Washington Post Forgets It Fought (And Won) Legal Battle Against Mandatory Transparency; Now Demands Internet Co's Face The Same

from the psst,-editorial-board,-speak-to-your-lawyers dept

A few years ago the Washington Post (and a bunch of other newspapers) fought and won a fairly important 1st Amendment lawsuit to strike down as unconstitutional a Maryland law that required news organizations to publicly post information about the political ads they chose to carry. The district court and then the appeals court found that the law was pretty clearly unconstitutional:

As the district court noted in a lengthy and thoughtful opinion, Washington Post, 355 F. Supp.3d at 272-306, the Act is a content-based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland’s law is a compendium of traditional First Amendment infirmities.

Specifically, the court found that the compelled speech aspect of the law was particularly problematic:

Taken together, the Act’s publication and inspection requirements ultimately present compelled speech problems twice over. For one, they force elements of civil society to speak when they otherwise would have refrained. Time and again, the Supreme Court has made clear that it makes little difference for First Amendment 515*515 purposes whether the government acts as censor or conductor. Indeed, the “freedom of speech `includes both the right to speak freely and the right to refrain from speaking at all.'” Janus v. Am. Fed’n of State, Cty. & Mun. Emps. Council 31, ___ U.S. ___, 138 S. Ct. 2448, 2463, 201 L.Ed.2d 924 (2018) (quoting Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (internal quotation omitted)). It is the presence of compulsion from the state itself that compromises the First Amendment. The Amendment extends “not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).

What’s more, the fact that the Act compels third parties to disclose certain identifying information regarding political speakers implicates protections for anonymous speech. Requiring the press itself to disclose the identity or characteristics of political speakers is a problematic step. See Branzburg v. Hayes, 408 U.S. 665, 709, 92 S.Ct. 2646, 33 L.Ed.2d 626 (Powell, J., concurring) (noting that newsmen faced with a grand jury subpoena are not “without constitutional rights with respect to the gathering of news or in safeguarding their sources”); id. at 725, 92 S.Ct. 2646 (Stewart, J., dissenting) (requiring the press to disclose its sources risks “annex[ing] the journalistic profession as an investigative arm of government”). This country, moreover, has “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Much as our forebears elected to hash out the architecture of this nation under the pseudonyms of “Publius” and “Agrippa,” many political advocates today also opt for anonymity in hopes their arguments will be debated on their merits rather than their makers. See id. at 343, 343 n.6, 115 S.Ct. 1511. To be sure, this tradition of anonymity is anything but absolute. But revelations of executive misconduct throughout our history have often been anonymously sourced. And when the government enlists the press to disclose the sources of political speech, thus potentially exposing those speakers to identification and harassment, First Amendment protections and values come into play. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 14-15, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion).

Apparently, the editorial board of the Washington Post is wholly unfamiliar with this lawsuit and the fact that its own publication won this lawsuit just two years ago. Because in a new opinion piece, the Editorial Board of the Washington Post calls for nearly identical requirements for internet companies. Really.

Specifically, the Washington Post endorses the extremely problematic recommendations from the Aspen Institute’s Commission on Information Disorder:

The report starts, as any study aimed at restoring trust and truth ought to, by acknowledging reality: “In a free society, a certain amount of misinformation will always exist.” The hope isn’t to punish every exaggeration, piece of propaganda or flat-out lie but to home in on the most egregious damage caused by specific types of mis- and disinformation — by discouraging people from spreading falsehoods and minimizing the fallout when they do. This is easiest in “empirically grounded” areas, in which facts can most clearly be found: public health and election integrity foremost among them.

How do we do it? Some steps are obvious, such as mandating more transparency from technology companies. Platforms should be required, for instance, to publish data about the content, source, targeting and reach of posts seen by large audiences, as well as produce standardized archives of the material they remove or otherwise moderate.

That “obvious” step is exactly what the Washington Post fought in court against and won just two years ago. And, it should be noted that in fighting that Maryland law, the Washington Post trotted out Section 230 as a reason that the law should be pre-empted, but the court went past that and didn’t even bother with the 230 issues, noting that the 1st Amendment was the issue, and it didn’t even need to bother with Section 230.

In some ways, this isn’t surprising. For reasons I don’t fully understand, newspapers seem to have a weird blindspot for the very laws and constitutional rights that protect themselves when there are attacks on those rights on internet companies. The more conspiratorial will insist that this is because news organizations are jealous of the success of internet companies — with whom they often compete for ad dollars. But I think it’s likely to be somewhat more fundamental than that. Institutionally, too many news organizations take such a dismissive view of the internet and the communities created on it, and look at themselves as the “defenders of truth” (hell, the Washington Post’s own bizarre slogan, “Democracy Dies in Darkness” is trumpeted on every damn page). To them, the internet and social media are riff raff — enabling the people who are too stupid for their own good to wallow in disinformation.

And, thus, the only answer must be to mandate these kinds of rules that could and should never apply to the pure giant news orgs. It’s disappointing and hypocritical, but hardly surprising.

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Companies: aspen institute, washington post

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Comments on “Washington Post Forgets It Fought (And Won) Legal Battle Against Mandatory Transparency; Now Demands Internet Co's Face The Same”

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18 Comments
Anonymoussays:

This is a legacy old media problem they want laws to apply to tech media company’s that will hinder competition but the problem is now what media company now is not online? Every TV company had online streaming options newspapers have online digital editions online laws will effect all Media company’s
See Murdoch he pushs laws that will hinder or put extra expense on Facebook or tech company’s as he owns TV stations

James Burkhardtsays:

Washington Post failed to note its financial interest in the actions recommended by the editorial board, in that they were arguing to restrict competition to their benefit, but have wrapped it in concern over disinformation to hide an important piece of context.

They literally are violating the principles of transparency they call for in this Editorial. I highlight this because WP will likely claim in their defense that as journalists they are already held to higher standards by various publishing and journalism trade guilds. But this piece is evidence they are not.

Anonymoussays:

Another Niemöller riff...

First they came for the newspapers – and we fought them off,
because being forced to speak violated our constitutional rights.

Then they came for the internet companies – and we handed out torches and pitchforks,
because they were the competition.

Then the profits failed to roll in …
For we had forgotten who was linking to our content.

ECAsays:

Discouraging on both sides.

I thought the 1st amendment was PERSONAL freedom of speech.
Not based ont he idea that Some group or org could just Blow smoke up our buts, nad not tell us WHO is saying it.
I dont mind a person saying/suggesting/ commenting/ debating something or anything. It adds to discussion.
When a group stands up and says something, you CANT fight what they say. You end up in a 1 vs 100 stand, and they all group up on you.
This isnt a nation of WHO has the loudest Voice wins. Its truth, Lies and allot of something in the middle.
Iv seen articles that said, this post said this, and that article said that, and the Law reads like this and that and the other thing. But its like looking up info in a dictionary and finding there are 20 different meanings to 1 word. And looking up references leads nowhere, that they suggested. As when reading the bible, and 1 persons opinion, can be debated. When a group DEMANDS you think 1 way or another, rather then Common knowledge, but you DONT KNOW WHO said what, as there is no reference to who said it. Or a group name and reference, but it was setup, Very recently and the phone number work.
An ANTI group site that makes itself look Huge and fancy and its from 1 side of a coin, saying that No one in this state WANTS THAT. And its a group of 2-3 people trying to stand for the WHOLE state? Its called brain washing.

Anonymoussays:

Well.

The report starts, as any study aimed at restoring trust and truth ought to, by acknowledging reality: “In a free society, a certain amount of misinformation will always exist.”

Derp. No kidding.

The hope isn’t to punish every exaggeration, piece of propaganda or flat-out lie but to home in on the most egregious damage caused by specific types of mis- and disinformation — by discouraging people from spreading falsehoods and minimizing the fallout when they do.

Please, discourage people all you like, with your own speech.

This is easiest in “empirically grounded” areas, in which facts can most clearly be found: public health and election integrity foremost among them.

Aaaaand you don’t understand how any of this works. Not only is it very popular currently, but the human race has a long history of believing stuff contrary to all evidence. Let’s not even consider the psychology behind denialism and conspiracy story-mongering. Good luck discouraging that in any way other than engendering critical thinking skills in people.

How do we do it? Some steps are obvious, such as mandating more transparency from technology companies.

Wait, what?

Platforms should be required, for instance, to publish data about the content, source, targeting and reach of posts seen by large audiences,

So. Doxxing for everyone! It’s freeeee.

  • as well as produce standardized archives of the material they remove or otherwise moderate.*

i mean, sure. Mandated? Not so much.

Your stated interest does not align with your proposal. Thank you for playing. Next.

generateusernamesays:

Re:

as well as produce standardized archives of the material they remove or otherwise moderate.*
i mean, sure. Mandated? Not so much.

What do they mean by this? Something like this Internet Archive/Wayback Machine? If so, this is something I support, but I consider it mainly a historic preservation issue at this point as opposed to a content moderation, transparency, or 1A issue.

generateusernamesays:

I think the issue is that opponents to mandatory transparency tend to focus on how this is unconstitutional instead of how this is a bad idea. Now, Techdirt has written on this topic before and I’m sure Mike thinks this is a bad idea in addition to being unconstitutional, but without going back to the articles I honestly cannot recall his reasoning. And IMO this just makes 1A sound like a burden to those less familiar with US constitutional law: as if mandatory transparency is a great idea, but we can’t do it cause it’s unconstitutional.

Anonymoussays:

Re:

Well, the Constitution isn’t arbitrary. There are loads of issues in compelling speech and behaviour without extreme good reasons and narrowly defined limits. Lots of not-good consequences, intended or unintended.

Some steps are obvious, such as mandating more transparency from technology companies. Platforms should be required, for instance, to publish data about the content, source, targeting and reach of posts seen by large audiences, as well as produce standardized archives of the material they remove or otherwise moderate.

Despite the "such as", transparency is ill-defined. Not good. Regarding the "such as", for one, this is an undue burden for many. For those large outfits who probably never actually delete anything anyway, they could design an API to make the demanded bits accessible, but who has access? What’s the point in moderating if anyone can just go look at the moderated pool? If just certain parties, say some jackasses in Congress or the Provisional Internet Regulatory Agency, that would be way into "government interferes with speech" zone.

How about that if the post or whatever is so egregiously demanding of legal government attention, the government whips up subpoenas, or better yet, warrants with solid requirements. Still, what it the penalty for posting / advertising something the gov (or some loud demographic) doesn’t like? A finger-wagging intended to chill speech?

Techdirt has written a lot on other forms of compelled transparency, and well beyond the "merely technical" 1A implications. E.g., if the moderation reasons, rules, procedures, and whatnot have to be made transparent and set in stone, so to speak, that’s just a huge exploit in the game for bad actors.

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