[EL] Twitter EO

[Nate Persily]

I will end with this, although there is certainly much more to say.

I am not sure of the source for the argument that
factchecking automatically converts a platform into a publisher that then
loses CDA 230 immunity.  All the major platforms do this to some extent.
If someone posts that drinking bleach will cure COVID, does the
platform lose its immunity if it provides alternative sources next to it
(as all the major platforms do, at a minimum)?  If someone posts that the
election is actually on Wednesday or you can vote by text message, does a
platform's decision to take that down or provide accurate adjoining
information lead it to lose CDA 230 immunity?  Or if someone falsely claims
that there is a shooter on Main street, does the platform have an
obligation under CDA to leave up knowingly false posts?  And if one says
that these types of disinformation are somehow different and can be taken
down, then it is not "censoring" or factchecking disinformation per se that
converts a platform into a publisher, but only certain types of
disinformation.

 I understand the argument that maybe a platform should not have rules
regarding disinformation, that it is a slippery slope etc.  But I don't
understand why CDA requires no factchecking or why factchecking leads to a
loss of immunity, but everything else they do with content moderation of
otherwise First Amendment protected speech somehow does not lead to a loss
of immunity.   Consider pro-terrorist or white supremacist speech or
bullying or self-harm -- most of which is protected under the First
Amendment but much of which is taken down by the platforms.  Does demoting
those messages or providing alternative adjoining content lead to a loss of
CDA 230 immunity?  If all of these things turn a platform into a publisher,
then virtually all the existing platforms are publishers.

As you say, one could amend 230 so that it means something different than
what it has meant or was understood at the time.  And indeed, one could
think that Twitter's action was wrong and counterproductive, that the EO is
wrong and chilling of speech, and that blanket immunity under CDA 230 also
is problematic.  But removing immunity merely because a platform has some
policy on disinformation would require a new interpretation of CDA 230.

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

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 3:14 PM James Bopp Jr <jboppjr at aol.com> wrote:

> Good points. My thoughts about each:
>
> 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.
>
> *I think Twitter has a First Amendment right to do both: send money
> endorsing candidates just like everyone else, and fact check politicians
> all day long.  My point is about 230.  Once Twitter assumes an editorial
> role re posts on Twitter, like fact checking them, they are assuming the
> role of publisher of the content and are responsible in defamation if
> appropriate.  They should not be given a special legal protection, when
> acting as a publisher, which 230 does.  230 was based on a business model
> for social media that they have abandon under pressure from the left and
> special legal protection is no longer justified.*
>
> 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) .
>
> *I agree.  But this in not my choice but theirs and it has consequences.
> If you are responsible for the content, then you are a publisher.  I wish
> that Twitter, etc., had not succumbed to pressure from the left to become a
> publisher and censor content.  I thought that the original business model
> of a bulletin board was a wonderful, liberating, wildly successful free
> market of ideas accessible to everyone.  Money was no longer a requirement
> to communicate but creativity and appealing ideas gained wide audiences. It
> is a tragedy that Twitter has chosen to destroy it.*
>
> 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.
>
> *True, any change would apply to platforms large and small, but I think
> that one could amend 230 to apply to platforms that serve as bulletin board
> but not to those who assume the responsibility of a publisher that Twitter
> has. I hope that is how this works out.*
>
> 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.
>
> *The premise of 230 is that Twitter, et al, is not responsible for
> content, but now they are assuming that role so they should be as
> responsible as any publisher is. Of course, publishers can have "community
> standards" that they enforce and that is perfectly legal.  They are a
> private business and can have rules on the content of posts if they chose.
> They can require users to agree to their conditions for posting that goes
> beyond what the government could require under the First Amendment, but
> again, this may place them in the position of a publisher. *
>
> Much more to say here, but my basic point was that the speech rights of
> corporations include the speech entailed in a factcheck.
>
> *Agree enthusiastically, but they are then the publisher of the site with
> whatever legal consequence follow.*
>
> Jim Bopp
>
>
> In a message dated 5/28/2020 4:02:30 PM US Eastern Standard Time,
> npersily at law.stanford.edu writes:
>
>
> 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.
>
> _______________________________________________
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>
>
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