Skip to comments.Platform, or Publisher?
Posted on 05/28/2020 7:36:53 AM PDT by EBH
When the House Judiciary Committee held a hearing on social media censorship late last month, liberal Democratic congressman Ted Lieu transformed into a hardcore libertarian. This is a stupid and ridiculous hearing, he said, because the First Amendment applies to the government, not private companies. He added that just as the government cannot tell Fox News what content to air, we cant tell Facebook what content to filter, because that would be unconstitutional.
Lieu is incorrect. While the First Amendment generally does not apply to private companies, the Supreme Court has held it does not disable the government from taking steps to ensure that private interests not restrict . . . the free flow of information and ideas. But as Senator Ted Cruz points out, Congress actually has the power to deter political censorship by social media companies without using government coercion or taking action that would violate the First Amendment, in letter or spirit. Section 230 of the Communications Decency Act immunizes online platforms for their users defamatory, fraudulent, or otherwise unlawful content. Congress granted this extraordinary benefit to facilitate forum[s] for a true diversity of political discourse. This exemption from standard libel law is extremely valuable to the companies that enjoy its protection, such as Google, Facebook, and Twitter, but they only got it because it was assumed that they would operate as impartial, open channels of communicationnot curators of acceptable opinion.
When questioning Facebook CEO Mark Zuckerberg earlier this month, and in a subsequent op-ed, Cruz reasoned that in order to be protected by Section 230, companies like Facebook should be neutral public forums. On the flip side, they should be considered to be a publisher or speaker of user content if they pick and choose what gets published or spoken. Tech-advocacy organizations and academics cried foul. University of Maryland law professor Danielle Citron argued that Cruz flips [the] reasoning of the law by demanding neutral forums. Elliot Harmon of the Electronic Freedom Foundation responded that one of the reasons why Congress first passed Section 230 was to enable online platforms to engage in good-faith community moderation without fear of taking on undue liability for their users posts.
As Cruz properly understands, Section 230 encourages Internet platforms to moderate offensive speech, but the law was not intended to facilitate political censorship. Online platforms should receive immunity only if they maintain viewpoint neutrality, consistent with traditional legal norms for distributors of information. Before the Internet, common law held that newsstands, bookstores, and libraries had no duty to ensure that each book and newspaper they distributed was not defamatory. Courts initially extended this principle to online platforms. Then, in 1995, a federal judge found Prodigy, an early online service, liable for content on its message boards because the company had advertised that it removed obscene posts. The court reasoned that utilizing technology and the manpower to delete objectionable content made Prodigy more like a publisher than a library.
Congress responded by enacting Section 230, establishing that platforms could not be held liable as publishers of user-generated content and clarifying that they could not be held liable for removing any content that they believed in good faith to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. This provision does not allow platforms to remove whatever they wish, however. Courts have held that otherwise objectionable does not mean whatever a social media company objects to, but must, at a minimum, involve or be similar to obscenity, violence, or harassment. Political viewpoints, no matter how extreme or unpopular, do not fall under this category.
The Internet Association, which represents Facebook, Google, Twitter, and other major platforms, claims that Section 230 is necessary for these firms to provide forums and tools for the public to engage in a wide variety of activities that the First Amendment protects. But rather than facilitate free speech, Silicon Valley now uses Section 230 to justify censorship, leading to a legal and policy muddle. For instance, in response to a lawsuit challenging its speech policies, Google claimed that restricting its right to censor would impose liability on YouTube as a publisher. In the same motion, Google argues that its right to restrict political content also derives from its First Amendment protection for a publishers editorial judgments, which encompasses the choice of how to present, or even whether to present, particular content.
The dominant social media companies must choose: if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They cant claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.
Adam Candeub is a law professor & director of the Intellectual Property, Information & Communications Law Program at Michigan State University. He previously served as an attorney at the Federal Communications Commission. Mark Epstein is an antitrust attorney specializing in the technology sector.
Executive order request?
Executive Order today regarding social media platforms. Supposed to be looking to have congress clarify the law.
Request...order...take you pick.
So is FreeRepublic a platform or a publisher?
This can get interesting.
President Trump, unlike Obama, cannot “make” laws.
Congress passed the law giving social media protection as “platorms.”
President Trump, as the Executive, is responsible for enforcing the law. He is also given latitude to not enforce the law, at his discretion.
So he would possibly be able to decide to no longer enforce the law for Twitter or Facebook... Of course, the courts would immediately be involved.
Slippery slope. If you are going to hold Twitter and FB responsible for what is said on their websites, and by extension opening them up to libel lawsuits, then the same must be applied here to the FR.
A better solution would be to let the free market reign. If you don't like the social media platform. don't go there. I have accounts on both but haven't visited in years because of the bias and double standards.
And where does Freerepublic stand in all this?
Some liken Trumps concerns as if it were govt interference in private businesses. Pres Trump, as the Executive, is responsible for enforcing the law. He is also given latitude to not enforce the law, at his discretion. So he would possibly be able to decide to no longer enforce the law for Twitter or Facebook.
NOTE These social media platforms are not private businessesthese are publicly-held companies subject to SEC laws.
They raise money from the public and are traded on the stock exchange,
They say they are common carriers-like planes, trains, cabs, buses........
Twitter is not a common carrier-it is a publicly-held company subject to the laws of the SEC.
TWITTERS 2013 PROSPECTUS filed with the SEC
To report your concerns about Twitter:
email .... enforcement@SEC.gov
I posted this link, the other day.
Glad someone posted as a thread.
Any time you exercise any type of editorial authority on your “platform” you’re a “publisher.”
>>>Any time you exercise any type of editorial authority on your platform youre a publisher.
Since FR has admins exercising editorial authority, then FR would appear to be a publisher.
It gives one pause to think...doesn’t it?
But if Twitter and FB are now taking on responsibility to “fact check” things on their platforms...are they not changing how they interact with the law?
Section 230 of the Communications Decency Act immunizes online platforms for their users defamatory, fraudulent, or otherwise unlawful content. Congress granted this extraordinary benefit to facilitate forum[s] for a true diversity of political discourse.
Is saying something that is untruthful...unlawful? If so there’s a lot of new companies that have no business on social media. What Trump said about mail-in ballots wasn’t untruthful. There’s a number of ballots being found and over distributed during the primaries using mail-in. Trumps conjecture that a Presidential Election be via mail-in ballot is a legit concern. There was no need for Twitter to “fact check” his statement of censor it.
Twitter doing so raised the serious question as to them functioning beyond the scope of the law. Trump said nothing unlawful and got censored for it.
If that’s the case, then yes.
That used to be the case because American business men were Americans, they are likely today be agents of China or some other enemy nation. Multi-cultrualism is our strength don't cha know.
Some thoughts to the contrary
Compare/contrast this reality with
FR is privately held
FR has plenty of competition, and the cost of entry to competitors is low. Competitive sites can be built on Wordpress for free in mere hours
The likelihood of FR offering material assistance to any candidate over another is low
FR moderation, while sometimes inconsistently applied, is aimed at preventing its own copyright entanglements with content publishers/creators and with enforcing the site rules
FR moderation is (generally) applied equally to all posters
Monopolistic social media platforms
Offering in-kind support and hand-picked winners to national and international politicians representing a narrow viewpoint
No accounting of this in-kind support
Consistently penalizing (shadow-banning/banning) select viewpoints
Discrimination against viewpoints without making this discrimination clear to shareholders or 'users'
I'm in favor of an EO banning Fed government entities from utilizing these platforms. Imagine the horror of local governments having to build their own platforms to share messaging with citizens because once the Feds go away, why bother?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.