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Clarence Thomas is begging someone to sue over Section 230 (slate.com)
23 points by iaw 13 days ago | hide | past | favorite | 44 comments





> Section 230 says 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"

So in other words, Twitter and Facebook censored content (and even references to the URL of that content) despite having no obligation to do so.

And they censored content that not only they did not create, but was put forward by a traditional newspaper on their "series of tubes." As the content is not prohibited by law, how is that _not_ functioning in an editorial capacity?

If Comcast or Cloudflare blocked this exact same content via ipfilters or URL rules, where would the Net "Neutrality" crowd be on this issue?

Outside the legal arguments put forward, there is a huge moral hypocrisy here. Net Neutrality advocates have argued that content should not be allowed to be blocked via certain providers (ISPs), while endorsing censorship on others (CDNs, social communication platforms). In the case of Thomas, he's argued against Net Neutrality not on content grounds--but on technical arguments around resource utilization and distribution.

Thomas' view is at least consistent as it preserves the idea of _not_ limiting speech, which is more than can be said for the Net "Neutrality" crowd.


Internet providers are effectively a monopoly. There's at most 3 providers in an area for cable/fiber. They are utilities.

Facebook and Twitter are not. You can still access the NY Post on their website. Twitter and Facebook absolutely have grounds to block content that contains PII or appear to be derived from a hack, especially when both are in effect.


> Facebook and Twitter are not.

Facebook and Twitter are also claiming they're not subject to the same rules as traditional broadcast outlets or newspapers. Broadcast media outlets are not monopolies either, and they can't wantonly censor election speech like this by law.

If CBS was to decide that all their outlets were going to cover only one candidate's speeches, they would be electioneering, and be afoul of the law. CBS is not even as close to a monopoly as Facebook or Twitter is.

We have a case here were two providers took it upon themselves to block references to a newspaper article, relating very directly to speech which would need equal access under any other medium.


> You should clarify your argument here. News media can "censor" election speech by simply not covering it.

They, actually, legally cannot if they are public broadcast and not cable [1].

In this case, they blocked a campaign trying to publish on the platforms. It's as close of an analog as possible.

[1] https://en.wikipedia.org/wiki/Equal-time_rule


If a candidate swore during an interview, the network would be within their rights to prevent that candidate from speaking on the network until they promised to not violate network policies.

"equivalent opportunity" does not mean that they are free to do anything, as long as the rules that twitter has are enforced evenly, it's fine. We just haven't seen the BidenForPresident twitter account tweet Barron's texts with his girlfriend.


> We just haven't seen the BidenForPresident twitter account tweet Barron's texts with his girlfriend.

If those tweets said that daddy met with a foreign government and got him a job, would Twitter take it down?


What was the point of asking this question? It's (firstly) a mischaracterization of what happened, and secondly, when I say "yes", you're going to either not respond, or say "yeah right" and right off my response as misinformed or propaganda. There's no point in having the discussion if you assume your conclusions.

The emails in question have an eminently unqualified son of the Vice President of the United States making $50K a month from a Ukranian energy company. And that company thanking him for meeting with his father.

If Donald Trump Jr. did this exact thing and his father was the person in the email, would he get a Twitter removal? Would there have been an army of Twitter moderators in the wings to protect his privacy? Would they ban the Biden campaign from even mentioning the article existed?

And yes, you know what I'm going to say. "Yeah right." Because the reasons Twitter gave for the takedown happened quite a while afterwards and they had to change their policy to justify it.

Currently, acquired knowledge of Trump's taxes is PII, and it's illegal. That hasn't stopped Twitter from doing absolutely nothing about it, along with hundreds of other high-profile examples over the years.


They're not doing that though. They blocked an article which contained PII, and info derived from a hack (by the articles own admissions), at least for Twitter I believe that was just policy.

I think they should've just flagged it. But I imagine you and many others would've had the same problem there.

More importantly, you just know any new interpretation will be broad as well? What is your proposed replacement?


> Broadcast media outlets are not monopolies either, and they can't wantonly censor election speech like this by law.

You should clarify your argument here. News media can "censor" election speech by simply not covering it. In addition, if a speaker makes factual errors, the news station is under no obligation to refrain from commenting on those errors, nor are they prevented from providing correction. Most importantly, no newspaper is required to cover the same stories as another newspaper. CNN for example, is not required to cover the the particular story you're referencing.

Even with the equal-time rule, media outlets have broad discretion about how they choose to cover candidates. For example, Trump benefited enormously in 2016 from an incredibly lopsided distribution of coverage.

And all of this ignores that the particular story you seem to be referring to has serious newsworthiness issues.


> They blocked an article which contained PII, and info derived from a hack (by the articles own admissions), at least for Twitter I believe that was just policy.

So wikileaks? Any other articles that happen to have a person's personal info are blocked? Do they block tabloids as well? Was it cool how they unilaterally blocked people from mentioning that said article exists... sans URL and without PII?

There's a lot of mental gymnastics and cognitive dissonance required to believe this was "just policy".

Likewise, why is it such a burden for Twitter to monitor illegal content but not legal content? Is there just so very much illegal content on Twitter relative to legal that they can't manage? But, yeah, they're all over this legal content like a hawk, just coincidentally. (Despite them talking about them implementing restrictions like this for years). It's politically targeted. You know it. I know it. Everybody knows it.


To the wikileaks, Hunter Biden is a private individual, I am much more ok with the publication of hacks of the government. Second, if they had redacted the PII (just the email and phone number really) I would've been more happy.

To the illegal vs legal, it's much easier to find a trending story like this. It's on their radar.

Finally, I would've preferred just a warning: You're leaving Twitter for a story that violates x policies.

E: but in all honesty I'd prefer they be able to remove whatever they like. Let a new social network grow and fill that gap. Facebook has been under fire for pushing conservative tilted media, so it's not like this is a one sided problem.


> To the wikileaks, Hunter Biden is a private individual

Let's just say that Hunter Biden is a private individual for sake of argument. The papers involve a corruption scandal involving a business transaction with his father who was Vice President of the United States with a foreign government.

Jeebus. Is every person implicated in a foreign scandal who doesn't work for the (U.S.) government absolved from press?

I have a hard time believing the Bush twins or Barron Trump would receive the same treatment.


> Do they block tabloids as well?

NY Post is a tabloid FYI.


> NY Post is a tabloid FYI.

Check and mate.

How many NY Post articles do they take down with PII at the request of the person in it?


I don't read papers that aren't trustworthy so I can't tell you. I suspect that posts starting to go viral get flagged more urgently than a run of the mill tabloid story.

> I don't read papers that aren't trustworthy so I can't tell you.

Ugh. You're a hack, and you know that every celebrity that can't get a takedown for their PII on Youtube, Google, Facebook, and Twitter isn't given the same privilege as Joe Biden and his son.

If Twitter really has this policy, let's have no more tabloids on that medium. Everybody who issues a takedown should get one. And with celebrities it isn't like Twitter doesn't know. Of course they know. It's selective enforcement of usage of their business.

Twitter--much like certain restaurants in Alabama--is saying they will serve certain people, but not others.


> I'm kinda amused, I don't think you know what the word hack means when referring to a person.

A person pushing a point of view even when you know it's intellectually dishonest. Much like a political hack working a campaign.


I still don't think you know what that word means.

Every non-partisan news source sees through the NY Post and Giuliani which is why it looks like this is being suppressed by the main-stream media, because they require corroboration such as validating the DKIM.

A lie travels halfway around the world before the truth even gets its pants on.

I still wish you nothing but the best in life.


> You're a hack

I'm kinda amused, I don't think you know what the word hack means when referring to a person.

Regardless of your personal beliefs I still hope you stay healthy and safe during these trying times.


> As the content is not prohibited by law, how is that _not_ functioning in an editorial capacity?

I just re-read section 230, and couldn't find any mention of this "editorial" distinction that you're focused on. Are you appealing to law, or your ideology?


Godwin's arguing that the whole argument is moot, because Internet providers aren't functioning as editors, just conduits.

From the article:

"That brings us back to Thomas, who adopted wholesale the conservatives’ read of Section 230 in his statement this week that accompanied the court’s list of appeals that it has chosen not to hear. (One of the cases the court turned down raised a Section 230 issue.) He begins by embracing a particular idiosyncratic version of the platform/publisher distinction (although he uses the word distributor instead of platform):

Thomas> Traditionally, laws governing illegal content distinguished between publishers or speakers (like newspapers) and distributors (like newsstands and libraries). Publishers or speakers were subjected to a higher standard because they exercised editorial control. They could be strictly liable for transmitting illegal content. But distributors were different. They acted as a mere conduit without exercising editorial control, and they often transmitted far more content than they could be expected to review. Distributors were thus liable only when they knew (or constructively knew) that content was illegal."

Thomas' argument is essentially repeating what all Internet providers have been saying for my lifetime: "Don't shoot the messenger, we're just the tubes. We don't exercise discretion over the content." The courts looked favorably on that argument for practical reasons. Back then though, providers were typically trying to avoid censoring, due to the fact they were hosting objectionable, possibly illegal content. These same providers are now arguing that the unbearable costs of censorship that they can not possibly withstand for illegal content... well, they in fact can manage to bear for voluntarily censoring legal content. And that particular legal, political content in this case is actually mandated with equal access provisions under election law by all other mediums.


Are you claiming that Twitter is an "Internet Provider"?

> Thomas' argument is essentially repeating what all Internet providers have been saying for my lifetime: "Don't shoot the messenger, we're just the tubes. We don't exercise discretion over the content." The courts looked favorably on that argument for practical reasons. Back then though, providers were typically trying to avoid censoring, due to the fact they were hosting objectionable, possibly illegal content. These same providers are now arguing that the unbearable costs of censorship that they can not possibly withstand for illegal content... well, they in fact can manage to bear for voluntarily censoring legal content. And that particular legal, political content in this case is actually mandated with equal access provisions under election law by all other mediums.

I think you're missing some subtlety here. Websites are arguing that they should never be liable for third party content, they should not be required to censor it, and liable if they fail. The argument here being that doing so is very difficult, and they're going to screw up, so this opens them to liability.

The argument on the other side is exactly the same: if we choose to remove some stuff, we shouldn't be liable for the things we fail to remove, because ultimately it is impossible for our systems to perfectly address all content.

So the argument is exactly the same: whether or not we choose to remove some content, we cannot be held liable for all content, because doing so will make it impossible to operate.

> And that particular legal, political content in this case is actually mandated with equal access provisions under election law by all other mediums.

Are you suggesting that the NY post article was "legal, political, content"? As it stands, the rules about political advertising are about political advertising by registered political entities, not "content deemed to be political by a judge".


> So the argument is exactly the same: whether or not we choose to remove some content, we cannot be held liable for all content, because doing so will make it impossible to operate.

But no one is forcing them to be "liable" for their own internal regulations they completely made up.

This is a case of 1) a public person (so they don't fall under libel), 2) a politically newsworthy story, 3) published in a regulated industry, 4) where they inconsistently discriminated in applying their own policy, and 5) would be legally culpable if they were a traditional broadcast platform under FEC election law.

The fact that their internal policy runs against what they'd have to do if they were a broadcast network is the icing on the cake. And then there's the fact that "they can't possibly monitor all of the violations on their platform." So wait, even their own EULA is selectively enforced for users!!!!?


A news stand isn't required to sell every magazine that every publisher makes though, right? Can I force them to buy my book if I say its political?

> A news stand isn't required to sell every magazine that every publisher makes though, right?

News publishers and editors are liable for content.

And yes, under equal access time laws by the FEC, broadcast networks are required to give equal time if requested by a political candidate.

We can argue semantics, or to what degree the law is enforced. The issue is that those two media both are 1) regulated and 2) liable with respect to content in a way that internet platforms that have voluntarily taken on an editorial responsibility are not.


Net neutrality means it's fine for Facebook or Twitter to censor whatever they want. I can always go directly to the NY post to find that article, or discuss it on HN.

If instead the ISP was doing that filtering, I wouldn't be able to discuss it anywhere online


> If instead the ISP was doing that filtering, I wouldn't be able to discuss it anywhere online

If Twitter, Facebook, and Google all blocked some content, the odds of it being found is way less than if a single ISP blocked it. Yes, you, personally would not be able to see it if it was blocked and you had that ISP. But collectively, the content is still there.

Facebook and Twitter are 90% of social media and have network effects making alternatives implausible. They're no different than Standard Oil and trains were. ISP like trains shovel 1s and 0s around (raw stuff). But people also particularly cared about getting content or oil (specific stuff). Twitter and Facebook have a monopoly on that "specific stuff" and with legal indemnity to boot. Who cares if you have the capacity to transport oil if you can't actually get it delivered? Who cares if you can get 1s and 0s online if you can't communicate with anybody about relevant content?

As an aside, remember when it was social "networking" and not social "media"?

Let's not pretend that these folks didn't want to play the content publishing game. It's the only way to funnel clicks into ad revenue.


Net neutrality means it's not fine for the ISP to do the filtering - that's all it does.

It says nothing on whether it's fine if Facebook or Twitter do it.


HN would block the NY Post article, despite users’ attempts at discussing it - where would that fall on section 230?

I believe this is exactly the kind of “Judicial Activism” that would get the right up in arms if it was the left doing it.

In theory I like the idea of judicial conservatism; not attempting to change the law and merely interpreting it. But in practice that seems to be applied in ideologically narrow ways.


Thomas is making a careful argument that the opposite is true, that the judiciary has broadly interpreted the law for maximum indemnity, taking it well beyond its text.

BTW, the many on "the right", particularly Randy Barnett, have long argued in favor of judicial activism in the service of his preferred philosophy, original public meaning. He doesn't fault the other side for activism, but for actively pursuing a philosophy he disagrees with, living constitutionalism.

It all depends on exactly what you're applying "activism" and "restraint" to. Barnett would argue for restraint in reading Section 230 as creating more authority than its text supports, but activism in applying such restraint.


> Thomas is making a careful argument that the opposite is true, that the judiciary has broadly interpreted the law for maximum indemnity, taking it well beyond its text.

Indeed! And there's some real legerdemain going on by the author related to that "indemnity."

He brings up traditional cultural ideas around an open and free internet, and he then argues that opponents of Section 230 are against the spirit of the internet. But this is only the case if you believe the spirit of the internet was 3rd party indemnity, and that's what made it grow. (A cynical position to hold in my opinion.)

If you believe that the internet is what it is due to openness, then it's people like Twitter and Facebook that have got it all wrong. They're effectively saying "we don't want to be held responsible for content on our platform" (e.g. bear the costs of editorial oversight), and simultaneously "we also don't want to be held responsible for content we take off our platform" (done so voluntary with the same cost burdens they're fighting against).

It's a weird type of Internet Provider Exceptionalism: "The Internet is great because the providers were free to do whatever they wanted."


The Supreme Court has always been blatantly ideological. Legal doctrines like textualism or activism are just rationalizations for decisions motivated by a Justice's political ideology. Always have been.

If the court were a strictly rational, non-ideological body, politicians wouldn't fight over appointments the way they do.


Judicial activism is the judicial branch believing they are the legislative branch and expanding/changing the scope of laws. A judge seeing what he believes is unconstitutional/unlawful behavior and saying he wishes he could try that case is not activism, it is merely a judge interested in his trade.

ashtonkem is echoing a common critique of textualism — that the personal worldview of a judge is a better predictor for rulings than a supposedly reliable strategy for reading text.

This. Scalia was widely advertised as a strict textualist, until of course it wasn't convenient (c.f. Heller) and then he was quite willing to both ignore precedent and slice and dice the constitution to fit his desired outcome.

Scalia's opinion in Heller is a history lesson, and it's a very careful one. The decision is strictly in line with his judicial philosophy of strictly interpreting the document as it was written.

Scalia's opinion is a lesson in judicial activism and a rather poorly constructed one that serves as an object lesson in how to cherry-pick facts that can be constructed to lead to your previously determined decision. It had nothing to do with the document as it was written, as we have a significant body of historical research into what clauses of the 2nd amendment mean when written as well as a long body of precedent about that amendment which was all ignored so that Scalia could legislate from the bench.

There's literally zero precedent on the 2nd Amendment other than Miller, a badly written opinion on a case that was guaranteed to fail for political reasons and applied specifically to NFA short barreled shotguns.

Scalia didn't write judicial activism. Nothing he ever wrote was judicial activism. "legislate from the bench?" Come on now. If you like the first amendment, the second exists to protect it. If you don't believe the second amendment exists (and that the opinion you've just stated), then the first doesn't either. The second amendment is the second most strict language in the entire Constitution. "Shall make no law", and "shall not be infringed".

You should read Heller -- you clearly have not. He carefully documented all of your arguments and destroyed them. Heller is one of the very few decisions that's come from the bench in the last 60 years that actually strictly respected the exact words of the Constitution for exactly what they said.


There was significant precedent on the 2A, I did read Heller, and happened to do my university thesis on US Constitutional and Legal History. Mine was a crim pro focus but still trod similar ground back in the early 90s when Miller and Lewis were the precedents to cite, and a significant part of the years of coursework and months of research was going to actual source on things like what was meant by certain terms and supporting material in the time they were written. I assure you that I know more about this subject than you or whatever NRA pamphlet you last read on the subject. Heller is an embarrassment to Scalia's carefully cultivated image and will eventually be viewed as his Dred Scott.

It's funny people can write papers on things and then believe they know better than a sitting SCOTUS justice who is known for NOT being a judicial activist.

Your politics are showing through. It's okay, you're not a judge and won't be.

I don't read "NRA Pamphlets", I read Heller numerous times. I've studied just about everything that's been written on the 2nd Amendment.

Dred Scott removed rights from people. Heller applied the document as it was meant to be, enforcing the Constitution.


So the guy who never talks goes soliciting the public for a piece of litigation that suits him. Theoretically I thought Supreme Court Justices were expected to be non-partisan in their judicial duties.

He started talking once Scalia died.



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