5th Circuit Rules Internet Companies Have No Right to Moderate

I'm not going to comment on that conclusion, but your comment is a complete mis-frame of the argument, at least by my reading.

IMHO platforms are looking to eat their cake and have it too. When a post is harmful they don't want the liability so they claim they aren't the speaker. But now that they want to ban a post they're trying to claim it's their expression to trigger 1st amendment protections.

I don't think Texas' law is a good one for a handful of reasons. But dumb laws aren't the same as unconstitutional laws.

Even worse, they could not imagine being able to monitor their every reaction with fine granularity to then apply adaptive algorithms.

Worse yet, they could not predict the above effectively inserting every member of the audience and entire groups into a Pavlovian operant-conditioning program under the control of those controlling the methods of communication.

Clearly the first amendment is not —could not be— designed for this reality.

At scale, these companies have more power to influence thought than they should. That much should be clear to any neutral observer. All you have to do is imagine a reality where they favor a side, cause or ideology opposite yours.

There was much debate about whether the Bill of Rights would cause more harm than good because it would likely (and has been) interpreted as some enumeration of rights, when it was added as a compromise to make it clear to the power-hungry among us that these rights were granted by God and that the government has no right to infringe upon them, even via so-called "public-private partnerships" (a not-so-clever rewording of Mussolini's apocryphal definition of fascism).

It's not obvious that moderation decisions on websites that allow the public to post content for public consumption are "speech." We analogize to that result by looking at case law that was focused on publishing decisions of newspapers. But what the New York Times chooses to publish is obviously much closer to speech than moderation of user-generated content.

Twitter's not special, it's just a useful platform that a few people would love to force into broadcast their messages.

Common carriers have a government sponsored monopoly. Does Facebook?

For starters, they don't own the wires so if your signal isn't carried by Facebook, you can just go out if on Twitter or Tumblr or Rumble or HN, &c.

Is anti-spam, anti-gaming censorship? HN doesn't let you downvote comments until you have a certain number of points. HN works to make voting rings ineffective. Both of these involve judgments. Are those two votes independent? Maybe they are independent votes and you (or your software) has decided they aren't independent and you've taken away their voting power and censored their input. Nobody wants that. However, the alternative is that someone will just create millions of bots and then the site loses all relevance.

A common carrier is generally a company that will deliver something from one person to another person without discrimination. For example, AT&T takes your packet and delivers it to its destination. These websites are made to show things to people that it wasn't explicitly sent to. Do we compel sites to display everything posted to everyone? That would be impossible. Some content is spam and other content is simply unpopular. The usual response to this is that it would be ok to prioritize popular content - but only along the lines of rigid rules. However, everyone kinda recognizes Goodhart's Law - that every measure which becomes a target becomes a bad measure.

What is legal communication? Is this any communication that a court hasn't convicted someone for saying? That would mean that they couldn't remove communication that's clearly illegal because there's always a chance that a court might disagree. That basically means that your site is going to become a cesspool. We've seen these cesspools on the internet. They're not places you want to go. Heck, you're here on HN because the moderation is generally good.

I think what some people miss is that a lot of "censorship" is shutting down harassment, stalking, incitement to terrorism, etc. Sometimes it gets couched in ways where someone kinda denies that's their intent. "This person is a sicko. They must understand that thousands of people are going to harass them for this," knowing that their followers will then harass them since the poster pointed them out. Oh, they weren't inciting harassment, they were just noting it would happen to their followers who harass them. Maybe the answer is that law enforcement needs to put people in prison for these illegal acts of harassment, stalking, and terror. For example, Boston Children's Hospital has received many bmb threats lately. I'm sure that many sites have removed posts calling for people to threaten the hospital. Maybe the answer is that everyone who has posted something calling for threats against the hospital should get a few years in prison and a 6 or 7 figure fine rather than having their posts censored.

This would somewhat eliminate the ability of websites to have a niche. If I have a subreddit about cats and you decide that you want to spam dogs onto it, am I a common carrier that must allow any speech on my subreddit? Maybe you'll say that's ok, but that reddit in general couldn't prevent a dog subreddit. Ok, but what if my site is an independent site and not a subreddit. Then am I a common carrier?

With a common carrier, you're usually paying the carrier to deliver things for you. With social sites, you're usually getting to use them for free. As a social site, am I required to take your content, store, and deliver it for free even if I determine that your content won't make me money? In fact, almost everyone does* want common carriers to censor speech - find me a person who doesn't hate the SPAM texts and calls. Oh, I get it - but that's different. Common carriers are likely to limit people when their behavior becomes problematic. With someone like the USPS, that will happen because the usage charges are high enough to deter a lot of problematic usage. With someone like a telco, they might notice patterns of abuse and start filtering messages.

I'd say it's also odd that we're focusing on these social sites and their moderation without talking about email. I can't just install postfix and start sending to Gmail without hitting the SPAM folder (or potentially not getting delivered at all). We've been living with this issue for decades and it's a little odd that they're going after YouTube, Facebook, etc. when out inboxes have been filtered for a while. I'm not saying that your inbox is a common carrier, but it feels closer than YouTube or Twitter.

I think that what makes it hard is that there's a fine line between political speech and incitement to terrorism. If I say, "X is horrible and if the government doesn't do something about it, people will take justice into their own hands," is that an incitement to violence? Maybe I know that my followers just need to be pointed at a target with an implication that they should attack it (without me saying it so that I can deny it later). For people who go around generally not having to worry about being a victim of that, it doesn't feel like something at the forefront of the issue. For most people, the worry about having a post moderated is much more likely than the worry that someone will dox them, SWAT them, and harass them to the point that they can't live their life. Again, you'll say that those things are illegal, but unless we're prepared to put our law enforcement resources in that direction and put real consequences behind that, it's going to present a real problem for our society. And I don't think our society is ready to accept a lot of people (disproportionately white, male, and more upper-middle-class) getting charged with crimes for stuff like this.

We're seeing that with the January 6th terrorists. They tried to overthrow the US government and are now complaining that they can't go to a renaissance faire. The penalties so far have been pretty light for people whose crimes were so severe. I think almost all of the people being investigated and charged probably wish they hadn't been able to make it into the Capitol and therefore wouldn't be facing consequences now - and I think that most people on these social sites would rather complain about their posts getting moderated than have those posts handed over to law enforcement for serious criminal charges.

What makes this all feel in bad faith is that the Texas law is coming from the same group of people that are actively trying to censor everything. They're trying to ban books from schools. They're trying to restrict information around abortion and transgender issues. They're trying to censor information correctly stating that the Civil War was fought over slavery. The F-Your-Feelings group is screaming "BUT MY FEELINGS!" The "I should be allowed to discriminate however I want" group is screaming "HOW DARE THEY DISCRIMINATE AGAINST ME!"

Should I be allowed to come into your store, harass your customers, scream my political views, and then tell you that you can't kick me out? No. The same is true of sites online. It's a tragedy that we've centralized the internet so much that a few companies have so much power, but the fact is that almost every site would decide to moderate things in a similar fashion - just as almost every store would kick you out for harassing their customers and screaming stuff in their store. People don't generally want to visit a place that's full of garbage. Heck, people here complain that Amazon doesn't moderate their listings enough and there's too much garbage there. The second that things are a free-for-all, the same people that complain about censorship then complain about the garbage. Amazon isn't close to a free-for-all and everyone complains that they can't trust anything - from fake reviews to fake products to whatever. People complain about Yelp all the time - from fake reviews to Yelp censoring their genuine review which got presumed as spam.

Nobody wants to be in an unmoderated cesspool. Sometimes sites are small and people are good. When you become the size of Twitter or YouTube or Reddit, you just get a certain amount of garbage that makes your site not fun for 99.999% of the people who are trying to enjoy it. Do you want to see your investment die under a barrage of garbage or do you want to remove the problematic stuff? Even as people complain about Amazon, I'm sure Amazon is removing so much stuff from their site to try and keep it good enough that people are mostly happy. No one wants Gmail to remove SPAM filters. Ultimately, as much as people complain, they don't want to be allowed to do anything they want and face the consequences.

Yes, sometimes sites get things wrong in their moderation. I'm sure Amazon removes legitimate products, Yelp removes legitimate reviews, and a Twitter moderator who maybe has 30 seconds to determine if a post is harassment hits the "yes" button when it's just political speech sometimes. However, the alternative would be living with an Amazon that would be unusable, living with a Twitter no one would ever open, and living with Gmail that would be a deluge of SPAM.

The distinction, of course, is that common carriers are about 1-to-1 or 1-to-few communication (analagous to writing letters back in the 1700's, or holding a small private gathering) while internet communications are about 1-to-many communication (analagous to submitting an article to the city newspaper back in the 1700's, which they may or may not publish).

1-to-many communication necessarily requires organization, filtering, ranking, rejection, etc. in order not to become an unusable firehose. None of these can be applied objectively or neutrally, they are all editorial in their most fundamental quality, so the idea that any public community could be treated as a common carrier is ludicrous simply at a practical level. Hence why I call it a false dispute -- it's trying to argue for something that isn't even achievable.

People can say what they want and shopping centers are absolutely free to throw people the object to out. Walmart is not a public space. The parking lot of Nordstrom is not a public space. Twitter is not a public space.

Why should Walmart be forced to serve someone spouting threats to other customers and staff? Why should Twitter be forced to broadcast users spouting threats and harassment towards their other users and their staff?

The dynamics of online and irl communities are different, you can't really compare them.

All these arguments end up having that complicated "if" clause, though. Because you have to squint very, very hard to find a way to understand this ruling as anything but disallowing content moderation.

This very site. Hell, almost certainly this very thread, has copious dead comments suppressed precisely because of their undesired content. Accounts get banned here repeatedly. How is exactly is this legal in Texas? Yeah, you have to construct an "if".

And let's be honest, in almost all cases that "if" is going to be tantamount to "they are moderating content I disagree with".

And that's how you can tell this is a terrible ruling. It grants the government broad ability to disallow moderation without giving anyone a clear set of rules for which moderation is acceptable beyond "big tech bad".

In other words: there is no investment in a corporation having rights added to it as if it were a legal person. The sole interest is that the people within the corporation do not have their rights subtracted by virtue of how they choose to organize.

You can see this in how people actually talk about moderation online: it simply doesn’t matter if it’s a corporation, nonprofit, union, or individual running a service.

This.

I think the problem is that on the whole, most people care more about outcomes than principles. And most people aren't very interested in constitutional issues. So most people find it quite easy to hold political positions that imply advocating two contradictory constitutional principles at the same time.

I include myself, by the way; I'm not pretending that I'm cleverer than everyone else. But at least I'm interested.

I come from a country with no (written) constitution, and I'm interested in constitutional principles. But I'm fearful of what might happen were we to adopt a constitution; basically I don't trust my fellow citizens to be able to think about these issues clearly. Constitution is essentially abstract law, and people find it hard to think in abstractions.

So perhaps it's actually better to think about these issues in terms of outcomes, and rely on judicial precedent based on concrete cases, rather than to try to distill principles from pragmatic judicial goals.

IANAL.

In any case, the supreme court ruled it. So if they have personhood, they have a right to restrict speech on their own property. Unless, you think, I should be able to go to your property and put up my political sign at will.

People are concerned about money in politics because of corruption and special interests.

People are concerned about unmoderated social media because of extremism, conspiracy theories, misinformation, polarisation and all the impacts that has on society.

That's it.

> If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content.

Your understanding is not merely wrong but 180° from what Section 230 rather specifically and explicitly exists to do. Section 230 exists exactly to eliminate that classic, pre-internet, rule distinguishing publishers from mere distributers, and to allow online information services (and individual users) to censor content without incurring the no-notice civil liability for unlawful content that would apply if the pre-Section 230 rule was applied.

> Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

[1] https://en.wikipedia.org/wiki/Section_230

https://techfreedom.org/wp-content/uploads/2022/09/2022-09-1...

Before §230, there were two court cases involving online content which, upon reconciling their rulings, suggest that any online site is liable for content if and only if they perform any moderation whatsoever (including, say, removing child porn). As a result of §230, online sites both have protection from being treated as the speaker of content even if they do moderate (or censor, as you word it) as well as from being sued by the users for the consequences of their moderation.

The techdirt poster ironically wants to claim there's a difference between censorship and editing, but the thrust of his argument indicates an utter disregard for any distinction. They want tech companies the ability to edit, while posing as a platform that is supposedly inclusive. You can't have it both ways.

Apparently the mass of evidence that can be easily found, including Wikipedia and the TechDirt article linked, suggest that I was wrong in my understanding.

I do not remember from what source my understanding is from, but I remember it appeared to come from a semi-respectable source at the time.

The Tech Dirt article is at least implying that certain politicians are lying about that law. If we look at the article about the 5th Circuit ruling, it appears that implication is that the judges are misunderstanding the law as well.

I certainly don't think politicians are above lies. But I think large tech companies have very large vested interest here as well, including Wikipedia and Google. I don't think these companies are above misrepresenting the facts either.

It appears that the opinion I presented above is commonplace. It also appears that some of the sponsors(?) of the law and judges that have looked into this issue have opinion of the law that differs from the Tech Dirt article.

Also, it appears impossible to find the source where I read it from. These suggests to me that there is some controversy. Perhaps, in an ironic twist, the source is censored from Google results.

In any case, my profession has taught me to look more carefully when there is a large disagreement about the facts. Apparently I need to go to the primary sources and read the law next.

Firstly, clearly, IANAL. It do not have background of related law or case law, or legal uses of certain expressions etc. Again, this is a layman's perspective, based on my own reading both Section 230 and the linked commentaries from above.

That said, I am trying my best to understand all sides of the issue myself. I may be wrong, but I am trying to be as honest as possible.

My opinion above was wrong on some points. There is no reference to term "Platform" in the Section 230. Also, my comment above can be understood (and I think this misunderstanding is common) in a way that companies need explicitly and publicly claim either to be a Platform, or not to be a Platform.

The third point is that Section 230, BY ITSELF, does not force companies to do choose or do anything. It actually may protect the companies from liabilities, if they choose to behave in a certain way.

However, these points were not central to my argument. Although there is no term "Platform" in the Section 230, we can just use "Platform" as a shorthand for "interactive computer service", as as apparently some commenters of the law have done.

Next, obviously companies do not need choose whether they are Platforms or not in the sense that they somehow would need to explicitly and publicly claim what they are. The issue is more subtle.

I think some of the commenters above are not aware of how policies are formed within corporations. I work in the field (finance) where this is done all the time.

There always needs to be an interpretation of laws, regulations and guidance from regulatory bodies within the corporation. This interpretation is at least implicitly and sometimes explicitly encoded in the internal policies. The corporate lawyers are central people who participate in creating these policies.

The companies do not need explicitly and publicly claim to be a Platform or not. At the same time, it is 100% certain that their corporate lawyers are (and must be) familiar with the intricacies of the laws and regulations, and in a way they need to be very explicit in their thinking when forming these internal policies whether they think their company is a Platform or not, regardless of whether they document this thinking in the internal policies or nor.

While the "choosing" happens privately within the company, it is in a way clear from the actions based on those policies, whether they have chosen to be a Platform or not. And this choosing becomes explicit if the said company needs to defend their actions in court.

However, the commenters have a good point that the Section 230 BY ITSELF does not force companies to choose whether they are Platform or not. They need to choose only if they want protection by using the Section 230.

What the commentaries above miss, however, is both implicit in the title "Good Samaritan" and explicit in the content, with the term "in good faith". If you think I am wrong, please read up or remind yourself what that story in the Bible is about.

From my reading of Section 230, I fail to see that this would protect companies that censor opposing political views, for example.

[1] https://www.law.cornell.edu/uscode/text/47/230

I hear this phrase a lot.

What is a public square? Well, my living room isn't a public square. Nor is my email inbox; nor is the comment section on my blog. Actually, there are no comments on my blog, because I don't have a blog. But how many daily comments would I have to get to become a public square?

I don't think there's any reasonable case to be made that a private web-service is in any sense a "public square". Faceache and Twat are private squares - like a courtyard in a gated community. If people wanted a real public square, they should have done more to prevent the sidelining of Usenet, and they should boycott the holding of "public" discussions in private places like gated communities.

Incidentally, you can't usually say anything you want in a public square; several people have been arrested and cuffed in this country, for things like:

- Shouting "Who elected him" on the proclamation of Charles The Turd in Edinburgh

- Holding up a blank piece of paper(!) at a similar proclamation in London

Basically, I can say all kinds of things here on HN that would get me arrested if I said them downtown (including if I were to pick an argument with the evangelical god-squad crews that set up in the town square with a public address system).

I've lived in a few places in the USA, and in none of those places would I have felt safe expressing my opinions in the local "public square". I'd either be arrested by the cops, or beaten to a pulp by heavies, with the cops watching.

The town square isn't the free-speech paradise that some people seem to claim, when they are discussing internet regulation.

A new paradigm and mindset around free speech is needed, because social media and unfettered unmoderated free speech can't simultaneously coexist without collapsing our society.

A court ruling binding all (or at least all sufficiently large) players in the space acts like a (legal) cartel: Customers (advertisers) don't have a choice, the conditions are the same everywhere.

https://en.wikipedia.org/wiki/Andy_Oldham

Getting rid of the filibuster for judges and keeping it for everything else is exactly backwards.

… Or to yell “fire!” in a packed theatre.

As many other posters pointed out, 'safe spaces' like r/conservative and Gab are some of the most moderated places on the internet, and I can't see their judges changing that. It's not about consistency, it's about winning the culture war.

I would argue both of those are undesirable, but the current state of affairs where facebook bans people for COVID misinformation that later turns out to be the truth, or when people or groups are deplatformed for what appears to be large scale collusion.

Platforms shouldn't get something that approximates the benefits of common carrier while also choosing winners, but we can also all see that spam is undesirable.

Why do you believe that this restriction’s impact on free speech is justified?

They can publish such code with no restrictions.

What they might get in trouble for is putting that code in their products where it will be executed to unfairly prioritize their browser.