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Stratton Oakmont v Prodigy Services is only tenuously related to your gripe about websites removing content. Stratton didn't sue Prodigy for taking down posts b

Stratton Oakmont v Prodigy Services is only tenuously related to your gripe about websites removing content. Stratton didn't sue Prodigy for taking down posts by Stratton. They sued Prodigy for not taking down allegedly defamatory posts by users. I asked you to provide a cause of action for "censorship" by a web site. SOvP isn't that. A more recent, federal, and better-fitting case would be PragerU vs. YouTube. There, PragerU sued over their content being remove/restricted. They lost on 230 grounds. But even without 230, they almost certainly would have lost on 1A grounds, because YouTube's exercise of editorial discretion about what content they host is clearly 1A protected activity. Going back to Stratton Oakmont for a moment: I understand the argument that, absent the liability shield in 230, content moderation of less-than-clearly-illegal content would be vanishingly rare. Web sites would seek to avoid potential liability by getting out of the content-moderation business, which would fix your issue. I'm not convinced that would actually be the outcome. Even if it were, I wouldn't enjoy every web site devolving into 4chan-but-covered-in-spam.

deleted 6y ago
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jtdev 6y ago
...and there we have it. If you want to selectively censor lawful content, you should be treated as a publisher.
- timdev2 6y ago
  Okay. But when Twitter or whoever takes your post down, how does treating them "as a publisher" help you? It doesn't. They have a 1st Amendment right to do that.
  - jtdev 6y ago
    Why wasn’t Stratton Oakmont v Prodigy Services overturned on 1A grounds? “... if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They can’t claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.” https://www.city-journal.org/html/platform-or-publisher-15888.html https://www.city-journal.org/html/platform-or-publisher-1588...
    - timdev2 6y ago
      The practical reason it wasn't overturned is that it wasn't appealed (IIRC, they reached a settlement). Had there been an appeal, it's possible the court would have recognized that exercising some editorial control over third-party content doesn't make you into a newspaper-like publisher. They might have set the bar some place like "actual knowledge of the content, pre-publication". That might have created a precedent where there was something resembling distributor liability - where a platform wouldn't be liable unless they were put on notice and failed to take down defamatory speech. That would still be a problem (because it would allow companies to censor critics, even if the criticism wasn't actually defamatory), but at least we wouldn't have incoherent arguments about a non-existent publisher/platform dichotomy. That city-journal piece is pretty awful. For instance, regarding the bit you quoted, they absolutely can claim that 230 protects free speech. Private censorship on private property is free speech. Congress almost certainly can't pass a law that outlaws viewpoint discrimination for web sites that would survive 1A scrutiny. Fiddling with defamation liability to get around the constitution might work, but just because you can doesn't mean you should.

deleted 6y ago

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jtdev 6y ago

...and there we have it. If you want to selectively censor lawful content, you should be treated as a publisher.

timdev2 6y ago
Okay. But when Twitter or whoever takes your post down, how does treating them "as a publisher" help you? It doesn't. They have a 1st Amendment right to do that.
- jtdev 6y ago
  Why wasn’t Stratton Oakmont v Prodigy Services overturned on 1A grounds? “... if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They can’t claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.” https://www.city-journal.org/html/platform-or-publisher-15888.html https://www.city-journal.org/html/platform-or-publisher-1588...
  - timdev2 6y ago
    The practical reason it wasn't overturned is that it wasn't appealed (IIRC, they reached a settlement). Had there been an appeal, it's possible the court would have recognized that exercising some editorial control over third-party content doesn't make you into a newspaper-like publisher. They might have set the bar some place like "actual knowledge of the content, pre-publication". That might have created a precedent where there was something resembling distributor liability - where a platform wouldn't be liable unless they were put on notice and failed to take down defamatory speech. That would still be a problem (because it would allow companies to censor critics, even if the criticism wasn't actually defamatory), but at least we wouldn't have incoherent arguments about a non-existent publisher/platform dichotomy. That city-journal piece is pretty awful. For instance, regarding the bit you quoted, they absolutely can claim that 230 protects free speech. Private censorship on private property is free speech. Congress almost certainly can't pass a law that outlaws viewpoint discrimination for web sites that would survive 1A scrutiny. Fiddling with defamation liability to get around the constitution might work, but just because you can doesn't mean you should.