[EL] Twitter EO

Thu May 28 13:02:09 PDT 2020

First, I do not understand how one can believe that the First Amendment
protects Twitter's right to spend unlimited amounts on campaign advocacy
(to be clear, just like anyone else), but does not have a
constitutional right to place factchecks (indeed, mere alternative sources)
next to politicians tweets.    Second, if you believe that Twitter must be
held responsible for the content posted by its users (i.e., make them more
like the NY Times), this will inevitably lead to much more censorship -- as
they will need to adopt greater automation and preemptive takedowns of
content that runs the risk of exposing them to liability.  Doing so, by the
way, will have a massively disproportionate impact today on conservative
voices (for reasons I can explain later if interested) .  Third, the EO
(and CDA 230 for that matter) do not simply apply to the largest
corporations.  If we remove this immunity it will chill the development of
all kinds of speech marketplaces, big and small, because only the big ones
will have any hope of hiring the large teams necessary to do content
moderation at scale.  Fourth, yes, there is liberal hypocrisy here but I
would put it this way -- the liberal (left) argument against CDA 230
immunity is that it should be taken away so the overly powerful internet
companies will be MORE responsible for injurious content on the platforms
(i.e., encourage censorship).  I suspect the recent EO was not what they
were contemplating so I suspect  the Warren/Sanders critique of CDA 230
will wane as a result.  Finally, CDA 230 does not require platforms to be
uncurated open speech marketplaces.  All of their community standards
(nudity, hate speech, bullying, incitement, self-harm, disinformation etc.)
would be unconstitutional under the First Amendment if legislated by a
government.   CDA 230 is intended to shield them from liability even (and
especially) when they go beyond the bounds of what a government could do.

Much more to say here, but my basic point was that the speech rights of
corporations include the speech entailed in a factcheck.

Nate

----------------

Nate Persily

James B. McClatchy Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
(917) 570-3223
npersily at stanford.edu

www.persily.com

On Thu, May 28, 2020 at 11:30 AM James Bopp Jr <jboppjr at aol.com> wrote:

> I think Nate's confusion arises from not understanding either *Citizens
> United* or the position of those that support it.
>
> I litigated *Citizens United* because I believe that corporations and
> labor unions have the same First Amendment right to free speech as
> individuals and that their corporate form is not a constitutionally
> supportable justification to deny them those protections.  The Supreme
> Court agreed, which restored to corporations the same free speech rights as
> individuals have, including the right to independently endorse candidates.
>
> However, no person, and now this includes corporations, have a First
> Amendment right to defame people, with the condition that, if the person is
> a public figure, the Plaintiff also must prove malice.  Of course, a person
> is subject to a defamation case if the person "publishes" the defamatory
> statement.
>
> The import of 230 is to make social media platforms immune from defamation
> liability, since the original business model was that the platform took no
> responsibility for the content of the posts and thus were not the
> "publisher" of the post.
>
> Unfortunately, these enormous corporation have now succumbed to liberal
> demands to assume responsibility for content in numerous ways which is
> leading to censorship principally directed at conservatives. Thus, the
> original justification for 230 no longer exists, that they were not
> publishers, so it should be repealed.
>
> I am sure that Nate thought that there must be some irony here that
> *Citizens-United*-loving would want corporations to be free to defame
> people without liability.  That is just not so.  The New York Times is a
> corporation and it is not free to do this, nor should Facebook.
>
> The real irony is that the left expresses unrelenting hatred of
> corporations and *Citizens* *United* while at the same time demanding
> that the largest corporations in the world with the most impact of public
> communication should engage in censorship of those they don't like and
> should get special legal protection in order to do it.
>
> This position is irrational, in my opinion.  Jim
>
> In a message dated 5/28/2020 1:55:48 PM US Eastern Standard Time,
> npersily at law.stanford.edu writes:
>
> Apologies for being obtuse:
>   My point about Citizens United was that if you believe that corporations
> have an unfettered constitutional right to spend unlimited amounts on
> campaign advertising, I would think that right would also extend to
> publicizing factchecks about politicians, as well, without running the risk
> of legal sanction.
>
> ----------------
>
> Nate Persily
>
> James B. McClatchy Professor of Law
> Stanford Law School
> 559 Nathan Abbott Way
> Stanford, CA 94305-8610
> (917) 570-3223
> npersily at stanford.edu
>
> www.persily.com
>
> On Thu, May 28, 2020 at 6:14 AM Sean Parnell <
> sean at impactpolicymanagement.com> wrote:
>
> Not entirely sure why the views of defenders of *Citizens United* are
> sought, but here goes (with the acknowledgement that, not possessing a law
> degree, my views should probably not be mistaken as quality legal
> analysis): it’s stupid. The one redeeming quality I find in the EO is that
> it is not nearly so badly/incoherently written as the EO from a few years
> back “repealing” the so-called Johnson Amendment, so props for that.
>
>
>
> Sean Parnell
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Nate Persily
> *Sent:* Thursday, May 28, 2020 12:38 AM
> *To:* Rick Hasen <rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] Twitter EO
>
>
>
> Attached is the draft of the Executive Order regarding removal of CDA 230
> liability for Twitter and other internet platforms as well as
> encouragement of investigations of the Silicon Valley platforms.  Gotta
> say, this is truly breathtaking.   Eager to hear reactions from defenders
> of Citizens United on this.
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200528/22c2c4cc/attachment.html>