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The decision[0] gives different logic (quoting from page 85): If a firm’s core business is disseminating others’ speech, then that should weaken, not strengthe

by dpifke 4y ago

The decision[0] gives different logic (quoting from page 85): If a firm’s core business is disseminating others’ speech, then that should weaken, not strengthen, the firm’s argument that it has a First Amendment right to censor that speech. In PruneYard, for example, the shopping mall was open to the public—but for the purpose of shopping, not sharing expression. So it was perhaps tenuous for the State to use the public nature of the mall to justify a speech-hosting requirement. Cf. PruneYard, 447 U.S. at 95 (White, J., concurring in part) (noting that California’s hosting requirement involved communication “about subjects having no connection with the shopping centers’ business”). But here, the Platforms are open to the public for the specific purpose of disseminating the public’s speech. It’s rather odd to say that a business has more rights to discriminate when it’s in the speech business than when it’s in some altogether non-speech business (like shopping or legal education). A point a lot of commenters here seem to be missing is that it would be perfectly legal under the law to ban all discussion of politics, regardless of viewpoint. The law just says that if you're a site with more than 50 million users, you cannot dictate which political parties your users are allowed to write favorably about and ban users for having opposing viewpoints. [0] https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pdf https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd... (PDF)

Kloversight2 4y ago
What's most interesting about this is that, as far as I can tell, no current "big tech" company violates this law.
mikem170 4y ago
This is an interesting precedent! The big social network companies could make the legal argument that they are advertising networks, not free speech networks, and should be able to censor people in order to better fulfil their primary purpose. They would be telling the truth.
taeric 4y ago
That seems like a silly distinction. At a broad level, all discussion can be seen as political. And it is natural for events to be dominated by actions from a side for a time, such that it would be natural for more criticisms of a political party over others at any time. This gets dangerously into the "whataboutisms" of toxic discourse. Especially when they are not presented in at all an even or good faith manner.
- solarmist 4y ago
  What? No they aren’t. A discussion about my week or grocery shopping isn’t political. You can make any discussion political, but that’s not at all the same.
  - taeric 4y ago
    You'd be surprised. Folks will pick brands for political reasons, too. More, folks will band against brands for said reasons. I mean, you are correct that there can be neutral discussions. Typically, neutral isn't as neutral as you'd think.
    - TobyTheDog123 4y ago
      That would be an example of people making something political out of a non-political issue. Both people and companies can be guilty of this. "Oh, I ran into Lucy at the supermarket today" "Awesome, did they have that new brand of ice cream?" "I didn't see it, but they did have a massive sale on strawberries." "Darn, I guess I'll check Market Cart next time I go." --- "Oh, I ran into Lucy at the supermarket today" "Did you hear she voted for Tom?" "Oh... uh, no?" "I dont know how people can enable such evil. Did they have that new ice cream?" "No, but they did have a massive sale on strawberries" "Oh, I heard they donated to Tom, so I don't want it in my house anyways."
      - themitigating 4y ago
        "I ran into Lucy at the supermarket, she told me everything is costing so much because of inflation. She said this is terrible for her family and wonders why the government won't fix it"
    - solarmist 4y ago
      I agree, but you’re being pedantic. Most discussions people have not about political topics wouldn’t be viewed as such even if individual decisions, such as your brand example, were politically motivated.
solarmist 4y ago
Current law doesn’t have machinery to represent this idea, so it makes sense their arguments won’t match. But at the core of all the arguments this is the idea that’s trying to be settled. And really it’s more complicated than all that because it boils down to the algorithm deciding who to show the posts too. An unbiased algorithm is impossible. Show all political messages to all people, now you’ve just incentivized politicians to have multiple people full time jobs be to produce more messages.
- erichocean 4y ago
  > An unbiased algorithm is impossible. False. Twitter's original algorithm (everyone you followed in reverse insertion order) is trivially unbiased. The bias creeps in when they analyze the content of the speech (or who specifically likes it or…). You can 100% do an unbiased algorithmic feed that re-orders (or omits) things. Twitter and Facebook could do it today. They shadow ban and suppress all sorts of things (beyond kicking actual human users off the site).
matthewdgreen 4y ago
If you say "we are going to restrict ourselves [at the Government's insistence] to only moderating non-political speech" then someone will insist that some part of your non-political speech is actually political. And from some perspective they will be right. Then you get to negotiate with the government and the courts about what they consider to be political speech or not. And suddenly you no longer live in a country that has a meaningful First Amendment.
- kelnos 4y ago
  > And suddenly you no longer live in a country that has a meaningful First Amendment. The overarching issue is that I don't see what the first amendment has to do with this at all. Corporations have zero obligations to anyone under the first amendment, which only applies to the government.
  - catiopatio 4y ago
    The intent of the first amendment was to preserve free speech in the public square; "what the first amendment has to do with this at all" is a desire to preserve that underlying societal principle. Section 230 was a give-away to corporations that allowed them to privatize and co-opt the public square; they reap the economic benefit of being shielded from liability for what people post, but none of the responsibility to carry everyone's speech. If we want to preserve free speech in the public square, some form of balance has to be restored, either by: 1. Eliminating the section 230 liability shield that allowed them to privatize public discourse in the first place. 2. Requiring privatized "public squares" to operate more like common carriers. Solution (1) — eliminating section 230 — would likely make it infeasible to run a private website carrying public speech. Texas seems to have attempted a nuanced version of solution (2): in exchange for being granted the privilege of being shielded from liability for the speech they carry, platforms of a size large enough to justify treating them as a "public square" must meet common-carrier-like requirements that prevent them from discriminating based on viewpoint.
    - NegativeK 4y ago
chunkyks 4y ago
Seems easily solved by twitter recalculating their number of users by subtracting the bots, leaving the total users around 49 million and change.
P5fRxh5kUvp2th 4y ago
One other thing I'd like to point out. This is a very classic "the good of society balanced against the rights of the private citizen/organization". This isn't about private corporate rights, it's about the good of society against those private corporate rights. You may disagree with where exactly this lands, but I doubt you disagree with the premise that personal rights must be balanced against the greater good (queue hotfuzz reference). If you think you do, ask yourself if you feel the very idea of hate speech shouldn't exist. There are those who do, but more typically, people just disagree with where that idea lands rather than the idea itself.

by dpifke 4y ago

Kloversight2 4y ago

What's most interesting about this is that, as far as I can tell, no current "big tech" company violates this law.

mikem170 4y ago

This is an interesting precedent! The big social network companies could make the legal argument that they are advertising networks, not free speech networks, and should be able to censor people in order to better fulfil their primary purpose. They would be telling the truth.

taeric 4y ago

That seems like a silly distinction. At a broad level, all discussion can be seen as political. And it is natural for events to be dominated by actions from a side for a time, such that it would be natural for more criticisms of a political party over others at any time. This gets dangerously into the "whataboutisms" of toxic discourse. Especially when they are not presented in at all an even or good faith manner.

solarmist 4y ago
What? No they aren’t. A discussion about my week or grocery shopping isn’t political. You can make any discussion political, but that’s not at all the same.
- taeric 4y ago
  You'd be surprised. Folks will pick brands for political reasons, too. More, folks will band against brands for said reasons. I mean, you are correct that there can be neutral discussions. Typically, neutral isn't as neutral as you'd think.
  - TobyTheDog123 4y ago
    That would be an example of people making something political out of a non-political issue. Both people and companies can be guilty of this. "Oh, I ran into Lucy at the supermarket today" "Awesome, did they have that new brand of ice cream?" "I didn't see it, but they did have a massive sale on strawberries." "Darn, I guess I'll check Market Cart next time I go." --- "Oh, I ran into Lucy at the supermarket today" "Did you hear she voted for Tom?" "Oh... uh, no?" "I dont know how people can enable such evil. Did they have that new ice cream?" "No, but they did have a massive sale on strawberries" "Oh, I heard they donated to Tom, so I don't want it in my house anyways."
    - themitigating 4y ago
      "I ran into Lucy at the supermarket, she told me everything is costing so much because of inflation. She said this is terrible for her family and wonders why the government won't fix it"
  - solarmist 4y ago
    I agree, but you’re being pedantic. Most discussions people have not about political topics wouldn’t be viewed as such even if individual decisions, such as your brand example, were politically motivated.

solarmist 4y ago

Current law doesn’t have machinery to represent this idea, so it makes sense their arguments won’t match. But at the core of all the arguments this is the idea that’s trying to be settled. And really it’s more complicated than all that because it boils down to the algorithm deciding who to show the posts too. An unbiased algorithm is impossible. Show all political messages to all people, now you’ve just incentivized politicians to have multiple people full time jobs be to produce more messages.

erichocean 4y ago
> An unbiased algorithm is impossible. False. Twitter's original algorithm (everyone you followed in reverse insertion order) is trivially unbiased. The bias creeps in when they analyze the content of the speech (or who specifically likes it or…). You can 100% do an unbiased algorithmic feed that re-orders (or omits) things. Twitter and Facebook could do it today. They shadow ban and suppress all sorts of things (beyond kicking actual human users off the site).

matthewdgreen 4y ago

If you say "we are going to restrict ourselves [at the Government's insistence] to only moderating non-political speech" then someone will insist that some part of your non-political speech is actually political. And from some perspective they will be right. Then you get to negotiate with the government and the courts about what they consider to be political speech or not. And suddenly you no longer live in a country that has a meaningful First Amendment.

kelnos 4y ago
> And suddenly you no longer live in a country that has a meaningful First Amendment. The overarching issue is that I don't see what the first amendment has to do with this at all. Corporations have zero obligations to anyone under the first amendment, which only applies to the government.
- catiopatio 4y ago
  The intent of the first amendment was to preserve free speech in the public square; "what the first amendment has to do with this at all" is a desire to preserve that underlying societal principle. Section 230 was a give-away to corporations that allowed them to privatize and co-opt the public square; they reap the economic benefit of being shielded from liability for what people post, but none of the responsibility to carry everyone's speech. If we want to preserve free speech in the public square, some form of balance has to be restored, either by: 1. Eliminating the section 230 liability shield that allowed them to privatize public discourse in the first place. 2. Requiring privatized "public squares" to operate more like common carriers. Solution (1) — eliminating section 230 — would likely make it infeasible to run a private website carrying public speech. Texas seems to have attempted a nuanced version of solution (2): in exchange for being granted the privilege of being shielded from liability for the speech they carry, platforms of a size large enough to justify treating them as a "public square" must meet common-carrier-like requirements that prevent them from discriminating based on viewpoint.
  - NegativeK 4y ago

chunkyks 4y ago

Seems easily solved by twitter recalculating their number of users by subtracting the bots, leaving the total users around 49 million and change.

P5fRxh5kUvp2th 4y ago

One other thing I'd like to point out. This is a very classic "the good of society balanced against the rights of the private citizen/organization". This isn't about private corporate rights, it's about the good of society against those private corporate rights. You may disagree with where exactly this lands, but I doubt you disagree with the premise that personal rights must be balanced against the greater good (queue hotfuzz reference). If you think you do, ask yourself if you feel the very idea of hate speech shouldn't exist. There are those who do, but more typically, people just disagree with where that idea lands rather than the idea itself.