Comment on “Google’s violation of Section 230” and “Google vs. Taamneh,” filed in the Supreme Court

President Joe Biden’s Justice Department has urged the court to reject at least some of Google’s arguments. The department filed a brief earlier this month urging it to vacate a lower court ruling that sided with Google, pushing for a narrower interpretation of Section 230’s protections. While Biden hasn’t pushed to undermine Section 230 as much as Trump, he has previously suggested revoking the law altogether.

There is a likelihood of a fundamental change to how platforms recommend content from terrorist organizations. Both stem from lawsuits that claim that YouTube, and other platforms, gave support to Islamic State attacks by not removing accounts and posts that were made by terrorists. Gonzalez v. Google’s plaintiffs claim these recommendations shouldn’t be covered by Section 230 of the Communications Decency Act, which shields web services from liability for illegal content. Twitter v. Taamneh covers a distinct but related question: whether these services are providing unlawful material support if they fail to kick terrorists out.

Lawyers for the family petitioned the Supreme Court for a review because they argue that the videos that people watched on the internet was the major factor in recruitment by the Islamic State.

Are Defamation and the First Amendment Really Implied by Politicians? The Case of a Lossy Prodigy Bulletin Board

Second, Section 230 tried to solve a problem highlighted in a 1995 ruling in a $200 million defamation lawsuit against Prodigy, brought by a plaintiff who said that he was defamed on a Prodigy bulletin board. A New York trial court judge decided that the author of the posts faced as much liability as the publisher because the technology used to prescreen user content for offensive language was used by Prodigy. A New York federal judge had ruled in favor of CompuServe years earlier, saying that it was a “distributor” that could be held liable only if it knew about the defaming content.

One of the ways to punish bad behavior is through platform moderation. When bad behavior is ignored, unaddressed, and spirals out into something worse, people look for something to blame. The truth is that the First Amendment can’t be blamed by politicians. That’s the lesson, the takeaway: whenever politicians talk about regulating Big Tech or changing 230, they are almost always talking about imperiling the First Amendment.

America has a very distinctive piece of law, the First Amendment. Free speech has become one of the most threatened parts of American life with the presidential election less than a month away. Both sides of the political aisle are attacking speech law in a way that is both incoherent and deeply concerning.

The bigger issue, though not the only one, is that the internet allows people to speak to each other at a scale unprecedented in human history. There have never been more gaps in the laws governing that speech and their edge cases. And instead of trying to reckon with a new world, the people who make and enforce those laws have abdicated their principles and responsibilities in favor of wielding raw power — and, often, abdicating a lot of their common sense as well.

The New York Attorney General wants to ban distributing live videos of mass shooters, which is an upfront goal of the proposed changes to speech law. Danielle Citron is a legal expert who suggests fixing the problems created by Section 230, such as the protections for small websites that solicit nonconsensual pornography. There are serious criticisms of these approaches, but they’re honest attempts to address real legal tradeoffs.

First Amendment Free Speech Midterm Elections Courts Hyperocricrime: How Scientific Research Can Be Analyzed by a Web Site

No person or entity who uses an interactive computer service will be treated as the publisher or speaker of any information provided by another information provider.

Since 1996, courts have interpreted the law expansively. It effectively means that web services — as well as newspapers, gossip blogs, listserv operators, and other parties — can’t be sued for hosting or reposting somebody else’s illegal speech. The law was passed after a pair of defamation cases, but it has since been found to cover everything from harassment to gun sales. In addition, it means courts can dismiss most lawsuits over web platform moderation, particularly since there’s a second clause protecting the removal of “objectionable” content.

It is weird to argue against limits on corporate power to control speech. Facebook, TikTok, Twitter, and other companies all play a huge role in public discourse and exercise a huge amount of influence over how Americans can connect with each other. It’s getting harder and harder to talk to other people in a way that’s not monitored and approved by an increasingly small number of companies.

Repeal of Section 230 wouldn’t force companies to remove misinformation, because false claims about science aren’t necessarily illegal. There’s a good reason why the First Amendment protects shaky scientific claims. Think of how constantly our early understanding of covid shifted — and now imagine researchers and news outlets getting sued for publishing good-faith assumptions that were later proven incorrect, like covid not being airborne.

Section 230 protections are used as a ruse to get around the First Amendment. Without 230, the cost of operating a social media site in the United States would skyrocket due to litigation. Legal content could be the subject of lengthy lawsuits due to not being able to invoke a straightforward 230 defense. If they won the court case, web platforms would be incentivized to remove posts of illegal nature if they were illegal in the first place. It would burn money and time in ways that are not clear. It’s no wonder platform operators do what it takes to keep 230 alive. The platforms respond to politicians when they complain.

Source: https://www.theverge.com/23435358/first-amendment-free-speech-midterm-elections-courts-hypocrisy

Social Media and the First Amendment: How Bad is it when the Courts in Texas and Florida are acting on a Social Media-Localized Public Interest?

It’s also not clear whether it matters. Jones declared corporate bankruptcy during the procedure, tying up much of his money indefinitely and leaving Sandy Hook families struggling to chase it. The court proceedings were used by him to promote his health supplements. The legal system has hardly changed his behavior, but the legal fees and damages have hurt his finances. If anything, it provided yet another platform for him to declare himself a martyr.

Johnny Depp was sued by Amber Heard for defamation because she identified publicly as a victim of abuse. Amber Heard’s case was less cut-and-dried than Jones’, but she lacked Jones’ shamelessness or social media acumen. The case turned into a ritual public humiliation of Heard — fueled partly by the incentives of social media but also by courts’ utter failure to respond to the way that things like livestreams contributed to the media circus. Defamation claims can meaningfully hurt people who have to maintain a reputation, while the worst offenders are already beyond shame.

I only addressed Democratic and bipartisan proposals to reform Section 230 because they have a lot of substance to them.

Republican-proposed speech changes are not good. Over the past year we have learned how bad it is when Republican legislatures in Texas and Florida ban social media moderation because it is being used by Facebook and other sites to ban conservative politicians from posting.

As it stands, the First Amendment should almost certainly render these bans unconstitutional. They are government speech regulations! But while an appeals court blocked Florida’s law, Texas’ Fourth Circuit Court of Appeals threw a wrench in the works with a bizarre surprise decision to uphold its law without explaining its reasoning. Months later, that court actually published its opinion, which legal commentator Ken White called “the most angrily incoherent First Amendment decision I think I’ve ever read.”

The Supreme Court temporarily blocked the Texas law, but its recent statements on speech haven’t been terribly reassuring. It’s almost certain to take up either the Texas or Florida case, and the case will likely be heard by a court that includes Clarence Thomas, who’s gone out of his way to argue that the government should be able to treat Twitter like a public utility. (Leave aside that conservatives previously raged against the idea of treating ISPs like a public utility in order to regulate them; it will make your brain hurt.)

Thomas, as well as two other conservative justices, voted against putting the law on hold. Liberal Justice Elena Kagan also did, but some people have interpreted her vote as a protest against the ruling.

The laws in Texas and Florida are unjust, but only a useless idiot would support them. The rules are rigged to punish political targets. They attack the Big Tech platforms for their power and neglect the other companies, such as internet service providers, who control the chokepoints that allow access to those platforms. It is impossible to save a movement so intellectually bankrupt that it wanted to blow up the entire copyright system to punish Disney for stepping out of line, and also exempt Disney from speech laws because of its spending power in Florida.

Many politicians are trying to ban children from finding media that acknowledges the existence of trans and gay people, even as they rant about tech platform censorship. On top of getting books pulled from schools and libraries, Republican state delegate in Virginia dug up a rarely used obscenity law to stop Barnes & Noble from selling the graphic memoir Gender Queer and the young adult novel A Court of Mist and Fury — a suit that, in a victory for a functional American court system, was thrown out earlier this year. The panic over “grooming” doesn’t affect all Americans. While Texas is trying to stop violent insurrectionists from using Facebook, it is in fact suing the streaming service for distributing a film which was unsuitable for children under the age of 18.

But once again, there’s a real and meaningful tradeoff here: if you take the First Amendment at its broadest possible reading, virtually all software code is speech, leaving software-based services impossible to regulate. Section 230 has been used by both Airbnb and Amazon to defend against claims that they provide faulty physical goods and services, but that approach has not always worked in practice, but that is still open for companies with core services like software.

Balk’s Law is obviously an oversimplification. Internet platforms can change us through the distribution of posts, subjects, and linguistic quirks. But still, the internet is humanity at scale, crammed into spaces owned by a few powerful companies. It turns out that there is a level at which humanity can be ugly. Vicious abuse may come from a single person, or it may be spread out into a campaign of threats, lies, or terrorism involving thousands of other people, none of which is considered a viable legal case.

The Supreme Court has scheduled arguments for two major internet moderation cases in February of 2023. The hearings for Gonzalez and Taamneh are scheduled for February 21st and February 22nd, respectively.