[EL] Twitter EO

Fri May 29 05:50:38 PDT 2020

It may be helpful to put the actual statutory language in front of us:

(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker

No provider or user of an interactive computer service<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=47-USC-1900800046-1237841278&term_occur=999&term_src=title:47:chapter:5:subchapter:II:part:I:section:230> shall be treated as the publisher or speaker of any information provided by another information content provider.<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=47-USC-10252844-1237841279&term_occur=999&term_src=title:47:chapter:5:subchapter:II:part:I:section:230>

(2)Civil liabilityNo provider or user of an interactive computer service<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=47-USC-1900800046-1237841278&term_occur=999&term_src=title:47:chapter:5:subchapter:II:part:I:section:230> shall be held liable on account of—
(A)
any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)
any action taken to enable or make available to information content providers<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=47-USC-10252844-1237841279&term_occur=999&term_src=title:47:chapter:5:subchapter:II:part:I:section:230> or others the technical means to restrict access to material described in paragraph (1).
Courts have consistently treated (c)(1) and (c)(2) separately. In other words, (c)(1) is complete. Platforms are not publishers. They are liable for content they themselves create, but not for content created by others.

The reason for the provision is obvious. The net isn't like a newspaper or broadcaster. It would be beyond the resources of even the most giant companies to have an open net, and police all the potential defamatory comments made no the web. The would drown in a sea of lawsuits.

Thus, the person who posts material is still on the hook. For example, if you tweet libelous stuff, you can still be liable, but Twitter is not. Moreover, if you allow comments on your blog, and someone adds a libelous comment, neither you, as the author of the blog, nor the platform hosting the blog, is liable, though the author of the comment is.

You are, of course, liable for your own speech. So if Twitter, responding to a Tweet by the President, posts something libelous, it is liable for its own speech (in this case under the NY Times v. Sullivan standard for a public figure).

What does (c)(2) do then? It appears to give you protection from libel even for your own content, if your content is a good faith attempt to restrict access to certain types of material. So, for example, if I post "Warning: lewd and indecent material," on material someone else has posted on my platform (if I'm big tech) or my blog (if I"m little ole' me) I'm protected from libel if my efforts are undertaken in good faith.

Note two things:
1. A platform that curates material doesn't somehow become a publisher for all content posted on the platform. It is only for its own speech that it lacks liability protection.
2. Nothing in 230 deprives a platform of its right to censor. The dreadful Pruneyard case aside, there is no private right to sue someone for not letting you use their property.  The President's order suggest attempting to resurrect Pruneyard, which is, to say the least, on life support., and then applying it to the web. It's not a very conservative cause to take up, but these things happen, I guess, and if Pruneyard is still good law, there's nothing inherently wrong, as a constitutional matter, with trying to expand its reach. I'll let Pruneyard supporters chew on that.

Meanwhile, many conservatives have somehow convinced themselves that Section 230 provides some special authorization to censor posts. It does not. And many have convinced themselves that if you censor once (at least outside the terms of (c)(2)) then you are a publisher and lose all protection of (c)(1) for all material on the site. That's not what the statute says, and it's not how courts have interpreted it. A stricter enforcement of Section 230(c)(2) might--I emphasize might--allow for some libel or defamation suits against a platform that restricts access to material for political reasons, labeling it "for adults only." And there are complaints that this has happened to conservative views. But note that changing that won't change their right to censor those views completely, it will just open them up to libel suits for the actual comments made. And in the cases conservatives care about, these would typically regard public figures and have to meet the NYTimes v. Sullivan standard.

Even if one were to interpret a take down of material outside the scope of (c)(2), or any publishing of commentary by a platform, as removing (c)(1) protection for *all* material published on the site, not just the specific curated material (and again, that's not how courts have interpreted 230, but Congress could amend the statute), conservatives who think this will bring balance to the internet are going to find themselves disappointed.

First, the net as we know it likely would collapse--that is, it would become much less free and open. Open platforms allowing anyone to publish would pretty much disappear. Rather, the web would become heavily censored by the platforms, in order to protect themselves from liability for defamation. This would almost certainly further concentrate the industry, because only the largest platforms would have the ability to curate a lot of sites, and the costs of attempting to police all libel and defamation would be an enormous new barrier to entry. (One also suspects that public pushback, and collateral damage to economic activity, would be enormous, but those are separate issues). If Big Tech is as liberal as conservatives believe, the result of this would be fewer opportunities for conservatives, and a web even more dominated by the left. Again, repeal of 230 doesn't create some sort of new right to sue for private censorship.

Repeal of Section 230 is truly a "blow it all up" approach that won't get conservatives what they want. It has become the big red herring in the discussion, and (to mix metaphors, but keep us in the aquatic world) the great white whale for portions of the right. And of course Nate is right--if there were no Section 230, there would still be nothing to prevent Twitter from commenting on the president's tweets, and no cause of action for its doing so short of libel under the NYTime v. Sullivan standard. Nor would there be a cause of action for Twitter taking down posts or closing accounts (unless in violation of contract, obviously).

Of course companies like Twitter have a right to speak about candidates consistent with Citizens United.

Which leads us to the flip side of Nate's question: What do opponents of Citizens United think? Absent Citizens United, or had something like the Honest Ads Act passed, it would be much easier for the government to censor Twitter. Fortunately, we have the protection of Citizens United. But remember, every Democrat then in the Senate voted to Amend the Constitution to strip persons organizing in the corporate form of their constitutional right to speak, and the President of the United States (perhaps showing authoritarian tendencies?) publicly berated the Supreme Court for the Citizens United decision. A lot of people on this list supported that effort, and in fact still do.

The frustration of conservatives with Big Tech is understandable. Has Twitter ever taken action against the factually incorrect tweets of, for example, AOC, Joe Biden, and others? If those tweets are believed, it may cause voters to support policies that are as damaging to the country as anything the president has tweeted. Did Twitter ever put cautionary notes by the crazed ravings about Russian collusion? I mean, the list goes on and on. But crazed ravings and misinformation are not in themselves actionable.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf of Nate Persily [npersily at law.stanford.edu]
Sent: Friday, May 29, 2020 3:07 AM
To: James Bopp Jr
Cc: Election Law Listserv
Subject: Re: [EL] Twitter EO

   ** [ This email originated outside of Capital University ] **

   ** [Covid-19 / Coronavirus scam emails are on the rise - Be extra cautious. ] **

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<mailto:npersily at stanford.edu>

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On Thu, May 28, 2020 at 3:14 PM James Bopp Jr <jboppjr at aol.com<mailto: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<mailto: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<mailto:npersily at stanford.edu>

www.persily.com<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.persily.com%2f&c=E,1,yL8cL_-JxiZyl1V6kZPxKFvsUs36QBA2aaXkemYw6_aRp2bbc55nvqvpjk1yYUEflT0Zz3g0vMnNOZ9qDqt8NFQ2H4dHsQ8yeGZHNg4zTEpqcGNZLc0H4dP35w,,&typo=1>

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

www.persily.com<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.persily.com%2f&c=E,1,49-Z8yO39YBwB50Vz7iUeZo0fEYXE0YZLe6C5c06wTDDkP_zcUPHCwHKqNp4iukwiCVvNS_M3lDK_YGYyqKYYy7AZumHaborOmIKbdDIoSalsMxp&typo=1>

On Thu, May 28, 2020 at 6:14 AM Sean Parnell <sean at impactpolicymanagement.com<mailto: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<mailto: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<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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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