A new WSJ op-ed on how Big Tech is threatening the Constitution | Hacker News Reader

A new WSJ op-ed on how Big Tech is threatening the Constitution

wsj.com

20 pointsjimmy202021 comments

Post needs a title change to match the original article.

But, the op-ed is spot on. The government is inducing tech companies to do what they can't do legally, and this started with the "elective affinity" between the CIA and Google starting post-9/11, which kicked off a whole host of data collection that the CIA couldn't do itself, but can get very easily from Google and others.

I'm beginning to think the only solution is a "public option" social network moderated by these out of work folks, similar to the CCP's 五毛黨, except with the rule of law. That way, these private corporations can go about censoring whoever they want, and there'll always be the public square moderated with the actual laws of the land.

> It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

I don't buy this part exactly. The existence of Section 230 on its own doesn't require or induce them to censor any speech in particular. It's content-neutral.

But when public officials then make demands for censorship under threat of adverse regulatory changes, well, that's "induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish" then isn't it?

I feel like the title is misleading to make it seem like social media platforms are the bad guys here. The article is actually about threatening loss of Section 230 protections to compel sites that host user-generated content to censor speech the government would not allowed to censor under the constitution.

It’s an interesting argument but it seems like it’s not a good characterization of what’s happening unless we’re specifically talking about deplatforming Parler which is decidedly not “big tech.” The gov’t is allowed to compel companies to censor speech that is not protected by the 1st amendment and those companies, not burdened by the legal 1st amendment, are allowed to comply by casting a broader net than the gov’t would legally be allowed to.

Folks, you can stop reading right here:

> That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

This is a factual distortion of what section 230 is, as noted in this article, submitted yesterday: https://www.techdirt.com/articles/20200531/23325444617/hello...

Actually you can't, because although that part of the article is wrong, they get to the real point after it.

No, the entire rest of the argument rests on the claim that section 230 creates an inducement to moderate by removing liability. It does not. If anything, it creates an inducement to do the opposite, by removing liability for third party content.

The rest of the argument rests on the claim that government officials threatening to adversely modify Section 230 if companies don't engage in censorship the government itself could not require, is a constitutional violation.

Where are they making that claim? Every single case citation points toward the "section 230 creates an inducement to moderate." I saw some vague claims of sabre rattling about "regulation," but nothing about modifying 230.

What did you interpret "regulation" to mean other than regulatory modification of existing law (i.e. Section 230)?

> In April 2019, Louisiana Rep. Cedric Richmond warned Facebook and Google that they had “better” restrict what he and his colleagues saw as harmful content or face regulation: “We’re going to make it swift, we’re going to make it strong, and we’re going to hold them very accountable.” New York Rep. Jerrold Nadler added: “Let’s see what happens by just pressuring them.”

...

> As the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983), the test is whether “comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” Mr. Richmond’s comments, along with many others, easily meet that test. Notably, the Ninth Circuit held it didn’t matter whether the threats were the “real motivating force” behind the private party’s conduct; state action exists even if he “would have acted as he did independently.”

Regulation is policy created by regulatory authorities.

Sorry, but I don't buy the idea that one congresscritter's comments, in isolation, constitute a credible threat or inducement. And, if there really are "many others," maybe they should have included that in the article, rather than spending 80% of their space arguing the bogus "section 230 turns private action into state action" line.

> Sorry, but I don't buy the idea that one congresscritter's comments, in isolation, constitute a credible threat or inducement.

What would be the point in making the threat if it was not expected to have any effect?

Don't ask me. People make ineffective threats all the time.

Tell me: what can one congressional Representative do by him or her self?

Propose legislation and then horse trade against other things people in their district care less about in order to get it passed. Speak a bunch of inconvenient words into the Congressional record the next time there is relevant legislation, which the courts use when interpreting the law. Slip the change into the next colossal must-pass omnibus bill that nobody reads.

The bulk of the article centers on whether, by enacting Section 230, the Government has rendered the actions of private companies into State Actions. State Actions that abridge free speech are forbidden vide the Norwood vs. Harrison (1973) decision of the Supreme Court.

Don't editorialize. Real title: "Save the Constitution From Big Tech".

The submitted title is arguably better, because it's less click-baity.

The current title de-editorializes the source title, which is explicitly one of the acceptable reasons for not using the source title.

For those who don't want to sign up to read this one article: https://archive.is/63dm7

> Ordinary Americans understand the First Amendment better than the elites do. Users who say Facebook, Twitter and Google are violating their constitutional rights are right. Aggrieved plaintiffs should sue these companies now to protect the voice of every American—and our constitutional democracy.

Does anyone find it amusing that Facebook and Twitter, which are basically venues for cheap entertainment, are now considered an important part of democracy by this author? If both these sites didn't exist people would go to Reuters, NYT, Imgur, etc directly. And nothing of value would be lost.

> Suppression of dissent breeds terror. The answer to last week’s horror should be to open more channels of dialogue, not to close them off. If disaffected Americans no longer have an outlet to be heard, the siege of Capitol Hill will look like a friendly parley compared with what’s to come.

What did domestic terrorists like Timothy McVeigh do before Facebook and Twitter? They killed people.

> Liberals should worry too. If big tech can shut down the president, what stops them from doing the same to Joe Biden if he backs antitrust suits against social-media companies? Our Framers deeply understood the need for checks and balances in government. They couldn’t anticipate the rise of a new Leviathan with unchecked power to make extraconstitutional political judgments under the mantle of private enterprise.

That's fine if a website doesn't want to feature Biden. The framers couldn't even imagine the amount of media exposure that politicians have achieved from the internet.

"Does anyone find it amusing that Facebook and Twitter, which are basically venues for cheap entertainment, are now considered an important part of democracy by this author? If both these sites didn't exist people would go to Reuters, NYT, Imgur, etc directly. And nothing of value would be lost."

I value my ability to post articles that I think are important on Facebook, and to comment on them. Many others probably do too.

The slide into a totalitarian dystopia is much quicker than you'd think. It was only two years ago Alex Jones was banned from mainstream social media for his crazy theatricals. We've already slid to Chinese WeChat-level censorship with blanket bans on terms like "Stop the Steal" (which at least a third of the US consider tantamount to banning the utterance of "Tiananmen Square").

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