In Germany, online hate speech has real world consequences

I am not sure I would categorize Facebook as just a publisher, but anyway ...

> You're blaming the state for Facebook's commercial decision to use blanket deletion.

No, I am not. I am blaming the state for creating the incentive for that decision. The fact that Facebook could decide to act differently does not change that the state's actions are what incentivises them to act this way. The fact that Facebook is morally to blame for their behaviour is simply not relevant to the question of whether the state is incentivising a violation of constitutional freedoms. That is precisely what I mean by "the state can not hide behind private entities". The state cannot incentivise a private entity to act in a certain predictable way and then pretend their incentive has nothing to do with that entity's actions just because that entity would have the legal but risky and/or costly option of acting in a way that would not affect constitutional freedoms.

For an analogy I constructed to demonstrate maybe more clearly the problems with that approach, see also the first few paragraphs here:

https://news.ycombinator.com/item?id=16147727

> You might feel that Facebook is obliged to choose the lowest-cost option on behalf of its shareholders. This isn't the case, legally.

Which is irrelevant, see above. No, they are not obliged to. But they can. And the state has to consider the fact that they can when it creates incentives.

> Conversely, Germans who want to express controversial views that might be defensible and don't want to just have them auto-deleted can always seek out another publisher or publish themselves on a blog.

Which is also irrelevant to the question of constitutional freedoms. For one, the same incentive applies to all "social networks", so potentially people's constitutional freedoms are at risk on all such platforms, but also, and probably more importantly: A constitutional freedom does apply globally. It's not that the state has to allow you to speak somewhere, it's that the state may not interfere with you speaking (obviously within the limits established by further laws, as far as the constitution allows for such laws, and also within the limits due to collision with other constitutional rights, such as property rights, but that's not the point here). "We only prevented him from speaking on the market square, but he was free to speak on the corner of his street" is not an sufficient justification for it not being a restriction of a constitutional freedom. It's not up to the state to decide where I can speak, neither directly nor indirectly.

Also, it's not just that that is the established understanding, it's an absolute necessity: The freedom to speak your opinion is completely void if you cannot choose your audience. It is not about you being free to make an utterance, it is about you being free to make yourself heard. Just as freedom of movement is not about being allowed to move a bit, it is about you being free to choose where you go, and in particular to go and live with people you want to live with.

> When I say people don't have an automatic right to publication, I mean they don't have the right to have a particular publisher host their controversial content. Presumably you would agree that Facebook is within its rights when it declines to host pornography, for example, even though I think the community standards' it cites are prudish to the point of ridicule (eg banning people for photographs of statues depicting nude figures in art museums).

Yes, but none of that is relevant to the question of whether the state is allowed to incentivise Facebook one way or the other. Constitutional freedoms restrict how the state may interfere in the lives of poeple. The fact that Facebook could choose to act the exact same way of its own accord is irrelevant to the question of whether the state may incentivise it to behave this way.

Any private landlord could legally decide to not rent their house to people with glasses. That does not mean it would be constitutionally acceptable if the state created laws that incentivised landlords to not rent to people with glasses. Just because people are allowed to behave a certain way does not make it necessarily constitutional for the state to create incentives to behave that way.

In effect, the state is saying: we'll exempt you from the normal responsibilities you have when you say something, as long as you're just forwarding a message. The change is now that there's a caveat: you must now (sometimes) make reasonable efforts to avoid forwarding illegal content.

Frankly: as long as facebook (e.g.) is more than a dumb pipe this isn't merely a question of getting the laws right; it's intrinsic. You cant exercise editorial control (which they do, even if it's sometimes algorithmic) without being responsible for what you decide to publish.

So we get to choose: either platforms need to really be dumb pipes (i.e. facebook's entire model is essentially completely illegal), or they need to take responsibility for what they say, even if its forwarded content.

I think we'd have much more constructive speech online if platforms were forced to make such a choice: to the extent that they filter, they're responsible for what they let through.

As to the intrinsic responsibilities of editorial control: Sure: legal obligations are what you define them to be. But escaping legal consequences doesn't mean you're not conceptually responsible; it simply means the law isn't perfect. And of course there are lots of ways you can choose to distribute responsibilities. So perhaps I should of said: I don't see a way for the considerable influence that media platforms have to be held accountable except if they are also responsible. The obvious alternatives are that that power is completely unchecked, which is harmful, or that somebody else dictates what they can do - which I kind of doubt will work in the first place, and even where it does, that means you better have a lot of faith in those controllers. Simpler and more reasonable for the media platforms to actually be responsible for what they say, and not maintain the fiction that they have no influence or effect on the messages they "transmit".

As to requiring a judge to get involved before censorship: I think that's actually worse than complete immunity. Involving a judge makes it appear as if there is control, and as if media platforms are held to some kind of unbiased or at least fair standard. But the whole point of a modern media platform is that you don't need manual control; and indeeed you can never keep up with manual control. Algorithms will win against judges every single time, simply because no society can have that many judges (not to mention even judges aren't a panacea: fairness isn't trivial). Judicial interventions will necessarily be only in such tiny fractions as to be meaningless - and even if punishment and enforcement were scaled to absurd levels (with their own costs), well, media platforms are international behemoths. A judge may well rule some post to be illegal, but many posters will be beyond the judges reach.

If media platforms get to exercise editorial control of sorts without being held responsible, then they will influence the debate in ways that undermine the very reason for freedom of speech to exist in the first place. I kind of expect that outcome is what will actually occur, and the consequences in the long run are hard to predict, but I'm guessing: dire.

The incentives for a media platform are all wrong. They want to push messages that encourage using the platform; and as such they're going to be enablers for needless tribalism, short, poorly-thought-out posts, for anybody who is willing to pay to influence regardless of the merits, for trying to shield users from being confronted with evidence that they're wrong, and more.

If you will: I think people have started to accept that the idea that metadata is somehow something completely different from data is false. Metadata is data, and similarly; the meta-control a media platform has over messaging is really huge. If anything: the fact that they don't actively edit the contents of the messages only grants them more power, because it makes the control they do have opaque and hard to judge the impact of. I don't mean to imply they're intentionally Machiavellian or whatever here: it's just that indirect, hard-to-observe control is really hard to value.

---- So, to go off on a tangent....

I sometimes wonder what the historical figures involved in the evolution of modern freedom of speech would think if they saw what actually happened. For one; we've grown to utterly fetishize the concept to the extent that rational thought has little to do with it. But simultaneously, it's like we're walking around with blinders on: we don't have freedom of speech, and never will be able to get it absolutely, and the idea that that would work or was the idea some long time past is... well, not exactly founded in anything.

And then, of course, there's the fact that obviously times change, technology changes, society changes, and it's pretty crazy to think that concepts like freedom of speech are somehow impervious to all of that. What worked hundreds of years ago may actually need some tuning. Yet that idea isn't exactly well received in my experience, at least not in the US: thou shalt not question The Founders.

Ironically, there have been some pretty major changes to how we use freedom of speech, and in ways that makes me feel like it's gotten worse. As if we're playing telephone/chinese whispers, and people are going through the motions even if the motivation to do so would seem obviously lacking to those in the beginning of the chain.

There have been obvious changes such as copyright evolution; but also other changes; e.g. lobbying was for a time seen as fraud; not protected speech.

So on the one hand we cry about the inviolability of free speech; yet on the other we've changed what that means repeatedly, and the world has changed too. I don't think that's a healthy mix.

Social media (and more broadly the data-science era) are still young. So far, the way they have affected public debate is probably still relatively random. There may have been been damage, but it's probably rarely been malicious. So whether you support the status quo - social media free from control and any obligations to the public - or a more constrained media somewhat depends on whether you think that's going to stay that way.

I'm not betting on it.

As to the human rights: there's no point in spending a lot of money deceiving ourselves; better not to pretend and face up to the fact there's a problem, than to delegate it to a legal system that will simply make matters worse. I'm not objecting in principle to a judicial solution; I just don't see how that has a hope in hell of doing more good than harm.

I agree this kind of law is likely to cause collateral damage, but I don't believe the collateral damage is going to be worse than the alternative. But it's clearly not ideal, sure! But the point really should be: what's the alternative?

I don't think there are any simple, politically acceptable alternatives. I mean, you could try to turn em into common carrier's or the like, or break up the companies, but that's all fairly extreme - try getting that past the lobbying.