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> What the laws are trying to do is impose penalties for the first party act of censorship Which is the part of the lawsuit which the First Amendment addresses

> What the laws are trying to do is impose penalties for the first party act of censorship Which is the part of the lawsuit which the First Amendment addresses already. The First Amendment prohibits Congress from passing laws restricting speech [1]: > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. It does not require that Congress pass a law promoting speech, but can restrict Congress from removing such a law afterward. Because of the Establishment Clause, the First Amendment's restrictions on Congress apply to the federal government as a whole and state governments [2]. The First Amendment does not restrict voluntary moderation decisions by websites. The First Amendment generally restricts speech compelled by governments (including in lawsuits, but usually not when a contract is involved), since freedom of speech includes freedom of when to speak and when to not speak. The First Amendment also includes freedom to associate. That Section 230(c)(2)(A) mentions liability for removing objectionable content does nothing to lessen the First Amendment's protections. Section 230 (c)(2)(A) is: > (c)Protection for “Good Samaritan” blocking and screening of offensive material > (2)Civil liability > No provider or user of an interactive computer service shall be held liable on account of— > (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or The key idea is: "that the provider or user considers to be... objectionable". "Objectionable" can mean that the provider doesn't want to keep hosting for any reason. Social media sites can make voluntary, unilateral decisions to remove speech. The First Amendment already does that, but Section 230 offers an early dismissal opportunity should anyone sue over a social media site's voluntary, unilateral "censorship". [1] https://www.law.cornell.edu/constitution/first_amendment https://www.law.cornell.edu/constitution/first_amendment [2] https://en.wikipedia.org/wiki/Everson_v._Board_of_Education https://en.wikipedia.org/wiki/Everson_v._Board_of_Education [3] https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/uscode/text/47/230

AnthonyMouse 3y ago
> Which is the part of the lawsuit which the First Amendment addresses already. But then why is anybody confused why the Justices are pointing out that Section 230(a)(1) doesn't have anything to say about first party speech? > The First Amendment does not restrict voluntary moderation decisions by websites. The First Amendment has limited applicability to commercial activity. For example, the law can prohibit phone companies from denying phone service to customers on the basis of their political views, even if the phone company disagrees with them. > The key idea is: "that the provider or user considers to be... objectionable". The key idea is the heading of that section, which says "Civil liability", implying that it doesn't apply to government-imposed penalties. Let's consider a different context here. Suppose you have a state law imposing penalties on companies that discriminate on the basis of various protected classes. Some site starts banning everyone in one of those protected classes because they find them "objectionable". The state AG wants to prosecute them for it. Is that law unenforceable as a result of Section 230 or the First Amendment?
- hn_acker 3y ago
  > But then why is anybody confused why the Justices are pointing out that Section 230(a)(1) doesn't have anything to say about first party speech? I'm not confused, but I can guess why someone would be. There's historical context to the oral arguments of the Texas and Florida "anti-censorship" laws. Google is a member of NetChoice. In Gonzalez v. Google LLC [1], Google argued in the lower courts that Section 230(c)(1) made Google immune to liability for YouTube's automated recommendations of terrorist content because the motivation for the liability lay in the content of the user-uploaded videos i.e. third-party speech. The Supreme Court court didn't involve Section 230 in the ruling, but did discuss Google's Section 230 argument in the oral arguments. The Texas and Florida laws in the case would not make platforms liable for third-party speech. But in the oral arguments for the Texas and Florida cases (Moody v. NetChoice and NetChoice v. Paxton), Justices Alito, Thomas, and Gorsuch mistakenly thought that Google's past argument about liability for users' speech (not the platform's speech) contradicted NetChoice's current argument about the First Amendment right to moderate (the platform's speech) and additionally the section 230(c)(2)(A) right to remove anything the site considers "objectionable". For example, here's Justice Alito in NetChoice v. Paxton [2]: > Either it's your message or it's not your message. I don't understand how it can be both. It's your -- it's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law. Justice Alito was conflating "message" meaning the content of the posts (authored by the users) and "message" meaning the moderation actions of the social media site (performed by the company, modifying the expression of what kind of website the website is). I wrote more about the distinction in a different comment ( https://news.ycombinator.com/item?id=39576076 https://news.ycombinator.com/item?id=39576076 ); that comment pertains to both the Justice's confusion and the main topic of the article. The main topic of the featured article is not the Florida and Texas court cases. The article is about the misunderstandings that Steven Brill has about what Section 230 does, who Section 230 applies to, and Section 230 is necessary in the context of liability for harmful user posts. > The First Amendment has limited applicability to commercial activity. For example, the law can prohibit phone companies from denying phone service to customers on the basis of their political views, even if the phone company disagrees with them. The Florida and Texas laws have to pass strict scrutiny [3]. Intermediate scrutiny doesn't apply [4], and the laws would fail intermediate scrutiny anyway: > Intermediate scrutiny applies to regulation that does not directly target speech but has a substantial impact on a particular message. It applies to time, place, and manner restrictions on speech, for example, with the additional requirement of "adequate alternative channels of communication." ... > Intermediate scrutiny also applies to regulation of commercial speech, as long as the state interests in regulating relate to fair bargaining. Regulations for other reasons, such as protection of children, are subject to strict scrutiny. Banning all post removals is not a "time, place, and manner" restriction. It does not relate to "fair bargaining" either. Here is strict scrutiny [3]: > In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional. The least restrictive means (least restrictive of moderation rights) for the government to prevent censorship is not forcing one platform to allow all speech, but waiting for multiple websites with different speech rules to show up (Truth Social, AT Protocol instances, ActivityPub instances, and personal websites) so that the sum of all platforms will allow all speech. > The key idea is the heading of that section, which says "Civil liability", implying that it doesn't apply to government-imposed penalties. How so? Courts impose penalties. That, and the bills are enforced by lawsuits, which are civil. [1] https://en.wikipedia.org/wiki/Gonzalez_v._Google_LLC https://en.wikipedia.org/wiki/Gonzalez_v._Google_LLC [2] https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_0pm1.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr... [3] https://en.wikipedia.org/wiki/Strict_scrutiny https://en.wikipedia.org/wiki/Strict_scrutiny [4] https://en.wikipedia.org/wiki/Intermediate_scrutiny#Free_speech https://en.wikipedia.org/wiki/Intermediate_scrutiny#Free_spe...

AnthonyMouse 3y ago

> Which is the part of the lawsuit which the First Amendment addresses already. But then why is anybody confused why the Justices are pointing out that Section 230(a)(1) doesn't have anything to say about first party speech? > The First Amendment does not restrict voluntary moderation decisions by websites. The First Amendment has limited applicability to commercial activity. For example, the law can prohibit phone companies from denying phone service to customers on the basis of their political views, even if the phone company disagrees with them. > The key idea is: "that the provider or user considers to be... objectionable". The key idea is the heading of that section, which says "Civil liability", implying that it doesn't apply to government-imposed penalties. Let's consider a different context here. Suppose you have a state law imposing penalties on companies that discriminate on the basis of various protected classes. Some site starts banning everyone in one of those protected classes because they find them "objectionable". The state AG wants to prosecute them for it. Is that law unenforceable as a result of Section 230 or the First Amendment?

hn_acker 3y ago
> But then why is anybody confused why the Justices are pointing out that Section 230(a)(1) doesn't have anything to say about first party speech? I'm not confused, but I can guess why someone would be. There's historical context to the oral arguments of the Texas and Florida "anti-censorship" laws. Google is a member of NetChoice. In Gonzalez v. Google LLC [1], Google argued in the lower courts that Section 230(c)(1) made Google immune to liability for YouTube's automated recommendations of terrorist content because the motivation for the liability lay in the content of the user-uploaded videos i.e. third-party speech. The Supreme Court court didn't involve Section 230 in the ruling, but did discuss Google's Section 230 argument in the oral arguments. The Texas and Florida laws in the case would not make platforms liable for third-party speech. But in the oral arguments for the Texas and Florida cases (Moody v. NetChoice and NetChoice v. Paxton), Justices Alito, Thomas, and Gorsuch mistakenly thought that Google's past argument about liability for users' speech (not the platform's speech) contradicted NetChoice's current argument about the First Amendment right to moderate (the platform's speech) and additionally the section 230(c)(2)(A) right to remove anything the site considers "objectionable". For example, here's Justice Alito in NetChoice v. Paxton [2]: > Either it's your message or it's not your message. I don't understand how it can be both. It's your -- it's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law. Justice Alito was conflating "message" meaning the content of the posts (authored by the users) and "message" meaning the moderation actions of the social media site (performed by the company, modifying the expression of what kind of website the website is). I wrote more about the distinction in a different comment ( https://news.ycombinator.com/item?id=39576076 https://news.ycombinator.com/item?id=39576076 ); that comment pertains to both the Justice's confusion and the main topic of the article. The main topic of the featured article is not the Florida and Texas court cases. The article is about the misunderstandings that Steven Brill has about what Section 230 does, who Section 230 applies to, and Section 230 is necessary in the context of liability for harmful user posts. > The First Amendment has limited applicability to commercial activity. For example, the law can prohibit phone companies from denying phone service to customers on the basis of their political views, even if the phone company disagrees with them. The Florida and Texas laws have to pass strict scrutiny [3]. Intermediate scrutiny doesn't apply [4], and the laws would fail intermediate scrutiny anyway: > Intermediate scrutiny applies to regulation that does not directly target speech but has a substantial impact on a particular message. It applies to time, place, and manner restrictions on speech, for example, with the additional requirement of "adequate alternative channels of communication." ... > Intermediate scrutiny also applies to regulation of commercial speech, as long as the state interests in regulating relate to fair bargaining. Regulations for other reasons, such as protection of children, are subject to strict scrutiny. Banning all post removals is not a "time, place, and manner" restriction. It does not relate to "fair bargaining" either. Here is strict scrutiny [3]: > In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional. The least restrictive means (least restrictive of moderation rights) for the government to prevent censorship is not forcing one platform to allow all speech, but waiting for multiple websites with different speech rules to show up (Truth Social, AT Protocol instances, ActivityPub instances, and personal websites) so that the sum of all platforms will allow all speech. > The key idea is the heading of that section, which says "Civil liability", implying that it doesn't apply to government-imposed penalties. How so? Courts impose penalties. That, and the bills are enforced by lawsuits, which are civil. [1] https://en.wikipedia.org/wiki/Gonzalez_v._Google_LLC https://en.wikipedia.org/wiki/Gonzalez_v._Google_LLC [2] https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_0pm1.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr... [3] https://en.wikipedia.org/wiki/Strict_scrutiny https://en.wikipedia.org/wiki/Strict_scrutiny [4] https://en.wikipedia.org/wiki/Intermediate_scrutiny#Free_speech https://en.wikipedia.org/wiki/Intermediate_scrutiny#Free_spe...