Parler, Desperate For Attention, Pretends It Doesn't Need Section 230
from the playing-with-fire dept
One of the more bizarre parts of the Parler debate is the weird insistence among many in the Trumpist set that somehow taking away Section 230 will magically lead to less moderation, rather than more. This is almost certainly untrue, because assuming a shift to more traditional distributor liability rules as were considered in place prior to Section 230, websites would potentially face liability for content that violated the law if they were shown to have knowledge of the law-violating material.
We don’t have to look far to see such a system in practice: it’s how the DMCA’s Section 512 notice-and-takedown regime effectively works today. Under that regime, anyone who wants anything taken offline just files a notice, and if a website wishes to avoid liability, they then need to remove the content. That removal protects them from liability. Prior to the notice, it’s unlikely that they would be seen as liable, since they wouldn’t have notice of the content in question possibly violating a law. Of course, as we’ve seen, the DMCA’s notice-and-takedown provision is widely abused. Recent studies have shown that the notice-and-takedown provisions are regularly used to target non-infringing works and many sites pull down that content to avoid liability.
It’s quite likely that we’d see the same sort of result without 230, leading to significantly more removals of perfectly legal speech — which seems to be the exact opposite of what Trumpist fans of revoking 230 expect. Last month, we were happy to see that the Trumpist social media site, Parler, seemed to recognize this, and its CEO John Matze correctly pointed out that removing Section 230 would help the big companies and harm smaller competitors (though, hilariously, he tried to lump himself in as a big guy):
Section 230 is actually a really nice thing, because what it does is protect small businesses from liability, who are trying to compete with Big Tech. So I respectfully disagree, to some extent…. I don’t think the outright removal of 230 is a good idea, because it promotes competition and it actually helps the small guys more. 230, if it was removed, wouldn’t have a big impact on the companies with a large financial balance sheet, like Facebook, Twitter, and even Parler. We’d be okay. But any other competitors would get hurt the most.
He’s right (except the bit about him being a big guy — just because you’re co-founded by an ultra-wealthy Trumpist wacko, it doesn’t mean you’re a big player). Parler would face tremendous liability without 230, and at some point, the Mercers wouldn’t enjoy continuing to pay the company’s neverending legal bills.
Yet, on Monday, it seems that political pressure won out among Parler senior exec staff, and they put out a truly ridiculous press release, headlined that Parler now “welcomes” a full repeal of Section 230. If you read the actual press release, and not just the headline, you realize that the company’s complaint is not so much about 230, but what might happen if any 230 reform is driven by Facebook. And that is the proper concern. If Facebook gets to dictate the terms of 230 reform, it will be massively damaging to companies like Parler. And thus, one can read Parler’s press release as saying that if there were only two choices and those two choices were (1) Facebook-led reform or (2) a full repeal of 230, it would prefer a full repeal:
Today Parler executives declared that Parler and other free speech platforms would be better off if Section 230 of the 1996 Communications Decency Act were repealed than they would be under a politically feasible re-write of Section 230. Such a re-write would, they believe, further encourage speech-restrictive, content moderation policies of established tech giants Facebook, Twitter and YouTube. As it stands, the current interpretation of Section 230 already encourages these practices, by providing immunity from liability for removal of any content a platform’s leadership finds “objectionable.” If Mark Zuckerberg and his cronies in Congress have their way, these practices would be not only protected from liability, they would be mandated. Online platforms would, under a revised Section 230, become de facto censors, restricting speech that would otherwise be protected by the First Amendment. Not only is this morally wrong, it would simultaneously increase barriers to entry while limiting the ability of social media companies to compete by offering different policies.
Much of that paragraph is actually accurate! Many of the reform proposals would push companies to be more proactive in taking down protected content, though if they were actually mandated, it would make any such law infringe upon the 1st Amendment itself, and it would eventually get tossed as such (though that process would take a while).
That said, the framing here by Parler is immensely stupid. Most people took this to mean it wants a full repeal, rather than just preferring one when compared to a Facebook-led reform. And that’s how people are going to remember it. I’m also confused about how Parler thinks that Zuckerberg has “cronies” in Congress. Have they not watched the various hearings where both Republicans and Democrats seem hellbent on beating up on Zuck every chance they get? I honestly cannot name a single member of Congress who I think is supportive of Facebook at all.
Even more stupid, Parler CEO John Matze doubled down on this line of thinking on a post on his own feed (I’d link, but Parler makes it impossible to link directly to posts).
That says:
Reflecting on 2020 and revisiting the inauthentic testimonies from Zuckerberg, Sundar and Dorsey, and observing the role social media plays, today I am changing my stance on section 230. This was not an easy change, but thanks to the people on Parler, trusted advisors and our legal team, I am more confident.
Over the past year, Americans have watched and experienced viewpoint discrimination from Twitter, FB and Google. We have seen medical advice blocked and erased from the internet. We have seen climate politics pushed down our throats. We have seen election integrity concerns forcefully invalidated and we have seen tech tyrants attempting to control our democratic republic in the name of “preserving” it.
As it stands, Parler benefits from Section 230 today. We are afforded the same protections. But, overarchingly, 230 is bad for free speech and bad for our country. Parler does not need it, and rest assured we will come out just fine either way. The tyrants not so much.
This… makes no sense at all. If this is truly from Matze’s “trusted advisors” and the company’s “legal team” he should fire them and get new advisors and lawyers — and maybe stopping getting his information from idiots. All of the stuff he complains about would be significantly worse without 230. And, no, Parler would not come out fine either way. He may think so, with Rebekah Mercer’s big wallet backing him up, but legal fees add up quickly, and Parler would likely discover that faster than most. No one has an endless supply of cash, and the Mercer family, while rich, is not that rich.
Honestly, this stinks of a stupid publicity stunt by Parler, thinking that it’s hitting Facebook when it’s down. It’s pretty clear that Matze and Parler’s senior leadership team have little to no experience with how this stuff plays in DC. He’s just handed Facebook exactly the ammunition it wants to pressure Congress to reform 230 in the way it wants, because everyone is going to take these statements, ignore the weak and slightly misleading nuance, and remember “Parler thinks 230 reform is fine.”
It’s a stupid move, but no one said that the company was smart. Remember, these are the same guys who bizarrely claimed they’d only moderate based on “the 1st Amendment and the FCC” (whatever the fuck that means) and then quickly started banning people who made fun of Parler. And Matze is the guy who, while pretending to support free speech, also recently bragged to a reporter that he was sitting around banning leftist trolls who had shown up on his site.
It’s honestly not surprising, just disappointing, for Parler to take this self-defeating stance. It had a chance to be a useful participant in these discussions, and has instead decided to simply pull a prank to get itself some attention instead.
Filed Under: intermediary liability, john matze, rebekah mercer, section 230
Companies: facebook, parler
Comments on “Parler, Desperate For Attention, Pretends It Doesn't Need Section 230”
He's not wrong, but his users probably don't realize that...
He may think so, with Rebekah Mercer’s big wallet backing him up, but legal fees add up quickly, and Parler would likely discover that faster than most. No one has an endless supply of cash, and the Mercer family, while rich, is not that rich.
As I understand it part of the TOS for Parler is that if they get sued over any content users post the user will be the one on the hook for the bill, so assuming that’s correct Parler actually would be able to survive a repeal for a while unlike other platforms because they wouldn’t be paying those costs.
Of course once the general userbase of that cesspit realize that they would be paying any legal fees(and thanks to no more 230 there would be a lot more of those) I imagine posting there would be a lot less attractive, at which point Parler would start to feel the pain directly via an exodus of users.
Pity really, they were correct when they noted that no 230 would likely be better than a Facebook written 230(both of which are worse than just keeping the gorram law as-is), but it seems like a child with zero self-control they just couldn’t help themselves and jumped on the ‘230 bad!’ bandwagon that funnily enough stands to greatly benefit the same companies they’re complaining about.
Re: He's not wrong, but his users probably don't realize that...
"if they get sued over any content users post the user will be the one on the hook for the bill,"
This sounds way sketchy, do you have a snippet of the TOS that addresses this?
Use of this website by you means that you will fund our ridiculous legal strategy – LOL. I doubt such a thing is enforceable.
Re: Re: He's not wrong, but his users probably don't realize tha
Hmm, quick read through the TOS and I didn’t see anything along those lines, so not sure if they changed it since I heard that, I misheard, or someone else was mistaken. In that case they are extra wrong, gut 230 and they are screwed, no ability to dump it on the users.
Now if you’ll excuse me I feel the need to take a shower, even just visiting two pages of that cesspit left me feeling unclean.
Re: Re: Re: He's not wrong, but his users probably don't realize
Sorry you waded thru that, I would not be surprised to learn they were doing exactly that.
Re: He's not wrong, but his users probably don't realize that...
Not entirely. The plaintiff, if successful, will have sued for damages jointly and severally if at all possible — meaning that they can collect from either defendant, and it is then up for the defendants to work out amongst themselves how much each pays, and one reimburses the other to some extent. Except you can’t get blood from a stone, so if a user has said they will indemnify the site, but has no money with which to do so, that’s just tough for the site.
The reason for this is to prioritize making the victim whole, even if somewhat unfair to the less-culpable but wealthier defendant who can’t get fully reimbursed. So naturally, the conservatives have been gunning for abolishing this sort of liability too in any sort of context.
Re: Re: He's not wrong, but his users probably don't realize tha
So,
A poor man has MORE freedom to speech then a rich man?
COOL!!!
Re: Re: Re: He's not wrong, but his users probably don't realize
Only in the "freedom is just another word for ‘nothing left to lose’" way
Re: Re: Re:2 He's not wrong, but his users probably don't rea
You cannot kill that which is already dead.
Re: He's not wrong, but his users probably don't realize that...
There are only a few things that can be done about this.
DEFINE what can and can NOT be posted.
But that is Censorship on the Site side, but also by the Fed.
The outstanding part of this is Corporate. And what They would allow.
Fair censorship, or LEAVE everything up to be seen, truth or lies.
The strange part in this, is Lies on a corporate site. About as bad as thinking solar panels Work everywhere.(someday, maybe)
Re: He's not wrong, but his users probably don't realize that...
It doesn’t work like that. Parler would be sued, and if it lost, it would be on the hook for any judgement against them.
Parler may be able to recover the money from the user, but if the user doesn’t have any money, Parler still has to pay.
Re: Re: He's not wrong, but his users probably don't realize tha
He’s well aware of that.
And Matze is the guy who, while pretending to support free speech, also recently bragged to a reporter that he was sitting around banning leftist trolls who had shown up on his site.
I’m patiently waiting for resident complainer Koby to show up and tell us how this behavior is outrageous by Parler, and that they need some regulation so they’re not infringing on freeze peach.
Re: Re:
Wait .. Parler is censoring speech? LOL
Re: Re:
“No, Twitter is censoring speech. Parler is only moderating.”
— a conservative who believes the exact same act (content moderation) is actually two different acts (censorship and moderation) because one platform shares the same political bent as the conservative and the other one doesn’t
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Re: Re:
You can always tell you’re on a serious website written and read by rational adults with the best interest of the nation at heart when Free Speech is flippantly referred to in leftist newspeak phrases like "freeze peach".
Like "right to bear arms" is referred to as "ha, yeah right, it’s the privilege of white nazi supremacististists to murder, like, people of color and pedosexuals and brave and stunning journalists and stuff! No justice, no peace!"
Re: Re: Re:
You can always tell you’re on a serious website written and read by rational adults with the best interest of the nation at heart when Free Speech is flippantly referred to in leftist newspeak phrases like "freeze peach".
Well, that’s because when it comes to freeze peach, people who complain about Twitter don’t seem to care so much about Parler doing the same thing.
It’s a metaphor for conservatives being the hypocritical fucks that they are.
Re: Re: Re:
"…when Free Speech is flippantly referred to in leftist newspeak phrases like "freeze peach"."
That’s not how we refer to Free Speech. Freeze Peach is what we refer to as the twisted version extreme right trolls love to push when they insist that "Free Speech" is the right to show up at someones property bringing a soapbox and a bullhorn and the owner of the property being unable to evict them.
So nice try, Baghdad Bob, but you trying to project your own failings on other people still doesn’t work.
Re: Re: Re:
Ding ding ding, we have a WINNER!
As it stands, the current interpretation of Section 230 already encourages these practices, by providing immunity from liability for removal of any content a platform’s leadership finds "objectionable."
I don’t see how you are going to put anyone on the hook ("big platforms", whomever) for removing anything, ever. Good luck with that windmill, bros.
Re: compelled speech
The first amendment puts higher or lower bars on various kinds of speech restrictions, but requiring someone to publish something, known as compelled speech, gets as high a bar as anything. Expecting 230 repeal to do that is impressively inane.
I assume their legal advice is coming from the same dream team that’s managing the Trump campaign’s election challenges.
Re: Re:
Then let me refer you to the case that brought this up in the first place. Stratton Oakmont, Inc., v. Prodigy Services Co., 23 Med.L.Rep. 1794 (NY Super. 1995). Problem there was that Prodigy had moderated some content, but left the offending user-supplied message in place.
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No Bias, No Liability
There are many ways to avoid liability without section 230 protection. One such example was demonstrated in Cubby v. Compuserve, which took place before section 230 even existed. Without 230, there would be a lot of opportunity for hands-off models, such as user-defined moderation, or algorithm only moderation. The primary models that would be injured would be the ones that desire to be a platform, as well as a publisher at the same time through the direct manipulation of their content feeds. Parler will no doubt be fine, since they don’t engage in that kind of biased behavior.
Re: No Bias, No Liability
Wow, you really put no effort into squeezing out your bullshit.
Re: Re: No Bias, No Liability
Like, facts not in presents, and like, evidence, man.
Re:
Yes or no, Koby: Do you believe the government should have the legal right to compel any privately owned interactive web service into hosting legally protected speech that the owners/operators of said service don’t want to host?
Re: No Bias, No Liability
That’s the most hilarious assertion ever.
Re: No Bias, No Liability
"such as user-defined moderation,"
Is this anything like self deportation?
How is the behavior of Parler moderators considered to be non biased when they ban any sort of dissent?
Parler will be fine, just like AOL is fine.
Re: No Bias, No Liability
Parler will no doubt be fine, since they don’t engage in that kind of biased behavior.
Except for this, right Koby? No bias there, and no outrage about freeze peach from you – you’re a typical conservative hypocrite, and this tap dance comment of yours just continues to affirm it.
And Matze is the guy who, while pretending to support free speech, also recently bragged to a reporter that he was sitting around banning leftist trolls who had shown up on his site.
Re: No Bias, No Liability
This would also mean spam, trolling, and most illegal speech would be left up.
Those same models have equal or better opportunity with §230. I’m also not sure if that’s necessarily true, as the Compuserve case involved no moderation whatsoever. Besides, both of those models have many well-known issues that make them, at best, no better than the mixed moderation used nowadays.
Or those who have mixed moderation, where a combination of algorithm and user-defined moderation is used with manual checks in place. Which is what Facebook, Twitter, and YouTube use.
Parler does the exact same things that Twitter does except for adding speech to certain posts and which posts they target. The methodology is the same. As such, it would be just as vulnerable as Twitter, if not more so given the difference in size.
Re: No Bias, No Liability
Of course, there’s also the fact that Twitter’s moderation is no more provably biased than Parler’s, and neither of the pre-230 cases involved accusations of bias to begin with. On top of that, even biased moderation is protected by the 1A and private property rights. The main difference between having §230 and not having it is the cost of defending against even meritless lawsuits. Even if you think Parler would be more likely to prevail against lawsuits, the main effect of §230 was to ensure such lawsuits don’t cripple the company in aggregate. The presence—or lack thereof—of bias in moderation would be a question of fact, anyways, which could only be resolved after expensive discovery.
Re: No Bias, No Liability
Prodigy used a combination of user and algorithm moderation. That’s exactly why the court decided they were liable, prompting the passage of §230.
I imagine being a developer at parler is all "seven red lines" all the time
Section 230 of... what?
Carrying forward a topic raised in comments under Mike’s previous article, it’s probably worthwhile to explicitly unpack the phrase “Section 230 of the 1996 Communications Decency Act” just a little bit here.
It’s usually unstated, but expected, that everyone understands that the phrase is a mis-nomer. It’s a convenient, brief shorthand that actully shortens things into severe distortion. It’s tolerated only because naming things better would often just be more tedious than topical, and because everyone understands “what it really means”.
Until people don’t.
“Section 230”, as a phrase in this context, generally refers to what’s formally named as section 230 of the “Communications Act of 1934”.
Right away, that “1934” doesn’t mean that § 230 was put into law in 1934. Instead, it’s just that the formal name of the law contains the year when the current legal framework was mostly set up. Further, that legal framework was significantly amended in 1996, by a law known as the “Telecommunications Act of 1996”, but the formal name of the framework just stayed with “1934”.
The “Communications Decency Act of 1996” (CDA) is a part of the Telecommunications Act of 1996. The CDA is just a title within that larger statute, which was enacted all at once, and overall was a fairly massive amendment to the Communications Act of 1934.
Section 230, which started out in Congress as a separate bill, got thrown together with the CDA when things were hashed out between the Senate and the House in conference.
So, with that, I’m going to finish this post here, which is long enough already, by pointing to Colorado Law Professor Blake Reid’s post from last September, “Section 230 of… what?”. That post, in turn, opens—
• Section 230 of… what?
Re: Section 230 of... what?
If you wish to be so pedantic, which government are you talking about?
Re: Re: Section 230 of... what?
The Clinton administration.
Re: Section 230 of... what?
That’s pointless.
Yes parler does not need section 230,
it would make no difference if it was repealed,
if you believe that i have a bridge in new jersey i would like to sell you,
and the moon is made of cheese .
why would a service that hosts mostly conservative content and posts by
users be at risk of getting sued by anyone ?
section 230 is basically the law that shields free speech on small local websites, or any website or online service that hosts user comments and opinions .
Re: Re:
I could think of many ways that ‘conservative’ speech could be used in a lawsuit. It doesn’t even have to win to cause extreme pain to parler if enough suits are filed against them.
Heh, I may even file one myself for the fun of it!
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This is all Twitter/Facebook/Google's fault
If they didn’t start cracking down on legal speech in the past four years so hard, if they hadn’t been doing high profile bans that only went ONE WAY politically…
Then there wouldn’t be a push for "removing section 230".
Because Twitter, Facebook and Google are acting like publishers not platforms.
And before someone goes "hurr durr, Conservatives are beeeegoooots" like a moron, let me point out that there are TONS of crazy shit coming from Liberals and progressives that NEVER get punished in the same way.
The Left in America has become so far left that they’d be considered left wing in Europe, which is insanely far left. The Right has actually moved slightly to the Left since 2008.
Just let that sink in.
Re: This is all Twitter/Facebook/Google's fault
"If they didn’t start cracking down on legal speech in the past four years so hard, if they hadn’t been doing high profile bans that only went ONE WAY politically…"
I’m sorry to hear of your recent problems but I would like to point out that only one party was instructing the populace to ingest chlorine.
Is it free speech when the President of the United States suggests that ingesting chlorine is a good idea? Is that something that should not be corrected and if so, why?
Re: 'Stop making me hit you!'
Your contempt for property rights and the first amendment have been noted. Not something I’d be boasting about but you do you I guess.
If they didn’t start cracking down on legal speech in the past four years so hard, if they hadn’t been doing high profile bans that only went ONE WAY politically…
Conservative: I have been censored for my conservative views
Me: Holy shit! You were censored for wanting lower taxes?
Con: LOL no…no not those views
Me: So…deregulation?
Con: Haha no not those views either
Me: Which views, exactly?
Con: Oh, you know the ones
(All credit to Twitter user @ndrew_lawrence.)
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Re: Re: 'Stop making me hit you!'
Not many are pretending those proposing the repeal of Section 230 are trying to do anything other than giving Big Tech the stomping they richly deserve.
Rational people see it very clearly as a handful of politicians cynically trying to buy votes of Americans who are fed up with being silenced for expressing opinions that were normal 10 years ago but are now considered thoughtcrime.
Rational people also understand that Big Tech brought it upon themselves. They could have chosen to side with Americans; instead they chose to side with anti-Americans.
Techdirt writers and Masnick sycophants are the only ones who can’t see it. (Shhh, I know you’re not that stupid, That One guy, but I won’t tell.)
Re: Re: Re: 'Stop making me hit you!'
Can you give some examples of what is now considered thoughtcrime?
Re: Re: Re: 'Stop making me hit you!'
"Americans who are fed up with being silenced for expressing opinions that were normal 10 years ago but are now considered thoughtcrime."
Ah, yes…the expressed opinion that a black man is a <N-word>, a woman is a bitch, a person with an NPF is a retard, and anyone with an alternate gender identity or sexuality is an abomination.
All I’m seeing is the same kind of insufferable idiot squawking in protest when women were allowed to vote and slavery was abolished. Someone unable to realize that making things better for everyone isn’t making shit worse for you specificalkly, even if it does mean you will be looked down on for tossing around ethnic or gender slurs.
"Rational people…"
Nothing "rational" about being butthurt over not being allowed to act like an 18th-century citizen while actually living in 2020.
"They could have chosen to side with Americans; instead they chose to side with anti-Americans."
People dissing nazis and racists are anti-american now? I guess according to the stormfront crowd that might be true.
I swear, Baghdad Bob, you people are getting more pathetic and irrelevant every day.
Re: Re: Re:2 'Stop making me hit you!'
All I’m seeing is the same kind of insufferable idiot squawking in protest when women were allowed to vote and slavery was abolished. Someone unable to realize that making things better for everyone isn’t making shit worse for you specificalkly, even if it does mean you will be looked down on for tossing around ethnic or gender slurs.
‘Equality feels like oppression to those accustomed to a privileged position and treatment.’
Re: Re: Re: Dance on their strings puppet, dance
Not many are pretending those proposing the repeal of Section 230 are trying to do anything other than giving Big Tech the stomping they richly deserve.
Oh are you not going to be happy when you finally figure out who will benefit the most from a repeal of 230…
Re: This is all Twitter/Facebook/Google's fault
[Projects facts not in evidence]
Re:
I literally got suspended from Twitter at one point for using a specific anti-gay slur to mock how the argument of an anti-gay conservative sounded. Plenty of people got suspended/banned for saying “trebuchet TERFs” at one point. Don’t tell me there’s a double standard. Tell me why conservatives are more likely than liberals/progressives to use the kind of language — and use it gleefully, even! — that would get them banned on Twitter but welcomed on Parler, Gab, or 8kun.
No. No, it has not. Hell, the Democrats — a supposedly “leftist” party — is almost entirely made up of one-step-right-of-center centrists who would rather keep the country from actually going leftward for the sake of keeping their rich donors happy than join the rest of the developed world by, say, greenlighting universal healthcare.
No. No, it has not. If anything, the party is splintering between right-wingers and far-right whackjobs, but none of them are even remotely moving to the left — not willingly, at any rate. Or do you think Trump and his cronies in Congress installed conservative judges on federal benches (including three at the Supreme Court) so those judges would rule in favor of upholding both Obergefell v. Hodges and Roe v. Wade?
Re: Re: Re:
Stephen, consider for a moment where on the political scale this person exists when he/she thinks "the right" has moved left, and the democratic party is just a step away from being communists. I doubt that this person can really grasp what you are saying.
Re: Re: Re: Re:
When one is so far to the right that they have left the playing field and entered the pub across the street, they have lost all credibility.
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Re: Re: Re:
Nah.
The GOP has split between those who support foreign wars, mutilating children’s genitals, and ignoring the Constitution – and those who are against those things.
And your side, Stone – and Techdirt – says the anti-war, anti-mutilation, pro-Constitution side are the bad guys !
Ha! That’s how far into fucking Clown World we are now!
Re: Re: Re: Re:
Can I honk your nose?
Re: This is all Twitter/Facebook/Google's fault
"The Left in America has become so far left that they’d be considered left wing in Europe, which is insanely far left."
Actual European here: No, they wouldn’t and no, it isn’t. Really.
Re: This is all Twitter/Facebook/Google's fault
And still the morons on the right beat the liberals at being crazy easily. Play stupid games, win stupid prizes!
Just let that sink in.
Re: This is all Twitter/Facebook/Google's fault
If they didn’t start cracking down on legal speech in the past four years so hard, if they hadn’t been doing high profile bans that only went ONE WAY politically…
If you only just fucked off and used a different social media site and another search engine, we wouldn’t have to listen to your incessant whining….
There’s more than 3 sites that comprise the Internet – tell your friends.
Re: This is all Twitter/Facebook/Google's fault
[Presents allegations of facts without evidence]
Also, again, just go to Parler or something. You’re not entitled to use any specific platform. Plus, the 1A means you don’t have to host even legal speech.
But back to the lack of evidence. I’ve seen no evidence that there is a difference between how many conservatives get moderated as opposed to liberals that clearly favors liberals. But even if there was, context is important. The real question is, “Are conservatives being moderated more often or more harshly than liberals relative to their behavior?” If more conservatives engage in more hateful behavior online than liberals, you’d expect to see more conservatives being moderated even with perfectly even-handed, unbiased moderation.
False. For one thing, there’s a large number of people who believe that the problem with §230 isn’t that it allows platforms to moderate too much but that it allows platforms to moderate too little.
False dichotomy and irrelevant. Also, unless you’re referring to YouTube, Google isn’t a platform but a search engine.
Any evidence of that?
Demonstrably false. In fact, quite the opposite has occurred. By European standards, Bernie Sanders—one of the most left-wing politicians in the US—would be a moderate leftist at most in Europe, while Democrats like Obama or Biden would be considered moderate right-wing in Europe.
As for the Right in the US, it has continually moved right for quite some time. Its unwillingness to compromise on so many issues in the past 12 years is highly indicative of that. The only way it’s moved left is that they’ve largely given up on gay marriage. Ronald Reagan would be considered a liberal by today’s standards.
Also, the European left is only extremely far left by US standards of today. By global standards, it’s only moderately left.
‘ DMCA’s Section 512 notice-and-takedown regime effectively works today. Under that regime, anyone who wants anything taken offline just files a notice, and if a website wishes to avoid liability, they then need to remove the content’
the problem here is that (mostly) the entertainment industries violate this getting, through threats, content taken down and often removed for good, even when it isn’t theirs. the problem with that being that, once again, members of Congress are far more concerned in keeping their ‘campaign contributions’ from the industries than not just doing their job but ensuring that content that is taken down/removed should actually be so, being owned by the industries. i wonder how many times this has happened and been ignored by members since this came into law? i bet the count is pretty astromnomical!
Parler doesn’t need Section 230 as it’s not a business, it’s a radicalisation tool. It doesn’t exist to make money, the Mercers know that it’ll probably never turn any sort of profit, but if it produces a bunch of angry, stupid, and most importantly, motivated conservative voters, then it will have produced what they wanted from it. If they get hit with a slew of lawsuits, they’ll shut up shop, blame the left return to throwing their money into finding the next Steve Bannon or Andrew Brietbart.
Re:
A blog with open comments sections isn’t necessarily a business, but it needs 47 U.S.C. § 230 all the same. The powers that be at Parler may believe that they don’t need 230 to keep Parler alive. They’re free to believe that all they want. But if push comes to shove, Parler relying on 230 to get a frivolous lawsuit tossed out of court wouldn’t surprise me one bit.
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I believe the point they were going with is that even if the platform did get sued into the ground they’d just use it to crowdfund from the perpetual ‘victims’ that comprise their users, whining about how the dastardly ‘left’ shut them down but they’re not staying down if people will just give them money, something those idiots would likely do in droves.
It only took one lawsuit to wipe out gawker.com if there was alot of random lawsuits aimed at Parler it would likely be shutdown. At some point even rich people will likely get tired of spending money on legal fees
The point of section 230 is to protect any websites if a user makes a false statement or defames a person sue the user
or maybe ask for the content to be removed
instead of suing the platform or the website
I would be surprised if even Conservative lawyers do not understand the purpose of section 230
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At this point, Trump’s legal team shouldn’t really surprise you with the depths of their ignorance.
Re: Well, yeah...
That tends to happen when you gleefully publish non-consensually-created revenge porn involving a celebrity.
He's making the case he doesn't want to make
The irony is that Matze is exercising broad editorial discretion over the speech on Parler in a way that even more closely matches the accusations from disaffected conservatives. Twitter and Facebook are at least smart enough to make it seem randomish, whereas Matze is like "fuck yeah, I’m doing it!"
I think the easiest reform would be to add "good faith" across he board in S230 and a "reasonable person" standard. That’s it. It would solve a lot of the rough edges like how Facebook gets away with banning the "Biden is not my President" group but has to offer no excuse for why "Trump is not my President" groups are allowed to stay up (sorry, there’s no justification for this since 95% of "Trump is not my President" types literally don’t believe he was legitimately elected)
Re: 'Reasonable' according to who?
I think the easiest reform would be to add "good faith" across he board in S230 and a "reasonable person" standard. That’s it.
If anything that would likely just make it worse, because what counts as ‘reasonable’ can and will vary wildly depending on who you’re talking to such that platforms would have no real way to know what would get them in trouble, and that’s not even getting into the first amendment concerns of tying legal protections to a subjective standard regarding speech and how it’s handled.
Re: Re: To clarify...
That’s ass backwards. A reasonable person standard almost invariably translates into "what would a typical person on the street think if confronted with this." If anything, it liberates the moderate majority from the tyranny of the extreme outliers who think everyone that is different from them is a Nazi/Communist and deserving to be silenced.
Re: Re: Re: 'Those aren't extreme ouliers, they're Very Fine People'
Just as one example Trump and literally tens of millions of people are likely to have wildly different ideas as to what counts as ‘reasonable’ moderation practices when compared to those outside his cult, so not sure how well that ‘moderate majority’ is going to be protecting people and platforms from the ‘extreme outliers’ when they’re not outliers.
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You can’t rely on a “reasonable person” standard because then you must define “reasonable” and what beliefs are legally “reasonable” such that anyone who doesn’t hold such beliefs are “unreasonable”. That could end up with a court decision that says a Christian is “unreasonable” because they believe in God despite a complete lack of tangible scientific evidence that proves the existence of an omniscient, omnipotent, omnipresent supernatural deity capable of making and unmaking existence with a mere thought. I’m an agnostic atheist, and even I would find such an outcome revolting. I’d like to hope you would, too.
Depending on the standards of which “street” you go down, a “reasonable” person might believe the 2020 presidential election was rigged or stolen by child-trafficking pedophile Democrats under the orders of Hillary Clinton, Barack Obama, and the Nazis living under the surface of the moon. The “reasonable” person on another “street” might believe the election was free and fair. “Reasonableness” is in the eye of the beholder — so why should any one eye, no matter its owner, get to define “reasonableness” for everyone else?
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Define “good faith” and “reasonable person” in an objective covers-all-platforms-and-situations way — i.e., in a way that applies to Facebook, Twitter, Parler, 4chan, Techdirt, Mastodon instances, and Twitch. When you can do that, you can offer that suggestion again. Until then: 230 is good as-is, and it doesn’t need some sort of government-compelled “neutrality” requirement or whatever.
Why Facebook bans one group instead of the other is, legally speaking, irrelevant. Facebook has the right to allow or delete either group (or both groups); the First Amendment makes it possible, and 230 codifies the legal liability protections for doing it. If you don’t like that fact, leave Facebook and go to a service that will treat those groups the way you want them treated.
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That position is not quite internally consistent, given the existing language of 47 USC §230(c)(2)(A). That sub-paragraph begins—
So the existing language of that sub-paragraph already appears to incorporate a good-faith standard.
Is § 230 good “as-is”? Or, in your opinion, does “good faith” there in the current statute require an explicit definition?
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And if you can define that in a way that applies the exact same “good faith” standard to all websites equally, regardless of any factors such as political bent or target audience, you let me know.
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In the Ninth Circuit at least, we can offer an operational, extensional definition. In Enigma Software v Malwarebytes (9th Cir. 2019), the court explicitly held that anticompetitive animus is not good faith under § 230(c)(2).
(Fwiw, Eric Goldman has criticized that decision for, inter alia, importing (c)(2)(A) good-faith into (c)(2)(B).)
So does an operational, extensional understanding worked out by the courts, case by case, decision by decision, precedent by precedent meet your requirements for a “definition”?
Or do we just go back to the question of whether the existing use of “good faith” in the statutory text is ok with you “as is”? You side-stepped answering that.
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It’s in it’s own clause as that’s where it’s properly applied. It isn’t applied elsewhere as it is inappropriate.
Re: Re: This...
Yes it does, but the First Amendment doesn’t address publishers’ liability. Congress can condition limited liability on hosting speech you might detest so long as Congress doesn’t force you to accept the limited liability.
Good faith would start with not having an obvious double standard in which your published rules that you claim are contractual terms are enforced in a meaningfully different way based on who is breaking them. It would mean, in this case, Facebook gets to decide that "election denial" is a bannable offense, but doesn’t get to say the rules apply to Party A but not Party B.
We are not lawyers (presumably you aren’t), but somehow the law functions just fine with these terms in a wide range of issues.
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Congress can condition limited liability on hosting speech you might detest so long as Congress doesn’t force you to accept the limited liability.
That still smacks of a pretty blatant first amendment violation to me, as it would very much be a speech related legal action involving the government with the goal of ‘incentivizing’ certain behavior.
Good faith would start with not having an obvious double standard in which your published rules that you claim are contractual terms are enforced in a meaningfully different way based on who is breaking them. It would mean, in this case, Facebook gets to decide that "election denial" is a bannable offense, but doesn’t get to say the rules apply to Party A but not Party B.
Applying moderation rules equally is a desirable goal but making it legally required seems like it could lead to problems as people claim that a particular exercise of the rules wasn’t really fair due to the context at the time, but setting that aside the ‘fix’ for that liability issue would seem to be pretty simple, as sites would just water the rules down even more until it was the equivalent of ‘we reserve the right to give anyone the boot at our discretion, and if you don’t like it then too bad.’
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Admins moderating content on Twitter doesn’t make Twitter a “publisher”. And even if it did, that shouldn’t make Twitter liable for the speech of third parties.
It probably could, yes. But it won’t, and it shouldn’t. That way lies madness.
Does that apply to Parler, which claims to support “free speech” but also has a clause in its “contract” (read: terms of service) that lets it moderate speech, not to mention a First Amendment–protected legal right that protects said moderation under the freedom of association clause? Because if it doesn’t, your proposal is irrelevant.
And if Party A were denying the election results in the same way as Party B, you might have a point. But last time I checked, Democrats aren’t the ones about to protest the results of a free and fair election — including both the presidential election as well as downballot elections — as a pretense to delay the inevitable or rile up a base that is…shall we say, “standing by”. (I should also note that none of the Republicans who plan to protest the presidential election results and won races in their states are also planning to protest their own elections, even though they can’t logically claim that the presidential election was fixed and the downballot elections weren’t.)
If the law functions well with these terms already in place, for what reason must we change them?
Re: Re: Re:2 FFS
So your ability to have a Facebook group should be conditioned on the conduct of unrelated political actors who may or may not share your sensibilities. That’s practically a confession that you don’t believe a damn thing you claim to believe in terms of free speech here.
Re: Re: Re:3 FFS
Free speech doesn’t apply to how private persons treat other private persons.
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The ability to have a Facebook group is conditioned only on Facebook letting me have one. Facebook can enforce any kind of standards it wants within the bounds of the law. That means it can enforce political standards. You can disagree with those standards. But you don’t have the right to make Facebook agree with you.
I believe a person has a right to speak their mind. I don’t believe they have a right to use the private property of others as a soapbox. White nationalists can use any platform that will have them. But they don’t have a guaranteed right to use Twitter or Facebook. (Or Parler or Gab, for that matter.) Free speech also comes with the freedom of association. I can’t force anyone to host my speech. I shouldn’t have that right — and neither should anyone else.
Re: Re: Re:3 FFS
[Projects facts not in evidence]
Re: He's making the case he doesn't want to make
Yeah, it would be awesome to add stupid clauses to fix all those things that don’t happen. Let’s do it, this is the U.S. after all.
Re: He's making the case he doesn't want to make
The problem with that is that you pretty much eliminate a motion to dismiss. The “reasonable person” standard is going to be a fact question for the jury, and so the case goes to trial.
One hope for S:230 proponents is that companies hosting discussion fora would be able to cut back on the expense of litigation by getting rid of suits over speech which is not their own at an early, and thus less expensive, stage.
This is similar to the goal of anti-SLAPP statutes. We do not want people who criticize deep pockets to have to litigate through trial. The intent with S:230 was we did not really want Prodigy (as in Stratton Oakmont Inc v. Prodigy Services, 23 Med L Rep 1794 (NY Super. 1995)) to have to go to trial and possibly be exposed to damages.
Zuck is sleazing along
Maybe nobody in Congress is supportive of That Zucker. But Trump is. Ever since Elizabeth Warren and the young pack of legislators started talking about taxing the rich.
That Zucker’s wealth has increase by $100B this century. He wants to keep every dime of it. Regardless of the condition of our country.
Re: Zuck is sleazing along
Most of Zuckenberg’s wealth is the value of the shares he owns in Facebook. If governments made Facebook impossible to operate, by say making it liable for everything posted on it, most of that wealth would evaporate as Facebooks shares became valueless.
Wonder why that is, huh?
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Honestly I’d chalk that one up as a feature rather than a bug, the less links to that cesspit around the better even if it does require a few extra steps to quote anything there as a result.
Lawyers, plural? It appears the legal team Parler has employed to sue Amazon is a guy. OK, it appears he has two employees. A reading of the complaint suggests there’s a reason this lawyer is in solo practice…..
230
This is about as disingenuous as it gets. Parler doesn’t need to pretend it doesn’t need 230 protections.. blah blah blah, this is called gaslighting folks.. the author knows that nobody is talking about "Getting rid of section 230.. what is being discussed is taking 230 protections away from platforms that are pretending they are simply neutral platforms. It’s not about moderation at all, but it’s about partisan censorship. Twitter, FB, IG etc, can be as biased as they like. they are private firms.. their employees, being mainly from large metro areas are naturally going to skew left. and nobody has a right to expect anything else from them.. they have a right of free association.
The Tech overlords want to have their cake and eat it too, they want 230 protections from liability, claiming to be neutral platforms who cannot be held accountable for content, yet they moderate (censor)content almost exclusively from the point of view they are diametrically apposed to. in essence, they are acting as PUBLISHERS in fact and in deed.. so they should not have protections under 230..
If Parler decides to do the same, then they should also not enjoy protections from liability for content on their servers.
Re: 230
Then why did it?
False. A number of liberals, conservatives, and the President have explicitly said that they want §230 repealed outright. Not all of them hold federal political office, but some are, and you explicitly said that nobody was saying that.
That said, forcing platforms to be neutral violates the 1A.
Which is exactly what we’ve been saying.
They don’t claim to be neutral platforms. And you still haven’t proven that their political views (as opposed to those of users and regulators) played a substantial role in a significant number of moderation decisions against conservatives and for liberals.
The platform/publisher dichotomy is also false, and we don’t hold anyone else to the standards you claim.