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While a private company, it gains major legal protections as a platform. If the chooses speech, they are a publisher, which opens them up to legal actions. The

While a private company, it gains major legal protections as a platform. If the chooses speech, they are a publisher, which opens them up to legal actions. They can’t have it both ways. Neither can people saying they are a private company and therefore free of the first amendment.

akersten 7y ago
No, stop spreading this misinformation. A "platform" can moderate all they like (section 230), and they can have it both ways. They can even moderate opinions they don't like. There is nothing wrong with that, and it's how it should work. You are free to ban people for violating your terms of use, you are free to ban them for expressing an opinion you don't agree with, you are afforded this freedom by the First Amendment, because the government may make no law compelling you to speak on behalf of someone else. The "publisher or platform, choose one" line is a lie brandished by those who are trying to instate The Fairness Doctrine 2.0, where private businesses are somehow compelled to be politically neutral in their moderation, which by the way is impossible to define. Remember that the original Fairness Doctrine (which tried to make TV news politically neutral) was found unconstitutional on First Amendment grounds. Private company, their website, their rules. If you don't like it, make your own platform - there's nothing stopping you. (Sidebar, this is in contrast to an ISP where there are often regulations and local laws preventing competition, and enforced neutrality makes sense in that space as a consequence of a government-granted monopoly. That's not how the current FCC saw it when ruling on Net Neutrality, and I think they're wrong - but I'm getting off-topic).
- stevenicr 7y ago
  I think there is some truth to what the P (or gp?) poster is saying, and you mention 230 - which is exactly the part I think he/she was referring to.. "Section 230 says that "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" (47 U.S.C. § 230)." https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act https://en.wikipedia.org/wiki/Section_230_of_the_Communicati... afaik, and simplified, if you have users post words and such to the web via your service, you are not on the hook legally as much if it was you yourself publishing content on your own closed service for example. I have had expensive counsel suggest that not-moderating content may be the best choice in order to not lose these protections in some cases. It took me a bit to realize there is a difference between moderating all content before it's published and moderating after the fact (like takedown requests) I don't agree with the last part of the gp's post, but I also don't think it's spreading misinformation, it's just more complicated now (and with the sesta / fosta adding exemptions to the exemptions, it's even more complex ) I do agree with you that "A "platform" can moderate all they like" and they can have it both ways in some regards... like it's okay to let people upload videos if you take them down when requested by rights holders... you would not be losing all 230 protection, but if you had a moderator manually approve each item before it was published - that may trigger some other liabilities than you'd have otherwise.. the choose one line may be used by some in the way you mention, and I appreciate you adding that thought to the discussion. I believe the line can also be used and applied to many other situations in which it may be the way it should work, or in some cases maybe not - and other's have tried to have it 'both ways' such as cloudflare. Where these issues ultimately lead seem to be in a state of flux, and I think many have been assuming freedoms have been defined and yet they are being chipped away from several fronts / angles. I see more grey areas around this these days then there once was.
  - akersten 7y ago
    Thanks for the reply. You're right to bring up trickier situations like Cloudflare where it's not a government-granted monopoly, but a large 'infrastructure' provider. I deliberately omitted those from my post since it's more contentious territory, even though I still draw the hard-line at "no special government grant to monopolize a market" -> "no requirement to be neutral". A few other thoughts: >> afaik, and simplified, if you have users post words and such to the web via your service, you are not on the hook legally as much if it was you yourself publishing content on your own closed service for example. Yep, that's my interpretation of Section 230 as well. >> I have had expensive counsel suggest that not-moderating content may be the best choice in order to not lose these protections in some cases. It astounds me that counsel would suggest that. Is there any case law to support this? That idea is the "misinformation" I'm specifically referring to. People are saying it without providing any support. As far as I can tell, Section 230 does not say this, and there is no judicial precedent to conclude it. At least insofar as systems where content is not individually approved before becoming available. >> it's just more complicated now (and with the sesta / fosta adding exemptions to the exemptions, it's even more complex ) For what it's worth, I believe SESTA/FOSTA to be unconstitutional, and eagarly await someone brave enough to challenge them. So I don't think those laws existing necessarily imply that this is any more nuanced a problem than before.
    - stevenicr 7y ago
      >> It astounds me that counsel would suggest that. Is there any case law to support this? That idea is the "misinformation" I'm specifically referring to. It gets fuzzy as to whether it's the automated censoring of words, or if it's during the times when human moderators were blocking or approving ads - or some of the hybrid systems approaches, but you will see via this article in wired [1] that agencies specifically went after the moderation discussions to drum up legal criminal cases and civil suits based upon moderation practices. [1] - https://www.wired.com/story/inside-backpage-vicious-battle-feds/ https://www.wired.com/story/inside-backpage-vicious-battle-f... - long article, perhaps do a ctrl+f and find on page "soon issued a series of subpoenas, seeking internal documents that would reveal Backpage’s moderation practices." at this point in the process they also used these holes created in 230 to do asset forfeiture on several other platforms (discussed in same article). Counsel I heard this from is one of the more famous lawyers/attorneys in the country and was paying particular attention to the tactics being employed in these cases. - The advice was given at a time in the middle(ish) of the backpage drama, and before fosta was written / passed - among whatever other changes in and around the country that could affect the advice. Since then, several things have happened that may change the advice, or not.. fosta sesta came to be, I recall an article not too long ago where judges were reigning in civil asset forfeiture in many ways... FAANG assoc was against fosta, then changed their tune for at-this-moment-i-don't-know reasons. So the advice now may be different for different situations. For the moment I still think that somehow someone running a chan type software which has no way to moderate, or even a stock vbulletin / phpbb type thing can claim dumb pipe; 230 protection - yet places that actually do moderate, and from the wired article info it doesn't seem to matter if it's human or auto-erase bad words filters.. these practices can be twisted to create a shadow of doubt to bring troubles. >> I believe SESTA/FOSTA to be unconstitutional, and eagarly await someone brave enough to challenge them. I agree, and same. At a time when politics appear more important than constitutional protections, I think it would be wise for others big and small to be concerned about these things. Future upwardly-wanna-be mobile politicians can use these same attack methods against fbook and others not just as punishment and affordable fines, but as fodder to bring up their careers notoriety / free advertising, which can hurt a brand in ways that they may never recover from. It would not surprise me to see an article like this" https://reason.com/2019/08/26/secret-memos-show-the-government-has-been-lying-about-backpage/ https://reason.com/2019/08/26/secret-memos-show-the-governme... " with all the instances of backpage taken out and replaced with fbook when dems win, or with youtube if conservatives keep getting riled about it. Just outrageous / fictitious examples to consider.

akersten 7y ago

No, stop spreading this misinformation. A "platform" can moderate all they like (section 230), and they can have it both ways. They can even moderate opinions they don't like. There is nothing wrong with that, and it's how it should work. You are free to ban people for violating your terms of use, you are free to ban them for expressing an opinion you don't agree with, you are afforded this freedom by the First Amendment, because the government may make no law compelling you to speak on behalf of someone else. The "publisher or platform, choose one" line is a lie brandished by those who are trying to instate The Fairness Doctrine 2.0, where private businesses are somehow compelled to be politically neutral in their moderation, which by the way is impossible to define. Remember that the original Fairness Doctrine (which tried to make TV news politically neutral) was found unconstitutional on First Amendment grounds. Private company, their website, their rules. If you don't like it, make your own platform - there's nothing stopping you. (Sidebar, this is in contrast to an ISP where there are often regulations and local laws preventing competition, and enforced neutrality makes sense in that space as a consequence of a government-granted monopoly. That's not how the current FCC saw it when ruling on Net Neutrality, and I think they're wrong - but I'm getting off-topic).

stevenicr 7y ago
I think there is some truth to what the P (or gp?) poster is saying, and you mention 230 - which is exactly the part I think he/she was referring to.. "Section 230 says that "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" (47 U.S.C. § 230)." https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act https://en.wikipedia.org/wiki/Section_230_of_the_Communicati... afaik, and simplified, if you have users post words and such to the web via your service, you are not on the hook legally as much if it was you yourself publishing content on your own closed service for example. I have had expensive counsel suggest that not-moderating content may be the best choice in order to not lose these protections in some cases. It took me a bit to realize there is a difference between moderating all content before it's published and moderating after the fact (like takedown requests) I don't agree with the last part of the gp's post, but I also don't think it's spreading misinformation, it's just more complicated now (and with the sesta / fosta adding exemptions to the exemptions, it's even more complex ) I do agree with you that "A "platform" can moderate all they like" and they can have it both ways in some regards... like it's okay to let people upload videos if you take them down when requested by rights holders... you would not be losing all 230 protection, but if you had a moderator manually approve each item before it was published - that may trigger some other liabilities than you'd have otherwise.. the choose one line may be used by some in the way you mention, and I appreciate you adding that thought to the discussion. I believe the line can also be used and applied to many other situations in which it may be the way it should work, or in some cases maybe not - and other's have tried to have it 'both ways' such as cloudflare. Where these issues ultimately lead seem to be in a state of flux, and I think many have been assuming freedoms have been defined and yet they are being chipped away from several fronts / angles. I see more grey areas around this these days then there once was.
- akersten 7y ago
  Thanks for the reply. You're right to bring up trickier situations like Cloudflare where it's not a government-granted monopoly, but a large 'infrastructure' provider. I deliberately omitted those from my post since it's more contentious territory, even though I still draw the hard-line at "no special government grant to monopolize a market" -> "no requirement to be neutral". A few other thoughts: >> afaik, and simplified, if you have users post words and such to the web via your service, you are not on the hook legally as much if it was you yourself publishing content on your own closed service for example. Yep, that's my interpretation of Section 230 as well. >> I have had expensive counsel suggest that not-moderating content may be the best choice in order to not lose these protections in some cases. It astounds me that counsel would suggest that. Is there any case law to support this? That idea is the "misinformation" I'm specifically referring to. People are saying it without providing any support. As far as I can tell, Section 230 does not say this, and there is no judicial precedent to conclude it. At least insofar as systems where content is not individually approved before becoming available. >> it's just more complicated now (and with the sesta / fosta adding exemptions to the exemptions, it's even more complex ) For what it's worth, I believe SESTA/FOSTA to be unconstitutional, and eagarly await someone brave enough to challenge them. So I don't think those laws existing necessarily imply that this is any more nuanced a problem than before.
  - stevenicr 7y ago
    >> It astounds me that counsel would suggest that. Is there any case law to support this? That idea is the "misinformation" I'm specifically referring to. It gets fuzzy as to whether it's the automated censoring of words, or if it's during the times when human moderators were blocking or approving ads - or some of the hybrid systems approaches, but you will see via this article in wired [1] that agencies specifically went after the moderation discussions to drum up legal criminal cases and civil suits based upon moderation practices. [1] - https://www.wired.com/story/inside-backpage-vicious-battle-feds/ https://www.wired.com/story/inside-backpage-vicious-battle-f... - long article, perhaps do a ctrl+f and find on page "soon issued a series of subpoenas, seeking internal documents that would reveal Backpage’s moderation practices." at this point in the process they also used these holes created in 230 to do asset forfeiture on several other platforms (discussed in same article). Counsel I heard this from is one of the more famous lawyers/attorneys in the country and was paying particular attention to the tactics being employed in these cases. - The advice was given at a time in the middle(ish) of the backpage drama, and before fosta was written / passed - among whatever other changes in and around the country that could affect the advice. Since then, several things have happened that may change the advice, or not.. fosta sesta came to be, I recall an article not too long ago where judges were reigning in civil asset forfeiture in many ways... FAANG assoc was against fosta, then changed their tune for at-this-moment-i-don't-know reasons. So the advice now may be different for different situations. For the moment I still think that somehow someone running a chan type software which has no way to moderate, or even a stock vbulletin / phpbb type thing can claim dumb pipe; 230 protection - yet places that actually do moderate, and from the wired article info it doesn't seem to matter if it's human or auto-erase bad words filters.. these practices can be twisted to create a shadow of doubt to bring troubles. >> I believe SESTA/FOSTA to be unconstitutional, and eagarly await someone brave enough to challenge them. I agree, and same. At a time when politics appear more important than constitutional protections, I think it would be wise for others big and small to be concerned about these things. Future upwardly-wanna-be mobile politicians can use these same attack methods against fbook and others not just as punishment and affordable fines, but as fodder to bring up their careers notoriety / free advertising, which can hurt a brand in ways that they may never recover from. It would not surprise me to see an article like this" https://reason.com/2019/08/26/secret-memos-show-the-government-has-been-lying-about-backpage/ https://reason.com/2019/08/26/secret-memos-show-the-governme... " with all the instances of backpage taken out and replaced with fbook when dems win, or with youtube if conservatives keep getting riled about it. Just outrageous / fictitious examples to consider.