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

[superchuck500]

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.

 

[JimEverett]

Biden is in favor of eliminating Section 230: https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html

 

[Saintamaniac]

Biden is in favor of eliminating Section 230: https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html

Let's see....I was in an uproar that trump tried to use an EC to get rid of 230 because he got called on his lies by Twitter (finally). Now Biden comes out and says he's for eliminating it. Nope, I'm still in an uproar that an unconstitutional EC is being used to try to get rid of 230.

My understanding is that 230 gives social media outlets immunity from lawsuits for things that people post on their sites (3rd Party content). So there is no need for them to sensor false or slanderous material. If it is repealed, they would be responsible for all content and therefore would be forced to delete false information to protect themselves from lawsuits.

Hmmm, so if people want to keep their content out on social media, they better damn well make sure what they are posting is real and true or it will be deleted. How can that be a bad thing?

I'll admit that I wasn't fully up to speed on what 230 was about. Based on trump's record alone, I wasn't in favor of it simply because he was trying to do it in response to twitter fact checking him. Of course, trump being informational and knowledge challenged, he didn't realize that it would mean he was essentially laying the foundation to remove himself from social media altogether. It's a win, win.

 

[JimEverett]

Hmmm, so if people want to keep their content out on social media, they better damn well make sure what they are posting is real and true or it will be deleted. How can that be a bad thing?

I think repeal would effectively end social media. I would like Andrus' opinion on it, but I would imagine this site would not be possible. Why would he risk the liability? And having moderators go through and check every post for legal liability issues before they are ma public would not only be time and cost prohibitive, but would ruin the sort of immediate, up-to-date back-and-forth.
Maybe the huge, billion-dollar companies could make it work, but not anything else.

 

[Zombiewoof]

I think repeal would effectively end social media. I would like Andrus' opinion on it, but I would imagine this site would not be possible. Why would he risk the liability? And having moderators go through and check every post for legal liability issues before they are ma public would not only be time and cost prohibitive, but would ruin the sort of immediate, up-to-date back-and-forth.
Maybe the huge, billion-dollar companies could make it work, but not anything else.

Making message boards responsible for the content posted would effectively end them. It's hard enough to just moderate behavior, so if sites were required to monitor the accuracy of statements and fact check every post, it wouldn't be worth the time you would have to invest to research each statement of "fact." That is one reason why this site doesn't care about the content of a post or the opinion of the poster beyond the behavior of the poster. Someone could post that Kennedy was assassinated by Southern Baptists who didn't want a papist as president and the site doesn't care about the accuracy of the claim. As long as the poster doesn't tell doubters that they are idiots, the post could remain visible without a disclaimer from the site. Making the site responsible for proving the claim to be true or false would be impossible.

 

[Saintamaniac]

I think repeal would effectively end social media. I would like Andrus' opinion on it, but I would imagine this site would not be possible. Why would he risk the liability? And having moderators go through and check every post for legal liability issues before they are ma public would not only be time and cost prohibitive, but would ruin the sort of immediate, up-to-date back-and-forth.
Maybe the huge, billion-dollar companies could make it work, but not anything else.

I guess I had a trumpian moment because I didn't consider all of the possible impacts or rather I didn't fully understand the impact. I can see where that would not be the best thing. My question is why are message boards like this grouped in with social media apps like twitter and facebook? Also, couldn't those apps change their terms of service to make the user liable for the content they post and assume all responsibility? Essentially if you sign up and want access, the onus is on the individual.

 

[Andrus]

I guess I had a trumpian moment because I didn't consider all of the possible impacts or rather I didn't fully understand the impact. I can see where that would not be the best thing. My question is why are message boards like this grouped in with social media apps like twitter and facebook? Also, couldn't those apps change their terms of service to make the user liable for the content they post and assume all responsibility? Essentially if you sign up and want access, the onus is on the individual.

That was my first thought. Below is the General Disclaimer and TOS related to such behavior. It seems to me that if members agree to such terms that the agreement would eliminate any such issues. Suing a site owner after agreeing to such terms doesn't seem to leave the member filing a complaint a leg to stand on. However, I am not attorney, so perhaps I am simply ignorant as to how that would work vs. the repeal/reinterpretation of 230.

That being said, if the General Disclaimer and TOS would not be enough to protect a site owner, and no rewording of either would be sufficient, then that would leave the site owners little alternative other than to either shut down their message boards, or stop moderating posts, leaving these boards a free-for-all.

I guess a lot depends on how the reinterpretation or revision of 230 reads, right?

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[JimEverett]

Currently, the liability rests wholly with the individual - at least that is how I understand it.

Without Section 230, which limits liability, then liability would rest with the individual and the owner of the site - the "publisher."

If I defame someone on Twitter than I, and only I, am liable. Without 230 I would be jointly liable along with Twitter.

 

[surada]

Currently, the liability rests wholly with the individual - at least that is how I understand it.

Without Section 230, which limits liability, then liability would rest with the individual and the owner of the site - the "publisher."

If I defame someone on Twitter than I, and only I, am liable. Without 230 I would be jointly liable along with Twitter.

Would that make Trump liable?

 

[superchuck500]

Matt Gaetz has a tweet comment flagged for glorifying violence. (It can still be seen, behind a consent button - not shared or liked).

 

[superchuck500]

So this guy created a twitter account and started writing tweets that were word-for-word some of Trump's tweets about the protests. Within 12 hours the tweets were flagged and his account suspended, purportedly because the tweets violate twitter's policy on glorifying violence.

Trump's tweets were not flagged.

 

[The moose]

So this guy created a twitter account and started writing tweets that were word-for-word some of Trump's tweets about the protests. Within 12 hours the tweets were flagged and his account suspended, purportedly because the tweets violate twitter's policy on glorifying violence.

Trump's tweets were not flagged.

That is just beautiful.

We have put up with this guy spewing whatever he pleased and governed via tweet and someone else with his exact words doesn't make a day before he is banned.

I for one will love when Twitter is not used like it is.

 

[UncleTrvlingJim]

Would that make Trump liable?

He already is liable. Removing 230 would make Twitter liable along with him. So right now, Joe Scarborough could sue him for defamation and Trump would need to defend himself based on the merits of the case.

 

[JimEverett]

So this guy created a twitter account and started writing tweets that were word-for-word some of Trump's tweets about the protests. Within 12 hours the tweets were flagged and his account suspended, purportedly because the tweets violate twitter's policy on glorifying violence.

Trump's tweets were not flagged.

That does go towards Trump, and others, point about Twitter and social media. If the content written by the President is "flagged" or whatever then it seems easy to conclude that Twitter is publishing a particular political view.

 

[surada]

He already is liable. Removing 230 would make Twitter liable along with him. So right now, Joe Scarborough could sue him for defamation and Trump would need to defend himself based on the merits of the case.

OH good.. Press on Joe Scarborough!

 

[Saintamaniac]

That does go towards Trump, and others, point about Twitter and social media. If the content written by the President is "flagged" or whatever then it seems easy to conclude that Twitter is publishing a particular political view.

I'm not understanding how you are making that jump. If anything, it clearly shows that the POTUS account gets considerable preferential treatment compared to others who say the exact same things that trump tweets. I'd say it goes to the exact opposite of what others and trump point out about twitter and social media. Twitter suspended an account for saying exactly the same things that trump says yet trump's account has not been suspended. Can you go further in your explanation?

 

[JimEverett]

I'm not understanding how you are making that jump. If anything, it clearly shows that the POTUS account gets considerable preferential treatment compared to others who say the exact same things that trump tweets. I'd say it goes to the exact opposite of what others and trump point out about twitter and social media. Twitter suspended an account for saying exactly the same things that trump says yet trump's account has not been suspended. Can you go further in your explanation?

Twitter gets exempted from liability under Section 230 because it is not a "publisher" - it lets users publish content. To the extent that Twitter begins to decide what content is and is not allowed is the extent to which their preferential exemption should be disallowed. I think that is Trump's point about Twitter political bias.
Censoring the content that comes from the President is, at worst, an example of political publishing.

 

[UncleTrvlingJim]

Twitter gets exempted from liability under Section 230 because it is not a "publisher" - it lets users publish content. To the extent that Twitter begins to decide what content is and is not allowed is the extent to which their preferential exemption should be disallowed. I think that is Trump's point about Twitter political bias.
Censoring the content that comes from the President is, at worst, an example of political publishing.

I thought Trump's point was that conservatives get treated more unfairly by Twitter (ie uneven application of the rules). The fake account thing seems to suggest that Trump gets far more leeway. I think that does show that Twitter applies the rules unevenly, but not necessarily along ideological lines.

I think an interesting experiment would be to set up a couple hundred fake accounts, a half hard core left and a half hard core right. Have the accounts use the exact same language but directed at different political opponents and then see what happens.

 

[JimEverett]

I thought Trump's point was that conservatives get treated more unfairly by Twitter (ie uneven application of the rules). The fake account thing seems to suggest that Trump gets far more leeway. I think that does show that Twitter applies the rules unevenly, but not necessarily along ideological lines.

I think an interesting experiment would be to set up a couple hundred fake accounts, a half hard core left and a half hard core right. Have the accounts use the exact same language but directed at different political opponents and then see what happens.

I am sure Trump takes the position that conservatives are treated more unfairly - that is his hope with having the reports of examples of "political bias"

I think the mere fact that Twitter is censoring the content of the President of the United States (when said by someone else) shows that its content regulations are either too broad or are being interpreted too broadly.

Take Matt Gaetz's censored tweet: that is clearly, imo, a political sentiment. To censor something like that is censoring political sentiment that is "mainstream" in the US.

To your point about the experiment. I do think that would be interesting. For example - would Twitter censor a statement saying we need to treat white supremacist groups who advocate and engage in violent political demonstration as terrorists and hunt them down?
Perhaps more to the point - is it the "hunt them down", or "you oot, we shoot" part that is problematic? If so, that seems problematic as well given the nature of our political speech these days.