5 ms·

>A state consumer protection law that requires a reasonable person standard before deleting user-generated content. This violates the 1st amendment by compelli

by ikeboy 6y ago

>A state consumer protection law that requires a reasonable person standard before deleting user-generated content. This violates the 1st amendment by compelling speech. If you want to pass such a law, section 230 isn't your biggest obstacle. >All state contract law that would enable legal action to enforce a contract or terms of service that a party felt were violated by the moderator. Nothing in section 230 prevents contract enforcement. In fact, courts that threw out other counts because of section 230 have addressed contract breach counts separately. See e.g. https://blog.ericgoldman.org/archives/2019/12/breach-of-contract-promissory-estoppel-claims-bypass-section-230-but-fail-anyways-yue-v-miao.htm https://blog.ericgoldman.org/archives/2019/12/breach-of-cont... >Even just a state law that says "you must give users a window of 24 hours to export their data and leave." Perfectly permitted. They wouldn't have to display the content publicly, which would mean they're not an interactive computer service for the purpose of that section. For someone making confident assertions about what's obvious, they fail to point to court cases that actually interpret the law that way.

LurkersWillLurk 6y ago
I don't like attacking the author for not being a lawyer (mostly because I am not a lawyer either), but it's quite clear to me that their legal interpretation is completely wrong. To fix the original title: the First Amendment is a censorship law, not Section 230. Or at least, the First Amendment constitutionally protects internet websites that censor their users. It's called freedom of association.
- bilbo0s 6y ago
  More people outside of the legal profession should have an understanding of that freedom. I feel like our educational system concentrates so much on specific freedoms we have that it ignores other limitations we place on our government's powers. The implicit, and well litigated, restriction against limiting freedom of association is an extremely important example of the "forgotten rights". So when lay people run up against it, they assume there must be some kind of corruption going on, when in fact, it's an obvious consequence of constitutional law that everyone probably should have been familiarized with in high school. Of course, that's only the tip of the iceberg when it comes to people misunderstanding the law. As the article that birthed this thread illustrates. Which only reiterates the need for our nation's civics classes to do a better job.
  - crankyoldcrank 6y ago
    How do you stop "freedom of association" from becoming segregation?
- jl2718 6y ago
  What does “freedom of association” imply?
emn13 6y ago
IANAL, but I think you're likely wrong on the first amendment issue. Contract law regularly supersedes first amendment concerns, e.g. even though courts are a part of the government, they are allowed to enforce NDAs. Even outright restrictions of speech are often allowed; there are broad exemptions. e.g. it's OK to regulate noise levels, even if you're shouting protected speech - as long as the regulations are content neutral (and likely a host of other tests courts apply - again, IANAL). A state law regulating such contracts - which is in essence what this might be, as they concern EULAs - especially to the really limited extent that we're talking merely about not deleting content for a short period of time, in a content neutral fashion - that doesn't shout first amendment issue to me anyhow. Even if it required (or strongly promoted) keeping content up, I'm not sure there would be an issue (though there might be). Here, e.g. a quick google finds a link (hopefully a reliable source, but I'm not vouching for it...) about the kind of things that can survive a first amendment challenge: https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions https://www.mtsu.edu/first-amendment/article/1023/time-place... - sounds to me like requirements to keep content online temporarily to allow for dispute resolution would be no less impermissible that the converse which is already in the DMCA (effectively albeit indirectly requiring content to be taken down upon the mere accusation of copyright infringement). Also, the part about the takedown requests should give some idea as to technicalities that in effect regulate speech while technically not doing so, and those could be applied here too - DMCA after all does not require compliance with takedown requests, it merely makes it economically non-viable to fail to comply, even if the request is in bad faith. While the first amendment may be spiritually related to laws like this, I'm not convinced it's a serious impediment either way, even if the outcome is a pretty serious chilling effect. The loopholes are too large, and the first amendment simply too narrowly focused on government impositions to reliably protect from indirect restrictions. To be transparent: I'm not saying it couldn't be a protection, just that I don't see it as obvious, and since IANAL, I'm not comfortable assuming it's a relevant factor here, although it certainly could be.
- ikeboy 6y ago
  I explicitly pointed out that laws regulating contracts would be fine. That was the second example. The first example made no mention of contracts. Re DMCA, as you note, there's no requirement to take down content after receiving a notice. You can't be held liable for ignoring a notice. You just lose the safe harbor granted by DMCA for those that choose to comply with such notices. OP had three distinct laws that I analyzed separately. I feel like you're conflating it into one mega-law and saying that the first amendment doesn't cover everything. Also, the "reasonable person" standard doesn't sound content neutral to me.

by ikeboy 6y ago

LurkersWillLurk 6y ago

I don't like attacking the author for not being a lawyer (mostly because I am not a lawyer either), but it's quite clear to me that their legal interpretation is completely wrong. To fix the original title: the First Amendment is a censorship law, not Section 230. Or at least, the First Amendment constitutionally protects internet websites that censor their users. It's called freedom of association.

bilbo0s 6y ago
More people outside of the legal profession should have an understanding of that freedom. I feel like our educational system concentrates so much on specific freedoms we have that it ignores other limitations we place on our government's powers. The implicit, and well litigated, restriction against limiting freedom of association is an extremely important example of the "forgotten rights". So when lay people run up against it, they assume there must be some kind of corruption going on, when in fact, it's an obvious consequence of constitutional law that everyone probably should have been familiarized with in high school. Of course, that's only the tip of the iceberg when it comes to people misunderstanding the law. As the article that birthed this thread illustrates. Which only reiterates the need for our nation's civics classes to do a better job.
- crankyoldcrank 6y ago
  How do you stop "freedom of association" from becoming segregation?
jl2718 6y ago
What does “freedom of association” imply?

emn13 6y ago

IANAL, but I think you're likely wrong on the first amendment issue. Contract law regularly supersedes first amendment concerns, e.g. even though courts are a part of the government, they are allowed to enforce NDAs. Even outright restrictions of speech are often allowed; there are broad exemptions. e.g. it's OK to regulate noise levels, even if you're shouting protected speech - as long as the regulations are content neutral (and likely a host of other tests courts apply - again, IANAL). A state law regulating such contracts - which is in essence what this might be, as they concern EULAs - especially to the really limited extent that we're talking merely about not deleting content for a short period of time, in a content neutral fashion - that doesn't shout first amendment issue to me anyhow. Even if it required (or strongly promoted) keeping content up, I'm not sure there would be an issue (though there might be). Here, e.g. a quick google finds a link (hopefully a reliable source, but I'm not vouching for it...) about the kind of things that can survive a first amendment challenge: https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions https://www.mtsu.edu/first-amendment/article/1023/time-place... - sounds to me like requirements to keep content online temporarily to allow for dispute resolution would be no less impermissible that the converse which is already in the DMCA (effectively albeit indirectly requiring content to be taken down upon the mere accusation of copyright infringement). Also, the part about the takedown requests should give some idea as to technicalities that in effect regulate speech while technically not doing so, and those could be applied here too - DMCA after all does not require compliance with takedown requests, it merely makes it economically non-viable to fail to comply, even if the request is in bad faith. While the first amendment may be spiritually related to laws like this, I'm not convinced it's a serious impediment either way, even if the outcome is a pretty serious chilling effect. The loopholes are too large, and the first amendment simply too narrowly focused on government impositions to reliably protect from indirect restrictions. To be transparent: I'm not saying it couldn't be a protection, just that I don't see it as obvious, and since IANAL, I'm not comfortable assuming it's a relevant factor here, although it certainly could be.

ikeboy 6y ago
I explicitly pointed out that laws regulating contracts would be fine. That was the second example. The first example made no mention of contracts. Re DMCA, as you note, there's no requirement to take down content after receiving a notice. You can't be held liable for ignoring a notice. You just lose the safe harbor granted by DMCA for those that choose to comply with such notices. OP had three distinct laws that I analyzed separately. I feel like you're conflating it into one mega-law and saying that the first amendment doesn't cover everything. Also, the "reasonable person" standard doesn't sound content neutral to me.