Columbia Law Professor Spews Blatantly False Information About Section 230 In The Wall Street Journal

from the make-it-stop-for-reals dept

Another day, another completely ridiculous, wrong, and painful op-ed in a major newspaper that gets all of the details about Section 230 wrong. And this one is particularly ridiculous because it's coming from a law professor. Professor Philip Hamburger wrote an op-ed for the WSJ that is so bad, so wrong, so clueless, that if I handed it in in one of his classes, I'd deserve a failing grade. The only thing that this piece gets is that, while I'd thought I'd seen every style of bad Section 230 takes, this one is creatively bad in new and more ridiculous ways than I'd seen before. It's titled: The Constitution Can Crack Section 230, which already seems like a weird way to kick off. Cracks... what?

Section numbers of federal statutes rarely stir the soul, but one of them, 230, stirs up much fear, for it has seemed to justify censorship. Relying on it, tech companies including Google and Twitter increasingly pull the plug on disfavored posts, websites and even people. Online moderation can be valuable, but this censorship is different. It harms Americans’ livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves.

So, first of all, how is this moderation (the bad kind) different from that moderation (the good kind that you say is valuable)? Hamburger makes no effort, and seems to think that, like obscenity, he knows it when he sees it. But, even if we go by what little information he provides here, you might already notice the problem. He claims that this moderation "distorts political and cultural conversations" and "influences elections" but... that's also the exact same argument that people who are mad about too little moderation make.

And, of course, you could easily say that Fox News. Or CNN. Or... the Wall Street Journal has been known to "distort political and cultural conversations" and "influence elections." But I don't see Prof. Hamburger flipping out about that.

But does the 1996 Communications Decency Act really justify Big Tech censorship? The key language, Section 230(c)(2), provides: “No provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The companies take this as a license to censor with impunity.

That understanding is questionable. Law is rarely as clear-cut as a binary switch. To be sure, courts emphasize the breadth of Section 230’s immunity for website operators. But there is little if any federal appellate precedent upholding censorship by the big tech companies. The question therefore comes down to the statute itself. The answers should give pause to the companies and courage to those they’ve censored.

If I were grading this as a paper, I would circle this line in red ink: "But there is little if any federal appellate precedent upholding censorship by the big tech companies." Professor, just because you failed to some fairly basic research, doesn't mean it doesn't exist. There are dozens of cases regarding content removal out there, and every one of them has been tossed out frequently on Section 230 grounds. While not many of them actually go up on appeal, the ones that have, have also been rejected. And here's the thing, many of them have been rejected on 1st Amendment grounds, meaning that Section 230 isn't even the issue here.

There was the PragerU case that made it clear that YouTube can restrict videos however it sees fit on 1st Amendment grounds, not even getting to the 230 issue:

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.

Seems kind of important, but Prof. Hamburger has some fantasyland ideas about how the Commerce Clause means... that Section 230 cannot be used to take down content. It... makes no sense.

Originally, the Constitution’s broadest protection for free expression lay in Congress’s limited power. James Wilson reassured Americans in 1787—four years before the First Amendment’s ratification—that “a power similar to that which has been granted for the regulation of commerce” was not “granted to regulate literary publications,” and thus “the proposed system possesses no influence whatever upon the press.”

The expansion of the commerce power to include regulation of speech is therefore worrisome. This is not to dispute whether communication and information are “commerce,” but rather to recognize the constitutional reality of lost freedom. The expansion of the commerce power endangers Americans’ liberty to speak and publish.

This is embarrassing. Nothing in Section 230 is "regulating commerce." Nor is it "regulating speech." It's doing the opposite. It's making sure that companies know that they and not the government get to decide what speech they host and associate with. And, no, nothing in 230 "endangers Americans' liberty to speak and publish." They can still express themselves, but they don't have a right to demand that any private company host or promote that speech. Just like I can't demand that the Wall Street Journal publish my op-ed about how Columbia Law students deserve a refund if they had to take classes from Prof. Hamburger. That's not censorship. That's the Wall Street Journal's 1st Amendment editorial rights to reject my editorial (frankly, mine would have been better than Hamburger's, so maybe they should have published mine instead).

That doesn’t necessarily mean Section 230 is unconstitutional. But when a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly.

IT DOESN'T REGULATE SPEECH. How hard is that to understand?

A second constitutional question arises from the First Amendment. The companies brush this aside because they are private and the amendment prohibits only government censorship. Yet one must worry that the government has privatized censorship. If that sounds too dramatic, read Section 230(c)(2) again. It protects tech companies from liability for restricting various material “whether or not such material is constitutionally protected.” Congress makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them.

This is an embarrassingly amateurish reading of Section 230. It's the type of analysis we normally see on Twitter from people who have just discovered the law and know nothing about how it actually works or what it actually says. In court, content takedowns have almost never relied on (c)(2). They rely on the 1st Amendment or (c)(1). Section (c)(2) is only used in very rare cases and the reason it says "whether or not such material is constitutionally protected" is not because of some sort of state action attempt to censor constitutionally protected speech, but because the law is properly recognizing that companies are not bound by the 1st Amendment and therefore, the companies, being private entities, are not bound by the 1st Amendment and get to decide for themselves which content to associate with.

Any lawyer who actually spent any amount of time understanding Section 230 would know this. I'd expect that a law professor publishing in the Wall Street Journal could take the time to figure it out himself.

Seventeenth-century censorship, which the First Amendment clearly prohibited, was also imposed largely through private entities, such as universities and the Stationers’ Company, England’s printers trade guild. Whereas privatized censorship then was often mandatory, the contemporary version is voluntary. But the tech companies are protected for restricting Congress’s list of disfavored materials, and this means that the government still sets the censorship agenda.

No. It's not. If the law required them to take down certain content -- or even if it limited what the sites could take down -- that would be setting the censorship agenda. But here, the whole point of 230 is to make it clear that websites, as private entities, have the freedom to decide for themselves.

Some of the material that can be restricted under Section 230 is clearly protected speech. Consider its enumeration of “objectionable” material. The vagueness of this term would be enough to make the restriction unconstitutional if Congress directly imposed it. That doesn’t mean the companies are violating the First Amendment, but it does suggest that the government, in working through private companies, is abridging the freedom of speech.

Again, this is misreading and misunderstanding 230. It's focusing on (c)(2) which is the part of the law that is almost never used. (c)(1) and the 1st Amendment have been more than enough to protect against liability for content moderation decisions. More importantly, the list in (c)(2) is not a definitive list. It is not ordering the companies to do anything. It's just making it clear that they have the freedom to moderate however they see fit. That is not, as Hamburger seems to imply, the government "abridging freedom of speech" because no one's free speech is "abridged."

And then... he finally realizes that the 1st Amendment protects the "good" kind of moderation he wants, and tries to twist things around to explain why it doesn't protect the kind of moderation he dislikes.

This constitutional concern doesn’t extend to ordinary websites that moderate commentary and comments; such controls are their right not only under Section 230 but also probably under the First Amendment. Instead, the danger lies in the statutory protection for massive companies that are akin to common carriers and that function as public forums. The First Amendment protects Americans even in privately owned public forums, such as company towns, and the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. Here, however, it is the reverse. Being unable to impose the full breadth of Section 230’s censorship, Congress protects the companies so they can do it.

But... they're not common carriers. They're not public forums. And, as was cited in the PragerU ruling above, which in turn cites the Supreme Court in 2019 in a ruling made by Brett Kavanaugh, social media websites do not even come close to meeting the criteria to be declared public forums. You'd think a law professor would be up on little things like that.

Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. Under the Constitution, government cannot immunize powerful private parties in the hope that they will voluntarily carry out unconstitutional policy.

If you think this is an apt analogy, you are not qualified to discuss this seriously. This is, in no way, analogous. I mean, holy shit, is this a messed up line of thinking. To compare social media companies applying their terms of service in a way to stop the spread of disinformation to... southern sheriffs urging the Klan to attack civil rights marchers? WHO WOULD EVER THINK THAT'S ANALOGOUS?

Perhaps judges can avoid the constitutional problem, but this will be more difficult if they read Section 230(c)(2) broadly. The tech companies can’t have it both ways. If the statute is constitutional, it can’t be as broad as they claim, and if it is that broad, it can’t be constitutional.

What? Again, (c)(2) barely even matters. (c)(1) and the 1st Amendment matter. And it is both constitutional and as broad as they claim. The problem you have, Professor, is that you've read into the law things that are not there.

And then, believe it or not, the op-ed shifts from just wrong, to crazy.

The statute itself also poses problems for Big Tech. The first question is what Section 230(c) means when it protects tech companies from being “held liable” for restricting various sorts of speech. This is widely assumed to mean they can’t be sued. But the word “liable” has two meanings.

What is this, I don't even...

In a civil suit, a court must first consider whether the defendant has violated a legal duty or someone else’s right and is therefore legally responsible. If the answer is yes, the court must decide on a remedy, which can include damages, injunctive relief and so forth. The term “held liable” as used in Section 230(c) can fall into either category. Thus, the protection of tech companies from being “held liable” may merely mean they can’t be made to pay damages, not that they can’t be held responsible and subjected to other remedies. The former interpretation seems more plausible, if only because a mere ambiguity seems a weak basis for barring a vast class of plaintiffs from recourse to the courts on a matter as central as their speech.

After protecting tech companies from being held liable, the statute recites: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” This clause, Section 230(e), may seem to vindicate the companies, but it distinguishes between a “cause of action” and “liability” and thereby clarifies the ambiguity. Evidently, when Section 230(c) protects tech companies from being held liable, it does not generally immunize them from causes of action. It merely protects them from “liability” in the sense of damages.

There are jokes about law professors who think up crazy wacky ideas with no basis in the reality. Those jokes are meant to be about paragraphs like the two above. Held liable means any liability. You can't just say that other remedies don't count as being held liable. That's not how any of this works. And courts have ruled on this very thing, in cases like Hassell v. Bird, where no one was trying to force Yelp into monetary damages, but was about an injunction that would have forced Yelp into removing some content -- and the court held that 230 barred such an injunction. Prof. Hamburger seems to have made up, whole cloth, the idea that "held liable" might only apply to monetary damages.

Honestly, those two paragraphs read like typical Sovereign Citizen rantings, in which they've found a loophole regarding whether or not a flag has a fringe. The arguments presented here are completely disconnected from the way any court has ever looked at these issues.

Another question concerns the “material” that the companies can restrict without fear of being sued for damages. Section 230(c) protects them for “any action voluntarily taken in good faith to restrict access to or availability of material” of various sorts. Even before getting to the enumerated categories of material, it is important to recognize that the statute refers only to “material.” It says nothing about restricting persons or websites.

To be sure, the statute protects the companies for “any action” restricting the relevant material, and if taken literally “any action” could include various nuclear options, such as barring persons and demonetizing or shutting down websites. But the term “any action” can’t be taken to include actions that restrict not only the pertinent material but also other things. ”Any action” has to be focused on such material.

Dude. Come on. Is this a joke?

The statute, moreover, requires that such action be taken “in good faith.” At common law, that can mean not acting with the effect of destroying or injuring the rights of others and, more specifically, not acting disproportionately to terminate relations. The statute thus doesn’t protect the companies when they take disproportionate action against material, let alone when they unnecessarily restrict other things, such as websites and persons.

Again, the good faith part only matters for (c)(2) which doesn't matter. (c)(1) and the 1st Amendment have been deemed to protect content moderation takedowns. Many times. Don't you have law school student helpers who can look this stuff up for you?

What is in good faith for a website may be different from what is in good faith for a tech company that operates like a common carrier or public forum. But at least for such tech companies, the statute’s focus on “material”—combined with the requirement of “good faith”—stands in the way of any categorical protection for suppressing websites, let alone demonetizing them or barring persons.

What does this mean in practice? Even if a company technically can’t bar some material without taking down the entire website, it at least must give the operators an opportunity to remove the objectionable material before suppressing the website altogether. As for demonetizing sites or barring persons, such actions will rarely if ever be necessary for restricting material.

Again, the "good faith" part is meaningless. It's in (c)(2). Almost no one uses (c)(2) but even if they somehow did rely on it, this interpretation that good faith requires giving a user another chance has no basis in reality. It also has no basis in how content moderation works. It is disconnected from reality.

Such is the statute’s text. If you nonetheless want large common-carrier-like companies to go beyond “good faith” actions against “material,” pause to consider a little history, if only as a reality check about the proportionality of your desires. Even the Inquisition gave heretics formal opportunities to recant. And even the Star Chamber required its private censors to bar offensive material, not authors.

Again... what? You're quoting the wrong part of the statute, misunderstanding what it says, ignoring the key parts of the 1st Amendment's role here, saying that they're common carriers when they're not, misstating what the word "material" means in context... and then talking about Star Chambers?

They let you teach? Like... actual students? Ones hoping to become lawyers? Those poor, poor students.

The next question is viewpoint discrimination. Section 230(c) specifies protection for restricting “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The companies understand this to include nearly anything to which they object.

But Section 230(c) enumerates only categories of content, not viewpoints. The distinction between content and viewpoint is crucial in free-speech law: Government can’t discriminate against disfavored viewpoints even when regulating unprotected speech such as “fighting words.” It is therefore telling that the list focuses on content. One may protest that “otherwise objectionable” could include objectionable viewpoints. But it is obviously a catchall, and following a list of types of content, it would seem to refer only to additional objectionable content.

Yes. The government cannot discriminate. But these platforms are not "the government." Again, this has been covered. By the Supreme Court. Just recently.

The tech companies could argue that the catchall is still ambiguous. But at stake is viewpoint discrimination by vast companies that are akin to common carriers, whose operations function as public forums, and that are carrying out government speech policy. Are we really to believe that a mere ambiguity should be interpreted to mean something so extraordinary?

And, if my fairy godmother spun around on her toes three times quickly while sprinkling magic fairy dust in the air, maybe I could fly.

Section 230’s text offers the tech companies less shelter than they think. It protects them only from damage claims and not at all when they go beyond a constitutional reading of the statute.

Yes. If they relied on misreading (c)(2) and totally ignored (c)(1) as you did. But they don't. So I don't think they're afraid.

The implications are far-reaching. As litigation comes before the courts, they will have to decide the limits of Section 230 and the lawfulness of privatized censorship. In the meantime, some state legislatures will probably adopt civil-rights statutes protecting freedom of speech from the tech companies. Recognizing that such legislation isn’t barred by Section 230, lawmakers in several states are already contemplating it. One way or another, Section 230 does not, and will not, bar remedies for government privatization of censorship.

The implications are not far reaching. Litigation has already come before the courts. And those state laws that are being proposed, should they ever become law will be tossed out as unconstitutional under the 1st Amendment.

Columbia Law students, I feel sorry for you.

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Filed Under: 1st amendment, content moderation, philip hamburger, section 230


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  • icon
    That One Guy (profile), 1 Feb 2021 @ 11:58am

    Bad or really bad

    And the streak of liars attacking 230 with nothing but dishonest arguments and claims continues, you'd think if the law was really so bad someone would have come up with an honest argument against it by now but I guess people will have to keep waiting.

    I think the 'funniest' part of this train-wreck is that as far as I can tell the best case scenario is that this 'law professor' is so grossly ignorant and incompetent that they need to be fired immediately and everyone who was taught by them needs a refund for having been provided such an unqualified teacher, because the alternative would seem to be massive amounts of dishonestly and willingness to just make shit up to further their own ends, just like a large chunk of the other people attacking 230.

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  • icon
    Stephen T. Stone (profile), 1 Feb 2021 @ 12:08pm

    Someone could copypaste that entire article into the comments here and it would read like one of the rantings of our usual trolls. That’s both hilarious and pitiful.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Feb 2021 @ 5:58pm

      I graduated Stanford Law four years ago. Is must now re-contemplate my value to society and apologize to everyone I ever attempted to make feel smaller for having gone to what I considered to be a 'lesser school'.


      The off-colored smoke coming from my backyard fire pit me taking care of a few a sweatshirts I can no longer wear....

      It appears as though this expensive blend of paper must have undergone some sort fire-resistance process during its production...

      Who would have had the foresight to do something like that to the paper their degrees are printed on.

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  • icon
    ECA (profile), 1 Feb 2021 @ 12:28pm

    State vs broadcast?

    REALLY want to go there?
    well we do have STRICT, collection of laws For broadcast TV. And those old underground Papers(the Adult type) were underground for reasons.

    And the ideal of Disturbing content, Should not really matter Unless its beyond the need in a story.

    This part gets me
    "distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves. "

    Truth? really? We have been lied to for along time. From gov. backed adverts to HELP major groups, like EAT MEAT, DRINK MILK, and many others. Our gov. Politics learned allot from WWII, and After, about Perception and Propaganda.
    What do you do when you DONT want to be seen as Fallible.
    As soon as you consider those in our Gov. as Perfect you have Fooled yourself.

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  • icon
    Uriel-238 (profile), 1 Feb 2021 @ 12:33pm

    To be fair

    The WSJ been shambling down the path to FOX-Newsist right-wing propaganda rag since the aughts if not the eighties (when I read my grandfather's subscription).

    And like CBS and Sixty Minutes it has every reason to throw shade on the internet while its gatekeeper-cred dwindles away.

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  • identicon
    Anonymous Coward, 1 Feb 2021 @ 12:57pm

    muzzles them in the increasingly electronic public square

    Where is this electronic public square? I mean, when I post on twitter, I am in their walled garden, post on Facebook, same thing. Oh, and Youtube too. And all the other sites not listed here.

    I have never found an electronic public square, I have only ever found businesses allowing me freely access their property, so long as I follow their rules.

    NO SHOES, NO SHIRTS, NO SERVICE.... still works in the electronic world.

    Why is this concept so difficult for people to understand?

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    • identicon
      Anonymous Coward, 1 Feb 2021 @ 1:02pm

      Re:

      Why is this concept so difficult for people to understand?

      They understand it, but they believe that they have the right to convert society to their political views, and to do that they have to be able to go where the people are.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Feb 2021 @ 1:24pm

      'The problem can't be me so it must be the platform.'

      Why is this concept so difficult for people to understand?

      It is difficult to get a person to admit to understanding something when their entire argument depends upon their real or feigned ignorance of it.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 1 Feb 2021 @ 3:07pm

      Re:

      The sites are willing to let the posts stand, except for certain conditions.
      You cant blame, or shame OTHERS, unless you have PROOF, and not from OTHERS OPINIONS.
      Cursing? NOPE
      derogatory ramblings? nope

      ANd if you are willing to post it, you are willing to read the Comments BACK to you, and MAYBE, be willing to respond or prove your facts(?).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2021 @ 1:00pm

    Star Chamber

    … And even the Star Chamber required…

    And earlier in the material, Prof. Hamburger is quoted as saying, “Seventeenth-century censorship, which the First Amendment clearly prohibited…”.

    Now, that 17th century, even limited to 17th century England (& possibly extending to Wales), is a pretty big place. A pretty big place — that not everyone here today is quite as familiar with as the North American colonists of the 18th century were.

    Just to get your bearings in 17th century England, I'd remind everyone that Camera stellata was abolished about 1641.

    In 1641, the Long Parliament … abolished the Star Chamber…

    That year 1641 is just before the English Civil War, and Interregnum,which lasted until the Restoration of the Stuart monarchy in 1660.

    So, I'd suggest that folks might want to divvy up their understanding of 17th century English history — and English legal history — into three parts—

    • Before the Civil War
    • During the Civil War
    • After the Civil War

    That division may help people to put things that are mentioned into a little bit of context.

    Seventeenth-century England is a pretty big place.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2021 @ 1:28pm

    Online moderation can be valuable, but this censorship is different. It harms Americans’ livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves.

    Um in not "influencing elections" one of the major ideas that people should be able to do with the 1st amendment? I mean, he might have a point if the platforms themselves were speaking false information to influence elections... but then again lying still isn't a crime.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Feb 2021 @ 5:54pm

      Re:

      I call it an accidental outburst of honesty or a Freudian slip - they don't want anyone to be able to influnce an election not a part of their circle.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2021 @ 1:30pm

    I hope Professor Hamburger's brain tumor treatments go well. Clearly he is suffering greatly.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2021 @ 1:33pm

    Licensing Act 1662

    Seventeenth-century censorship, which the First Amendment clearly prohibited, was also imposed largely through private entities, such as universities and the Stationers’ Company, England’s printers trade guild.

    One useful principle applicable in a wide variety of circumstances is — read the statute. Start with the statute.

    After the restoration of the Stuart monarchy in 1660, as Deazley says

    … the question of how best to control the press during this period of political and constitutional readjustment inevitably came to the fore.

    And he goes on to say—

    In substance, the Licensing Act represented a return to the Star Chamber Decree of 1637, albeit now established under the authority of parliament.

    There are two readily available copies of the 1662 Licensing Act (14 Car.II, c.33) online that I sometimes reference:

    Anyhow, there is no doubt that the Worshipful Company of Stationers, among other entities, play a significant role in the state censorship regime established under the 1662 Act.

    But before really addressing the question of whether this English censorship regime in the latter part of the 17th century was “largely” “imposed” “through private entities”, I'd encourage folks to read the statute.

    Read the statute first.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Koby (profile), 1 Feb 2021 @ 2:59pm

    Easy Difference

    And, of course, you could easily say that Fox News. Or CNN. Or... the Wall Street Journal has been known to "distort political and cultural conversations" and "influence elections." But I don't see Prof. Hamburger flipping out about that.

    Fox News, CNNLOL, and the WSJ are publishers, not platforms. Platforms have a duty to remain politically neutral; publishers do not.

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    • icon
      Uriel-238 (profile), 1 Feb 2021 @ 3:04pm

      Politically neutral

      FOX News has never been politically neutral. Not when it was started in 1996 and not since.

      Given the duty was never enforced, I'd say it doesn't exist.

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    • identicon
      Anonymous Coward, 1 Feb 2021 @ 3:05pm

      Re: Easy Difference

      "Platforms have a duty to remain politically neutral; publishers do not."

      Do tell.

      I would like to know more bout this duty, or is it doody?

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    • identicon
      Rocky, 1 Feb 2021 @ 3:53pm

      Re: Easy Difference

      Platforms have a duty to remain politically neutral; publishers do not.

      I thought you said earlier that platforms become publishers if they moderate, doesn't that also mean they don't have to be neutral per your argument above?

      Anyway, I'm very interested in knowing more about this "duty". Care to elaborate? Please make it coherent and logically sound in accordance with reality.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        icon
        Koby (profile), 1 Feb 2021 @ 7:44pm

        Re: Re: Easy Difference

        I thought you said earlier that platforms become publishers if they moderate, doesn't that also mean they don't have to be neutral per your argument above?

        It's true, they do become publishers when they engage in biased and bad faith moderation. But they ought to lose their section 230 immunity for doing so. That's why 230 needs reform.

        Anyway, I'm very interested in knowing more about this "duty". Care to elaborate? Please make it coherent and logically sound in accordance with reality.

        "When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum, or free speech dies."

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 2 Feb 2021 @ 12:17am

          Re: Re: Re: Easy Difference

          [Platforms] do become publishers when they engage in biased and bad faith moderation.

          Are you making this up as you go along? Who decides when moderation is biased or done in bad faith?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 2 Feb 2021 @ 3:49am

            Re: Re: Re: Re: Easy Difference

            Moderation is always biased. Even if it has no political biased, it is always biased against "undesirable" (from the moderators perspective) content.

            Non-biased moderation is an oxymoron.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 4 Feb 2021 @ 1:10am

              Re: Re: Re: Re: Re: Easy Difference

              ...and that's not just OK but highly desirable. It'd be a horrifying world if the opinion of a property owner did not play in when it came to who should be allowed or not on that private property.

              Something the alt-right trolls keep forgetting because they're desperate for a world where the majority of the people are forced, by law, to treat racists, bigots and nazis with unearned respect.

              I guess it's a positive sign that being a racist means the person in question will not be welcomed at the table any longer, but less so when the people denying or approving of the holocaust or the confederacy try to proclaim their "victimhood" over being ostracized by the vast majority of the people who aren't monsters.

              reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 2 Feb 2021 @ 12:43am

          Re: Re: Re: Easy Difference

          It's true, they do become publishers when they engage in biased and bad faith moderation. But they ought to lose their section 230 immunity for doing so. That's why 230 needs reform.

          And you support this notion on what? Is there a law that says that someone becomes a publisher if they moderate UGC? Is there a law that says moderation has to be neutral? And the term "bad faith", it fits your comment really well because what you claim is true, isn't.

          "When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum, or free speech dies."

          Forced speech is never free speech, anyone who says that isn't interested in free speech. The above is just a version of "My views trump your rights and I'll take what's yours and make it mine!"

          Disgusting.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            icon
            Koby (profile), 2 Feb 2021 @ 6:46am

            Re: Re: Re: Re: Easy Difference

            Forced speech is never free speech

            Speech said by someone else over a network is not the speech of the network. The concept of "forced speech" is the fraudulent part of section 230. Site operators cannot in good faith claim "I'm being forced to speak!" while simultaneously saying "It's not me who's doing the speaking, so I'm immune from all liability".

            Just as your speech over the telephone is not forced speech onto the telecom carrier, and words printed in a newspaper is not forcing speech onto a paper mill, speech on an internet platform is not the speech of the site operator.

            reply to this | link to this | view in chronology ]

            • identicon
              Rocky, 2 Feb 2021 @ 7:23am

              Re: Re: Re: Re: Re: Easy Difference

              Speech said by someone else over a network is not the speech of the network.

              Exactly, but it seems you didn't dare to go down that particular logical rabbit hole since it would undermine your argument.

              The concept of "forced speech" is the fraudulent part of section 230.

              That concept doesn't exist in section 230, but that doesn't seem to stop you from being disingenuous. Forced speech is forcing others to carry your speech against their wishes.

              Site operators cannot in good faith claim "I'm being forced to speak!" while simultaneously saying "It's not me who's doing the speaking, so I'm immune from all liability".

              Your argument doesn't make sense unless you get what you want, because what you describe above has never happened for the simple reason that sites can moderate as they see fit. If you get what you want, that sites must carry speech they should also be totally immune to EVERYTHING that users post, be it CSAM, terrorist propaganda, white supremacy calling for killing all non-whites etc.

              Just as your speech over the telephone is not forced speech onto the telecom carrier, and words printed in a newspaper is not forcing speech onto a paper mill, speech on an internet platform is not the speech of the site operator.

              A telecom carrier isn't a site on the internet with UGC, you know this but you choose to be disingenuous, or perhaps you are just plain stupid, it's hard to tell. And forcing a newspaper to print words they don't want to cannot be called anything else than forced speech.

              But you got one thing right, speech on an internet platform is not the speech of the site operator, which is why a platform isn't liable for others speech or if they moderate or remove the same. But I guess you will persist in insisting the use of others private property against their wishes is right and proper, just like any other freeloader would.

              reply to this | link to this | view in chronology ]

            • icon
              bhull242 (profile), 3 Feb 2021 @ 5:07pm

              Re: Re: Re: Re: Re: Easy Difference

              Speech said by someone else over a network is not the speech of the network.

              Yes, though it’s worth noting that social media sites are not networks.

              The concept of "forced speech" is the fraudulent part of section 230.

              It’s not a part of §230 at all. It’s part of the 1A.

              Site operators cannot in good faith claim "I'm being forced to speak!" while simultaneously saying "It's not me who's doing the speaking, so I'm immune from all liability".

              It’s about forced association with that speech and forced hosting/possession of that speech. Also, the difference is that defamation liability is on the speaker, not the platform, but the platform can still have rules it can enforce on speech on its platform. This is true of literally every host of others’ speech. (Note: in the case of a newspaper, an article is a work-for-hire, and thus is considered to be the newspaper’s speech as well as that of the author’s, but a letter to the editor gets more complicated.)

              Just as your speech over the telephone is not forced speech onto the telecom carrier, and words printed in a newspaper is not forcing speech onto a paper mill, speech on an internet platform is not the speech of the site operator.

              Those are not analogous. It’s more like a private school determining what speech is allowed in its classrooms or on its bulletin boards or in its newspapers.

              reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 3 Feb 2021 @ 7:29pm

              Re: Re: Re: Re: Re: Easy Difference

              Just as your speech over the telephone is not forced speech onto the telecom carrier, and words printed in a newspaper is not forcing speech onto a paper mill, speech on an internet platform is not the speech of the site operator.

              Wow, that's a shoddy pile of lies anf false equivalences even for you Koby.

              reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 4 Feb 2021 @ 2:15am

              Re: Re: Re: Re: Re: Easy Difference

              "speech on an internet platform is not the speech of the site operator."

              Disingenious bullshit as usual Koby. If a private property owner is not allowed to kick people out of their property it's forced speech - and much, much worse than that.

              It's a shame, really. You are obviously able to make solid arguments on other topics but every damn time the debate starts heading towards free speech you end up regurgitating stormfront Newspeak in bad faith.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Feb 2021 @ 9:41am

          Re: Re: Re: Easy Difference

          "When a commercial platform de facto replaces the public forum, then either free speech must be enforced on that forum, or free speech dies."

          JFC, back to this steaming pile of 💩!! You have never ONCE, NOT ONCE defended your argument about this statement.

          Please have a spine and let's discuss the merits of your statement and how it fits with the 1st amendment.

          Otherwise just stop. Your whole viewpoint relies on this one statement that has no basis in reality, yet you come here over and over and over and over and over and over again spewing the same BS but never backing up your statement with anything other than your feelz.

          I already pointed out earlier that I have yet to find this commercial platform that has replaced the public forum, so if you know of one, please let us know.

          reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 3 Feb 2021 @ 4:55pm

          Re: Re: Re: Easy Difference

          And since they have not become public fora nor have they actually replaced public fora, I see no problem.

          Also, the professor’s article and Techdirt’s article are both about what the law is, not what it should be.

          reply to this | link to this | view in chronology ]

    • icon
      WarioBarker (profile), 1 Feb 2021 @ 3:54pm

      Re: Easy Difference

      Platforms have a duty to remain politically neutral; publishers do not.

      Source? (And no, your asshole doesn't count.)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Feb 2021 @ 4:12pm

      Re: Easy Difference

      No, no they don't. This has been shown over and over and over. (Although no one has ever shown them not to be neutral anyways, so that's a pretty damn moot point.) Also, there is no difference between publishers and platforms (as mechanisms) under the law. Publisher as "the person who wrote or said the thing" is valid, though. But you wish to conflate two things, and then apply a non-existent rule to them.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Feb 2021 @ 4:23pm

      'Platforms shouldn't be allowed to kick the assholes on my side off!', no matter how much you really want it to be, is not in any way a requirement or 'duty', though nice of you to once more show your gross dishonesty and contempt for property and free speech rights.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 1 Feb 2021 @ 4:41pm

      Re: Easy Difference

      Fox News, CNNLOL, and the WSJ are publishers, not platforms. Platforms have a duty to remain politically neutral; publishers do not.

      Why do you keep making this false claim, Koby? You know it's false. It's been explained to you dozens of times.

      At this point, I can only conclude that you are willfully pushing disinformation.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 4 Feb 2021 @ 4:09am

        Re: Re: Easy Difference

        "Why do you keep making this false claim, Koby? You know it's false. It's been explained to you dozens of times."

        Because it's pretty easy to recognize where Koby comes from. On this specific topic he's that well-mannered and soft-spoken alt-right representative getting a table in the bar for his swastika-wearing friends.

        He'll keep pushing the twisted nightmare-fuel pretzel the extreme right keeps trying to sell as "free speech" as much as he can because he's not here to debate rationally; He's here trying to shame everyone into accepting that everyone with an open platform should be required to lend the nazi their soapbox and a bullhorn.

        In other words he's peddling troll rhetoric in bad faith and will continue to do so as long as it concerns "free speech".

        reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 3 Feb 2021 @ 4:47pm

      Re: Easy Difference

      Show me where in the law it says that platforms have such a duty.

      Note: the points you’re quoting are about what the law (allegedly) is, not what they think it should be.

      reply to this | link to this | view in chronology ]

  • identicon
    bobob, 1 Feb 2021 @ 3:02pm

    The only crack here is what the professor is smoking. I have never understood why anyone would think getting rid of section 230 would be a benefit to free speech, never mind the attempt to apply the first amendment to private organizations.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2021 @ 4:05pm

    Some of the material that can be restricted under Section 230 is clearly protected speech. Consider its enumeration of “objectionable” material. The vagueness of this term would be enough to make the restriction unconstitutional if Congress directly imposed it. That doesn’t mean the companies are violating the First Amendment, but it does suggest that the government, in working through private companies, is abridging the freedom of speech.

    So, Congress, that Congress which has taken to 230-bashing (but can hold no candle to you), that Congress so long under control of the ideocrats who hate 230 from your angle, that is the Congress suppressing speech through somehow getting Big Platform to do it for them?

    What?

    Overall: Yeah, this is how theology works. Wrong profession, mate.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2021 @ 5:11pm

    Near and Blackstone

    Seventeenth-century censorship, which the First Amendment clearly prohibited…

    It may be worth pausing, and emphasizing one point of agreement with Prof. Hamburger.

    In the landmark case of Near v Minnesota ex rel Olson (1931), Chief Justice Hughes wrote about the First Amendment:

    In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. The liberty deemed to be established was thus described by Blackstone . . .

    (Footnote omitted.)

    The pages of Blackstone's Commentaries which are cited by Chief Justice Huges (4 Bl. Com. 151, 152), when read in their context, make clear what Blackstone means to describe. In the sentence immediately following what Chief Justice Hughes quotes, Blackstone writes:

    To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.

    (Footnote omitted.)

    (To read that sentence properly, there's one further significant division of 17th century English history that must be brought forth: The Glorious Revolution of 1688. When Blackstone writes “before and since the revolution”, he's referring to 1688.)

    Summing this point up, “it has been generally, if not universally, considered that it is the chief purpose” of the First Amendment to perpetually forbid any censorship regime such as the one established by the statute 13 & 14 Car.II, c.33 in 1662.

    On this, there is agreement.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 1 Feb 2021 @ 9:20pm

    As AC says above (Licensing Act), read the statute. Or in our case, 1A:

    ... or the right of the people peaceably to assemble

    That's the fifth of six clauses therein. I'm pretty sure that the common definitions of our Founding Fathers still pertain today - peaceful, and assemble. I hope I don't need to go any deeper, yes?

    So, two things spring to mind immediately:

    a) The third clause of 1A (pertaining to speech) is not the heart of the matter, it's the fifth clause that controls whether someone wishes to get together ("assemble") with other people. Since the Supreme Court has declared that a corporation (or other private entity) is a person, and has all rights pertinent thereto, it follows that if a larger, but private, company does not wish to assemble, commune, congregate, meet with, or otherwise entertain a mutual relationship with Rowdy Person X, then there's no way Congress (or any State) can write a law that forces them to do so. That's what we call putting paid to the account.

    b) Being as the word peaceful cannot in any way, shape or form be applied to the Red Hat Insurrection, it follows that each of those participants have mis-construed 1A, and are not gonna have any defense in this matter that relies on any part of 1A. To my mind, about the only defense they'll have that might work is begging for the court's mercy, as they contritely and ardently claim that they drank #45's Flavor-Aid, and are only now waking up to the reality of their actions. Might not be enough, but it's the best I can offer.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Feb 2021 @ 10:20pm

      Re:

      Since the Supreme Court has declared … it follows that…

      I don't think it follows that § 202(a) of the Communications Act of 1934 must necessarily be unconstitutional. That provision prohibitsTitle II common carriers from…

      … subject[ing] any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

      There are similar long-standing prohibitions in federal law whose constitutionality is not seriously doubted these days.

      Iow, I think your premises and logic are too over-simplified.

      But do note what I am not arguing here — I'm not suggesting at all that § 202(a) applies to § 230(f)(2) “interactive computer services”. I'm merely saying that Congress may indeed legislate more freely than your too simple syllogism implies.

      The life of the law has not been logic: it has been experience. ... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

      reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 1 Feb 2021 @ 9:51pm

    On a separate note:

    ... distorts political and cultural conversations, influences elections,

    We have a name for that, it's called "political discourse". The winner is the one who infuses a distortion most like the listener's personal reality.

    ...limits our freedom to sort out the truth for ourselves.

    Don't. Just don't get me started, you won't want to live long enough to hear my full diatribe/screed on the subject. Trust me on this one.

    reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 2 Feb 2021 @ 12:16am

    17th Century censorship

    Seventeenth-century censorship, which the First Amendment clearly prohibited…

    My 18th Century parser just crashed

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 2 Feb 2021 @ 9:17am

    "Big Tech" is a begged question

    Wiki says "Big Tech" is Amazon (a store), Google (a search engine, online forms, etc.), Facebook (Yum, social site), Apple (um, they make computers and phones), and Microsoft (they were relevant years ago).

    This not only isn't the same market sector but these companies don't control content. Perhaps FB could count but then you'd have to add IG, Discord, etc.

    There's no "Big Content" and pandering to "cancel culture" Republicans who pretend there is just adds fuel to a fire that should never have been lit.

    E

    reply to this | link to this | view in chronology ]


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