You're simultaneously advocating for a sweeping change in how the courts interpret our rights, while proclaiming that they will continue to protect them.
Currently, the courts have an opinion on censorship that is extreme enough that it protects what Facebook is doing. Today, the government cannot write censorship rules. They all, to use your words, "infringe on our rights". So if you want the government to be able to do that, and the courts to allow some censorship, you have to amend the constitution, and change the recognized legal framework of what our rights even are.
That (broadly) falls to lawmakers, not the courts. Do you trust Pelosi and Cruz (and other lawmakers) to change the very framework of what our right to free speech is, while simultaneously allowing the courts to protect it?
> while proclaiming that they will continue to protect them.
Well, are rights aren't particularly protected, from the censorship that happens right now.
There are zero checks on balances on the censorship that already happens. At the very least it would be better if we had more courts involved, so as to make sure that those courts have some say over what censorship can happen or not.
> Today, the government cannot write censorship rules
Sure they can. They are already doing so. Go look at the laws that cover phone companies. The government already has laws, that prevents phone companies from engaging in certain acts of censorship, or whatever we want to call that, on the telephone network.
Those laws don't apply to other things at the moment. But they could, if we changed them, and it would be no bigger of an issue than how those existing laws, already apply to phone companies.
> you have to amend the constitution
No we won't. All we have to do is take our existing common carrier laws, and expand them.
Common carrier laws, as they apply to phone companies, are already constitutional.
> to change the very framework
There is no massive change to the framework of free speech, when we already have similar laws, that already apply to a similar thing, which is the phone network.
Just whatever is happening there, already, and which already does not infringe upon our rights, could be expanded to apply to other things, and no massive constitutional change would be needed to apply these existing laws to new things.
> Well, are rights aren't particularly protected, from the censorship that happens right now.
Given that I don't believe that it is fundamentally possible for any private entity to infringe on my right to free speech, I'm going to have to disagree with you here.
> No we won't. All we have to do is take our existing common carrier laws, and expand them.
The Cato institute appears to disagree with you that it's that simple[0]. It's not clear that applying common carrier status to Facebook or Google could be constitutional, because they do not and have never claimed to be neutral, so using the force of law to make that so would be an infringement on the companies' rights to speech and association.
> they do not and have never claimed to be neutral, so using the force of law to make that so would be an infringement on the companies' rights to speech and association.
You are not being creative enough, with how we could apply these laws.
One big reason why phone companies are claiming to be neutral in the first place, is to get certain protections, that those laws give them.
They claim to be neutral, to get certain benefits.
Phone companies are claiming to be neutral, for a reason. Its not because they simply want to. It is because they are doing that, on purpose, because the law is strongly incentivizing them to do so.
A similar strategy could be used against Facebook. What can be done, is we take away certain protections, that we currently give them, and only give them back, in exchange for them following something similar to common carrier laws.
The most common thing that people bring up, of a right to take away from them, is section 230 protections.
When the smart people talk about repealing section 230 protections, it is not to actually remove those protections.
Instead, the strategy, is to make it so, if companies want to keep those protections, they then have to follow other requirements, by making those protections contingent on acting a certain way, such as by following common carrier laws.
That is the way to get around being unable to force Facebook to follow common carrier laws. You don't actually force them to do it. Instead, you make the alternative, extremely difficult, by making previously necessary protections, contingent on following new neutrality laws.
This doesn't make sense. If you repeal 230, Facebook doesn't gain anything from being a common carrier. Repealing 230 solves the problem you seem to be solving, which is that the companies can no longer do any form of moderation.
The problem there, of course, is that both the average citizen and the average lawmaker want the companies to be able to do some forms of moderation. Which brings us back to the original question: Do you trust Pelosi and Cruz to define a reasonable framework for internet content moderation?
> If you repeal 230, Facebook doesn't gain anything from being a common carrier
Yes they do. They would not be able to be sued, if they were a common carrier, and in return, they would be unable to engage in many forms of censorship.
If they did not have section 230 protections, then them existing in their current form, would be almost impossible, and therefore, they would have to make the choice to receive the alternative protections, which are common carrier protections.
Common carrier protections are different from section 230 protections. If they are put in a position, where their only real option is to go under common carrier laws, then that would be the point.
> the average lawmaker want the companies to be able to do some forms of moderation
Common carriers are already allowed to do some forms of moderation/censorship. It is simply much much more limited.
And additional forms of moderation, could simply be handled over to the user, to choose what they want.
For example, it would be completely allowed for a customer, to have some automated calling blocklist, where they choose to block all adult content phonelines, that call them.
> Which brings us back to the original question
No it does not bring us back to that. Because common carriers are already allowed to do very limited forms of moderation, and that is what it would be a good thing to incentive facebook into having to follow.
We don't have to have lawmakers do anything except for get us into a position where facebook is strongly incentivized to choose to be under common carrier protections, where they will then be extremely limited in the types of censorship that common carriers are allowed limited to.
> Yes they do. They would not be able to be sued, if they were a common carrier, and they would be unable to engage in many forms of censorship.
If facebook doesn't moderate, they can't be sued anyway. Without section 230, moderation makes them liable, but if they choose not to moderate, they aren't liable.
You're suggesting that by opting into a common carrier status, they gain what?
> Common carriers are already allowed to do some forms of moderation/censorship. It is simply much more limited.
Such as? As far as I can tell, they're allowed to moderate forms of pornographic and harassing content which, to be clear, a non-common carrier would be legally required to remove anyway. The statues you're referencing basically say that a common carrier still has to do the moderation that everyone else is legally required to do.
> No it does not bring us back to that. Because common carriers are already allowed to do very limited forms of moderation, and that is what it would be a good thing to incentive facebook into having to follow.
Except, you're
1. Mistaken about the status of the moderation common carriers can do, as I explained just above and
2. Mistaken about the amount of moderation that people want. Both lawmakers and the average citizen want more moderation than a common carrier is allowed to engage in, which brings us once more back to my question: do you trust Cruz and Pelosi to develop a moderation framework?
I already know the answer. You don't. What you appear to want is a form of no-moderation absolutism that forces these companies to promote all speech that isn't harassment or pornography.
The problem with that is that, from a profit perspective, most users of those systems (and transitively, most advertisers) don't want to be associated with that kind of content.
The practical result would be a mass exodus from these platforms to other, different, new forms of social media that avoid being classified as common carriers (or do things to avoid the broad section 230 issues, perhaps by being even more highly moderated and small-group oriented or totally private, like discord). Maybe that's a win for some people, but if your goal is popular unmoderated platforms, that's not what you'll get, because that's not what consumers want.
> You're suggesting that by opting into a common carrier status, they gain what?
It means that they can't be sued for content on their platform. If they do not have section 230 protections, every piece of content on the platform, they would be responsible for.
And if they then choose to be a common carrier, they also get that immunity from being sued. There are 2 different ways of recieving this immunity to lawsuits. And if you take away way 1, which is section 230, then their only option is to take way 2, which is by being a common carrier.
> but if they choose not to moderate, they aren't liable.
The point would be to strongly incentivize them to respect the user's choice of moderation, common carrier laws, are the way that people often talk about, but sure maybe there is a 3rd way that you have found to do this.
> Such as?
Such as moderation that is done at the request of the user, for that specific user only. The phone company, can blocks calls if that user wants it, and common carrier laws dont stop that.
If Facebook was only allowed to do moderation, at the request of that specific, individual user (or, of course, things that are already illegal.), then that solves most of these problems, where users want moderation for themselves.
If we want to get more detailed here, we could imagine allowing categories of moderation, that facebook can engage in, if and only if the user opts into it. Then we don't have to define moderation, and can simply have it be whatever that specific user wants.
> the average citizen want more moderation
That can be done through incentivizing facebook to allow user choice, of their own moderation. Problem solved. Then they can get that moderation, and we don't have facebook forcing this moderation on others.
> What you appear to want is a form of no-moderation absolutism
Nope. I want the moderation to be left in the hands of the specific user. Therefore, everyone gets what they wants, except facebook I guess.
> most users of those systems
And yet, the phone system works perfectly fine. I don't particularly care if the phone companies are mad about being forced to follow certain laws. We wouldn't have to make laws, if they wanted to follow them.
> It means that they can't be sued for content on their platform. If they do not have section 230 protections, every piece of content on the platform, they would be responsible for.
No! See Cubby, Inc. v. CompuServe [0], which predates Section 230. If you do zero moderation, you are not liable for user generated content period. Section 230 creates a good-faith protection so that if you do choose to moderate some content, you don't become liable for failing to moderate the rest.
The legislative history of section 230 is literally that without it, companies were liable for user generated content only if they tried to moderate, and lawmakers wished to encourage companies to moderate content
> Such as moderation that is done at the request of the user, for that specific user only. The phone company, can blocks calls if that user wants it, and common carrier laws dont stop that.
This is not "moderation" in the common use. In the context of facebook, this would be that "I'm unable to block another user", which is silly (and perhaps should reveal to you why trying to shoehorn Facebook into a common carrier doesn't make sense).
> That can be done through incentivizing facebook to allow user choice, of their own moderation. Problem solved. Then they can get that moderation, and we don't have facebook forcing this moderation on others.
Facebook already allows users to block other users and pages. All of the options you want are already available. You're suggesting a strict reduction in moderation tools, and claiming that this will solve everything the way everyone wants.
So let me pose a simple question: how does your approach address coordinated misinformation campaigns? Say I come along tomorrow and start spreading lies about how and when voting works. I'm so effective at this that turnout next year is significantly lower because people are confused. I haven't done anything illegal. Can Facebook remove my content? It's actively and demonstrably harming the democratic process by preventing people from voting. What should we do?
> And yet, the phone system works perfectly fine.
I basically disagree here. Spam is a much larger problem on my phone than anywhere else. Plus, due to the implicit attributes of the phone system, things like spam and misinformation are handled by being crimes on the part of the caller. In other words, Ben Shapiro can post whatever he wants on Facebook, but if he were to call every American citizen and try to share the same information, he would be a crime. Not because of the information, but because sharing things widely via the phone system is essentially illegal.
> . If you do zero moderation, you are not liable for user generated content period
Ok sure, whatever. But the point would be to put facebook in a position where they are only doing moderation that a user is requesting that they do. We can use common carrier laws, or we can use some different legal precedent. Thats that goal. The specific method, or process, isn't really the main point.
> you're suggesting a strict reduction in moderation tools, and claiming that this will solve everything the way everyone wants.
I am suggesting that users should be allowed to have voluntary choices about what moderation they want to have, as it relates to them, without facebook forcing those decisions on the user.
> All of the options you want are already available
No, users still are forced to accept facebooks choosen moderation preferences. That can't choose to opt out of Facebook's censorship or moderation, if they voluntarily choose to subscribe to certain content.
> solve everything the way everyone wants.
It will solve what a lot of people want. Sure, I am sure that there are people who are just explicitly pro-censorship, and want the 1st amendment to be removed, and want the government to ban all opposing political opinions.
But there are also a lot of people who don't want facebook to be forcing users to accept certain moderation, and instead want users to be in control of what they see.
> how does your approach address coordinated misinformation campaigns?
If something is so bad, that it needs to be censored, then that is what the government is for. Terrorist threats are already illegal, for example.
Backdoor censorship isn't the way to go. If you really believe that mis-information is so bad, that it needs to be stopped, by these types of methods, then the onus should be on you to gather enough support, to get around the protections of the 1st amendment.
Checks and balances are difficult to get around for a reason. And if you can't get around these checks and balances, well thats the point of those checks and balances.
> I haven't done anything illegal
Well thats life. You are trying to backdoor your way to try to get stuff censored, because you aren't able to convince the government to do it. We don't need this backdoor method of supporting censorship.
> Spam is a much larger problem on my phone than anywhere else
There is nothing illegal about phone companies offering additional, voluntary methods, of allowing users to choose more things to be moderated for themselves.
Such problems could be solved that way. By facebook, or whoever, offering voluntary programs, to block certain types or categories of things, if the user chooses to opt in to that form of moderation.
> Ben Shapiro can post whatever he wants on Facebook
You don't have to listen to Ben Sharpiro if you don't want to, in this situation. Instead, you could just voluntarily choose to subscribe to a "ban right wingers" block list, or whatever voluntary algorithm that the user opts in to.
> to get around the protections of the 1st amendment.
I have gotten around the protections of the first amendment though! You're objecting how I did, and saying that it's not fair or not right, and that I should instead get around them in a different way. But why am I supposed to trust that you won't also object to that other way when, or if, I do gain that support?
> But there are also a lot of people who don't want facebook to be forcing users to accept certain moderation, and instead want users to be in control of what they see.
They are: they're free to use a different service. No one is forcing you to use facebook or to distribute your content via facebook. There are plenty of other ways to distribute your content, and you have no more right to require facebook distribute your content then they have a right to force you to use their website.
> I have gotten around the protections of the first amendment though!
Yeah thats the point, lol.
If you are just pro censorship, and dont care about the principles that the 1st amendment protects, and just want to find a way around it, just say so.
If you would support the government, censoring all opposing political opinions, or jailing them, or worse, because of some legal technicality, just say so.
As long as you are honest about it, and you just want to do things that are basically equivalent to the government censoring anything for any reason, just say so, and say that you want to ignore all of this stuff, and want to find a way to censor all of your political opponents, in any way that you can find.
Yes, I completely agree that people such as yourself, don't care about any of these principles, and just want to figure out whatever ways that you can, to defacto censor anyone for any reason, regardless of the motivations in the first place, to stop censorship. Thats the point.
The whole point is that you don't care about any of this, and just want to engage in authoritarianism, in any way that you can get away with. Thats the problem.
Thats what everyone else is trying to fight against. Authoritarians who look for loopholes, to engage in authoritarianism, with whatever possible way that they can get away with.
Thats why we want laws to stop that!
> They are: they're free to use a different service.
But the alternative solution, that provides a lot of benefits, to most people, is to simply incentivize facebook to implement these policies.
That would allow people to get most of what they want, by preventing these work arounds, where the principles of anti-censorship, are backdoor ignored. While also simultaneously giving users the ability to moderate content that they see.
> have no more right to require facebook distribute
I agree that the law does not currently prevent facebook from doing certain things. Which is why the conversation, the entire time, was about making new laws, or changing laws, so that they cannot engage in what, in your own words, is a way to get around the 1st amendment, and engage in mass censorship, that is almost as bad as if the government did it.
This goes back to what I said far upthread: "Given that I don't believe that it is fundamentally possible for any private entity to infringe on my right to free speech", I'm not pro censorship or trying to sneak around the first amendment or whatnot.
My point was that given your view of free speech and the first amendment, a view that I fundamentally don't accept, I have no reason to trust that you're being forthright. And I think we have proof now that you were't. You admit that, in your view, we have gotten around the first amendment.
But you said that that was okay, that if it was so important, we could gather support and bypass the first amendment.
> If you really believe that mis-information is so bad, that it needs to be stopped, by these types of methods, then the onus should be on you to gather enough support, to get around the protections of the 1st amendment.
And my point is that we have that support right now. You're the one advocating for a change. So which is it, are we allowed to get around the first amendment, or not? When is it okay?
> The whole point is that you don't care about any of this, and just want to engage in authoritarianism, in any way that you can get away with. Thats the problem.
I think it's authoritarian to force groups to associate with people they don't want to. You're trying to use the first amendment, something that's supposed to protect our rights, as a cudgel to allow the government to strong-arm businesses into acting the way you'd prefer. That's authoritarian!
You're advocating for laws to enforce anti-authoritarianism. You want the authority to force people to (in your view) be less-authoritarian. Hopefully you at least recognize the irony.
> But the alternative solution, that provides a lot of benefits, to most people, is to simply incentivize facebook to implement these policies.
But you're not talking about "incentivizing" you're talking about forcing via law and government.
> that is almost as bad as if the government did it.
And what's even worse is the government having control over how and what they can moderate. Like it absolutely baffles me that you think further centralization would make this better.
> in your view, we have gotten around the first amendment.
There are principles that the 1st amendment protects, and it is those principles that matter.
For example, there are laws that prevent the government from locking people up, without due process. If someone were to find a way to get around that law, by having a private company lock people up, without due process, that would be getting around the principle of due process.
> But you said that that was okay, that if it was so important, we could gather support and bypass the first amendment.
It is "ok", in the same way that it would be "OK" to change the constitution, so as to remove everyone's right to due process, and allow the government to lock people up without a trial.
And by "OK", I mean, you better have a really good reason for it, and you better have to follow the extremely difficult process of removing everyone's right to trial, and you really shouldn't be using a loophole to do that (such as if private companies locking people up without trial, was allowed).
Thats what I mean by that. That getting around these principles, should require a very high bar, and you better be able to convince a whole lot of people, if you want to remove everyone's right to trial, or some other similarly important thing.
> as a cudgel to allow the government to strong-arm businesses into acting the way you'd prefer.
Common carrier laws already exist and are uncontroversial.
If you want to call that authoritarianism, ok, go ahead. But most people think that these laws are perfectly ok. Most people do not think that anyone's 1st amendment rights are infringed upon, because phone companies have to carry all users.
So, you don't get to say that extending these already existing, and uncontroversial laws, are some giant change, when they aren't.
If we really want to go even further, we could talk about the civil rights act of 1964. That forces businesses to not discriminate. But few people would say that our rights are infringed upon, because businesses can't discriminate.
Your line of argument, should cause you to think that anti-discrimination laws, are some "cudgel" to force groups to associate with people that they don't want to.
Which would be an extremely controversial argument to make, for you to say that all anti-discrimination laws, are authoritarian.
> you want the authority to force people to (in your view) be less-authoritarian. Hopefully you at least recognize the irony.
It forces people to be less authoritarian, using authority, in the same way that the civil rights act forces people to be less authoritarian, using authority.
If you want to call the civil rights act, or common carrier laws, ironic, well OK I guess.
> Common carrier laws already exist and are uncontroversial.
But as mentioned, applying them to forums is controversial. This is like saying that the death penalty exists and is uncontroversial, so the police should be able to shoot people. You can't simply take a rule that's deemed acceptable in one context and apply it in another context. First, it begs the question. Common carrier status is somewhat controversial. The question of whether it should apply to anyone in the tech space is exceedingly controversial, and you had the prior administration roll back common carrier status for a number of high-tech areas because they felt they shouldn't apply. That's, by definition, controversial.
> There are principles that the 1st amendment protects, and it is those principles that matter.
Yes, and one of those is the right to free association. It's right there next to speech in the amendment. You seem to be saying that your right to ~speech~ be heard is more important that Facebook's right to association.
>Your line of argument, should cause you to think that anti-discrimination laws, are some "cudgel" to force groups to associate with people that they don't want to.
But you're not talking about associating with groups anymore, you're talking about associating with content. We generally think that discrimination based on attributes of a person is far less acceptable than discrimination based on their opinions. I can't kick you out of my restaurant for being black, but I can kick you out for being an asshole. Now you're saying no, I can't do that either. Why does your right to be an asshole trump my right to associate with you?
You have misinterpreted, or I have misphrased. Yes I agree that the debate is not settled yet, and there are people on both sides of it. But you can't go around pretending like things like common carrier laws (which do similar things as this proposal!), don't already exist, and that we don't have existing legal precedent for similar types of laws.
And by saying that common carrier laws are "uncontroversial", I am using a different legal precedent, that already exists, to show that you cannot just dismiss all of this stuff out of hand.
There are lots of people, who do actually support the idea of expanding these laws. We wouldn't be talking about this at all, if this were some wild, completely out there idea.
It takes a while to change laws anyway, so it doesn't happen overnight.
> in one context and apply it in another context
But the context is similar. This is all about private businesses and communication companies, and things that philosophically have a lot of similarities.
Yes they are not exactly the same. But they have similarities, and therefore you cannot just dismiss it all, by saying that they are different.
> Now you're saying no, I can't do that either
I am saying that you cannot frame this as something obviously authoritarian, when we already have laws that cover similar things.
You can't just say that these proposals for new laws, which lots of people are proposing, is some crazy thing, that has no previous examples.
Yes, I agree that those laws do not currently apply to other things. But the point is that it is not some huge change, requiring us to get rid of the 1st amendment, when we already do similar things, which yes are not exactly the same, but are still similar.
> First, it begs the question
The issue is that you are actually begging the question, by discarding these ideas wholesale, by saying that they infringe on companies rights.
Yes, I agree that the debate is not settled yet. Thats why people are talking about it. Instead, I am pushing back on you, dismissing all of this, out of hand, and claiming that this is some crazy, new, out there thing when it isn't, and we have similar laws, doing similar things.
> you're talking about associating with content
The same thing applies to phone companies. So that is an existing legal precedent, and therefore you cannot just say that what I am proposing is extremely different than current laws, when we already force phone companies to associate with content.
>Today, the government cannot write censorship rules.
That actually was my point: the governments do write the censorship rules already and define punishment that you get for violating them.
Child porn is censored, for example. Here in Germany there is censorship laws against promoting national socialism or antisemitism.
Our democracies are structured in a way that legally prevents the legislatures to write censorship rules as they please and without good reasoning, and that is usually achieved by constitutional law guaranteeing freedom of speech to the widest extent possible, of the press, of assembly and of religion, and a division of powers and the mandate for those divisions to check each other. The courts but also multi party democratic systems, the press, voters and activists and protestors play a significant role in this.
While this system is not perfect, and there were and will be mistakes and abuses along the way that need to be corrected - which usually takes a lot more time than anybody likes - it is still the best we ever had and will ever get I think. The only real "alternative" we tried, that of a "strong" leader or oligarchic group of "strong" leaders was and is always a lot worse.
But now we moved a very significant part, if not a major part, of public discussion forums onto the platforms of private companies, and are now surprised that the "strong" leaders on top of these companies do not necessarily share our values or even the minimal set of values our societies as a whole agreed on, and make up and change rules as they please, without any real repercussions so far.
And not just that, they sometimes actively try to use their immense powers of content distribution and "moderation" to nudge discussion into one way or another. We already see these companies getting bolder in restricting certain topics all by themselves, be it around certain Corona related topics, be it to "fight white supremacy" ideology or other "extremism". And of course the companies started by censoring topics where reasonable people would most likely say "oh, those are dangerous or vile ideas by dangerous or vile people" [and then somebody brings up the Paradox of Tolerance to justify letting the companies reign free in those areas]. I am pretty much convinced that a lot of these are test balloons by the companies to see how far they can push the envelope right now before the momentary backslash becomes too much. And if we let them, then over time they will slowly push the envelope further and further for more and more control.
We and our politicians even help those companies to gain more power and control, by writing laws delegating policing responsibilities to the companies and by demanding the companies start policing more against misinformation, extremism, racism or and other of those -isms more and more. Not only is that a transfer of power, it's at the same time regulatory capture making sure any future competitors to these companies have it almost impossible to enter the market at all.
The first step on your route to doom is signing a petition requiring people to "provide id before making a social media account" (as is happening right now e.g. in the UK because some racists said some vile things about English football players), and then before you know it you end up with a "social score" system like in China, except it's the big companies maintaining it and regulating it and not even the (repressive) government.
> But now we moved a very significant part, if not a major part, of public discussion forums onto the platforms of private companies, and are now surprised that the "strong" leaders on top of these companies do not necessarily share our values or even the minimal set of values our societies as a whole agreed on, and make up and change rules as they please, without any real repercussions so far.
But the alternative is that the government forces its own values onto the companies. I'm suspicious of "we're going to hide this information because its bad", but I'm also suspicious of "we're going to prevent companies from expressing values different from the ones the government allows".
I much prefer independent systems to a government that ultimately controls how and what corporations can say. The first is perhaps bad, the second is far worse.
Currently, the courts have an opinion on censorship that is extreme enough that it protects what Facebook is doing. Today, the government cannot write censorship rules. They all, to use your words, "infringe on our rights". So if you want the government to be able to do that, and the courts to allow some censorship, you have to amend the constitution, and change the recognized legal framework of what our rights even are.
That (broadly) falls to lawmakers, not the courts. Do you trust Pelosi and Cruz (and other lawmakers) to change the very framework of what our right to free speech is, while simultaneously allowing the courts to protect it?