Section 230: Mend it, don’t end it (2020)

This is mostly dead. You are not in control of the content you see. The algorithm decides what to show you.

If your platform a) decides what content I see, or b) editorializes that content, then you are a publisher. Publishers do not deserve 230 protections.

I think this is where the line should be drawn.

Fighting Words was handled by somebody else

> Incitement. The Supreme Court has long held that advocating the use of force is unprotected speech under the First Amendment when it is “directed to inciting or producing imminent lawless action.” The word “imminent” has been the subject of further litigation, generally requiring a “clear and present danger.”

"clear and present danger" was the standard before it was overturned by the incitement to "imminent lawless action"--the way it was presented here is completely backwards. Recall that Brandenburg v Ohio upheld that advocacy of violent overthrow of government was constitutionally protected. Incitement here has been narrowed to the point that you should think of the bar as around the level of "you are at the head of the mob and pointing out the next person to be lynched"--anything less, and there's a decent chance your speech won't be considered to be incitement.

> False Statements of Fact. The Court explicitly held in 1974 that “there is no constitutional value in false statements or fact.”

Yeah, but in 2012, US v Alvarez rather explicitly held that the government can't justify banning false statements just for being false.

Defamation was handled by somebody else.

> Fraud. Another kind of false statement is fraud. There is no right under the First Amendment to impersonate someone else or deceptively amplify one’s views through fake accounts.

That is not what fraud is. Fraud statutes require material gain, and impersonation isn't a kind of fraud. And again, impersonation without seeking that kind of gain is constitutionally-protected--that's basically what US v Alvarez is about (falsely claiming you have a military medal).

> Obscenity. Obscenity has a famously shifty and subjective definition, summarized by Justice Potter Stewart as, “I know it when I see it” in the 1973 case that established “prevailing community standards” as the basis for determining when speech is obscene and therefore not entitled to First Amendment protection.

What the fucking hell are you on about? "I know it when I see it" comes from the 1964 case. The 1973 case established the Miller test which defines obscenity as a three-prong test: (a) Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, (c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [quoting Wikipedia here].

The basic tenor of First Amendment cases is that the government cannot act as a moderator of speech. In virtually every single case, where the court is asked to rule on something that's around the bar of what is and isn't permissible, the court rules to push the bar yet further outwards. Were this analysis a paper in a high school civics class, I'd be hard-pressed to grade it above a C; as a suggestion for political analysis, it fails entirely.

My question is, what'll happen if somebody moderates beyond the bounds of the First Amendment? If Twitter deletes an unpopular opinion that's legal to publicly express, would the poster be able to sue for unlawful removal?

1. "Free speech" is an ambiguous term. If it refers to First Amendment protections then it immediately doesn't apply to Twitter, FB, etc. The first five words are quite literally "Congress shall pass no law". Later Supreme Court rulings extended this to state and local governments. So FB, Twitter, etc can't "Censor" or violate the First Amendment of anyone, by definition.

2. So if it's not a legal definition, it's a principle. Literally nobody is a free speech absolutist. Even 4chan has Terms of Service;

3. Section 230 was originally created to give a "safe harbor" to ISPs so they wouldn't be held liable or responsible for content they transmitted. This was and is very similar to telcos not being responsible for illegal activity occurring on phone calls.

4. The point of a safe harbor is that the provider becomes essentially neutral to the content. But this, like anything, has limits. Telcos cut off or block people for spamming, for example;

5. The voices calling to repeal Section 230, as in this article, are upset about isolated cases of, say, Twitter "censoring" the Hunter Biden laptop story. But if Twitter no longer has that safe harbor, there are only really two alternatives: more moderation or no platform at all.

Repealing Section 230 won't be friendly to the likes of Alex Jones, Tucker Carlson, Ben Shapiro or Kanye West.