Supreme Court, its ethical standards, and the overall American democratic system, particularly in terms of the process for electing government officials and lifetime Supreme Court justices.
That seems pretty good. I should turn this into a browser widget.
Opinion != bias. If parent had said "I think this action was wrong because SCOTUS is corrupt/wrong", then sure. But reading "I think SCOTUS is corrupt/wrong because they've taken these actions" and from that concluding that the author dislikes SCOTUS isn't insight or a gotcha, it's just basic literal reading comprehension.
Congratulations, you figured out that as a friend of free societies I am "biased" against small groups of inacountable and people that excert power of powpulations that cannot vote them out of office without a bloody revolution. This has been a bias I have worked to keep alive despite having been born into a life where I would be fine without cultivating it.
Calling this a "bias" isn't the flex you think it is and probably tells more about your own world view than about mine.
They aren't unaccountable. There are mechanisms and precedents for ignoring the results of the court and for the other branches to manipulate the composition of the court through normal (e.g. nominating and confirming appointees) and extraordinary processes (e.g. increasing or decreasing the size of the court).
As an admitted non-American, writing forcefully about a branch of our government that you don't understand, and essentially advocating for dramatic changes to our constitution to reign in this branch of government that you don't understand but do not like, it is transparently obvious you have some bias such that even ChatGPT can detect and characterize it.
Why are you so hung up about the word 'bias'? Just own it. Americans almost certainly criticize your country and its government.
Despite AWFUL national and international reporting on the Supreme court, their powers are actually quite limited. Their authority is restricted to interpretation of situations where written federal laws do not already exist.
For all it's faults, I would argue the Supreme Court has worked reasonably well - because the justices do not seek elections and do not owe loyalty to their appointees. And anything they do could be relatively easily undone if the US could ever be bother to pass laws again.
In a way, you can almost think of their decisions as open-source. All of their arguments are written down and you can actually read their reasoning for yourself (as opposed to some of the dire interpretations offered by journalists). There are some notable exceptions (Alito and Thomas), but for the most part you can read their arguments for yourself and see that most of them are pretty professional and fair-minded.
> I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.
If anything, the newest court is doing the opposite of what you are worried about. They are willing to throw out established precedence where there is not written law. In a way, the new court is leaning more democractic to a fault.
Their authority is restricted to interpretation of situations where the meaning of federal laws or regulations is unclear. The problem is that, ultimately, pretty much any law can be challenged and appealed all the way to SCOTUS - and if they choose to take the case and issue a ruling, there's no recourse within the system. That is an immense amount of power no matter how one looks into it - it's basically a non-overridable veto on anything the government does, not even necessarily just passed legislation, and not just on the federal level (as any action by the state government can also be challenged on the grounds of being unconstitutional wrt the federal constitution).
There are 250 million adults in the country who can sue over pretty much anything. It is not exactly difficult to arrange for a convenient case to land on SCOTUS plate - indeed, it has been done several times in history.
The SC only hears a handful of cases in a year, and only those that have managed to bubble up through the lower courts. The SC does not invent cases they can then rule on.
Not if the ruling was on constitutional grounds. Well, they can pass a new law and claim that it's constitutional, of course - but it would be likely to blocked right away in the lower courts if it is in blatant contradiction with the earlier ruling, regardless of whether those courts agree with the ruling itself. Worst case, it just gets appealed all the way back to SCOTUS which strikes it down again, so it's not at all like the usual 2/3 supermajority legislative override of the executive veto.
Congress can submit an amendment for ratification. 3/4 of state legislatures would have to ratify it for constitution to actually change. But yes, you're right, that is the one and only check there is ... although even that one is weak, because no matter what the constitution actually says, the court can interpret it however it wants in practice - there's no shortage of examples.
> Despite AWFUL national and international reporting on the Supreme court, their powers are actually quite limited. Their authority is restricted to interpretation of situations where written federal laws do not already exist.
This is pretty directly refuted by Dobbs. Roe v. Wade was not ambiguous and was a settled matter of constitutional law until the new court decided they didn't like it.
> This is pretty directly refuted by Dobbs. Roe v. Wade was not ambiguous and was a settled matter of constitutional law until the new court decided they didn't like it.
I don’t like the decision here as well for political reasons, but if you read the arguments the Supreme Court is just saying that abortion law is a state issue not a federal one. Which limits the power of the federal government. Which is good.
The part where women have to register their periods and have them tracked and might get arrested if they miss a cycle, or put in jail for buying contraceptives, or for googling the wrong things, or are forced to carry a dead fetus to term - which actually happened because in some states the ban on abortion is absolute, with fifteen states not even having exceptions for rape or incest - is not good. The part where doctors are afraid to perform procedures on pregnant women for fear of committing a felony? Not good. The part where Americans don't seem to care about the actual human cost of rights being taken away as long as it weakens the federal government is not good.
Looking at how Southern states seem to be competing to out-fascist each other right now, devolving everything to states' rights seems like a bad idea. If it were entirely left up to the states, half of them would be hunting gays for sport. Having common standards as a culture enshrined in law and a central government strong enough to protect and enforce those standards also seems good. It's weird that this isn't even up for debate where gun rights are concerned but bodily autonomy, rights to privacy and free speech are all up in the air.
There is no such thing as "settled" constitutional law for the Supreme Court. They are not bound by their own precedents and always have the authority to revisit prior decisions.
I don't like the results of the Dobbs decision either. But the root cause of the problem was always legislative, not judicial. When the legislature fails to make the laws clear, anything that ends up in front of the Supreme Court is going to be a toss-up. Tell your members of Congress to do better.
Thanks, this doesn't address what I said at all. What I said is that Dobbs refutes the idea that the Supreme Court's authority is limited to "interpreting situations where federal law does not already exist". There's no question that prior to Dobbs, Roe existed, was not ambiguous, and was the legally operative interpretation of the constitution.
This comment highlights why you shouldn't get legal opinions from tech discussion sites. I don't think you demonstrated any knowledge of why the supreme court exists in practical or theoretical terms, but you are quite confident in your view.
It's kinda weird that the people worried about supreme court ethics are worried about a guy with rich friends who has no business before the court, but not worried about someone with large book deals who does have business before the court.
The US is a republic, not a democracy. The Executive, Legislature, and Judicial branches form a triumvirate, which is a stable form of government. Their powers are complementary, and consist of numerous checks and balances.
One feature of the system, not a bug, is the protections against the majority riding roughshod over the minority.
> They must have smoked the bad stuff.
They did an incredibly good job. It's still the best Constitution.
I say this while still disagreeing with a lot of the decisions of the Supreme Court.
> It has lasted longer than every other constitution for every other country.
No it hasn't. The oldest written national constitution in continuous effect is that of San Marino, from 1600 (unless you count some charters that usually aren't treated that way, like Magna Carta). And plenty of nations survive just fine with traditional rather than integrated written constitutions, which are something of a modern fad, which is why none of the longest continuous constitutional systems have a written constitution in the first place.
> I make no claim that a country has to have a written constitution.
The claim that the US has the oldest constitution, even with the caveats necessary to exclude older written constitutions, is simply false; countries without single integrated written constitutions still have constitutions, and many of those are much older in continuous operation than the US constitution (or the US).
It's a democratic republic in the sense that we have a direct election of leaders and lawmakers. It's a bit pedantic because nowadays people use them interchangeably but we don't really have direct elections over the laws themselves (not at the federal level anyways, some states do allow for direct votes on amendments at the state and local level).
It's a spectrum, but the more weight the popular vote carries, the further towards that end it is.
People today think of the US as one "country" but when its Constitution was written it was much closer to the EU: an alliance and economic free trade and free movement area with basic shared rules.
The vote to create the United States was done by unanimity of Member States not by a popular vote.
Democracy is not something you are, it's something you do. That means it is not a black and white state, but a summation of the spectrum or beliefs, actions, and culture held by a population. When there are cultural changes that has an effect on the degree of democracy.
Here Timothy Snyder explains what the politics of inevitability is and how Walter is likely a practitioner of it and how that leads him to wrong conclusions (and there are other videos that explain Walter's American exceptionalism and why it's wrong):
This use of republic is particular to the US. Recently, it has became particular to the Republican Party. Some of it is from the earlier usage, but I suspect it is really to contrast the Republican and Democratic parties.
Citizens have a huge amount of power within the government, being able to vote in elections and pursue ballot initiatives. How is that not a democracy?
Citizens don’t. Because of two senators per state, people in sparsely populated states have far more power than people living in larger states.
Even within states since people are concentrated in urban areas, it’s easy for the minority to engage in gerrymandering so that the rural population voting power is more than urban voters.
That’s not to mention the fact that even in conservative states, on singular issues like abortion, drug legalization and the right for felons to vote, the population runs to the left of the legislation. When those initiatives are put on the ballot, they win. So the legislators in those states are making it harder for initiatives to get on the ballots.
You can look at states like Texas that are taking more power out of the hands of the city.
We don't have ballot initiatives at the federal level. The US is a democratic republic, so it's a bit pedantic, but if you had to classify as one or the other the U.S. is a republic.
No, that's not what a republic means. The U.S. is a republic. It is mentioned explicitly in the U.S. Constitution in Article 4, Section 4:
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
As mentioned, the definitions of republics and democracies have blurred over the years as people often use them interchangeably. Republics have representatives. Just as the ancient Roman Republic did, with its famous Senate. Pure democracies run on majority rule and direct voting on laws.
The Islamic Republic of Iran is a republic, not a denocracy.
The US is a republic that notionally is both democratic and federal.
> The Executive, Legislature, and Judicial branches form a triumvirate, which is a stable form of government.
No, they don't, because a tirumvirate consists of three people, and triumvirates are notoriously unstable. (The two ruling Roman triumvirates from which the term is generalized having lasted less than 15 years combined.)
It works for the US. Also the Soviet Union - the Party, the KGB, and the Army. The reason for stability is one can block the other two. The Constitution is full of checks and balances to this end.
Republic means not having a monarchy. You can have a democratic monarchy like United Kingdom. Or you can have democratic republic like most of the countries on the planet including the US.
Some people try to distinguish between representative democracy and direct democracy but since the latter is rare, democracy usually just means the former.
Edit: I guess republic is particular from of democracy, plus non-monarch.
> This isn’t all that surprising; for all the tsuris regarding 230, the statute and the intent behind it seem quite clear; the drama is that opponents of big tech companies don’t like the statute, not that there’s a real claim that it’s been misinterpreted.
While Section 230 was asserted among the defenses in the case, the Supreme Court decision didn’t address it at all, instead finding the underlying claim failed as a matter of law, making Section 230 immunity irrelevant. The headline saying that it left 230 protections unchanged is technically true, in the same sense as one saying that it left, say, the scope of liability under the Espionage Act in place would be.
But its also misleading clickbait, for much the same reason as one saying that it left, say, the scope of liability under the Espionage Act in place would be.
That's always the structure of such a case, though. Courts don't in general make big pronouncements where they don't need to, they find as narrowly as they can. Nonetheless, this case was an arrow fired directly at section 230. And the court didn't take the bait.
It's true the finding wasn't "about" section 230, but to say the case wasn't about 230 is missing the point.
Yeah but you can't pretend this case had nothing to do with section 230. The question in the petition before the court was "Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations".
The original intention of 230 was to insulate providers from the consequences of their user's content. It was never meant to protect them from their own content.
When YouTube says "You may like this terrorist recruitment video" that is undeniably their own speech and shouldn't fall under 230.
However... Isn't it a little bit of the same thing when a tech company says "This isn't a illegal in any way, but we're going to use our intentionally ambiguous TOS to remove it".
Aren't the things you say similar to the things you chose to prevent from being said?
That's certainly an interpretation of things, but it runs afoul of an issue where you'd force the Supreme Court to legislate acceptable types of content suggestion.
Is a forum showing you the most upvoted (reddit's /top) or the most recently commented (phpBB), or some combination (HN and reddit's /hot) and saying "you may like {{most popular thing}}" the site's speech or the user's? Is it only the site's speech if the recommendation is personalized? Or if the recommendation is a single item, and not a list?
The court's 230 interpretation today[*] seems to be that suggesting or promoting user-content isn't itself site content, which is fairly in-line with the original intent of the law (that showing, and even ordering user-content isn't site-content).
[*]: Which as others mentioned, is totally independent of this ruling.
I can buy this argument. But in practice how much does it matter? It's not illegal to say "you may like this terrorist recruitment video", especially when its just a generic recommendation algorithm making that recommendation.
That “generic recommendation algorithm” is anything but. It’s proprietary and serves their interests and completely opaque. Who knows if it’s an algorithm or actually being hand picked?
I don't think so. 230 protects them from liability for the video, and 1A protects them from liability for the recommendation. It would be hard to argue that a recommendation isn't speech.
These are worth reading because the Court's decision here was very specific and narrow.
The plaintiffs sued because ISIS killed their family members and they were specifically trying to prove collusion between Twiiter and ISIS (and YouTube and ISIS). The facts they declared they would present did not, SCOTUS ruled, meet the definition of collusion as per the law. In short, even if Twitter (and YouTube) did make money off of ads run next to ISIS recruitment information, that's not material support of terrorism. It'd be a bit like someone trying to sue CNN for supporting the invasion of Ukraine because they screwed up and ran that Applebee's ad against footage of Kyiv under siege.
So the case doesn't particularly test 230 very thoroughly because the underlying civil claim ("Twitter is liable for my loved one's death because at some point they made money off an ad run next to ISIS recruitment material") has no legal merit.
I used the wrong word. lesuorac was correct (and the words matter here because part of SCOTUS's ruling was on "Congress didn't define any of these terms in the statute so we have to go into the common law definitions of them.")
This headline is misleading, the Supreme Court did not address Section 230 at all. What it did was address the scope of a law relating to material support for international terrorism, and found that since the claims at issue didn’t, even if taken as true, meet that standard, it wasn’t relevant whether Section 230 would have protected the internet firms involved if it did.
This wasn’t decided on procedural grounds, but on substantive grounds. The fact that it was decided on a different substantive question than some people wanted it to be doesn’t make it procedural.
The procedural issue is which substantive question to tackle first. If they address the merits of the underlying liability and conclude that there was none, then they get to skip the question of Section 230 because it's irrelevant.
Now suppose they want to avoid tackling the question of the underlying liability. Well, if the defendants would be immune under Section 230 anyway then that question would be irrelevant and they could avoid answering it. But that's not what they did.
Possibly, but I don't think I'd read the tea leaves that way.
As much as people complain about activist judges on the bench, SCOTUS does a pretty good job, most of the time, of following the evolved purpose of their Court to rule as narrowly as possible to resolve the open question of law. This case specifically was ill-designed to probe 230 because the underlying claim of culpability was cobweb-thin. And the Court is guided by the arguments made in front of them; while plaintiffs certainly wanted this to hinge on 230, the defense made a very reasonable case based on "In what parallel universe are networks considered to have culpability because they made money indirectly by being the middlemen for someone else's recruitment video?" Might as well sue Goodyear for making the tires that went on the van used in the attack.
There are other cases in the pipeline that will test 230 more directly than this one. This one doesn't even get to the point where questions of S230 law are under scrutiny because the civil tort law used didn't apply.
> As much as people complain about activist judges on the bench, SCOTUS does a pretty good job, most of the time,
I pretty much agree with you, even though I think several of the justices are partisan hacks/stooges. The fortunate thing is that, they're mostly one or two-issue hacks, who seem to believe in their hearts that they are and should be competent professionals in all other matters, and who are keenly aware that they shouldn't just blow things up.* This is bad for those affected by those certain issues (we all know which ones), but thankfully this branch of government isn't populated entirely with careless, clueless people like the ones who are slowly taking over the other branches.
* This makes me wonder if it's almost 100% due to the lack of the need to pander to the extremists who got them in. I suspect that if they ever needed to stand for re-election, the radicalness of SCOTUS decisions would get ever wilder.
> I suspect that if they ever needed to stand for re-election, the radicalness of SCOTUS decisions would get ever wilder.
That was among the concerns that led the framers of the Constitution to make the SCOTUS a lifetime appointment. It's designed to be a brass ring that, once you grab it, nothing should be influencing your rulings but your own heart and mind. The constraint upon that power is that the Court's initial position is the weakest relative to the other branches: any ruling they make that doesn't rest directly on the Constitution can be undone with a change of the law, and nobody shows up in the criminal side of their Court unless the executive decides to try to enforce a law.
If you research the way the SCOTUS operates, this kind of decision is pretty normal. The court usually tries to avoid making broad rulings, and tries hard to find a way to decline cases on procedural grounds. Lack of standing is the most reliable way to do it, but statute inapplicability is a runner-up.
>> Twitter alone cannot screen every single piece of user-generated content with 100% accuracy. Imposing liability on such services for harmful content that unintentionally falls through the crack would have disincentivized them from hosting any user-generated content,"
So what? People can host their own content. I'm not arguing either way, but to suggest the viability of a particular business model should influence the decision isn't right.
Either treat them like common carriers and make them host everything without moderation, or hold them liable for it. Or is my thinking obsolete somehow?
That would be disastrous for small community forums, that want to moderate but don't have the resources to do it perfectly. It's hard to find a police that works well for all of Twitter-scale, HN-scale, and small-PHP-forum scale.
Literally the point of the CDA was to avoid that dichotomy, because that was more or less what the law was before that and Congress wanted websites to remove pornography etc., which they wouldn't be willing to do if it came with liability for hosting anything they didn't remove.
Providing hosting, or an Internet pipe, is pretty different from accepting user submissions and adding them to your own systems to be presented to others as you see fit, often with broad claims of ownership over submitted content.
Your thinking isn't obsolete, it's more just... incorrect about what Section 230 says and why it exists. You should probably read the TechDirt "You Are Wrong About Section 230" article[0] and get some misconceptions cleared up.
The problem is that community owners should have the right to moderate what is posted on their community. If I'm a small-timer running my Space: Above and Beyond fan forum on a raspberry pi in my garage, I should have the right to remove posts from that guy who repeatedly posts child porn. Further, I should not be held liable for his content because I took a vacation from moderating, I should not be punished for taking down his posts if they look like child porn (but are in fact just sketchy looking), and I should not need to keep a lawyer on retainer to determine if any given post is in fact illegal.
A publisher vets every single post, because the cost of publishing any one thing is fairly high. To my mind, the problem with Google, Twitter, Facebook, etc is not that they moderate content, its that they've been allowed to grow so large as to meaningfully impact the world with their moderation.
I really don't understand the opposition to moderation. 230 doesn't encourage monopolies; if people don't like the moderation, they can switch to other another service or, as you put it, host their own.
I don't understand this "can't have it both ways" argument. Moderation on social media is a good thing, it would be less usable without it. It's also good that people can post their thoughts to the world without a bunch of pre-approval by platforms to make sure it's legal (which would be nearly impossible to do well anyway). I also don't see any reason why platforms should be liable for things their users post. The person who posted it should be to blame, as they have the most direct responsibility for it. Overall I see section 230 as mostly beneficial without much downside at all, and the results have been incredibly positive.
Courts shouldn't decide cases based on the viability of a business model, but we can certainly write laws for those reasons.
This is unsurprising. A fairly reliable determinant for how the Court will rule is found using a materialist analysis. That is, the Court will generally side with corporations and capital owners when given the choice. This isn't new to this particular Supreme Court. There's a long history here.
The interesting part isn't how the Court decided but how it decided. It didn't address Section 230 at all and only made a very narrow ruling that isn't really applicable beyon dthis case.
The Court is, and always has been, political. Skepticism remains about the safe harbor provisions of Section 230 in the conservative wing of the court so it's no surprise that this ruling is narrow so as to not set precedent.
> A fairly reliable determinant for how the Court will rule is found using a materialist analysis. That is, the Court will generally side with corporations and capital owners when given the choice.
This is a big claim. Do you have any evidence to support it?
In the wake of someone trying to prove the same for Congress, it was conclusively shown that the opposite was true:
>The justices in a 9-0 decision reversed a lower court's ruling that had revived a lawsuit against Twitter by the American relatives of Nawras Alassaf, a Jordanian man killed in a 2017 attack during New Year's celebration in a Istanbul nightclub claimed by the Islamic State militant group.
> After a judge dismissed the lawsuit, the San Francisco-based 9th U.S. Circuit Court of Appeals allowed it to proceed, concluding that Twitter had refused to take "meaningful steps" to prevent Islamic State's use of the platform.
The 9th Circuit was way off. The judge dismissed the case, they revived it, and then got overturned by a unanimous Supreme Court decision.
I think this ruling is overall a good outcome, but one loophole I see emerging around Section 230 protections is that social media sites are free to censor/shadowban content according to their ambiguous and arbitrarily enforced TOS. This allows them to favor user content they find agreeable, thus implicitly promoting their own viewpoints while still hiding behind Section 230 protections.
For example if a hypothetical billionaire acquirer of a social media site wanted to (implicitly) promote a cryptocurrency project, he could shadowban negative comments against the project, leaving comments in favor of the project to dominate on the site. At the same time, Section 230 would still shield his company from liability for those comments in favor of the project. This creates a situation in which the social media is in essence promoting the project, but in a roundabout way that shields them from liability. I can see this being especially problematic as it is applied to influencing elections.
In my opinion, Section 230 protections should come with some obligation to respect the principles of free speech.
I don't think that's a loophole. On the contrary, if 230 were reinterpreted to mean that online content providers were legally required to have no editorial control over user provided content, that would be a pretty significant departure from current case law.
Section 230 is quite short and (to my mind) somewhat vague, which I think lends itself to different understandings. But I don't think it could be reasonably interpreted to mean that online publishers cannot moderate user content as they see fit.
112 comments
[ 6.4 ms ] story [ 206 ms ] threadIf social media companies were guilty, then so is every newspaper that spreads news of terrorist events, supposedly providing a platform for terrorism (which would also be the argument in cases of eg mass shooters that seek attention, copying prior mass shootings that are heavily publicized by the press/media/news). It's an excellent outcome that they're not guilty in this case. I'm glad to see the justices so relatively united.
If a newspaper puts up a dark corner of their website that gives people labyrinthine access to all of the submissions that they decided not to publish, are they no longer liable for the content they post and promote on their main site?
You mean a comments section?
The line is different online vs in print, because of Section 230, whose scope is pretty explicit...
> If a newspaper puts up a dark corner of their website that gives people labyrinthine access to all of the submissions that they decided not to publish, are they no longer liable for the content they post and promote on their main site?
Are you under the impression that the main content of newspapers (either in print or on the web) is third-party submissions that the newspaper chooses to print or not but does not actively assign and pay people to write, and/or actively purchase for publication?
Also, there are sites like Forbes that have editorial articles but also have blogs posted by users. These do get confused on Forbes.
https://www.law.cornell.edu/uscode/text/47/230
It is so stupid that no one at the time even considered it.
But the Gonzalez v Google case taking direct aim at section 230 was just such a horrible vehicle that there was no point in even tackling the question it was supposedly raising (and which everyone was ignoring in favor of attacking or defending 230 outright). Even counsel for plaintiff there admitted that there was no point deciding anything if they didn't also win in Twitter v Taamneh, and Twitter v Taamneh was a real stretch for plaintiffs.
I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.
If legislatures were to pass actual legislation for them to interpret that would be a different thing.
Its worth noting that the reason the fair use statutory language is the way it is is that it was largely a codification of the thn-existing case law on Fair Use as a Constitutional (stemming from the First Amendment) limit on the copyright power.
> If legislatures were to pass actual legislation for them to interpret that would be a different thing.
Congress isn’t really interested in expanding Fair Use beyond the Constitutional minimum, though.
Some of the dissenting opinion in these cases seems to be partly on the grounds of this is Andy Warhol (or Roy Lichtenstein, etc.) we're talking about here so their work is obviously important and transformational--in a way that my applying some Photoshop filters clearly isn't.
However, the court essentially boxed itself into weighing in only one the meaning of factor one, so it tries to reach the decision by half-importing factor four (the degree to which it substitutes the original) into factor one analysis. Furthermore, it ties itself into a knot to argue why Andy Warhol's use in the original prints was transformative and overall fair use, but the use in the newspaper article wasn't transformative.
The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol. Oh, and taking as many potshots at the majority opinion as is possible. As bad as the majority opinion was, the dissent is even worse.
That's not how I read it. The gist I took was that Andy Warhol deserves fair use because the art establishment has consistently viewed his works, the Prince piece included, as revolutionary. And to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.
that is not at all obvious to me--what is revolutionary in Warhol is not the art but the way people see it, like found art. but if you "found" the art in someone else's comic, and aren't substantially changing the actual image--the actual appearance of the work, the only part that could reasonably be described as being ripped off from someone else... it can be revolutionary without having meaningfully transformed the original, just the way people see it.
disclaimer: I don't have a lot of time for that kind of art, which no doubt biases me.
I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.
If they were concerned about such things they would hold themselves to higher ethical standards than other courts, not lower ones. If my countries supreme court behaved that way, I would expect weeks of protest till the court takes care of that.
I am not an US citizen, but the looking at the way the SCOTUS has both been conducting itself I am very worried about the state of democracy in the US. To someone outside the US it is already stunning that you can elect governments or political leaders that have the minority of the vote, but them then filling three live time supreme court positions?
Who thought that was a good system? They must have smoked the bad stuff.
> The author appears to have an implicit bias against the US Supreme Court, its ethical standards, and the overall American democratic system, particularly in terms of the process for electing government officials and lifetime Supreme Court justices.
That seems pretty good. I should turn this into a browser widget.
Calling this a "bias" isn't the flex you think it is and probably tells more about your own world view than about mine.
As an admitted non-American, writing forcefully about a branch of our government that you don't understand, and essentially advocating for dramatic changes to our constitution to reign in this branch of government that you don't understand but do not like, it is transparently obvious you have some bias such that even ChatGPT can detect and characterize it.
Why are you so hung up about the word 'bias'? Just own it. Americans almost certainly criticize your country and its government.
For all it's faults, I would argue the Supreme Court has worked reasonably well - because the justices do not seek elections and do not owe loyalty to their appointees. And anything they do could be relatively easily undone if the US could ever be bother to pass laws again.
In a way, you can almost think of their decisions as open-source. All of their arguments are written down and you can actually read their reasoning for yourself (as opposed to some of the dire interpretations offered by journalists). There are some notable exceptions (Alito and Thomas), but for the most part you can read their arguments for yourself and see that most of them are pretty professional and fair-minded.
> I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.
If anything, the newest court is doing the opposite of what you are worried about. They are willing to throw out established precedence where there is not written law. In a way, the new court is leaning more democractic to a fault.
The Legislature and Executive can pass a new law that overrides a decision that ruled on existing law.
This is pretty directly refuted by Dobbs. Roe v. Wade was not ambiguous and was a settled matter of constitutional law until the new court decided they didn't like it.
I don’t like the decision here as well for political reasons, but if you read the arguments the Supreme Court is just saying that abortion law is a state issue not a federal one. Which limits the power of the federal government. Which is good.
Looking at how Southern states seem to be competing to out-fascist each other right now, devolving everything to states' rights seems like a bad idea. If it were entirely left up to the states, half of them would be hunting gays for sport. Having common standards as a culture enshrined in law and a central government strong enough to protect and enforce those standards also seems good. It's weird that this isn't even up for debate where gun rights are concerned but bodily autonomy, rights to privacy and free speech are all up in the air.
I don't like the results of the Dobbs decision either. But the root cause of the problem was always legislative, not judicial. When the legislature fails to make the laws clear, anything that ends up in front of the Supreme Court is going to be a toss-up. Tell your members of Congress to do better.
One feature of the system, not a bug, is the protections against the majority riding roughshod over the minority.
> They must have smoked the bad stuff.
They did an incredibly good job. It's still the best Constitution.
I say this while still disagreeing with a lot of the decisions of the Supreme Court.
[citation needed]
Doesn't make it the "best" but on the other hand you can't achieve that kind of longevity by "smoking the bad stuff."
No it hasn't. The oldest written national constitution in continuous effect is that of San Marino, from 1600 (unless you count some charters that usually aren't treated that way, like Magna Carta). And plenty of nations survive just fine with traditional rather than integrated written constitutions, which are something of a modern fad, which is why none of the longest continuous constitutional systems have a written constitution in the first place.
Okay, oldest constitution for a country bigger than a football stadium.
Like I said, doesn't make it "best" but clearly has something going for it.
The claim that the US has the oldest constitution, even with the caveats necessary to exclude older written constitutions, is simply false; countries without single integrated written constitutions still have constitutions, and many of those are much older in continuous operation than the US constitution (or the US).
At the risk of sounding snarky, this line has become a major eye roller for me. Are there any democracies on Earth, by this definition?
People today think of the US as one "country" but when its Constitution was written it was much closer to the EU: an alliance and economic free trade and free movement area with basic shared rules.
The vote to create the United States was done by unanimity of Member States not by a popular vote.
Is the EU a "democracy"?
Democracy is not something you are, it's something you do. That means it is not a black and white state, but a summation of the spectrum or beliefs, actions, and culture held by a population. When there are cultural changes that has an effect on the degree of democracy.
Here Timothy Snyder explains what the politics of inevitability is and how Walter is likely a practitioner of it and how that leads him to wrong conclusions (and there are other videos that explain Walter's American exceptionalism and why it's wrong):
https://www.youtube.com/watch?v=Eghl19elKk8
Even within states since people are concentrated in urban areas, it’s easy for the minority to engage in gerrymandering so that the rural population voting power is more than urban voters.
That’s not to mention the fact that even in conservative states, on singular issues like abortion, drug legalization and the right for felons to vote, the population runs to the left of the legislation. When those initiatives are put on the ballot, they win. So the legislators in those states are making it harder for initiatives to get on the ballots.
You can look at states like Texas that are taking more power out of the hands of the city.
https://thehill.com/homenews/state-watch/4007362-texas-passe...
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
As mentioned, the definitions of republics and democracies have blurred over the years as people often use them interchangeably. Republics have representatives. Just as the ancient Roman Republic did, with its famous Senate. Pure democracies run on majority rule and direct voting on laws.
https://constitution.congress.gov/browse/essay/artIV-S4-1/AL...']
https://constitution.congress.gov/search/republic
The Islamic Republic of Iran is a republic, not a denocracy.
The US is a republic that notionally is both democratic and federal.
> The Executive, Legislature, and Judicial branches form a triumvirate, which is a stable form of government.
No, they don't, because a tirumvirate consists of three people, and triumvirates are notoriously unstable. (The two ruling Roman triumvirates from which the term is generalized having lasted less than 15 years combined.)
It works for the US. Also the Soviet Union - the Party, the KGB, and the Army. The reason for stability is one can block the other two. The Constitution is full of checks and balances to this end.
No, it doesn’t, because, again, the US doesn’t have one.
Some people try to distinguish between representative democracy and direct democracy but since the latter is rare, democracy usually just means the former.
Edit: I guess republic is particular from of democracy, plus non-monarch.
Which forms? What transactions?
I'm sure you're referencing something real, but my search isn't turning up anything https://www.google.com/search?q=supreme+court+forms+transact...
It's so shitty that the court has so persistently been such IP maximalist, in so so many ways.
[1]: https://en.wiktionary.org/wiki/tsuris
While Section 230 was asserted among the defenses in the case, the Supreme Court decision didn’t address it at all, instead finding the underlying claim failed as a matter of law, making Section 230 immunity irrelevant. The headline saying that it left 230 protections unchanged is technically true, in the same sense as one saying that it left, say, the scope of liability under the Espionage Act in place would be.
But its also misleading clickbait, for much the same reason as one saying that it left, say, the scope of liability under the Espionage Act in place would be.
It's true the finding wasn't "about" section 230, but to say the case wasn't about 230 is missing the point.
When YouTube says "You may like this terrorist recruitment video" that is undeniably their own speech and shouldn't fall under 230.
However... Isn't it a little bit of the same thing when a tech company says "This isn't a illegal in any way, but we're going to use our intentionally ambiguous TOS to remove it".
Aren't the things you say similar to the things you chose to prevent from being said?
Is a forum showing you the most upvoted (reddit's /top) or the most recently commented (phpBB), or some combination (HN and reddit's /hot) and saying "you may like {{most popular thing}}" the site's speech or the user's? Is it only the site's speech if the recommendation is personalized? Or if the recommendation is a single item, and not a list?
The court's 230 interpretation today[*] seems to be that suggesting or promoting user-content isn't itself site content, which is fairly in-line with the original intent of the law (that showing, and even ordering user-content isn't site-content).
[*]: Which as others mentioned, is totally independent of this ruling.
The referenced Twitter opinion: https://www.supremecourt.gov/opinions/22pdf/21-1496_d18f.pdf
The plaintiffs sued because ISIS killed their family members and they were specifically trying to prove collusion between Twiiter and ISIS (and YouTube and ISIS). The facts they declared they would present did not, SCOTUS ruled, meet the definition of collusion as per the law. In short, even if Twitter (and YouTube) did make money off of ads run next to ISIS recruitment information, that's not material support of terrorism. It'd be a bit like someone trying to sue CNN for supporting the invasion of Ukraine because they screwed up and ran that Applebee's ad against footage of Kyiv under siege.
So the case doesn't particularly test 230 very thoroughly because the underlying civil claim ("Twitter is liable for my loved one's death because at some point they made money off an ad run next to ISIS recruitment material") has no legal merit.
But yes, they failed to show that YouTube/Twitter "aided and abetted and conspired with ISIS".
By declining on procedural grounds, it signals they are not especially interested in evaluating Section 230 in a broader scope.
This wasn’t decided on procedural grounds, but on substantive grounds. The fact that it was decided on a different substantive question than some people wanted it to be doesn’t make it procedural.
Now suppose they want to avoid tackling the question of the underlying liability. Well, if the defendants would be immune under Section 230 anyway then that question would be irrelevant and they could avoid answering it. But that's not what they did.
As much as people complain about activist judges on the bench, SCOTUS does a pretty good job, most of the time, of following the evolved purpose of their Court to rule as narrowly as possible to resolve the open question of law. This case specifically was ill-designed to probe 230 because the underlying claim of culpability was cobweb-thin. And the Court is guided by the arguments made in front of them; while plaintiffs certainly wanted this to hinge on 230, the defense made a very reasonable case based on "In what parallel universe are networks considered to have culpability because they made money indirectly by being the middlemen for someone else's recruitment video?" Might as well sue Goodyear for making the tires that went on the van used in the attack.
There are other cases in the pipeline that will test 230 more directly than this one. This one doesn't even get to the point where questions of S230 law are under scrutiny because the civil tort law used didn't apply.
I pretty much agree with you, even though I think several of the justices are partisan hacks/stooges. The fortunate thing is that, they're mostly one or two-issue hacks, who seem to believe in their hearts that they are and should be competent professionals in all other matters, and who are keenly aware that they shouldn't just blow things up.* This is bad for those affected by those certain issues (we all know which ones), but thankfully this branch of government isn't populated entirely with careless, clueless people like the ones who are slowly taking over the other branches.
* This makes me wonder if it's almost 100% due to the lack of the need to pander to the extremists who got them in. I suspect that if they ever needed to stand for re-election, the radicalness of SCOTUS decisions would get ever wilder.
That was among the concerns that led the framers of the Constitution to make the SCOTUS a lifetime appointment. It's designed to be a brass ring that, once you grab it, nothing should be influencing your rulings but your own heart and mind. The constraint upon that power is that the Court's initial position is the weakest relative to the other branches: any ruling they make that doesn't rest directly on the Constitution can be undone with a change of the law, and nobody shows up in the criminal side of their Court unless the executive decides to try to enforce a law.
Remember when half of Oklahoma was supposedly given away?
So what? People can host their own content. I'm not arguing either way, but to suggest the viability of a particular business model should influence the decision isn't right.
Either treat them like common carriers and make them host everything without moderation, or hold them liable for it. Or is my thinking obsolete somehow?
How do they do that? It's services all the way down.
[0]: https://www.techdirt.com/2020/06/23/hello-youve-been-referre...
A publisher vets every single post, because the cost of publishing any one thing is fairly high. To my mind, the problem with Google, Twitter, Facebook, etc is not that they moderate content, its that they've been allowed to grow so large as to meaningfully impact the world with their moderation.
This destroys the modern internet.
I really don't understand the opposition to moderation. 230 doesn't encourage monopolies; if people don't like the moderation, they can switch to other another service or, as you put it, host their own.
If you make a bomb threat over a verizon line, verizon won't be held liable for the bomb threat
Courts shouldn't decide cases based on the viability of a business model, but we can certainly write laws for those reasons.
The interesting part isn't how the Court decided but how it decided. It didn't address Section 230 at all and only made a very narrow ruling that isn't really applicable beyon dthis case.
The Court is, and always has been, political. Skepticism remains about the safe harbor provisions of Section 230 in the conservative wing of the court so it's no surprise that this ruling is narrow so as to not set precedent.
This is a big claim. Do you have any evidence to support it?
In the wake of someone trying to prove the same for Congress, it was conclusively shown that the opposite was true:
https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-...
I see several opinion pieces making the same claim, but no actual studies of their decisions.
More importantly: the concern can't and shouldn't be the income of the parties involved in a suit, but who is right and who isn't.
> After a judge dismissed the lawsuit, the San Francisco-based 9th U.S. Circuit Court of Appeals allowed it to proceed, concluding that Twitter had refused to take "meaningful steps" to prevent Islamic State's use of the platform.
The 9th Circuit was way off. The judge dismissed the case, they revived it, and then got overturned by a unanimous Supreme Court decision.
For example if a hypothetical billionaire acquirer of a social media site wanted to (implicitly) promote a cryptocurrency project, he could shadowban negative comments against the project, leaving comments in favor of the project to dominate on the site. At the same time, Section 230 would still shield his company from liability for those comments in favor of the project. This creates a situation in which the social media is in essence promoting the project, but in a roundabout way that shields them from liability. I can see this being especially problematic as it is applied to influencing elections.
In my opinion, Section 230 protections should come with some obligation to respect the principles of free speech.
Section 230 is quite short and (to my mind) somewhat vague, which I think lends itself to different understandings. But I don't think it could be reasonably interpreted to mean that online publishers cannot moderate user content as they see fit.
Loopholes in the law should be fixed by the legislature, not by misinterpreting the law as it is written.