Social media and the 1st Amendment (Formerly: Trump seeks to punish Twitter) (3 Viewers)

Users who are viewing this thread

    superchuck500

    U.S. Blues
    Joined
    Mar 26, 2019
    Messages
    4,722
    Reaction score
    11,960
    Location
    Charleston, SC
    Offline
    Despite Twitter historically granting Trump far more latitude with violations of Twitter terms of service than average members would get, a recent tagging of a Trump tweet with Twitter's fact-checking tool enraged the president. He announced yesterday that he will take retribution via executive order seeking to remove statutory legal protections in place for social media companies, and instructing his executive agencies (the FCC an DOJ) to formulate plans to take legal action against social media companies for "political bias."

    A draft of the order has been released . . . and it is troubling to say the least.

    According to analysis, the order will "reinterpret" a key provision of the Communications Decency Act (Sec. 230) that previously protected social media companies for responsibility for the content on their sites. That section works by declaring that social media companies are not "publishers" of the content posted by third-party account holders (members) - and it is statutory. The Trump order apparently also instructs the FCC to create regulations to make this new "interpretation" of Sec. 230 actionable against social media companies. In addition, the order apparently instructs the FTC (which is not an executive agency) to report to Congress on "political bias" in social media - and to consider using the reinterpreted Section 230 to bring actions against social media companies for political bias.

    Apparently the order also instructs DOJ to work with state AGs to determine what state laws may be used against social media companies for political bias.

    So yep, a Republican president is attempting to restructure the statutory framework that has allowed American social media companies - which are private business by the way - to grow into corporate giants without having to be answerable in court for the content posted by their members. And will do so based on the notion that private business should be held to some standard of political neutrality.

    Further legal analysis will be needed, but it seems highly suspect on several important grounds (including the fact that Section 230 is statutory and is very explicit - it's not subject to rewrite by executive order). More importantly this idea that "political bias" can be defined and made actionable by federal agencies against private companies seems a patent violation of the First Amendment.



     
    Last edited:
    The shop owner made a copy of the data and then gave it to Rudy Giuliani’s attorney and the FBI per the story. The copying for back-up purposes is legit. The turning over to FBI due to believing a crime has been committed is legit. Giving it to Giuliano’s attorney is going cost him everything he owns. This isn’t hacked data but willful distribution of data he was entrusted with. This isn’t a data breach and pay a fine. This is willful theft and dissemination which should lead to both criminal and civil actions, but I’m no lawyer.
    That doesn't appear to be accurate. Check out the what the invoice says in the last paragraph. The computer shop says that equipment left after 90 days of notification of completed service will be treated as abandoned. In the event of non payment they reserve the right to remove any equipment or parts installed.

    20201014_221652.jpg


    If the owner of the store spends time money repairing the computer and the owner does not pick it up, they are able to recoup what is owned by taking it apart & recovering and selling the parts. I believe that gives them ownership of the computer.
     
    This is interesting to me.

    I am not talking about the actual story the Post published or whether it is mostly true or false or whether it is good reporting or not, etc. But why is Twitter acting like news police? This seems to go against the spirit and the letter of the exemption that they receive from the federal government - an exemption the Post does not receive.

    It's a really interesting question. At various times over the past few months (after this thread began), I have tried to read more about what Section 230 does for internet companies (now most often taking the form of social media sites), how it came about, and whether there's some sense to the idea that Section 230 is a bargain through which the internet company must behave in some neutral or objective manner when it comes to content with a political tinge. While my learning has been superficial for the most part, I think the statute's origin and purpose are important.

    The Communication Decency Act came about when the transition to the internet age was reaching the typical American household, and legislators realized how much porn there was on the internet. Through their study of porn on the internet, they came to realize that other kinds of obscene, violent, or other objectionable material were common, even thriving on the internet. They felt compelled to try to regulate it, to at least keep it in the realm of consenting adults.

    At the same time, caselaw was applying print media distinctions between publisher (who could face liability for its content) and a distributor (whose third-party relationship with the content creator gave it better defenses to liability for that content). A court found the internet company Prodigy to be a publisher, in part because it actually did quite a bit of moderating of the content on its site. In a separate case, CompuServe was found to be more like a distributor and not liable for content on its site.

    These decisions suggested that content moderation came with enhanced civil liability exposure - so to avoid the Prodigy result, these companies should refrain from content moderation. This result was bad for business, as the big internet sites wanted to be mainstream and family friendly so that they would be welcomed into American households to revolutionize life in America, while driving a new boon for American business. The result was also contrary to Congress' desire to bring safeguards for porn and other obscene material to the 'wild wild west' of the internet.

    Section 230, the result of the marriage of these interests, does two things (for the purposes of this discussion). First, it resolves by statute that internet companies that host content created by third parties are not publishers of that content - this solves the caselaw problem of application of print media nomenclature to the internet. And second, in the interest of encouraging internet companies to regulate obscene and other objectionable content, it provides immunity from civil liability for good faith efforts to restrict 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."

    Twenty-five years later, we now have the question of whether internet companies are doing too much content regulation - the very thing that Congress wanted them to do - such that they should lose their statutory civil immunity from liability for the content on their sites. And this is because figures from one political party think that ostensibly apolitical content-regulation tools (such as content that is contrary to public health standards or recommendations, or content that appears to be the product of a crime such as hacking or theft) are being unfairly and disproportionately applied to content they support.

    Personally, at the moment at least, I fail to see how content regulation goes against the "spirit and the letter" of a law designed, in fact expressly stated, to encourage content regulation based on the view of the site and its users . . . even if the material in question is constitutionally protected.

    In addition, I don't think that having content regulation aimed at ostensibly apolitical interests rises to the point of "editorial control" that would transform a social media company from an operation that primarily hosts third-party content into one that so sufficiently controls its content that it is a publisher. So even without Section 230's statutory protections, a social media company could likely make a very strong argument that it is a content-hosting site and not a publisher, based on the billions of messages that go without regulation or filter - and regulating content that could be detrimental to public health or the product of criminal activity doesn't rise to the level of 'editorial control and judgment' and 'treatment' of issues that mark a publisher like the Washington Post.

    In other words, taking away Section 230 doesn't mean that social media companies now have civil liability for content on their sites that is created and posted by a third party - the statute just turned a civil defense into statutory immunity and resolved any gray area. And none of that actually goes to the principal complaint that the social media companies are acting politically . . . they can still regulate content as they wish and is their First Amendment right. So it wouldn't actually solve the complaint, it wouldn't compel those companies to allow th content in question - it would only be an attempt to punish them for perceived political bias.

    Taking punitive action to free the courts to find Twitter and Facebook liable for defamation or copyright infringement for content posted by users as a response to perceived political bias in what is really just a very small set of actions by those companies just seems crass to me. And I suspect there would be unintended consequences.

    Nonetheless, it's statutory and not likely to be repealed any time soon. So unless there's a basis to rule it constitutional, it's not likely going anywhere. But that's a whole new conversation.

    Goodness I didn't set out to type this much.
     
    Last edited:
    What I find amusing is that the same people who were unswayed by the evidence in Trump's impeachment are losing their minds over this "smoking gun" e-mail.
    Now we know why the Democrats and their friends in the media freaked out over the Ukraine Trump phone call. They were worried that Biden’s(and I'm sure others) corruption in Ukraine would be exposed.

    Pure projection.
     
    If this smoking gun had any chance of its credibility holding up, Trump would have released it before now. This is a last ditch effort by the Trump campaign to plug the wholes in their sinking ship.
     
    Like I said in the other thread, it doesn’t matter what it says. It matters the narrative that can be built around it. The Clinton and DNC emails were the most inane and boring stuff when taken in context. People didn’t read them though, they were told what they said and they bought it.

    I'm not willing to say this isn’t a game changer yet. It will depend what narrative they can build around it. They don’t have to change a lot of minds, just a few thousand here or there.
     
    It's a really interesting question. At various times over the past few months (after this thread began), I have tried to read more about what Section 230 does for internet companies (now most often taking the form of social media sites), how it came about, and whether there's some sense to the idea that Section 230 is a bargain through which the internet company must behave in some neutral or objective manner when it comes to content with a political tinge. While my learning has been superficial for the most part, I think the statute's origin and purpose are important.

    The Communication Decency Act came about when the transition to the internet age was reaching the typical American household, and legislators realized how much porn there was on the internet. Through their study of porn on the internet, they came to realize that other kinds of obscene, violent, or other objectionable material were common, even thriving on the internet. They felt compelled to try to regulate it, to at least keep it in the realm of consenting adults.

    At the same time, caselaw was applying print media distinctions between publisher (who could face liability for its content) and a distributor (whose third-party relationship with the content creator gave it better defenses to liability for that content). A court found the internet company Prodigy to be a publisher, in part because it actually did quite a bit of moderating of the content on its site. In a separate case, CompuServe was found to be more like a distributor and not liable for content on its site.

    These decisions suggested that content moderation came with enhanced civil liability exposure - so to avoid the Prodigy result, these companies should refrain from content moderation. This result was bad for business, as the big internet sites wanted to be mainstream and family friendly so that they would be welcomed into American households to revolutionize life in America, while driving a new boon for American business. The result was also contrary to Congress' desire to bring safeguards for porn and other obscene material to the 'wild wild west' of the internet.

    Section 230, the result of the marriage of these interests, does two things (for the purposes of this discussion). First, it resolves by statute that internet companies that host content created by third parties are not publishers of that content - this solves the caselaw problem of application of print media nomenclature to the internet. And second, in the interest of encouraging internet companies to regulate obscene and other objectionable content, it provides immunity from civil liability for good faith efforts to restrict 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."

    Twenty-five years later, we now have the question of whether internet companies are doing too much content regulation - the very thing that Congress wanted them to do - such that they should lose their statutory civil immunity from liability for the content on their sites. And this is because figures from one political party think that those ostensibly apolitical content-regulation tools (such as content that is contrary to public health standards or recommendations, or content that appears to be the product of a crime such as hacking or theft) are being unfairly and disproportionately applied to content they support. I just fail to see how content regulation goes against the "spirit and the letter" of a law designed, in fact expressly stated, to encourage content regulation based on the view of the site and its users . . . even if the material in question is constitutionally protected.

    In addition, I don't think that having content regulation aimed at ostensibly apolitical interests rises to the point of "editorial control" that would transform a social media company from an operation that primarily hosts third-party content into one that so sufficiently controls its content that it is a publisher. So even without Section 230's statutory protections, a social media company could likely make a very strong argument that it is a content-hosting site and not a publisher, based on the billions of messages that go without regulation or filter - and regulating content that could be detrimental to public health or the product of criminal activity doesn't rise to the level of 'editorial control and judgment' and 'treatment' of issues that mark a publisher like the Washington Post.

    In other words, taking away Section 230 doesn't mean that social media companies now have civil liability for content on their sites that is created and posted by a third party - the statute just turned a civil defense into statutory immunity and resolved any gray area. And none of that actually goes to the principal complaint that the social media companies are acting politically . . . they can still regulate content as they wish and is their First Amendment right. So it wouldn't actually solve the complaint, it wouldn't compel those companies to allow th content in question - it would only be an attempt to punish them for perceived political bias.

    Taking punitive action to free the courts to find Twitter and Facebook liable for defamation or copyright infringement for content posted by users as a response to perceived political bias in what is really just a very small set of actions by those companies just seems crass to me. And I suspect there would be unintended consequences.

    Nonetheless, it's statutory and not likely to be repealed any time soon. So unless there's a basis to rule it constitutional, it's not likely going anywhere. But that's a whole new conversation.

    Goodness I didn't set out to type this much.
    There is a lot of good info in here. I will start by pointing out that one of the problems I have with this issue is that it is not just one political party is trying to end social media's protections. Biden has called for an outright repeal of Section 230.
    The OP in this thread is about Trump wanting to look at limiting and perhaps even overturning section 230 protections.

    Further, it is true that without sec. 230 social media companies still have defenses - but that is not exactly an ideal situation for may of them considering the costs and uses of resources preventing and defending potential actions.

    Having said all of that - I do think you make a very good point about one of the purposes of the law being content policing. Courts have noted the discrepancy in Congress treating sites like a simple provider but then encouraging active interventions in content.
    My thought is to tie immunity closely with lack of intervention except in very clearly defined situations (active encouragement of direct violent harm, racis/sexist/ethnic/sexual orientation PERSONAL attacks, reveng pics/stories, etc.) But that would obviously present difficulties to the extent that immunity was not clear - which could turn out to be a lot. Such would then, perhaps, defeat the whole idea of immunity in the first place.
     
    Now we know why the Democrats and their friends in the media freaked out over the Ukraine Trump phone call. They were worried that Biden’s(and I'm sure others) corruption in Ukraine would be exposed.

    Pure projection.
    Trump's corruption was clearly exposed. The NYP expose is... not as interesting at this point. I just think it's funny that people who defended Trump's malfeasance are [MOD EDIT - let's find another verb] with outrage over the NYP piece.
     
    Last edited by a moderator:
    If this smoking gun had any chance of its credibility holding up, Trump would have released it before now. This is a last ditch effort by the Trump campaign to plug the wholes in their sinking ship.
    Only a sucker would by this and their biggest mistake is that they didn't hold on to it longer. They've had it for about a year already, why couldn't they hold it for 2 more weeks?
     
    That's not accurate. The NYT only said that the people who obtained Trump's taxes had legal access to them. Trump's taxes were Illegally leaked to the NYTs.

    I'm so surprised that Twitter didn't apply their policy to Trump's tax returns.

    All of the information The Times obtained was provided by sources with legal access to it. While most of the tax data has not previously been made public, The Times was able to verify portions of it by comparing it with publicly available information and confidential records previously obtained by The Times.

    If I’m not mistaken, there were no images of the tax returns posted. Twitter is objecting to publishing email addresses and other private information contained in the NY Post story.
     
    I am not sure I buy that. It makes some degree of sense on its face, BUT - I think the key is to make the distinction between information about a public figure vs. a non-public one. I think, for instance, Twitter would and should link to a piece containing an illegally-gotten- video or a picture of Trump smoking crack and/oer the mayor of Washington DC smoking crack. Me smoking crack? - not so much.
    Now, is Hunter Biden on that same level - or public enough (perhaps "in the public interest" enough) to think its newsworthy?

    On its own - the son, even the adult son, of the VP/former VP could be legitimately censored imo. But with the questions of access and the political story behind all this makes me think censoring it is too much of a "political" decision, or at least too much of an appearance of one.

    I haven’t looked at the emails, but presumably there are just regular people’s email addresses, and other personal information on there. 🤷‍♀️
     
    Now we know why the Democrats and their friends in the media freaked out over the Ukraine Trump phone call. They were worried that Biden’s(and I'm sure others) corruption in Ukraine would be exposed.

    Pure projection.

    It is projection all right, just not in the direction you see it.
     
    There is a lot of good info in here. I will start by pointing out that one of the problems I have with this issue is that it is not just one political party is trying to end social media's protections. Biden has called for an outright repeal of Section 230.
    The OP in this thread is about Trump wanting to look at limiting and perhaps even overturning section 230 protections.

    Further, it is true that without sec. 230 social media companies still have defenses - but that is not exactly an ideal situation for may of them considering the costs and uses of resources preventing and defending potential actions.

    Having said all of that - I do think you make a very good point about one of the purposes of the law being content policing. Courts have noted the discrepancy in Congress treating sites like a simple provider but then encouraging active interventions in content.
    My thought is to tie immunity closely with lack of intervention except in very clearly defined situations (active encouragement of direct violent harm, racis/sexist/ethnic/sexual orientation PERSONAL attacks, reveng pics/stories, etc.) But that would obviously present difficulties to the extent that immunity was not clear - which could turn out to be a lot. Such would then, perhaps, defeat the whole idea of immunity in the first place.

    It's a good point (and one that I was neglecting last night in my post) that there has been criticism of Section 230 from Democrats as well. I think that I'm just not sure that Section 230 is the best tool to address any of those complaints. To be sure, Section 230 was never intended to be a bargain (i.e. "if Internet Company wants civil liability immunity, Internet Company cannot regulate content of a political nature"). That's just not in the history nor the text, in fact, it's quite the opposite (as we both acknowledge). I think it's particularly persuasive that Section 230 puts the onus on the internet company to define, for itself, what is objectionable content - demonstrating that Congress never intended to require some objective or neutral standard.

    I'm still not sure that there's a problem. These are commercial sites, with shareholders - and that means that the company's primary operating objective is financial performance. And because none of the content in question in any of these episodes was created by the social media companies (it is always third-party content), that means that it is available from other sources, just a click or search away. Content regulation on Twitter or Facebook isn't censorship, it doesn't make the content go away, it only limits the ease of dissemination that those platforms provide. And that's really what the complaint is: your platform has succeeded so strongly that it has become the most efficient and powerful tool of disseminating information, and when you (Twitter or Facebook) limit access to some content, that content doesn't get the benefit of that dissemination tool. But where does the idea come from that these commercial enterprises have a duty to provide that access?

    When half of my Facebook feed threw a fit over Facebook's 'censoring' of that ridiculous America's Frontline Doctors video, many said that they would simply leave Facebook. Well that certainly seems like a good measure to me - if Facebook's content regulation activities drive enough users away, Facebook's financial performance will suffer.

    Similarly, as Conor Friedersdorf (Atlantic conservative columnist) pointed out, Twitter's determination regarding the NY Post Hunter Biden story would have kept the Pentagon Papers story off of Twitter. But is this really a problem? The Pentagon Papers story was available exclusively from the New York Times and then from both the Times and the Washington Post; the American public didn't need Twitter for the Pentagon Papers story to be read and talked about everywhere.

    But all of that said, if these companies have become "too big and powerful", then we have anti-trust laws for that. At the same time, Section 230 was the result of a determination by Congress that legislation was needed - and Congress can certainly revisit that policy determination. I don't think it would be unconstitutional for Congress to remove Section 230's protections, Congress was the one that provided them in the first place. But I think they should be very careful about how they do it.
     
    Last edited:
    Agree totally that the marketplace is the appropriate avenue to express displeasure with these social media companies. They are not abridging anyone of their “rights” by declining to host certain content.

    If a social media company is posting information that may endanger national security, that presents a stickier issue. Other than that, they should be able to do as they wish as far as moderation.

    It’s not exactly social media, but I am reminded of what is starting to happen to the Save the Children charity. When Qanon got booted from some social media platforms, they are attempting to take over the Save the Children organization on line. Save the Children is a legitimate organization, as far as I know, and they should be able to protect themselves from being taken over by a fringe group.
     
    If this smoking gun had any chance of its credibility holding up, Trump would have released it before now. This is a last ditch effort by the Trump campaign to plug the wholes in their sinking ship.

    That's my take as well. This is "Comey's Letter 2.0." Let's release something just before the election that looks bad so that it will sway some voters even though nothing will come from it.
     
    I am not sure I buy that. It makes some degree of sense on its face, BUT - I think the key is to make the distinction between information about a public figure vs. a non-public one. I think, for instance, Twitter would and should link to a piece containing an illegally-gotten- video or a picture of Trump smoking crack and/oer the mayor of Washington DC smoking crack. Me smoking crack? - not so much.
    Now, is Hunter Biden on that same level - or public enough (perhaps "in the public interest" enough) to think its newsworthy?

    On its own - the son, even the adult son, of the VP/former VP could be legitimately censored imo. But with the questions of access and the political story behind all this makes me think censoring it is too much of a "political" decision, or at least too much of an appearance of one.

    My understanding is that Facebook and Twitter aren't blocking the information from being shared on the basis that it is not newsworthy. I do think that a picture of Hunter Biden smoking crack (or meth or whatever is in his pipe) is newsworthy. I think he is a public figure, even if involuntarily.

    But the basis the sites have used for blocking the information is that the pictures, etc. are "hacked materials" and their rules prohibit the sharing of hacked materials. I won't rehash the circumstances of how Giuliani came into possession of all of this stuff (I did in another thread), but it doesn't take Sherlock Holmes to figure out that the materials forming the basis of the NY Post story were obtained through hacking. They are trying to discourage people from illegally hacking other people and then posting the hacked information online. That is not in and of itself a political stance--you may recall a number of years ago when a website popped up with nude pictures of celebrity women that had been hacked from the Apple cloud, and Facebook and Twitter would be very reasonable in preventing their platform from being used to spread that information. But after the 2016 hacking scandals it obviously may be used in political circumstances. The issue keeps coming up in the context of Trump's campaigns specifically because Trump's campaigns have now in both elections have sought, obtained, and distributed hacked information.

    It leads to interesting questions. I don't think Facebook and Twitter not wanting to spread hacked information is unreasonable. But since the information has already been reported by an outlet--albeit a New York tabloid which has relied on stories from Trump and Giuliana for decades--is the censorship of the NY Post story really about the sharing of hacked information or is it censorship of the press? I'm not saying that the NY Post has a First Amendment right to have its stories discussed in social media, but I completely understand why we should be wary of these social media sites doing this. Is it reasonable for these cites to conclude that the information was hacked to begin with when the NY Post is reporting that Giuliani obtained the stuff through bizarre and questionable means that may not technically be "hacking" is his story is accepted at face value? Should these cites be evaluating the credibility of people like Giuliani? I don't know what the "right" answers to any of these questions raised by this are.
     
    That's my take as well. This is "Comey's Letter 2.0." Let's release something just before the election that looks bad so that it will sway some voters even though nothing will come from it.

    to borrow @nolaspe line- the cake is baked already.

    It really is. They are in desperation mode ( See Lindsey Graham ) and throwing everything at the wall to see what will stick.
     
    I hope that is correct. Someone said earlier that they needed to release this stupid hoax later, but I think (hope) they may have waited too long. His behavior at the debate, his crazy response to his own sickness with Covid, the total lack of transparency about his test results. His taxes, his other crimes within the Trump organization coming to light, his refusal to commit to a peaceful transfer of power if he loses. They have people who wouldn’t ordinarily vote democrat saying “enough of this nonsense”. Just give us back a stable government.
     

    Create an account or login to comment

    You must be a member in order to leave a comment

    Create account

    Create an account on our community. It's easy!

    Log in

    Already have an account? Log in here.

    Advertisement

    General News Feed

    Fact Checkers News Feed

    Sponsored

    Back
    Top Bottom