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Friday, September 20, 2019

A publisher, not a platform

Facebook is trying to spin federal law and be protected by it too:
Facebook has invoked its free speech right as a publisher, insisting its ability to smear users as extremists is protected – but its legal immunity thus far has rested on a law that protects platforms, not publishers. Which is it?

Facebook has declared it has the right, as a publisher, to exercise its own free speech and bar conservative political performance artist Laura Loomer from its platform. Even calling her a dangerous extremist is allowed under the First Amendment, because it’s merely an opinion, Facebook claims in its motion to dismiss the lawsuit filed by Loomer.

But Facebook has always defined itself as a tech company providing a platform for users’ speech in the past, a definition that has come to appear increasingly ridiculous in the era of widespread politically-motivated censorship. Now, the not-so-neutral content platform has redefined itself as a publisher, equipped with a whole new set of rights – but bereft of the protections that have kept it safe from legal repercussions in the past.

“Under well-established law, neither Facebook nor any other publisher can be liable for failing to publish someone else’s message,” Facebook’s motion to dismiss Loomer’s defamation suit reads, justifying its decision to ban her from the platform. It also points out that terms like “dangerous” or “promoting hate” cannot be factually verified and are thus constitutionally protected opinions for a publisher – while claiming it never applied either term to Loomer, despite banning her from its platform under its “dangerous individuals” policy.

Defining itself as a publisher opens Facebook up to lawsuits for defamation and other liability for the content users publish, something they were previously immunized against. All the lies, personal attacks, and smears launched by users going forward can now be laid at Facebook’s feet. That’s a Pandora’s box they might not want to open, legal analyst and radio host Lionel told RT.

Whatever they say – platform or publisher – their words will haunt them legally from now on.

Platforms like Twitter, Google, and – until now, apparently – Facebook are protected from the legal consequences of their users’ speech by section 230 of the Communications Decency Act. Facebook even makes reference to section 230 later in its motion, suggesting that it is trying to have its cake and eat it too.
As I have repeatedly pointed out, the legal departments of the SJW-converged tech companies are paper tigers. They are not at all accustomed to anyone standing up to them, they are riddled with diversity, and they are prone to flailing about dramatically and incoherently rather than articulating an internally consistent legal narrative.

Facebook cannot be both a platform and a publisher. Either it is a content-neutral platform or a publisher responsible for its content. In the Loomer case, it has clearly chosen to be a publisher and can now be held responsible for all the content it publishes.

On a not-completely-unrelated note, Indiegogo has announced new Terms of Use today.

Labels: , ,

66 Comments:

Blogger JAG September 20, 2019 6:39 AM  

I have to hand to Loomer. She may have just slain a huge dragon. This may end up dwarfing even Hulk Hogan's win over Gawker in how much it could potentially end up costing Suckerberg.

Blogger Martin Marprelate September 20, 2019 6:48 AM  

This is yuge. Hopefully this begins the breakup of these massive companies.

Blogger Brett baker September 20, 2019 6:51 AM  

When Ted Cruz can figure out this is how to destroy Big Tech, the fact their lawyers can't see the danger of this strategy is telling.

Blogger Doktor Jeep September 20, 2019 7:10 AM  

Let me guess.
The judge's name is probably ending in "Stein" or "Berg" so this Talmudic path of interpretation is going to stick.

Blogger Dr Caveman September 20, 2019 7:23 AM  

Looks like Schrodinger's publisher) platform is about to be dragged out of its box. About time. Break them up

Blogger Tobias September 20, 2019 7:33 AM  

Is there any way Facebook can just redefine themselves as a "platform" when it suits them and how can you nail them to stick to one definition?

Blogger TaurianVita September 20, 2019 7:37 AM  

These "platforms" are coming ever closer to being regulated like public utilities.
Of course, they do not want this and BIG TECH are spending a LOT of money on high powered DC-based lobbyists.
Gov't employees are not allowed to block access anymore on their official Twitter pages, only on their personal, IIRC.
Break 'em up, I say!

Blogger Nostromo September 20, 2019 7:47 AM  

I hope the GE goes in dry.

Blogger God Emperor Memes September 20, 2019 7:59 AM  

Die, FB

Blogger Silent Draco September 20, 2019 8:04 AM  

if (publisher) then punishment1
else if (platform) then punishment2
else end

Blogger Tars Tarkas September 20, 2019 8:10 AM  

I agree Doktor. People have way too much faith in the judicial system. I fully expect one court to rule that it's OK to block Loomer because they have their publisher's first Amendment rights and a different court to protect them from liability with their platform status.

Blogger Dan in Georgia September 20, 2019 8:16 AM  

(Facebook = MySpace) > (Facebook = Govt regulated utility)

Blogger Stilicho September 20, 2019 8:23 AM  

Apparently, Facebook lawyers are unfamiliar with the concept of judicial admission. Much like indegogo (and others!) was unfamiliar with tortious interference with business relationships. Further, I expect many tech "platforms" to become familiar with the charge of conspiracy to deprive plaintiffs of their civil rights in the not so distant future.

Blogger Dan in Georgia September 20, 2019 8:27 AM  

Facebook is going to try to stay as a publisher and a platform if they can stop the Trumpslide.

If Trump wins, they will try to negotiate themselves into a utility status, being "too big to fail".

I hope Laura Loomer refuses any settlement offer, takes it to the SCOTUS, and bankrupts Zuckerberg.

Blogger thalios September 20, 2019 8:32 AM  

Tobias wrote:Is there any way Facebook can just redefine themselves as a "platform" when it suits them and how can you nail them to stick to one definition?

I guess it all depends what (((they))) say.

Blogger Twisted Root September 20, 2019 8:34 AM  

Links to Terms of Agreement are generally not the most entertaining of routes to go down but the Indiegogo link is hilarious. They really want you to read the CAPITALISED BOLD TEXT.Because, you see, by entering into an agreement with them there are certain rights you give up and certain courses of action you can't take because it was written by lawyers and lawyers know about these things.

Blogger thalios September 20, 2019 8:35 AM  

This world became so much easier for me to navigate when I finally saw through the Boomer equality nonsense I was raised on and realized and accepted that there are a lot of stupid people out there -- stupid people at all levels of the pay/prestige/power scale. Case in point is these idiot SJW lawyers at Facebook. Other examples where you'll find these people include

- any government
- most universities
- C-suites
- your local clinic/hospital
- boards of charities
- school boards
- the tables full of people at trendy breakfast joints
- American malls
- most of London

Blogger Damelon Brinn September 20, 2019 8:48 AM  

As I understand it, this means Zuckerberg lied to Congress. They were careful not to put him under oath, so that may not have been a crime, but it seems like they might want to revisit that.

Blogger Seeingsights September 20, 2019 9:11 AM  

It's "woke" low level employees at the social media companies that are making the decisions to deplatform. Those SJWs do not have a legal degree or even experience as a paralegal. They do not have general knowledge--for them, it is problematic when actor James Woods tweets an old political saying: when you strike at the king you must kill him. The social media companies should have a second level of reviewers comprised of attorneys. But that would cost the social media companies more money. I say tough shit.

Blogger RC September 20, 2019 9:16 AM  

This is excellent news. After seeing Loomer's breakdown on Alex Jones' after being banned, I think she'll make a wonderful witness. I hope she draws an all-woman jury.

It will be fascinating to watch them argue in the future that mutually exclusive positions can be held simultaneously.

Blogger TheMaleRei September 20, 2019 9:16 AM  

Precedent seems to be something that destroyed legal efficacy in the US. Exactly who was behind that idea? Exactly what sort of people delight in making words in legalese mean the opposite of what they mean in reality?
Word Wizards are one of the many butchers of the very idea of of justice...
It is grotesque...

Blogger Seeingsights September 20, 2019 9:18 AM  

Paul Joseph Watson was also deplatform and called an extremist by Facebook. He had asked on Twitter if he should pursue a suit in the US or in the U.K.
It appears he is pursuing his case in the U.K. In a tweet he mentioned that Facebook is slow in providing information, apparently there is something like the discovery process going on.
I think Paul Joseph Watson miade the correct decision to sue in the UK. The British Commonwealth takes libel and defamation more seriously than in the US.
Most Americans probably don't know this, but Mrs. Trump recently won a defamation case in the U.K., and received damages. I cannot see Mrs. Trump winning in such a way in a US, with her being a "public figure" and all.
Here is a news article about it: https://www.google.com/amp/s/amp.usatoday.com/amp/2687536002

Blogger Roberto Masioni September 20, 2019 10:04 AM  

Quis custodiet ipsos custodes?

Nemo, of course. The (((elites))) rarely get in trouble for anything except bilking fellow tribal members or making the tribe look bad. It's pathetic to see conservatives get excited over some hint that justice might finally be served. This time is different! They have the memory of fish and the constitution of sheep.

Blogger Max Boivin September 20, 2019 11:12 AM  

-"How come Europeans can't have ethno-states? Israel is an ethno-state..."
-"Israel is not an ethno-state because Judaism is a religion, not a ethnicity."
-"Then there is no such thing as an 'atheist Jew'?"
-"No, you can be atheist AND Jewish because being a Jew is an ethnicity."
-"So, which one is it? A religion or an ethnicity?"
-"It depends upon what's convenient at the moment or who we are lying to..."


It's no wonder that Facebook think they can be both a publisher and a platform whenever it is convenient to them; a similar arrangement works very well for them.

Blogger Cloudbuster September 20, 2019 11:24 AM  

Facebook cannot be both a platform and a publisher. Either it is a content-neutral platform or a publisher responsible for its content. In the Loomer case, it has clearly chosen to be a publisher and can now be held responsible for all the content it publishes.

Unless we live in a banana republic where the laws are not equally and fairly applied.

Blogger Solon September 20, 2019 11:45 AM  

@TheMaleRei

I agree, "precedent" is a stupid and destructive concept whenever a judgement is needed on anything, but as has been pointed out, here amongst many other places, precedent is a holdover from English Common Law, where we Americans got the basis of our justice system from.

I believe the original intent was to sort of hedge judges toward keeping consistent in their rulings, so as to prevent/reduce arbitrariness, or different rulings leading to feuding judges in different parts of the country.

However, even that idea has been corrupted to the point where a judge can simply wave his hand at anything he doesn't like and pick a precedent-setting case, no matter how irrelevant it would be to the current situation, to say "sorry, precedent rules."

Or if he doesn't like the precedent, throw it away and rule arbitrarily anyway, have his cake and eat it, much like this Facebook nonsense.

I used to favor the idea of abolishing the concept of precedence, but I don't think getting rid of it is a good thing though now, after having thought about it for a bit. Sure, it currently overwhelmingly favors our corrupt, tyrannical justice system now, but when (not if) it gets cast down, we'll need it to maintain some sense of legitimacy in future populist/nationalist rulings, or else we may as well just throw our hands up in the air and say there is no concept of True Justice, it's all just arbitrary, so sorry you got put in a courtroom with a female judge who says you have to give everything you own to your ex-wife, better luck next time, you know?

Blogger Phil Mann September 20, 2019 11:50 AM  

Facebook cannot be both a platform and a publisher.

Heh, heh, but it can, my dear Vox, it can. Here's how:

47 U.S.C. § 230(c)(1) expressly states 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."

Under the definitions of "interactive computer service" and "information content provider" Facebook can reasonably argue that, when it comes to its "action[s] 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," §230(c)(1) prohibits it from being legally treated as a "publisher" even if it otherwise is.

See how this works? They literally get a law passed saying that for some purposes they are treated as a "publisher, while for others they are not. Such things don't happen by accident -- why do you think millions are spent on lobbyists?

It's easy to win these cases when the fix is in, as it definitely is here.

N.B. I don't claim to be an expert on 47 U.S.C. § 230 and will defer to those who are. This is just based on my plain reading of the statute and a bit of experience as to how these things go in court.

Blogger Gen. Kong September 20, 2019 12:03 PM  

@24. Yes that's how the flim-flam works on the stupid goyim, often administered by the slightly smarter ones who serve as the (((Synagogue's))) step-n-fetchit houseniggas.

The indefatigable Steve Sailer just brought attention to an even more blatant example of the "heads we won - tails you lose" racket they operate. The example comes from Boston, the "Cradle of Liberty" and also one of the epicenters of clown world at its apogee. Sailer mentioned the usual hypocrisy of the Unitarians (= SJWs) and compared the reaction to the simple signs to the SJW howling about "It's OK to be White" - even repeating one of his funnier ideas: "As I’ve said before, the maximum paranoiac insanity-increasing troll would be blank white sheets of paper." It was one of Sailer's commenters who really got to the bottom of the scam though:

If you say

Islam
Is
RIGHT
About
Women

then you are guilty of hate speech. On the other hand, if you say

Islam
Is
WRONG
About
Women

then you are guilty of hate speech.

Go figure.


This is not a bug, but a feature.

Blogger Ominous Cowherd September 20, 2019 12:28 PM  

Cloudbuster wrote:Unless we live in a banana republic where the laws are not equally and fairly applied.

It's settled, then. Farcebook can get away with everything.

Burn it all.

Blogger Ominous Cowherd September 20, 2019 12:38 PM  

I operate a platform upon which some people publish. I am sometimes one of those people. I don't see that those two are mutually exclusive.

``I exercise no editorial control, and am therefore not responsible for content'' and ``I curate all content,'' on the other hand, do seem mutually exclusive.

Gen. Kong wrote:This is not a bug, but a feature.

Who-whom.

Blogger Azure Amaranthine September 20, 2019 12:38 PM  

"Under the definitions of "interactive computer service" and "information content provider" Facebook can reasonably argue that, when it comes to its "action[s] 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," §230(c)(1) prohibits it from being legally treated as a "publisher" even if it otherwise is."

No, because as a publisher, FB IS the provider.

Blogger Azure Amaranthine September 20, 2019 12:41 PM  

Legally it either takes responsibility for all of its content as published material and thereby not only may but MUST vet it, or it does not take responsibility and thereby MAY NOT vet it.

Blogger Azure Amaranthine September 20, 2019 12:46 PM  

"then you are guilty of hate speech.

Go figure.

This is not a bug, but a feature."


Binary thinking. Launch a "Islam is partly right about women" and let them blow themselves out of the water with their own variant interpretations.

Blogger Azure Amaranthine September 20, 2019 12:47 PM  

"I operate a platform upon which some people publish. I am sometimes one of those people. I don't see that those two are mutually exclusive."

There has to be an indication of which is which.

Blogger Phil Mann September 20, 2019 1:23 PM  

No, because as a publisher, FB IS the provider.

That is circular and begs the question.

Under the definitions provided by §230 itself, Ms. Loomer is the "information content provider" in that she is "any person...that is responsible, in whole or in part, for the creation...of information provided through the Internet or any other interactive computer service." Similarly, and again under the definitions provided by §230 itself, Face book is an "interactive computer service" in the sense that it is an "information service, system, or access software provider that provides or enables computer access by multiple users to a computer server." If Facebook meets this definition, and it is difficult to see how it does not, then under 47 U.S.C. § 230(c)(1) it cannot be legally considered a "publisher" for any actions it takes "in good faith" in connection with restricting or policing content. However, for purposes of avoiding slander, defamation, etc., it is perfectly free to point to New York Times v. Sullivan, say, "Hey, I'm a publisher" and then require a showing of actual malice.

You have to keep in mind that these guys are not stupid and they've taken many steps to protect their crooked interests. These laws are slipped in there just in case some judge, who is not with the program, accidentally dispenses actual justice or uses actual logic.

"You can't be both" is a perfectly sensible and reasonable argument when dealing with normal people. In our bizarre legal world, it is possible to be both black and white at the same time.

Blogger Dirk Manly September 20, 2019 1:25 PM  

@26

"I used to favor the idea of abolishing the concept of precedence, but I don't think getting rid of it is a good thing though now, after having thought about it for a bit. Sure, it currently overwhelmingly favors our corrupt, tyrannical justice system now, but when (not if) it gets cast down, we'll need it to maintain some sense of legitimacy in future populist/nationalist rulings, or else we may as well just throw our hands up in the air and say there is no concept of True Justice, it's all just arbitrary, so sorry you got put in a courtroom with a female judge who says you have to give everything you own to your ex-wife, better luck next time, you know?"

We have a mechanism for overthrowing bad precedents. It's called passing a new law, or amending the existing law to take into account the new circumstances.

Blogger DonReynolds September 20, 2019 1:47 PM  

I am going to comment without saying that anyone is wrong or stupid, but only that they will own the consequences of what they decide to do and the position they choose to assume. No doubt, they have gamed this fateful decision in work groups and boardrooms for years. The debate was probably worthy of good theater. I wish I could have been there, if only to listen.

By admitting that they are publishers, the Tech Giants have shed one set of obligations (and freedoms) and assumed new ones. Anyone who has studied libel and slander knows this is a very old English common law that remains current in the USA. NO...Free Speech is not an absolute shield for publishers. There are protections against the civil or criminal charge of libel and slander, but these protections are based on privilege. Yes, some people have the privilege of libel and slander...a former employer, for instance, or your ex wife or creditor or former professor.

Yes, of course, every American has the First Amendment right of Free Speech, but you may also own what you say. The right to claim libel or slander may also be denied you, if you are in the public eye. Mainly, this applies to politicians, big celebs, clowns, community activists, notorious criminals, traitors, and the like.

The final point I want to make about libel and slander is that the truth is NOT a defense, contrary to popular understanding. It may be entirely true, without any misrepresentation, should you invade the privacy of an ordinary citizen and make that information public. The fact that it is true, does not mean that you have any right to disclose it to the public, even if you have the privilege to do so.

For example, I could announce to the classroom that Mary had an abortion last month and I may even have the documents to prove it is a fact and true. But I may still be charged because it was malicious, meaning I said it to do her deliberate harm.

The Tech Giants have already demonstrated hostility by their own words and actions. Now they open themselves to malice. Once their hatred is exposed, malice can almost be assumed.

Blogger Snidely Whiplash September 20, 2019 3:06 PM  

Speaking of sloppy work and idiot lawyers, has anybody else notice that IGG doesn't know how numbers work?
The terms of use page goes from section 1 to 2 to 11 to 12 to 7 (which is linked as "5" in the table of section 1) to 7 to 4 to 4 to 5 to 3 to 4 to 5.
It is extremely obvious that they have not reviewed this document in any way whatsoever.

Blogger justaguy September 20, 2019 3:11 PM  

I think the idiotic way Congress setup the protections in the 1990a allow the tech giants to maintain their copyright protection and to be publishers. I think that it will take a law change or a court actively re-writing the law to take away their immunity. Copyright is something entirely made up by government-- and can be applied as it wishes-- here with immunity. Any other lawyers out there want to comment on the scope of 230 of CDA? Lots of case law and I stopped following communications law a few years ago but it seems that the tech companies can have their cake and eat it oo wrt any cause of action.

Blogger Snidely Whiplash September 20, 2019 3:21 PM  

Without precedence, you have the situation in Europe, where every judge is not just allowed, but required, to re-interpret the law de novo in every case. Now, of course they don't do that, but they certainly have the remit to do so in any case where they feel the urge. Precedence may lead to some abuses, but it prevents many others.

Either way, that's not the operative principle. That would be Res Judicata (the matter has been decided), meaning that matters of fact cannot be endlessly litigated. Once a court has determined a matter of fact, other courts will resepct that decision.
Once a court accepts FB's argument that they are in fact a publisher, rather than a platform, any correspondent in any case may present that decision in their own case, as a matter of established fact, against which the only counter argument is that the details of the present case are not affected by that decision.
Making this argument is whacking off their own balls to cure acne.

Blogger Gen. Kong September 20, 2019 3:31 PM  

@39. Most have no idea of just how completely pozzed copyright is in the Rotten Banana Empire. The law was literally re-written to the dictates of the Devil Mouse in the 1990s - and Trump signed the latest clown-world amendments last year. These extended "performing rights" to pre-1972 sound-recordings - all the way back to brown-wax cylinders of the 1890s - while leaving the copyright in such recordings under state laws (they'll only come under Federal law in 2067). The US statute is literally more than 4 times the length of its closest competitor (UK or Germany as I recall). We'd literally be better off if copyright was abolished altogether as it was in the USSR in 1918.

Blogger Phil Mann September 20, 2019 4:17 PM  

For grins, Snidely, take a look into this little-known racket of "non-precedential" appellate decisions. By designating a decision, "non-precedential," the court can effectively say, "Yeah, we're screwing you here, but no fair using this in other cases, particularly if they involve people we like." Clown world indeed.

Blogger Gregory the Great September 20, 2019 4:39 PM  

From Facebook's terms of service: "To provide our services, though, we need you to give us some legal permissions to use that content. Specifically, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content”

So if they have the right to do this with your content is it not publishing? Or co-publishing?

Blogger map September 20, 2019 5:47 PM  

Phil Mann wrote: Facebook cannot be both a platform and a publisher.

Heh, heh, but it can, my dear Vox, it can. Here's how:

47 U.S.C. § 230(c)(1) expressly states 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."

Under the definitions of "interactive computer service" and "information content provider" Facebook can reasonably argue that, when it comes to its "action[s] 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," §230(c)(1) prohibits it from being legally treated as a "publisher" even if it otherwise is.


Of course, there is one little proble with this interpretation. According to the statute, Laura Loomer is also not a publisher and does not have any of the responsibilities of a publisher. Basically, the law treats both Facebook and Laura Loomer as "platforms": Facebook is a provider and Laura Loomer is a user, and neither are to be treated as publishers, according to the statute.

So, if neither is a publisher, and, if neither can be held liable for anything they write by statute, then why is Facebook exercising any editorial power over content on its site? Why are they bothering censoring Laura in the first place? Meanwhile, Laura has nowhere else to go because of the public utility nature of Facebook.

It would be like the electric company not liking Laura's views and then cutting the power to her house.

Blogger d September 20, 2019 5:47 PM  

Has anyone yet asked how a hundred billion dollar publishing corporation gets away with paying its writers $0.00/hr?

Blogger map September 20, 2019 5:54 PM  

Btw, this is basically the nature of all of Silicon Valley. Silicon Valley is profitable not because it is innovative. It is profitable because it is full of unregulated public utilities. Software, like electricity, depends on the network effect to make money. This leads to natural monopolies. That is why you only have one or two major operating systems, database programs, search engines, email clients, mobile platforms, etc.

Blogger map September 20, 2019 5:58 PM  

Snidely Whiplash wrote:Without precedence, you have the situation in Europe, where every judge is not just allowed, but required, to re-interpret the law de novo in every case. Now, of course they don't do that, but they certainly have the remit to do so in any case where they feel the urge. Precedence may lead to some abuses, but it prevents many others.

The English common law developed when judges would travel from town to town judging local cases. This was the beginning of the "circuit" court. Precedent developed because it was easy to judge similar cases with similar facts using previous legal decisions.

Of course, if this process is poisoned by judges from alien cultures, then we get the mess we have today.

Blogger Phil Mann September 20, 2019 6:40 PM  

then why is Facebook exercising any editorial power over content on its site?

Short answer is because §230 expressly permits Facebook to do just that.

In particular, § 230(c)(2) states, "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." Basically, this permits even non-publishers to exercise editorial control so long as they do so "in good faith" and they "consider" the material to be "obscene, lewd" etc., or even "otherwise objectionable." (How's that for a clearly defined standard?)

The point is the written law itself permits them to engage in these shenanigans. Again, I don't claim expertise on this particular statute, but given its actual language, it appears Facebook can "legally" do this stuff. Seriously, if I am wrong on this -- and in a way I kind of hope I am -- please let me know.

Blogger Meng Greenleaf September 20, 2019 7:00 PM  

Indiegogo ToS 2b has a typo 😂

Blogger themightypuck September 20, 2019 7:02 PM  

Don't forget the legislative history. 230 was part of the Communications Decency Act which was ruled unconstitutional except for 230 (how bout that). It was in the Act because of a decision in NY (Prodigy v Stratton Oakmont--yes the Wolf of Wall Street Stratton Oakmont) which said Prodigy was liable for posts on a message board because it exercised control over the board. The people who wrote the CDA didn't like the incentives against policing content because they wanted nasty content to be policed. So we have 230. It is pretty complicated for my money how it all turns out but my guess is the distinction is work for hire v unpaid content (comments etc.). You know NYT.com is responsible for a Bret Stevens column because they pay him but not for a shitty comment because they don't. Youtube is interesting since they monetize creators--if you are monetized are you Stevens or a random commenter?

Blogger Meng Greenleaf September 20, 2019 7:08 PM  

I love it!
((())) is right about homosexuals
Izzy is right about atheists
Ad infinitum....

Blogger Meng Greenleaf September 20, 2019 7:16 PM  

I'd love to see a group of females wearing full on burkas carrying signs that say: "Islam is right about Blacks" with police protection of course.

Blogger map September 20, 2019 8:09 PM  

Phil Mann wrote: then why is Facebook exercising any editorial power over content on its site?

Short answer is because §230 expressly permits Facebook to do just that.

In particular, § 230(c)(2) states, "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." Basically, this permits even non-publishers to exercise editorial control so long as they do so "in good faith" and they "consider" the material to be "obscene, lewd" etc., or even "otherwise objectionable." (How's that for a clearly defined standard?)



Except how do users exercise editorial control over Facebook content? Can Laura Loomer go into someone else's account and delete material that she thinks is objectionable? How can a "user" take action "in good faith" to "voluntarily restrict access" on the rest of Facebook's systems? Again, this is an equality between the platform provider and the user that does not exist. Certainly, a user can submit a complaint to Facebook...but they can also submit complaints to the FCC.

A true application of this law would allow full access to all accounts where anyone can edit Facebook content of all material found to be objectionable in good faith and restrict access.

That's a fair reading of the statute.

For that matter...why can't a user simply unrestrict access?

Blogger map September 20, 2019 8:12 PM  

You can also go ahead and redefine "platform" as a"common carrier."

Blogger Azure Amaranthine September 20, 2019 9:04 PM  

This comment has been removed by the author.

Blogger Azure Amaranthine September 20, 2019 9:13 PM  

"Except how do users exercise editorial control over Facebook content?"

It's not giving them the right to. However, if someone were to hack into FB's systems and do just that, they could use this for protection so long as they didn't do anything else but censor the crap out of everything.

Blogger Azure Amaranthine September 20, 2019 9:14 PM  

Digital puritan protection.

Blogger Azure Amaranthine September 20, 2019 9:34 PM  

Here's an elephant in the room with regard to Loomer at least:

If Facebook has removed all of Loomer's content, then how is it HER publisher with free speech protection against her?

Blogger Snidely Whiplash September 20, 2019 10:10 PM  

map wrote:Btw, this is basically the nature of all of Silicon Valley. Silicon Valley is profitable not because it is innovative. It is profitable because it is full of unregulated public utilities.
SV doesn't make a profit. Overall, Silicon Valley is a giant money sponge, extracting huge quantities of money from retail investors and setting it on fire in huge piles, while stuffing stray bills up their noses and down their pants.
The typical SV startup shuts down in 5 years, never having even approached making a profit, and having burned millions of investor dollars.
Venture capital participates in the hope of dumping their investment on the NASDAQ at 500% profit, and retail investors participate hoping to turn their millions into billions. This is why Amazon and Twitter are still in business. No-one cares if they make a profit, as long as they can keep extracting money from investors.
Silicon Valley is a gigantic ongoing multi-layered stock scam.

Blogger James Dixon September 20, 2019 10:59 PM  

> On a not-completely-unrelated note, Indiegogo has announced new Terms of Use today.

Now, what do you suppose could have triggered that? :)

Blogger Gregory the Great September 21, 2019 3:17 AM  

@ Phil Mann, thank you, that's all very blackpilling.

Blogger Avalanche September 21, 2019 9:59 AM  

@26 "sorry, precedent rules."

I'd like to see the judiciary be forced -- as has been suggested for Congress -- that ANY ruling or rule they try to make must describe specifically under what case / precedent or Constitutional law their decision is allowed.

The God Emperor requiring the deletion of two regulations for every new one instituted has been working well. Forcibly hemming in the judiciary and legislative branch could work wonders!

Blogger Avalanche September 21, 2019 10:05 AM  

@35 "be both black and white at the same time.

Thus: The B&W Trudeau.

Blogger Tars Tarkas September 21, 2019 12:54 PM  

Phil Mann wrote:The point is the written law itself permits them to engage in these shenanigans.
The legal version of an SJW written Code of Conduct.
Nothing else works right anymore, why should we expect laws to be any better.

Blogger OneWingedShark September 21, 2019 3:00 PM  

Stilicho wrote:Apparently, Facebook lawyers are unfamiliar with the concept of judicial admission. Much like indegogo (and others!) was unfamiliar with tortious interference with business relationships. Further, I expect many tech "platforms" to become familiar with the charge of conspiracy to deprive plaintiffs of their civil rights in the not so distant future.
That would be great, but given how slimy and unconcerned with Justice the judiciary has become I wouldn't hold my breath.
Though, I would love to see social-media hit with this, and big-tech in-general hit with both antitrust and RICO (for the H1b fraud).

Cloudbuster wrote:Facebook cannot be both a platform and a publisher. Either it is a content-neutral platform or a publisher responsible for its content. In the Loomer case, it has clearly chosen to be a publisher and can now be held responsible for all the content it publishes.

Unless we live in a banana republic where the laws are not equally and fairly applied.

This.

Dirk Manly wrote:@26
"I used to favor the idea of abolishing the concept of precedence, but I don't think getting rid of it is a good thing though now, after having thought about it for a bit. Sure, it currently overwhelmingly favors our corrupt, tyrannical justice system now, but when (not if) it gets cast down, we'll need it to maintain some sense of legitimacy in future populist/nationalist rulings, or else we may as well just throw our hands up in the air and say there is no concept of True Justice, it's all just arbitrary, so sorry you got put in a courtroom with a female judge who says you have to give everything you own to your ex-wife, better luck next time, you know?"

We have a mechanism for overthrowing bad precedents. It's called passing a new law, or amending the existing law to take into account the new circumstances.

The problem, now, is that now-invalid precedent is used to weaken/overturn new law; see any case relying on prohibition-era rulings regarding alcohol being applied to anything else.

Blogger Ominous Cowherd September 25, 2019 9:44 PM  

Azure Amaranthine wrote:"I operate a platform upon which some people publish. I am sometimes one of those people. I don't see that those two are mutually exclusive."

There has to be an indication of which is which.


Azure, in that example, I am always the platform operator, never liable for what others publish. I am sometimes a publisher, and always liable for what I publish, same as all the others who use my platform. When I'm liable, it's as publisher, not as platform operator. No contradiction, no confusion about which is which.

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