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Trump Signs Executive Order on Social Media Bias

Trump Signs Executive Order on Social Media Bias

“We’re here today to defend free speech from one of the greatest dangers”

https://www.youtube.com/watch?v=x_AJWZ01X94

Trump just signed an Executive Order regarding social media bias.

The Wall Street Journal reported:

Speaking to reporters in the Oval Office Thursday as he prepared to sign the order, Mr. Trump accused Twitter of acting as an editor “with a viewpoint” and described the platform’s fact-check of his tweets as “political activism.” He said he would delete his Twitter account “in a heartbeat” if he felt the news media were fair to him.

“We’re here today to defend free speech from one of the greatest dangers,” the president said. He acknowledged the order would likely be challenged in court, but added: “What isn’t?”

Attorney General William Barr, speaking alongside the president, said the Justice Department would draft legislation for Congress on curtailing social-media companies’ liability protections. He said the executive order would return the federal law to its intended scope.

I’ve not seen the text of the Order yet. That will be posted once available. [UPDATE — SEE BOTTOM OF POST FOR TEXT]

Here’s a short clip released by the White House:

Here’s the full signing event, with follow up questioning on other issues as well including mail ballots:

MORE TO FOLLOW

The Trump Campaign released this statement:

“Social media has been allowed to operate unchecked for years while enjoying the protection of federal law. These Silicon Valley giants have set themselves up as the arbiters of truth, censoring or labeling posts they disagree with, but they have shown that they cannot be trusted to be honest and fair. We have known for a long time that social media companies have it in for conservatives in general and President Trump specifically. There are various reasons we pulled our massive advertising spending from Twitter months ago, and their obvious political bias is one of them. In the most recent egregious act, Twitter targeted a Trump tweet, but still leaves alone posts from Joe Biden which are obvious lies, and outrageous propaganda claims from accounts linked to the Communist Chinese government. Since social media companies have not appropriately self-regulated to stop the bias on their own, President Trump has stepped in to make sure Silicon Valley is held accountable for trying to manipulate the American people. Good for him and good for America.”

DEMOCRATS AND THE MEDIA REACT

TEXT OF EXECUTIVE ORDER

Executive Order on Preventing Online Censorship

 

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.  Free speech is the bedrock of American democracy.  Our Founding Fathers protected this sacred right with the First Amendment to the Constitution.  The freedom to express and debate ideas is the foundation for all of our rights as a free people.

In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet.  This practice is fundamentally un-American and anti-democratic.  When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.  They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology.  Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms.  As a result, these platforms function in many ways as a 21st century equivalent of the public square.

Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.

As President, I have made clear my commitment to free and open debate on the internet. Such debate is just as important online as it is in our universities, our town halls, and our homes.  It is essential to sustaining our democracy.

Online platforms are engaging in selective censorship that is harming our national discourse.  Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.

Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias.  As has been reported, Twitter seems never to have placed such a label on another politician’s tweet.  As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets.  Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.

At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China.  One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for “human rights,” hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance.  It also established research partnerships in China that provide direct benefits to the Chinese military.  Other companies have accepted advertisements paid for by the Chinese government that spread false information about China’s mass imprisonment of religious minorities, thereby enabling these abuses of human rights.  They have also amplified China’s propaganda abroad, including by allowing Chinese government officials to use their platforms to spread misinformation regarding the origins of the COVID-19 pandemic, and to undermine pro-democracy protests in Hong Kong.

As a Nation, we must foster and protect diverse viewpoints in today’s digital communications environment where all Americans can and should have a voice.  We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.

Sec2.  Protections Against Online Censorship.  (a)  It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet.  Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)).  47 U.S.C. 230(c).  It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.

Section 230(c) was designed to address early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become a “publisher” of all the content posted on its site for purposes of torts such as defamation.  As the title of section 230(c) makes clear, the provision provides limited liability “protection” to a provider of an interactive computer service (such as an online platform) that engages in “‘Good Samaritan’ blocking” of harmful content.  In particular, the Congress sought to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material.  The provision was also intended to further the express vision of the Congress that the internet is a “forum for a true diversity of political discourse.”  47 U.S.C. 230(a)(3).  The limited protections provided by the statute should be construed with these purposes in mind.

In particular, subparagraph (c)(2) expressly addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”  It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that — far from acting in “good faith” to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.  Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike.  When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.

(b)  To advance the policy described in subsection (a) of this section, all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.  In addition, within 60 days of the date of this order, the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:

(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

(ii)  the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:

(A)  deceptive, pretextual, or inconsistent with a provider’s terms of service; or

(B)  taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and

(iii)  any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.

Sec3.  Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech.  (a)  The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms.  Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.

(b)  Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.

(c)  The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.

Sec4.  Federal Review of Unfair or Deceptive Acts or Practices.  (a)  It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.  The Supreme Court has noted that social media sites, as the modern public square, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”  Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).  Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders.  These sites are providing an important forum to the public for others to engage in free expression and debate.  CfPruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).

(b)  In May of 2019, the White House launched a Tech Bias Reporting tool to allow Americans to report incidents of online censorship.  In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints.  The White House will submit such complaints received to the Department of Justice and the Federal Trade Commission (FTC).

(c)  The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code.  Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

(d)  For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order.  The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.

Sec5.  State Review of Unfair or Deceptive Acts or Practices and Anti-Discrimination Laws.  (a)  The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices.  The working group shall also develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.

(b) Complaints described in section 4(b) of this order will be shared with the working group, consistent with applicable law. The working group shall also collect publicly available information regarding the following:

(i) increased scrutiny of users based on the other users they choose to follow, or their interactions with other users;

(ii) algorithms to suppress content or users based on indications of political alignment or viewpoint;

(iii) differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments;

(iv) reliance on third-party entities, including contractors, media organizations, and individuals, with indicia of bias to review content; and

(v) acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated.

Sec6.  Legislation.  The Attorney General shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.

Sec7.  Definition.  For purposes of this order, the term “online platform” means any website or application that allows users to create and share content or engage in social networking, or any general search engine.

Sec8.  General Provisions. (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)    the authority granted by law to an executive department or agency, or the head thereof; or

(ii)   the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

WHAT DOES IT ALL MEAN?

For background, see Eugene Volokh, 47 U.S.C. § 230 and the Publisher/Distributor/Platform Distinction

The EO starts a process, a process that is not likely to change the law in the short term. No new legislation that Trump would want would get through the Democrat-controlled House. And formal regulatory change would take time.

So view this as framing the national debate in an election year. Twitter in particular, but also Facebook, are putting their thumbs on the scale against Trump. He wants you to know that. Now you do.

Also, while media and Democrats are screaming that Trump wants to censor the internet, don’t expect Joe Biden to be able to make much of it, Joe Biden wants to revoke Section 230:

In an interview with The New York Times on Friday, former Vice President Joe Biden called for tech’s biggest liability shield, Section 230 of the Communications Decency Act, to be “revoked, immediately.”

“The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden said. “It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”

This wasn’t the first time Biden criticized the immensely important internet law. In previous interviews with outlets like CNN, Biden has said that “we should be considering taking away [Facebook’s] exemption,” but has never ventured as far as saying that it should be completely “revoked.” The Verge contacted Biden’s campaign to ask if he stands by the statements provided to The New York Times; the campaign did not immediately respond.

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Comments

Social media platforms that are effectively single/central (“monopoly”, utility) solutions steering people with extreme bias, nay prejudice, perhaps bigotry. Oh, well, this is what happens in incestuous markets, where ostensibly independent elements are established as self-appointed authorities with secular incentives for reinforcement.

    daniel_ream in reply to n.n. | May 28, 2020 at 6:32 pm

    Social media platforms that are effectively single/central (“monopoly”, utility)

    No. No, they are not. Facebook, Twitter, Google, etc. are not monopolizing and can not monopolize speech on the Internet. There are dozens of well-known (and thousands of smaller niche) alternatives to all “Big Social Media”.

    The very fact that you are posting here is proof they don’t have a monopoly.

    [many posts about ‘publishing’ and ‘common carrier’ status]

    It’s a legal blog. Go bloody read S.230 before saying asinine things that have nothing to do with the legal principle at hand.

      I didn’t claim they have a monopoly, but you see it in the incestuous effect (e.g. steering, consensus) across disparate platforms that account for the bulk of mainstream communication.

      DaveGinOly in reply to daniel_ream. | May 28, 2020 at 8:21 pm

      This site can easily be buried in a search by any search engine, should the management and engineers at said search engines have such a mind. YouTube is doing this with content creators whose content don’t show up in searches, and whose videos, when quickly garnering thousands of views, don’t show up on the “trending” list, even though they can have tens of thousands more views than anything on the list. Any platform can do this. Why should pundits and content creators have to go to less popular sites (where their viewership will be limited) when they (in theory) have access to the most popular sites (where their viewership may be artificially and unfairly limited by the political bias of the site management – and sometimes only the bias of site engineers)?

      Can anyone who runs a business, say a restaurant or hotel, ban people because of their political beliefs? Or their race? Or sexual orientation? Aren’t those cases of “private businesses that can do what they please” who can’t actually do what they please?
      It would be OK to deny service to someone with a Trump MAGA hat? Or a Biden button? When you run a licensed business, you’re subject to the rules of the state that are imposed on the business, rules that the owners voluntarily accepted with their licenses.

        notamemberofanyorganizedpolicital in reply to DaveGinOly. | May 28, 2020 at 9:22 pm

        So Big Tech has been using the JIM CROW Back of the Bus rule
        for Conservatives then.

          I didn’t realize how bad it was until I tried to search on the latest for Rush’s health status. This was before Fox had posted that the last round of treatment was kicking his butt.

          The search in “Rush Limbaugh’s Health Status” brought up a ton of MSNBC clips with Rachel Maddow talking about Rush and some very dated stuff. I dug deeper and found that he had posted some stuff that was more recent, but it was obviously being downgraded by the search engines.

          Yeah Andy, I work in a fast moving field, and I need accurate searches. About a year ago, I found that https://duckduckgo.com/ was far more accurate than Google who has become so bigoted that their core business suffers.

        daniel_ream in reply to DaveGinOly. | May 28, 2020 at 11:48 pm

        Why should pundits and content creators have to go to less popular sites (where their viewership will be limited) when they (in theory) have access to the most popular sites

        Why should I have to get my editorials published in the South Pudunk News-Intelligencer when I (in theory) have access to the New York Times?

        You don’t have a “right” to use somebody else’s computer for free.

        Why is this such a difficult concept?

          If they show you ads, it’s not free. No, you’re not paying any money to use the platform, but they’re getting paid nonetheless. You pay by watching the ads scattered among the pages you want to see.

          Just like watching the Super Bowl on network television. They’re not putting it on for free, but you’re not paying for the privilege of watching it, either.

          But if your account is suspended, demonetized, deleted, etc., they’re basically taking everything they made off others viewing your content, not paying you your agreed-upon share of the ad revenues (per the Terms of Service agreement), and/or cutting off your access and control of your own intellectual property.

          In any other context, this would properly be called theft. If NBC decided to “demonetize” the Super Bowl and not share the ad revenues with the NFL (the “content creator”), the NFL would sue the crap out of NBC, and rightfully so. It’s obvious enough we wouldn’t even argue the point.

          And what would be the NFL’s recourse? Change platforms and stream it on PornHub instead? Hah!

          You keep saying, “You do not have the “right” to use someone else’s computer for free.” I’m saying, it’s not free — it’s paid for with ad views — and that that “someone else” does not have the “right” to profit off YOUR intellectual property without compensating you, effectively making YOU work for free.

          Why is that such a difficult concept?

          (And you DO have access to the New York Times’ op-ed columns. You can submit whatever you want. But they have a longstanding practice of screening Letters to the Editor, and they receive enough — reams-worth every day — that only a small percentage get published. The submission form has said as much for a very long time. But they haven’t said you can’t try. This is also not a difficult concept.)

      CommoChief in reply to daniel_ream. | May 28, 2020 at 8:38 pm

      daniel,

      In the USA, 100% market share isn’t required to be declared a monopoly under Sherman anti trust act. Nor is a specific amount needed to be guilty of monopolistic practices. All that is needed is to demonstrate that a company can effectively bar or limit actual competition. A company doesn’t even have to act, they could be passive and still run afoul if the ability is shown.

      The EU rules require even less.

      Legal Insurrection is not a competitor to facebook. To suggest that they are is absurd.

        notamemberofanyorganizedpolicital in reply to CommoChief. | May 28, 2020 at 9:27 pm

        Hear. Hear.

        Twice in about a decade the Federal government ruled the Little Rock Arkansas retail grocery market was virtually a monopoly with two big chains (Kroger and. Safeway) dominating and controlling it.

        Think it was in Eighties…..

        daniel_ream in reply to CommoChief. | May 28, 2020 at 11:51 pm

        All that is needed is to demonstrate that a company can effectively bar or limit actual competition

        Which none of the Big Social Media companies can do.

        They can’t. That is literally Not How The Internet Works.

        Every Windows PC sold comes with Not-Google installed as its default search engine. That’s 85% of PCs (so about 50% of personal computing). In order to get to Google you have take deliberate action to change your search engine or download a new, distinct piece of software.

        How in the **** is that a “monopoly”?

          Every Windows PC sold comes with Not-Google installed as its default search engine. That’s 85% of PCs (so about 50% of personal computing). In order to get to Google you have take deliberate action to change your search engine or download a new, distinct piece of software.

          Forget computers for a moment. What if you buy a smartphone?

          Other than a few niche OSs, you’re almost certainly limited to two options: Google (Android) or Apple (iOS). Windows Phone is no longer supported by Microsoft and doesn’t count, nor does the Amazon Phone, which never really took off and is also no longer supported.

          Given the price disparity between manufacturers (you can get a shiny new Google-OS phone for $30, but a new Apple-OS phone costs at least 10 times that), which effectively prices a lot of users out of Not-Google devices.

          The laptop market is similar: Chromebooks (Google laptops) are generally less than half the cost of Windows laptops and less than 1/10 the cost an Apple laptop, and are increasingly common as affordable portable internet devices.

          (As an aside: Did your local school district hand out “school computers” for distance learning? Check the tag. I’ll give you 10-to-1 odds it’s either an iPad or a Chromebook. Where’s that “85% market share” Windows is supposed to have?)

          While you are correct about the desktop PC market — most desktop machines have Not-Google as a default and require a deliberate act to use the Google browser — fewer and fewer users are buying that kind of device for their personal use. Among the available and easily affordable devices, Google is the default and Not-Google takes a deliberate act.

          CommoChief in reply to daniel_ream. | May 29, 2020 at 3:37 pm

          daniel,

          You claim that none of the dominant social media companies are able to effectively bar or limit competition.

          If you don’t mind how about listing the names and market share of the competitors of the following companies/services:

          Twitter

          Facebook

          Google

          Youtube

          FYI – these companies are not in competition with each other in terms of the product/service they provide, so please don’t start that nonsense.

          I eagerly await you providing evidence in support of your argument.

      gospace in reply to daniel_ream. | May 29, 2020 at 1:38 am

      Daniel, you misunderstand the word ‘effectively”.

      Yes, I’m reading this blog and posting on it. But purely as a guest of Professor Jacobson. An uninvited guest, but he’s never asked me to leave. What can I not do here? I can’t sent a private message to you telling you you’re a fool. I can on Facebook. (I won’t use any examples from Twitter- not familiar with it). I can’t post videos. Professor Jacobson and his other invited contributors can. I can post comments. I cannot post a post. I don’t know if comments are deleted for none of mine ever have been. But it’s his private blog and he certainly can. I can’t start or join a private group here. I can on Facebook. There’s no pretension that Legal Insurrection is for everyone. It’s for people who want to read and disqus the narrow topics here.

      On Facebook? I can post about anything. And all of my 186 friends can read it. And if they comment on my post or if I tag them in a picture- with my privacy settings, all their friends can then see it. So I have a potentially huge audience. I belong to 10 public and 13 private groups. 3 of the private groups say right on them if you report any other member of the group to Facebook- you’ll be bounced. I’ve had content removed from my feed a few times for being “Against community standards”. Content that lies undisturbed in the private groups. The group for submariners? If you’re easily offended- stay the f— away. Also another rule there- no political posts. Half naked women, fine. No nips- they don’t actually violate submariner community standards- trust me on that- but they do violate hard and fast Facebook rules.

      On Facebook I can look up other users by name- and friend request them. Some of my friends on are distant relatives I’ve never met, but discovered through ancestry dot com and the internet, then searched Facebook for their names. I can’t look anyone up here.

      Facebook purports to be for everyone. Anyone can join. And interact. Far different from here, Althouse, Instapundit, or any other blog.

      Daniel,
      You would argued a lone rural gas station meant Standard Oil was not a monopoly.
      Look up the meaning of monopoly.

      rhhardin in reply to daniel_ream. | May 29, 2020 at 11:13 am

      Actually, they are a monopoly, by way of Zipf’s law. The top sites get all the traffic and thousands of competitors can’t break in because people go where other people are going.

      Once you have a top site it’s worth a lot to a political operator because it will persist even after you start doing stuff for your side.

      That can mean that you lose some of your private rights to regulation, just as “start your own telephone company” doesn’t save the rights of telephone companies.

      Notice that that sort of regulation doesn’t affect Volokh’s comment section policy, only those of top sites. Volokh can be competed with, twitter can’t.

        Right. It’s like saying, “The only park in town is on privately-owned land, but because of a contract with the city the public is allowed to use it for any lawful purpose. But not you, because we don’t agree with what you say. You can have your First-Amendment-protected political demonstration, but you’ll have to go to the nearest actual public land, which is in the woods 30 miles from here, and there’s nobody out there to hear you but a few kooks. But hey, we’re not really stopping you.”

        Look, if Facebook, Twitter, and YouTube want to be open to everyone, great. In fact, that’s how they advertise themselves and phrase their various Terms of Service agreements.

        But now they have an obligation to actually be open to everyone, and they’ve decided they don’t want that. Instead, they claim violations of their vague, undefined, and ever-shifting “community standards” to selectively remove or demonetize content they don’t like, and because the “appeals” process is entirely in-house, it’s extremely unlikely you’ll get a neutral arbiter to decide.

        If they had been transparent up-front and said, “This is a forum for Democrats, socialists, Islamic terrorists, and the Chinese government,” then removing and demonetizing conservative posts and pages would be fine.

        But they didn’t; they claimed they were open forums where anyone could connect with anyone and everyone else. At best, their censorship is false advertising. At worst, criminal abridgement of free expression.

    ConradCA in reply to n.n. | May 29, 2020 at 6:53 pm

    Maybe the way to handle Twitter is to make them and illegal campaign contributors because of their one side manipulation of speech on Twitter.

Dantzig93101 | May 28, 2020 at 5:14 pm

I look forward to reading Prof. Jacobson’s analysis.

inspectorudy | May 28, 2020 at 5:15 pm

The social media sites were set up to be community bulletin boards where only restricted content would be edited or deleted. With the new act of “Fact-checking”, it becomes the referee and therefore part of the community. This puts them into a different category than was originally structured and calls for different rules for them. Zuckerburg does not want this to happen and has scolded Twitter for its foray into censorship. I do not see any solution to this without all of the media outlets to going back to the simple 1st amendment platform that they started out with.

    Except that Zuckerberg’s Facebook is just as bad about suspending or banning “offensive” accounts as Twitter.

    And just like Twitter, when they’ve decided you might be bad, there’s almost nothing you can do. The “appeals” process is heavily weighted against you, and is entirely self-contained within the company.

    Zuckerberg doesn’t have any room to scold Twitter. “Pot, meet kettle.”

    notamemberofanyorganizedpolicital in reply to inspectorudy. | May 28, 2020 at 6:43 pm

    Speaking of Fascistbook……..

    Fyi

    Whistleblowers at Facebook have filed a complaint with the SEC alleging that the company was aware of illegal activity on its platform, yet failed to notify the proper authorities, according to a report in the Washington Post.

    According to the report, the illegal activity took place on both Facebook and Facebook-owned Instagram, and included the sale of opioids and other drugs, as well as images of child sexual abuse.

    Via the Washington Post:

    The complaint, which was obtained by The Washington Post, includes dozens of pages of screenshots of opioids and other drugs for sale on Facebook and its photo-sharing site Instagram, with some having seemingly obvious tags such as “#buydrugsonline.” It also notes that Facebook has a pattern of taking down content when it is pointed out by media or activists, only to have it reappear later.

    In a sworn statement, the whistleblowers, who include former moderators at the tech giant, said that the material for sale on Facebook-owned platforms included child pornography…

    https://www.breitbart.com/tech/2020/05/27/facebook-whistleblowers-company-failed-to-report-illegal-activity/

Just remove the statutory exemption and let them reap what they sew

    healthguyfsu in reply to MattMusson. | May 28, 2020 at 5:18 pm

    I think that’s what they are doing:

    “Attorney General William Barr, speaking alongside the president, said the Justice Department would draft legislation for Congress on curtailing social-media companies’ liability protections.”

    Milhouse in reply to MattMusson. | May 28, 2020 at 6:58 pm

    1. Trump cannot change the statute. Only Congress can do so, and this congress obviously won’t.

    2. If it did happen this forum we’re using now would have to shut down.

      tphillip in reply to Milhouse. | May 28, 2020 at 7:20 pm

      “If it did happen this forum we’re using now would have to shut down.”

      Of course Milhouse.

      Love the legal essay on how that’s true. A brilliant read. Would recommend.

      /s

      rdm in reply to Milhouse. | May 28, 2020 at 8:35 pm

      Nice try Milhouse. Care to try again?

      Barry in reply to Milhouse. | May 28, 2020 at 9:38 pm

      “2. If it did happen this forum we’re using now would have to shut down.”

      milhouse, always FOS.

      He has a pen and a phone. As we have seen after 8 years of obama, that’s all he needs.

      Andy in reply to Milhouse. | May 30, 2020 at 4:28 pm

      you need to back that up.

      1- this blog silences no political view point
      2- this blog publishes content that is clearly protected by the first amendment- AND is always publicly available anywhere
      3- if the content is not covered by (2), it is opinion, which is still covered by the 1A.

I’m not an attorney and even I understand the issue. By censoring, the socials have abandoned their defense that they are a common carrier and not responsible for what people say. Now they are.

    Milhouse in reply to Pasadena Phil. | May 28, 2020 at 6:34 pm

    No, that is completely wrong. They have never claimed to be common carriers. Section 230 creates a category, interactive computer service, and explicitly gives such services the right to remove any content they find objectionable, without thereby becoming liable for what they don’t remove.

      BierceAmbrose in reply to Milhouse. | May 28, 2020 at 7:03 pm

      Pasadena Phil Wrote:

      “I’m not an attorney and even I understand the issue. By censoring, the socials have abandoned their defense that they are … not responsible for what people say. Now they are.”

      Milhouse Wrote:

      “No, that is completely wrong.”

      Well, it’s part right. Motte n baily is a crappy kind of rhetoric which just pisses people off. And the “right” extended by section 230 is not as you say. Aside from that, spot on.

      I was not making a legal case for describing what just happened. I was just stating in plain English the gist of what Trump and Barr are doing. And true to form, you jump in with your usual pedantry to explain how we can’t succeed. It’s never, ever about how to win is it with you?

      “Trying is the first step to failure.” Homer Simpson

      Could you at least try to be constructive? Just once?

      DaveGinOly in reply to Milhouse. | May 28, 2020 at 8:31 pm

      They have claimed to not be publishers. A publisher is someone who edits content and is responsible for its placement in the public’s view. This is why a network got into trouble with Janice Jackson’s “wardrobe malfunction,” even though the “malfunction” was not wittingly part of the network’s show.

      Facebook and YouTube can’t have it both ways – they’re either a platform, not responsible for content, or they’re publishers, and are responsible for content.

      The platforms also require users to follow the platform’s TOS. This creates an implied contract so that strongly suggests if a user complies with the TOS, the platform will carry his content (only so long as the content it not outright criminal). When a platform boots or otherwise compromises the content of a creator who was abiding by the TOS, that implied contract is breached. This can lead to actual damage to the content creator (such as loss of income). How about “fraud in the inducement”?

        notamemberofanyorganizedpolicital in reply to DaveGinOly. | May 28, 2020 at 9:36 pm

        Their very deliberate “political” actions of years and years make them PUBLISHERS.

        daniel_ream in reply to DaveGinOly. | May 28, 2020 at 11:54 pm

        Here’s the text of 47 U.S.Code S230(c), since apparently you’re illiterate:

        (1) Treatment of publisher or speaker

        No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

          Katy L. Stamper in reply to daniel_ream. | May 29, 2020 at 9:07 am

          Another Mr. M… Insults everyone as he goes along.

          Read it again, all of it this time:

          (1) Treatment of publisher or speaker

          No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

          When Twitter decided to play “fact-checker” and publish their own opinion, they moved from “interactive computer service” to “information content provider”. They’re not just allowing posts from others, they’re posting their own content, and so they are liable for it.

          Andy in reply to daniel_ream. | May 30, 2020 at 4:32 pm

          When they put their opinion on top either with a tag or by silencing, that statute is no longer logically applicable.

          Can’t have it both ways.

      MarkS in reply to Milhouse. | May 29, 2020 at 9:32 am

      Yes they have, that’s the reason for giving them the libel exemption

healthguyfsu | May 28, 2020 at 5:17 pm

Well, well, I might rejoin facebook…..

….Nah

This is long overdue. Social media needs to be looked at long and hard. It has long been a tool of propaganda and influence peddling. To have them put their own biased personnel in to “police” the posts of others makes them more than just a platform, it makes them publishers.

These tech giants have abused their power (most likely due to an agreement with our government as a means to track and spy on the populous, it’s well known they have sold all kinds of information on everyone who uses these places). It is time to reduce their censorship or find a means to break up their monopoly. They have done a lot of harm to society, far more than the good they might have enabled.

Katy L. Stamper | May 28, 2020 at 5:37 pm

I found the basis for attack by Laura Loomer in her lawsuit which was dismissed this week, weak tea.

A little more imagination should be employed in taking these Achilles down.

Twitter wants all the benefits and protections of being both a private company and a public utility but the responsibilities of neither.

    Milhouse in reply to JohnC. | May 28, 2020 at 6:35 pm

    No, it does not. It has never claimed to be a public utility, and has never claimed any “benefits and protections” of being one, whatever those might be.

      Petrushka in reply to Milhouse. | May 28, 2020 at 6:49 pm

      Well good, then it will not miss immunity from lawsuits.

        Milhouse in reply to Petrushka. | May 28, 2020 at 6:56 pm

        Um, listen to yourself. You’re not making sense. They will certainly miss the immunity the law currently gives them. That immunity does not derive from any purported claim to be common carriers. They have never ever claimed that.

      JohnC in reply to Milhouse. | May 28, 2020 at 6:58 pm

      Actually, I meant to say public platform not utility.
      And I never said they “claimed” it. But they’re going to have to claim something now, all right!

        Milhouse in reply to JohnC. | May 28, 2020 at 7:00 pm

        There is no such status as “public platform”. You made it up out of thin air.

        Their status is “interactive computer service”, just like this forum we are using now. They’re entitled to the same protections that Prof J enjoys, which is the only thing that allows this forum to exist.

          BierceAmbrose in reply to Milhouse. | May 28, 2020 at 7:12 pm

          Twitter posting their own fact check is hardly someone else’s content — they’re in the publishing business, now.

          It’s an open question whether banning particular content, users or restricting their use of common, generally avaialable features (forming Facebook groups, for example) counts as editorial, in the online context. With other technologies it usually does count — you choose what you publish, you’re doing editorial.

          LI, to my knowledge, has actually actively, even produdly asserted responsibility for the content of their articles.

          InEssence in reply to Milhouse. | May 28, 2020 at 10:31 pm

          LI doesn’t edit or censor comments. They allow both yours and mine. Twitter doesn’t allow my comments, and I stay within the TOS.

          A “public platform” or whatever you want to call it, was defined by the DMCA as “service providers” which is not the same thing as a publisher as you claim.

It’s about time.

Yes!
I am so voting for this guy again!

Just a couple thoughts:

First, social media companies will challenge this in court. It’s inevitable; they won’t take this lying down.

But….

When they do, they’ll no longer be able to claim “common carrier” or “public platform” status ever again.

You can’t sue to keep the right to censor politically-charged content AND claim “common carrier” status. They are mutually exclusive concepts.

It’s like self-defense law; you can’t claim self-defense AND that it was an accident. Self-defense is an inherently deliberate act.

Second, I don’t want to hear again — ever — that the firearms industry has “special legal protections” under the Protection of Lawful Commerce in Arms Act (PLCAA) that “don’t exist in any other industry”. PLCAA was only passed to stop frivolous lawsuits that wouldn’t stand against manufacturers of any other product.

Contrast with social media companies, who have enjoyed broader protections because of their “common carrier status” than gun makers ever did, even as they censored, removed, and banned political content with which they didn’t agree. They have not been neutral, unbiased “common carriers” for a long time, but kept benefiting from legal protections as if they were.

This EO was a long time coming. The “fact-check” in question is just the proverbial straw that broke the camel’s back.

    Milhouse in reply to Archer. | May 28, 2020 at 6:39 pm

    When they do, they’ll no longer be able to claim “common carrier” or “public platform” status ever again. You can’t sue to keep the right to censor politically-charged content AND claim “common carrier” status. They are mutually exclusive concepts.

    They have never claimed such status. Not once. Where are so many people getting such a baseless idea from? I don’t know, and I’d like to.

    Contrast with social media companies, who have enjoyed broader protections because of their “common carrier status” than gun makers ever did […] They have not been neutral, unbiased “common carriers” for a long time, but kept benefiting from legal protections as if they were.

    Again, that is just not true. They have never or claimed that status. Their status is “interactive computer service”, which is exactly the same as this forum we’re using right now. And that status was never intended to preclude political censorship.

      This is something we can discuss. Even absent a claim of “common carrier” status, as an “interactive computer service”, they have the right under S.230 to restrict or block content that it “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”.

      Which section in there covers pro-Trump rhetoric?

      And if it does cover pro-Trump rhetoric, why wouldn’t it cover a Black Panthers call-to-action poster simulating a hooded man in black beheading the Minneapolis officer who allegedly killed George Floyd and calling for all blacks to similarly rise up and kill police? (That’s an actual example my wife recently found.) Why do Al Qaeda, Palestine, Hezbollah, etc., get to keep their accounts as they call for the annihilation of Israel and genocide of Jews?

      Why is the former “otherwise objectionable” and able to be removed, while the latter is “excessively violent” by most objective measures but nevertheless allowed?

      S.230 mentions actions “taken in Good Faith”, but wouldn’t such a consistently one-sided double-standard (Democrats and jihadis good, Republicans and Libertarians bad) support a claim of Bad Faith? If proven, would such Bad Faith actions remove the company from S.230 protections?

      (The Enigma Software Group USA v. Malwarebytes, Inc. decision found that blocking a business rival’s content for anticompetitive reasons is not protected under S.230’s “otherwise objectionable” clause. Anticompetitive purposes are an example of Bad Faith. It’s not a stretch to say that censoring political content you don’t happen to agree with — and therefore have an interest in preventing the content provider’s success — is similarly not protected.)

      Besides which, one impetus behind the EO is Twitter’s supposed “fact-check” of a Trump tweet. This isn’t content posted by a Twitter user; this is allegedly content posted by the Twitter company. They are roaming out of “platform” territory and arguably into “publisher” territory when they do that.

      And “publishers” are liable for content they post themselves, even under S.230, are they not?

        Katy L. Stamper in reply to Archer. | May 28, 2020 at 8:23 pm

        Some creativity and thinking here! Excellent!

        daniel_ream in reply to Archer. | May 29, 2020 at 12:16 am

        The Enigma Software Group USA v. Malwarebytes, Inc. decision found that blocking a business rival’s content for anticompetitive reasons is not protected under S.230’s “otherwise objectionable” clause.

        No.

        That case is a long way from being decided; what you’re citing is the Ninth Circuit (:eyeroll:) denying a summary dismissal motion based on S.230 immunity. Actual Internet law and security professionals have been criticizing the decision (seven of them filed an amicus brief), and when it actually gets to court it could still be decided in favour of S.230 immunity.

          If it’s ultimately decided in favor of Enigma, would that mean that Facebook advertising is required to show ads promoting MeWe as an alternative to Facebook, even though that’s promoting a competitor?

          If it’s ultimately decided in favor of Malwarebytes, would that mean that Facebook advertising is allowed to block ads for Republican politicians while allowing ads for Democrats? How about ads for ballot initiatives/measures?

          What irreparable damage would that do to the political processes, when one side is consistently gifted a far bigger audience than the other?

      daniel_ream in reply to Milhouse. | May 29, 2020 at 12:09 am

      Where are so many people getting such a baseless idea from? I don’t know, and I’d like to.

      I suspect Denis Prager and PragerU. He was banging this drum a year or two back and his videos were full of the most appalling misinformation about it.

      S.230(c)(1) is about as clear as the Second Amendment. It’s not possible to read it and still argue “common carrier” or “publisher liability” absent some kind of head injury.

      One thing this issue has revealed to me is how many soi-disant conservatives are in fact the same grasping, greedy gibs-me-dats they accuse the left of being.

    notamemberofanyorganizedpolicital in reply to Archer. | May 28, 2020 at 7:25 pm

    So it would be as though they are arguing in court that they are not pregnant, only 1/2 or 3/4 pregnant?

In particular, subparagraph (c)(2) expressly addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”

The problem with this order, which will bring it crashing down in the courts, is that it ignores the key phrase in the law: “or otherwise objectionable“. The only possible judge there can be of what is objectionable is the platform owner. For instance nobody would raise an eyebrow if a blog were to delete nazi or white/black supremacist propaganda. If the owner finds it objectionable he has the right to delete it. I’m 100% certain the moderators here at LI would do so in a heartbeat. (Mods, correct me if I’m wrong.) I know they do delete rape jokes, because every time I notify them of one it disappears. They do that because they agree with me that such jokes are objectionable.

By exactly the same token a “progressive” owner may find any conservative comment objectionable, and a conservative owner may similarly find any “progressive” comment objectionable. The government can’t interfere with that decision, and it certainly can’t pick and choose which political content it agrees is objectionable and which it insists is not.

So the law as it stands explicitly authorizes what Twitter, Facebook, Youtube, etc. are doing. The President’s policy can’t change that, and any attempt by DOJ to enforce such a unilateral change is sure to be struck down.

Congress can change the law, but can you imagine the current House doing so?! Obviously any proposed change will be dead in the water until there’s a new congress.

But even then, and even if congress does change it, there’s every chance that the courts will reverse it and restore the status quo ante. They can do so simply by reversing the awful, horrible Prodigy decision (which was a state court decision if I remember correctly), and declaring that the controlling precedent is the one about bookstores, which says a bookstore owner can’t be expected to have read every book he chooses to carry, and therefore can’t be held responsible for what’s in them. And that protection remains even though bookstores can and often do refuse to carry books they don’t like, and they often do so on explicitly political grounds.

Just remember that if this change goes through, this forum will be affected just as much as the big ones. If ICSes are no longer allowed to delete content they find politically objectionable then that will apply to LI too, and every time the moderators delete a comment they’ll have to think three times about whether their objection could possibly be described by a hostile lawyer as political.

    thad_the_man in reply to Milhouse. | May 28, 2020 at 8:11 pm

    I don’t think any one wants to argue “or otherwise objectionable“ in court. To do so might wind up with courts throwing out the whole section under the vagueness doctrine.

    As for the bookstore analogy, the problem is that scoial media companies do search for phrase, and have an active reporting department. Many of these companies also search for keywords and phrases. For example I know that in early days, YT would demonetize videos using the phrase coronavirus. In other words, the social media platforms read hundreds of thousands of their “books”.

    SDN in reply to Milhouse. | May 29, 2020 at 12:19 pm

    However, censoring the POTUS over “violent content” but not the President of Iran calls “in good faith” into question.

    At least for the sane people who will be sitting on juries, which leaves you out, Millie.

    https://twitchy.com/dougp-3137/2020/05/29/man-has-a-point-fcc-chairman-ajit-pai-asks-serious-question-for-twitter-about-these-tweets-from-irans-leader/

      That’s one of the things I’ve been saying.

      Conservative gun owners saying, “We’re here peacefully, but we will defend ourselves,” is “excessively violent” and bad.

      Black Panthers telling their followers to rise up and kill police officers, Al Qaeda/Hezbollah/Palestine/Iran chanting “Death to America” and “Death to the Jews”, Kathy Griffin saying the President should be killed with an empty-syringe embolism (and that she would do it herself if she had the chance), Antifa bragging about beating up Andy Ngo and replaying video of it, etc., etc., all “follow community standards” and are OK.

      That objective and consistent one-sided double-standard calls the “in Good Faith” argument into question.

      And if they’re acting in Bad Faith, does that not revoke their immunity under S.230?

SpaceInvader | May 28, 2020 at 6:56 pm

Does the fact that many of the US tech company leaders are married to Chinese nationals have any impact on their decisions?

While a market (“democratic”) solution is preferred, there are clear and progressive precedents of self-established or virtual authorities (e.g. SPLC, wikipedia.org) that raise concerns about steering, cancellation, diversity, close association (e.g. NYT style guide), etc.

NPR: “One day after the U.S. officially surpassed 100,000 deaths from the coronavirus…”
Yet life, and politics, go on. Get over it.

Richard Blumenthal:
“This Executive Order is egregiously excessive with clearly malevolent intent to suppress free speech.”
No, it’s an attempt to pressure social media platforms to allow people to speak and post freely without any commentary other than what other platform users care to say and post. As usual, if you want to know what’s going on, listen to the liberals and then turn it around 180 degrees.

I guess we’re at this point because legions of progressive trolls have failed to drive viewers away from content they’d rather the people not see. Had they been successful, kibitzing by the platform managment, demonetizing, shadow-banning, other algorithm tricks, and outright censorship/de-platforming wouldn’t be necessary.

Katy L. Stamper | May 28, 2020 at 8:32 pm

All well and good to discuss S.230 etc, but we ought to step back a bit.

The internet is effectively less than 30 years old.

The insrument’s capabilities and characteristics are new and we are learning what can happen. Small sites begin by promising their users freedom and utility, sometimes even the ability to make money, gather huge numbers of users and then with the muscle given to them by said vast numbers of users, renege on the promise to fulfill their own ends.

This is something we need to get right and not leave to the courts to fashion it. It’s far too important to let myopic, experience-limited judges decide between themselves and their law clerks.

The bad behavior of these companies is manifold: deplatforming, removing access to earned funds, killing access to followers or subscribers without notice, shadowbanning…. You name it, they’ve done it.

Perhaps a “Bill of Rights” for users and companies is appropriate. It’s just a totally different medium.

    Excellent point. The technology is developing and evolving far faster than the law and jurisprudence are capable of. I’m shocked that the Communications Decency Act (from which S.230 comes) was enacted as fast as it was.

    There’s no civil or legal penalty for the Big Tech companies to renege on their original obligations to provide an open platform, once they have the power and user base to do whatever they want. (The phrase, “Too big to fail,” comes to mind.) The platforms effectively own the market and can promote or de-list users’ work as they see fit.

    Yes, the users are free to leave and find another platform, but they’re leaving behind everything they’ve ever written or posted, and all the contacts they’ve made and partnerships they’ve developed over time.

    People are naturally and understandably reticent to do that. But under the current law they have no recourse and very little way to effectively keep control of their intellectual property.

    As is usual, the law is playing catch-up with reality, and is already decades behind.

Katy L. Stamper | May 28, 2020 at 8:51 pm

Thinking off the top of my head, a requirement to give any user X number of days notice (15 or 30), that any user will be able to withdraw funds regardless, that any user to be ejected will first be given some type of “hearing” by the company using standards set forth in the Terms of Use, and that said determinations be able to be appealed to a state trial court sitting without a jury, applying the Terms of Use.

Really, I have been surprised that so many users have been kicked off of sites like FB, AFTER SPENDING HUNDREDS OF THOUSANDS OF DOLLARS WITH FB, and have had no recourse.

That isn’t consistent with contract law, recission of contracts, etc.

I’ve been astonished they’ve gotten away with it thus far. You’d think no contract law existed, the way they act.

    daniel_ream in reply to Katy L. Stamper. | May 28, 2020 at 11:45 pm

    I’ve been astonished they’ve gotten away with it thus far.

    They haven’t.

    People whine because Facebook/YouTube/whomever are “demonetizing” their content because they want to use someone else’s computer for free to make money, and they don’t want to abide by the terms of the contract they signed (which generally includes a clause that says Facebook/YouTube/whatever can dump you at any time and cut off your revenue stream. Caveat emptor.)

    People who, for instance, pay Facebook to advertise their content and then get deplatformed do what Steven Crowder and many others have done: they sue for breach of contract, and win, repeatedly, and eventually Facebook stops doing that because it’s costly and invites greater government inspection.

    Understand this: you do not have a “right” to use somebody else’s computer for free. Period.

      Katy L. Stamper in reply to daniel_ream. | May 29, 2020 at 9:11 am

      You act as if we haven’t already gone down this road.

      Under the EMTALA act of 1986, we commandeer hospital facilities for the sick.

      Under tenant-landlord law, we commandeer private buildings for the use of tenants so they are not summarily ejected. Landlords have the natural right, but NO LEGAL RIGHT WHATSOEVER, so engage in self-help and eject tenants. They must go through a legal process.

      It’s more of the same.

      Let me makes this as clear as I can: Nobody uses YouTube for free. You are bombarded with ads that YouTube was paid to show you. That’s the price you pay. Your repeated argument that “nobody has the ‘right’ to use someone else’s computer for free” doesn’t carry water.

      Facebook advertises. Twitter advertises. Instagram advertises. They all make money from your activity on their platform. You pay by watching the ads. (Or are you going to argue that, in the age of airwave television with antennas, you didn’t have the right to view their content for free with commercials? You didn’t pay money for it, therefore they could cut the antenna off your house to keep you from seeing it?)

      YouTube reciprocates by allowing you to earn a small share of the ad revenues for your videos if your videos garner enough views, likes, comments, and channel subscriptions.

      Essentially, they’re making money off your work through advertising, and allowing you to share a small part of it.

      If YouTube demonetizes your videos, make no mistake: they still show them with ads and make money off them, but you are working for free. You still have to “pay” by viewing ads, though.

      And your only recourse is to post your videos to PornHub or some other video-sharing site, where the audience is smaller and fewer people will see it, and you won’t make money from the views.

      Whenever you make your argument about “nobody has the ‘right’ to use someone else’s computer for free,” we could flip that around and say that no company has the “right” to profit from someone else’s work for free, without compensating them for their intellectual property. Yet YouTube does exactly that when they demonetize videos.

IMO, this is a very measured first step by the administration to address the concerns many people have with the dominant companies.

The various federal agencies will put together:
1. Proposed legislation, not for now but maybe in future
2. A unified principle for implementing the existing statute in the interim

It is in these companies best interests to work with PDJT to find an answer that everyone can live with, neither the companies nor the agencies has to love the final answer, just not hate it enough to kill a possible deal.

If you doubt that sentence, the d would love to strip out the liability protections entirely, not to mention tax the snot out of them. Contrast that with the administration and there is a very clear difference in perspective.

Finally, there are many ways to implement and apply any future rule or legislation. Nothing says all websites must be treated to the same level of scrutiny. Banks would be an example of a tiered regulatory framework based upon size and activity.

Eastwood Ravine | May 28, 2020 at 9:20 pm

Everybody knows this was a longtime coming. But because Trump issued it, #OrangeManBad.

The biggest offenses are not overt censorship, but covert spying and shadow banning, and removing credentials (blue check) for political reasons.

    Katy L. Stamper in reply to Petrushka. | May 28, 2020 at 11:12 pm

    I disagree. If you’ve built your business on a platform, and they eject you, without access to your followers, they’ve destroyed potentially millions of dollars worth of assets on caprice.

    Every action they take to diminish a typical law-abiding user in any fashion means knowledge and decision making in the public square are skewed.

    You cannot take one action and say this is the worst. The cumulative effect of all of them is toxic.

      daniel_ream in reply to Katy L. Stamper. | May 29, 2020 at 12:03 am

      If you’ve built your business on a platform, and they eject you, without access to your followers, they’ve destroyed potentially millions of dollars worth of assets on caprice.

      If I operate a VAR (Value-Added Reseller), and the upstream vendor decides to cancel, modify or restrict their product line such that my business can’t function, they’ve destroyed my entire business. That’s entirely legal, it happens all the time, and it’s just one of the many risks you take with a single source vendor strategy.

      You don’t have a right to use someone else’s computer for fr- Oh, why do I bother.

        Katy L. Stamper in reply to daniel_ream. | May 29, 2020 at 9:11 am

        You act as if we haven’t already gone down this road.

        Under the EMTALA act of 1986, we commandeer hospital facilities for the sick.

        Under tenant-landlord law, we commandeer private buildings for the use of tenants so they are not summarily ejected. Landlords have the natural right, but NO LEGAL RIGHT WHATSOEVER, so engage in self-help and eject tenants. They must go through a legal process.

        It’s more of the same.

If only Barr-Boehner was as useful.

LI doesn’t edit or censor comments.

There’s no way you can know that.

But there is a way I can know that you’re wrong. And you are.

    tom_swift in reply to tom_swift. | May 28, 2020 at 11:43 pm

    The usual lurking homunculus has put this in the wrong goddamm place again. The lack of an “edit” feature is becomming tiresome. C’mon, guys, we’re well into the 21st century—we don’t have flying cars, but we do have editing. Or should.

This EO gives instructions to several agencies of the Executive (which is exactly how EOs are supposed to work) but the IRS is apparently not one of those agencies. So PDJT is not proposing mere harassment as a tactic. This is one of the things which distinguish him from his predecessor.

Barry Soetoro | May 29, 2020 at 2:20 am

“This Executive Order is egregiously excessive with clearly malevolent intent to suppress free speech. It is a blatant attempt to use the full power of the United States government to force private companies to lie for the President.”
-Danang Dick Blumenthal

Social justice warriors always lie, and they always project. And, lemmings choose to believe them.

Lots of talking about the statute- but nothing with what it actually says. So, lets dissect it bit by bit.
47 U.S. Code § 230 (a)(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

A true diversity of political discourse. The law apparently approves. Facebook and Twitter are censoring political viewpoints. Hmmm….

Let’s jump to 47 U.S. Code § 230 (c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Pretty straight forward.

Now to (2)Civil liability No provider or user of an interactive computer service shall be held liable on account of—
(A)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;

Ah, here we run into “What does the law mean?” Pretty much there’s going to be little if any argument on obscene, lewd, lascivious, filthy, and excessively violent. Where we run into the interpretation is “Good faith” and “otherwise objectionable”. Are conservative viewpoints, the ones being censored “otherwise objectionable”? Is Facebook acting “in good faith” in removing or banning conservative political content? That’s pretty much no and no. And if the answer is no and no, their actions aren’t protected under 47 U.S. Code § 230. Especially if we go back to the beginning statement The Internet and other interactive computer services offer a forum for a true diversity of political discourse,. They are NOT offering a forum for a true diversity of political thought if they’re censoring or even offering their own opinion on one side of an issue. If they’re offering their own opinion- like Facebook fact checks, which are not fact checks but opinion differences. Their own opinion- making them liable for what they say. Because it’s it’s not content provided by others, it’s content they make and provide.

You also have to look at definitions. 47 U.S. Code § 230 provides protection to interactive computer services. The definition is in the code, and if Facebook simply allows postings from “information content providers” or Facebook users, then Facebook is a protected interactive computer service.

Information content providers are not afforded that protection against liability. That would be, for example, and MSM website, or, on Facebook, a Facebook user. I am not protected against libel on Facebook. But Facebook is protected if I label someone.

Unless Facebook crossed the line from interactive computer service to information content providers. And/or doesn’t act in “good faith” to remove “otherwise objectionable” content.

Facebook gives me a tool to avoid “otherwise objectionable” if I want. I can block idiots and liberals. Oops, redundancy alert! Like most conservatives, I choose not to, hoping that some day they’ll take the red pill. I’ve been blocked or defriended by all but one liberal friend. Liberals do not like forums for a true diversity of political discourse. They like echo chambers.

A case can easily be made that Facebook has crossed from interactive computer service to information content providers. And under 47 U.S. Code § 230 they lose protection against libel and other legal claims if they have. In pre-internet terms, they can be a publisher or a bulletin board. In internet, interactive computer service or information content providers. No hybrids, can’t be both. It’s one or the other. One’s protected against libel, one isn’t.

Either Facebook, etc. are common carriers and thus open to everyone or private web sites–if the latter they should have no legal immunity. That’s the choice–and Zuckerman, etc. should have to choose.

BierceAmbrose | May 29, 2020 at 3:21 pm

Volokh’s first take:

https://reason.com/2020/05/28/first-thoughts-on-the-section-230-executive-order/

Clearly lays out in lawyerly terms the categories, distinctions, n associated legal requirements for publishers, carriers, super-seekret-special internet whatevers that are so muddied n misrepresented in many comments above.

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