After Censorship Outrage, FCC Will Move Forward with Rulemaking to Clarify Free Speech Rights of Social Media Companies
“Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”
Social media platforms, namely Facebook and Twitter, have hidden behind a specific provision, Section 230 of the Communications Act, maintaining that they are platforms, not publishers, justification they’ve used in broad and largely ideologically specific content and user censorship.
Thursday, Federal Communications Commission Chairman Ajit Pai indicated those days may soon come to an end.
In a statement Thursday, Pai said:
“Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set for in Section 230 of the Communications Act. There is bipartisan support in Congress to reform the law. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”
I've informed Chairman @AjitPaiFCC that the @FCC has the legal authority to interpret #Section230. We now intend to move forward with a rulemaking to clarify its meaning. Read the Chairman's full statement below: https://t.co/vHF3y9QOVD
— Tom Johnson (@TomMJohnsonJr) October 15, 2020
Full statement here:
In May, President Trump signed an Executive Order to prevent online censorship in order to “protect and uphold the free speech rights of the American people.”
"Today, I am signing an Executive Order to protect and uphold the free speech and rights of the American people." pic.twitter.com/agTIJ2KR6C
— The White House 45 Archived (@WhiteHouse45) May 28, 2020
Just this week, Facebook and Twitter suppressed a story unfavorable to the Biden family, leading to massive outcry of censorship and ideological favoritism on the part of both publishers.
Facebook and Twitter started this war.
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to the full extent allowed by law.
Methinks Twatter and Farcebook have finally bitten off more than they can chew.
May they choke and gag in two part harmony.
I’ll meet you for a square dance over their graves.
Yay though I walk through the Silicon Valley of the shadow of death…. I will fear no Evil.
Senator Tom Cotton:
Big Tech’s “Winter is Coming”…
Remember: we’re one election away from this going back in the fascist direction.
Some interesting thoughts on that.
“……There is no denying the fact that the four years of the Trump presidency have been unusually tumultuous in the American political history, but if one takes a cursory look at the list of all the Trump aides who resigned or were otherwise sacked, almost all of them were national security officials.
In fact, scores of former Republican national security officials recently made their preference public that they would vote in the upcoming US presidential elections for Democrat Joe Biden instead of Republican Donald Trump against party lines.
What does that imply? It is an incontrovertible proof that the latent conflict between the deep state and the elected representatives of the American people has come to a head during the Trump presidency.
Although far from being a vocal critic of the deep state himself, the working-class constituency that Trump represents has had enough with the global domination agenda of the national security establishment. The American electorate wants the US troops returned home, and wants to focus on national economy and redress wealth disparity instead of acting as global police waging “endless wars” thousands of miles away from the US territorial borders…..
You know what it ‘ultimately implies’? – That almost every person in these ranks is on the take.
Our country is the most corrupt it’s ever been – on every level.
I just call ’em twitface.
How ironic (prescient ) that Winston Smith wrote (rewrote) for The Times. The Gray Lady needs to dig deeper “memory holes” to bury the truth.
Or just stick it up their…….
Huh? Winston Smith was British, and wrote for the Ministry of Truth, which was meant by the author to represent the BBC.
These companies have made a clear case in full public view for regulation and/or break up. Assuming a Trump and r victory they are going to be faced with the pendulum not returning to neutral but pulled as far in the opposite direction as the execs chose to place it currently.
IMO the simplest answer is to allow users to opt in or opt out of whatever these companies deem to be ‘triggering’. Of course that would mean the companies couldn’t control the content…
FB in particular should be worried. It is ubiquitous because of size and scope. Now what happens if Congress says if you take federal dollars you can’t use FB? No more local, state and federal government agencies will have a FB page. No more Universities with FB pages, no more companies with govt contracts with FB pages.
At this point FB would be people posting cat videos and their kids photos. FB really doesn’t want to go down this path.
And yet, according to the NY Post editor who initiated the Biden Family story, it was a Facebook functionary, formerly a DNC functionary, who decided within seconds of the Post putting the article on their Facebook page to put a full Facebook “stop” on the story until a complete review of veracity is completed (as in never). Nobody at Facebook challenged the move and Twitter very shortly after gave the same treatment to any Twittercrap posting, including blocking the President’s Press Secretary from accessing her Twittercrap account.
This blatant censorship was a tremendous blunder. Why, after all this time of pussyfooting around the edges, did they finally jump right into the volcano?
Probably an act of desperation; their magical polls must have told them that the Biden international corruption story will launch a tsunami of pure electoral poison, far worse than we all already suspect.
If they can help put the Dems at the head of federal government, they may survive this. If not, well, good riddance.
Understanding What Foreign Governments are Purchasing From The Bidens – There are Trillions at Stake…
The last Refuge
Desperation. They feared what was coming for them more than what lay below.
Yup. They’re going All In, because they know if Trump wins, they’re screwed anyway.
“Why, after all this time of pussyfooting around the edges, did they finally jump right into the volcano?”
1) They are arrogant, this is common with young successful companies.
2) They are desperate, they know Trump is about to win, and they know that Trump is capable of making their lives interesting.
They jumped in because they expect Biden to win and know there would be no repercussions for what they’ve done.
Totalitarians do what Totalitarians do, they can’t help themselves. No one stopped them before so why wouldn’t they keep going further?
They probably are entitled to immunity denied to newspapers and broadcasters. They’re probably entitled to the same immunity as distributors, such as bookstores. The courts have not yet ruled on it, because Section 230 made it moot; but if that is amended then the case will be brought and we will see how the courts rule. The analogy to bookstores seems unassailable.
But as Justice Thomas pointed out, Section 230 gives them the same protection as distributors have, not more than that, and yet the courts have been interpreting it to give them more immunity, making them immune even when they have specific knowledge of illegal content on their platforms. That congress does not seem to have intended, and there’s no good reason for it. (I don’t mean cases where they’re told content is illegal but they don’t know whether that’s true; I mean cases where they know it’s true, and the plaintiff can prove they knew it.)
You know, I’m really beginning to wonder whether or not the Federal government has the right to grant immunity from State laws, at least as to State laws that grant rights to sue for defamation. In particular, I’m thinking that New York Times v. Sullivan and Section 230 deprive citizens of great protective rights that have existed for hundred and hundreds of years in the U.S and England.
Both the constitution and all federal statutes override state law.
Times v Sullivan says the first amendment forbids certain defamation suits. If the court decided that correctly, then of course that overrides all state laws and the common law. How could it be otherwise? (Of course the court may have got it wrong, but that’s irrelevant to your point.)
Section 230 is a statute, and therefore its constitutionality may be challenged if there are grounds, but unless and until it’s overturned then it too overrides all state laws and the common law.
You can’t say the Constitution overrides State law per se, as it does not expressly outlaw libel and slander actions. Libel laws and common law preceded the Constitution, and the state laws and the Constitution co-existed for many years. As to Federal laws overriding state laws, unless Constitutionally authorized, such an attempt by a Federal statute would violate Federalism and State retained rights. Defamation victims have rights too.
The first amendment prohibits certain libel and slander actions, and it overrides state law. Of course libel laws and the common law preceded the constitution; that’s the whole point, that the constitution comes along and says you can’t have those laws any more. State laws restricting the freedom of speech could only coexist with the constitution until the 14th amendment was ratified, and was then understood to make the basic constitutional freedoms binding on the states. Once that happened the states must give up all laws that violate those freedoms.
And yes, all federal laws override any state law that they contradict. The constitution says so. Of course for that to happen the federal law must be valid — an invalid law is, well, invalid and can’t override anything. When we speak of a law we naturally mean only one that exists, not one that has been fantasized but does not actually exist. All federal laws that exist override all state laws that contradict them.
For your analogy to work…and it doesn’t….said bookstores would have to be dictating to/involved in telling authors what they could or couldn’t say in the books they write ….which is what PUBLISHERS do
Neither Facebook nor Twitter tell people what they can write. They merely decide which content they will refuse to carry — just like bookstores do. They say if you write this we will not carry it — just like bookstores. And the courts ruled long ago that the fact that bookstores are selective about what they carry, and don’t carry books they don’t approve of, doesn’t make them liable for the contents of the books they do carry. They’re not expected to know what’s in every book they carry, and whether everything in those books is legal.
Wrong again….let me lay it out for you…you submit your written material to a publisher….someone who gets your material out to the public…that publisher then looks over what you have submitted and tells you what to change..take out or add BEFORE they will publish…you comply…your material gets out to the public…facebook and twitter… you post information…they shut you down/tell you to change material do not let your material out to public until you make the changes they require..
You are not telling the truth. A publisher does not publish anything that it has not vetted and decided positively to publish. That’s why it’s liable for what it decides to publish.
A distributor does the opposite. By default it distributes everything, except for those things it decides not to distribute. It does not even look at the vast majority of what it distributes. It looks at a small portion, choosing either at random, or by what looks likely to be objectionable, or prompted by other people’s complaints, and it removes what it doesn’t like.
And that is exactly what FB/Twitter/LI do. Everything you post automatically goes out, but some small portion is then examined by a moderator, and of that some small portion is removed. The moderators don’t even look at the vast majority of content, so the distributor can’t be held liable for what it says.
Bookstores don’t require the author to have an account with the bookstore before being able to have a book carried by the bookstore, or denied stocking. That seems to be a rather significant difference you ignore in your comparison. Some rights should accrue to the registered author which an author hoping to have a bookstore carry his book clearly does not have as there is no formal association between the two.
This is completely irrelevant. Having an account is a mere technical requirement, and does not give you any rights. Or do you think having an account with LI gives you rights against Prof J?
making them immune even when they have specific knowledge of illegal content on their platforms.
That’s interesting, but I’m not sure its germane to the issue at hand, which is whether private companies have the right to control what does and does not get submitted to their web site, and whether they can as part of their terms of service require you to give up any and all rights to any content you submit. If they can, then nothing Big Social Media is doing is illegal.
The real issue isn’t that Big Social Media is exercising their private property rights in a way that cranky neo-Luddites don’t like. It’s that competitors like Gab were aggressively suppressed not just by Internet companies but by credit card processors and financial services companies. That seems like it ought to be proscribed, but I’m not sure how; antitrust law really doesn’t apply. Tortuous interference/restraint of trade, perhaps.
Then again, Parler, Minds, thinkspot, Mastodon, etc., etc. all exist and are easily available, which is all the solution that’s needed to Big Social.
Exactly. It’s a completely separate issue. I mentioned it because it is something that Congress can definitely deprive them of, unlike their Section 230 immunity which is very likely to be a constitutional right. So if the Republicans win they may see negative consequences for their outrageous behavior in the next congress.
The other reason I mentioned it was to preempt people citing Thomas’s comments as if they were germane to the current topic. I’ve seen people elsewhere do so. So I pointed out that Thomas was not talking about putting them on the same plane as publishers, but about treating them like distributors, which is what section 230 says they should be.
Obviously they do have both of those rights, and congress can’t take them away. So no, nothing they’re doing is illegal. But there are other things congress can do to them to punish them.
This is, I suppose, the part I struggle with. The current state of affairs is less than ideal, but I fail to see any legal remedy that isn’t going to make things worse.
As someone who has been heavily involved with the Internet since before the World Wide Web even existed and who was involved with the EFF’s efforts to get s.230 passed in the first place, my feeling towards all of this is “this too, shall pass”. I remember MySpace and Friendster and LiveJournal and tumblr. Facebook and Twitter being swaggering pricks to their users is a self-correcting problem. I’m much more concerned about cancel culture and Visa/Mastercard blacklisting Gab and every member of the CEO’s family, or AWS/Azure/GCP all refusing service to ‘deplorables’. I don’t think there is or should be a legal remedy for that, because I can see no such remedy that doesn’t undermine basic free association rights – replacing a smaller problem with a much, much bigger one.
Agreed. But there are things congress can do, to create incentives for them to behave better. Reducing their immunity to the level of distributors should be done anyway; I’m surprised courts have gone beyond what §230 says in that way. If a bookstore can be held liable for stocking a book that it knows for a fact to be illegal, then why should FB/Twitter not be? But also government advertising and use in government offices can be tied to good behavior. I don’t see why congress can’t say “You can either behave as if you were subject to the first amendment, or your site will be blocked from all government-owned devices”.
A couple of points: All the sites you mentioned were sites, not platforms. This makes a difference. I can’t simply go create a duplicate of Twitter – there would be IP complications, and there would be no way to cross-link posts with Twitter (most likely) – and have it compete right alongside. It either has to operate in a parallel environment or it has to try and supplant Twitter.
Facebook is similar, but a little less platformed, as it acts a little more web-like.
And, while I am concerned with free association issues, the problem with banks and such is not the free association side, but the regulatory aspect that raises such high barriers to entry that you can’t easily set up a new bank or credit card company to compete. (Heck, if I had a bankroller and an army of lawyers, I’d set up a credit union right now specifically for gun owners, manufacturers, retailers, and their supporters. Heck, I’d only let you qualify if you owned a firearm – and I’d give you one free if you wanted to sign up. But can’t do it without that very costly army of lawyers.) The same problem with credit cards (and why we haven’t had a new one in 35 years).
Regulation makes several industries no longer freely open and competitive, and thereby demanding more scrutiny of their practices and how they treat their customers. It’s a morass that thickens the more you stir it.
A couple of points: All the sites you mentioned were sites, not platforms. This makes a difference. I can’t simply go create a duplicate of Twitter – there would be IP complications, and there would be no way to cross-link posts with Twitter (most likely) – and have it compete right alongside.
Literally no part of that is true.
This is why I’ve given up. Our side is completely ignorant of the basics of law and the technology underlying the Internet, and refuses to learn.
I’m currently setting up multiple Tor nodes.
unlike their Section 230 immunity which is very likely to be a constitutional right
HUH?! Section 230 protections are based in statute, not the Constitution. You can legitimately claim the statute is based on certain constitutional foundations, but the Section 230 protections could be stripped at a moment’s notice by passed & signed legislation.
I already explained this. Please keep up. It is very likely that section 230 was unnecessary because the immunity it grants is required by the constitution. The Prodigy decision was very likely going to be overturned on appeal. But section 230 made that moot, and saved providers from the uncertainty of litigation. That is all.
The argument that alternatives exist was used by Ma Bell to no avail in the end. And those alternatives were far more viable than any of the internet alternatives. The fact that some puny alternative exists in a market where:
“23 % of the earth’s population has an Active Facebook Account.Facebook claimed its monthly active users for September 2016 to be 1.79 Billion.That means with a global population of around 7.5 billion people, approx. one in every four people use Facebook at least once a month. Facebook’s is no more just a social media network, it’s an economy. An economy whose active users are more than the population of China.”
Yeah, there’s surely reasonable competition for Facebook, which the same article claims (in 2016) was adding a few new users every second.
I was about to add that I didn’t research Twitter, but doubt that market domination of that company is significantly different (though likely a smaller scale for the newer company).
Why is this only happening now, when the threats of big tech have been apparent for awhile?
Is it too little too late? Why does it seem we must clean the mess, rather than try to keep things clean in the first place? Like Trump says, the longer something festers, the harder the cleanup will be.
In any event, hoping things turn out right. Big tech needs to be broken up, like the phone company. The general welfare requires that these private concerns be subjected by law to the same first amendment principles concerning free expression as public concerns.
Then so much the worse for the general welfare. Congress can’t do that. There is no “general welfare” exception to the first amendment. It is a fundamental principle of our nation that no government, anywhere in the world, has the right to do that, no matter what the general welfare requires. Contrary to Hitler, Eigennutz geht vor Gemeinnutz; and our constitution guarantees it.
When I hear “general welfare,” I hear “We’re all in this together;” I hear, “Masks;” I hear, “Public Health,” I hear “Public Policy;” etc.
I hear socialism and control.
Meanwhile over at the DNC-NBC Ambush Show
Reported by Ace of Spades
Savanah Guthrie is aware that she is losing and that she’s making Trump look good and that she will therefore be savaged by the left for Not Getting Trump, like Chris Wallace did.
This is causing her to become more shrill and red-faced and crazed as she tries to bitch herself to a draw.
It’s annoying, and it’s pissing me off, but it will not work. People can see what she’s doing — being a real hostile leftwing propagandist bitch — and they can also see it’s not working, and that Trump is answering reasonably and reassuringly.
This kind of quick, decisive action – contrast it to AG Barr’s bullsh-t.
And Barr is all bullsh*t.
So, the FCC is going to push Twitter and Facebook into suing?
Too little, too late.
12 Business days to the Election.
Have the papers been served?
I doubt it.
And, one single contest, and the 12 days are gone.
You ever see a Court do anything in 12 days?
Oh, they are good in being obstructing activist’s when you have a loose nut Judge…
But here in the real world…
Nothing is going to happen in 12 days.
Barr has done less in over 2 years.
Here’s what you get when your press corps knows you’ll murder them if they piss you off (nonetheless, it is touching):
Blind Teen Journalist Asks Putin For Permission To Touch Him:
Per The Blaze, Twitter is backing down and allowing the Biden story to be posted.
After reading the article and the comments, I’ve come to the conclusion that the Republic is doomed. If a legal blog run by a tenured law professor and its followers can get basic facts of law and Internet technology this wrong just because they’re angry their free sh*t is being taken away, then there’s no hope. I’m going to get drunk and watch the whole thing burn.
Keep those binders on and you do you…
So, by the time they act, the election will be over and if the D’s win that’s the last we’ll hear of this.
This is how Republic’s turn into Banana Republics.
What’s the first thing Hugo Chavez did when his socialist Party won an election in Venezuela? Took control of all of the major news outlets in the country. After that, the opposition had no chance. One move, and his Party is in power until the people start a Revolution and take their country back by force.
Here, the media is already in the bag for the Socialists. But, the internet has proved an effective counter to that. So, Google, Facebook, Twitter – all effective monopolies, put their thumbs on the scale. Control web search results effectively neuters Conservative media – difficult, sometimes impossible, to find any of their articles at all. Liberal press reports always dominate the top of all search results. Youtube censors videos that hurt D’s and demonitizes channels they dislike – no ad revenue for Conservative channels. Twitter and Facebook shadowban outrageously, and now they are flat out banning accounts and individuals that dare report the biggest news on the planet. A month before the election.
D Potus, and guess what: D majority FCC. We all saw how that worked with Obama in office. The D members of the board are political activists first, Americans never. Anything to help the Party maintain power permanently, zero concern for free speech.
It just amazes me that adults are arguing over adolescent interfaces.
It is absolutely insane to ignore the power of these tech companies. They have the power to see to it that you cannot hear the voices of literally anybody they want unless you talk to them in person or on the phone. That is incredible.
The conservative movement wouldn’t even exist without 1-2 radio programs early on and internet presence today.
you cannot hear the voices of literally anybody they want unless you talk to them in person or on the phone.
I’m not using a phone right now.
That is not how the Internet works. At all. Four web sites are not All Of The Web, and the Web is not All Of The Internet.
The fundamental problem with this issue is nobody on our side has even the faintest idea how the Internet works and is unwilling to learn.
Believe it or not, in the Before Time, Facebook and Twitter did not exist (gasp!). People paid money (double gasp!) to “hosting providers” for “servers” and ran their own sites on their own computers.
There are times when I feel like I’m living in some sort of weird post-apocalyptic movie, with tribes of Neolithic humans living in the ruins of the advanced technology all around them yet ignorant of its potential, using Compaq desktops as hammers and Cat5e cables as necklaces.
Educate me. I’m really good at molecular biology, not the internets. What is stopping 3-4 large telecoms from blocking me from viewing this website? What is stopping 3-4 telecoms from dropping traffic to websites like this dramatically by making this website harder to find?
I found this website by googling information about Trayvon Martin. How hard would it be for Alphabet, Microsoft, and Yahoo to decide to bury this website on page 28 for matches?
And how are people supposed to find those paid-for websites? There are only two methods I know of on the WWW: search engines and word-of-mouth. (Or, I suppose, paying for placement on some other website, like the old Prodigy setup.)
Having said what I said, I will also agree with this. Why are most people even on Twitter? Or Facebook? While there is some legitimate uses for them both, an awful lot of what they enable is middle school gossip and catty name-calling and “oooh, burned!” sorts of immaturity.
I’m on facebook because all of my family members are on facebook and it serves as an easy way to keep up between visits. I wish we would use something else, but I am alone in seeing their evil.
I am alone in seeing their evil
The best move the FCC could make regarding Tech censorship: simply tell them “if it’s legal, it stays.”
Thus removing the ability of every blog to curate comments, forcing every tiny web site like this to go to moderator-approved comments?
That’s a bold plan, Cotton, let’s see how it works out.
It would be worse than that. Not only would all comment sections everywhere need pre-moderation, but the moderators would need legal training, would need to spend more time considering each comment before approving it, and would need to err heavily on the side of censorship.
Effectively it would make forums like this one impossible.
Worse than that, it would force sites like Wikipedia, IMDB, and youtube to shut down. Anything with user-supplied content and any degree of moderation would have to switch to using paid editors to pre-approve everything, just like a publisher.
Of course, IMDB and Wikipedia ARE publishers. (And Wikipedia is technically curated, if badly.)
No, they are not publishers. They are interactive computer services, made possible by section 230. If they were classed as publishers they would have to shut down.
A few potential solutions for the platforms to:
1. Provide a choice upon sign up. One could choose to be in the wild west version or the safe space version.
2. The platforms could simply revert to unmoderated mode.
3. The platforms could, with a little congressional/regulatory help, decide to turn their moderation efforts exclusively to certain criminal activity; child porn, human trafficking etc
Maybe we could resurrect the Fairness Act? Since it’s a controlled distribution method, with high barriers to entry, they should be forced to give equal time? (That was the justification for the original, I believe. So it was ok for tv, but not applicable to newspapers.)
*walks away from ticking time bomb, whistling*