- Senators have big plans for government regulation of social media but U.S. Constitution keeps getting in way [John Samples, Cato; David McCabe, Axios, earlier] “Censorship breeds censorship envy, and that’s true of private suppression by massively influential platforms such as Facebook as well as of governmental censorship.” [John Samples, Eugene Volokh]
- Is it lawful for a state lawmaker to block someone on Twitter who’s publicly discussed ways of murdering him? [Dorit Reiss, PrawfsBlawg, earlier]
- European Parliament delays adopting online copyright directive that critics said would result in Internet content filtering and royalties for linking [Thomas McMullan/Alphr, BBC earlier]
- Is the ACLU OK with French catcalling law? [Robby Soave] With using government to keep the wrong sorts of people from owning radio outlets? [Scott Shackford, related]
- Federalist Society telecast on Ninth Circuit decision on Idaho “ag-gag” law with UCLA lawprof Eugene Volokh and Andrew Varcoe of Boyden Gray & Associates;
- “Arrests for offensive Facebook and Twitter posts soar in London” [Sadie Levy Gale, Independent] Downhill in Denmark: “How the Right Abandoned Free Speech in Europe” [Cato podcast and Reason interview with Jacob Mchangama]
When I wrote last month about Google’s and Facebook’s ill-advised decision to turn away ads for bail bond services, I hadn’t seen Alex Tabarrok’s insightful post on the same topic, calling the tech giants’ decision “deeply disturbing and wrongheaded.” Excerpt:
Bail bonds are a legal service. Indeed, they are a necessary service for the legal system to function. It’s not surprising that bail bonds are used in communities of color and low income neighborhoods because it is in those neighborhoods that people most need to raise bail. We need not debate whether that is due to greater rates of crime or greater discrimination or both. Whatever the cause, preventing advertising doesn’t reduce the need to pay bail it simply makes it harder to find a lender. Restrictions on advertising in the bail industry, as elsewhere, are also likely to reduce competition and raise prices. Both of these effects mean that more people will find themselves in jail for longer….
Ian Ayres and Joel Waldfogel also found that the bail bond system can (modestly) ameliorate judicial racial bias. Ayres and Waldfogel found that in New Haven in the 1990s black and Hispanic males were assigned bail amounts that were systematically higher than equally-risky whites. The bail bondpersons, however, offered lower prices to minorities–meaning equal net prices for people of equal risk–exactly what one would expect from a competitive industry.
My own research found that defendants released on commercial bail were much more likely to show up for trial than statistical doppelgangers released by other methods. Bounty hunters were also much more likely than the police to capture and bring to justice people who did jump bail. The bail bond system thus provides an important public service at no cost to the public.
In addition to being wrongheaded, Google’s decision is disturbing because it is so obviously a political decision….[Every] time Google acts as a lawgiver instead of an open platform it invites regulation and political control.
Meanwhile, reports from Maryland confirm that (as I’ve warned in the past) that state’s unplanned experiment with curtailing cash bail, without due attention to developing alternative institutions, has led to the retaining in jail of many defendants who otherwise would have rejoined their families [Jayne Miller/WBAL, Scott Shackford/Reason] More links on bail controversies: Scott Greenfield; Daniel Dew, Buckeye Institute last year (pro-reform in Ohio).
Data portability mandates on tech companies like Facebook are sometimes conceived as a way to bring about more competitive market structures pleasing to antitrust enforcers by engineering a less “sticky” consumer experience. But is it really much of a solution to anything? [Alex Tabarrok citing Will Rinehart, American Action Forum; more, Tyler Cowen]
- Who could have guessed? First person charged with violating Malaysia’s new “fake news” law is someone who criticized the police [Reuters/Guardian (“The law covers digital publications and social media and also applies to offenders outside Malaysia, including foreigners, if Malaysia or a Malaysian citizen are affected.”)]
- Or that prosecutors in Spain would be considering hate speech charges against the new separatist premier of Catalonia? [José Antonio Hernández, El País]
- “There is no requirement that a platform remain neutral in order to maintain Section 230 immunity. And Facebook does not have to choose between the protections of Section 230 and those of the First Amendment; it can have both.” [Catherine Padhi, LawFare on comments by Sen. Ted Cruz]
- “Reporting on Lawsuit — but Not Mentioning It Was Settled — Is Not Libelous” [Eugene Volokh on New Jersey Supreme Court decision in Petro-Lubricant Testing Laboratories, Inc. v. Adelman]
- Wisconsin appeals court allows suit against online gun-ad marketplace over shooting; resulting damage to Section 230 would menace social media sites whether or not gun-related [Eric Goldman, Eugene Volokh]
- “Appeals Court Finally Shuts Down Bogus Lawsuit Targeting A School Official For Words A Journalist Wrote” [Tim Cushing, TechDirt, earlier]
Two things that can both be true:
1) we should find a better system than cash bail;
2) in the mean time bail bond services provide a needed service for some families.
Or as I put it in my new National Review piece:
This week Google and Facebook announced that they would stop accepting ads for bail-bond services. It’s the perfect moral gesture for our times: It makes a grand statement, keeps pressure groups happy, reminds us that the tech giants have weight to throw around, and leaves its intended beneficiaries no better and perhaps imperceptibly worse off.
I go on to discuss stigmatization as a substitute for policy, which sorts of practices if adopted would probably serve as a substitute for cash bail, and the widely held notion that mass incarceration in the contemporary U.S. arose from a plot to expand business revenue. The piece concludes:
If one is going to be suspicious of mercenary motives in the justice system, I recommend starting with the providers among whom defendants’ families do not get to pick and choose in their hour of need in a relatively competitive market. That would include probation providers and jail phone-call providers — and, yes, some firms involved with private prisons.
Of course, those companies aren’t big advertisers, since the only customer they need to convince is the law-enforcement agency. So Google and Facebook are spared the need to worry about what posture to strike toward them.
Whole thing here. For a different view, here’s Google’s Senior Counsel on Civil and Human Rights writing together with the chairman of Freedom Partners Chamber of Commerce and general counsel for Koch Industries. [Malika Saada Saar and Mark Holden]
- “Crash survivor sues publisher, claims he was exploited by book’s false claim of visit to heaven” [Debra Cassens Weiss, ABA Journal on William Alexander “Alex” Malarkey claim against Tyndale House Publishers] More: Lowering the Bar;
- Attorney-client privilege and the raid on Trump lawyer Michael Cohen: my Saturday chat with Yuripzy Morgan of Baltimore’s WBAL radio [listen] On the same general subject, Clark Neily chats with Caleb Brown for the Cato Daily Podcast, and Ken at Popehat has a Stormy Daniels/Michael Cohen civil litigation lawsplainer;
- “While there were many problems with the $1.3 trillion omnibus spending bill, one thing the Republican-led Congress got absolutely right was defunding Affirmatively Furthering Fair Housing” [Robert Romano, Daily Torch, earlier on AFFH]
- “The nearest Macy’s department store is several thousand miles away” but a small hair salon in Scotland will need to change its similar name or face lawyers’ wrath [Timothy Geigner, TechDirt]
- Facebook sued for allegedly allowing housing discrimination by way of ad targeting [autoplays] [Seth Fiegerman, CNN Money]
- Beverage equivalent of clear backpacks: South Carolina bill would make it a crime to let teenagers consume energy drinks [Jacob Sullum]
Will revelations over data use by Cambridge Analytica lead to more intense government regulation of Facebook? Julian Sanchez and I talk to Caleb Brown at the Cato Daily Podcast. Separately, Sanchez writes that we shouldn’t expect regulatory micromanagement to do a good job of safeguarding user privacy. “How Cambridge Analytica’s Facebook targeting model really worked – according to the person who built it” [Matthew Hindman, The Conversation] Note that regulation tends to entrench incumbents [Tyler Cowen linking Stratechery (one consequence of outcry is that social media providers may make it harder for users to export their data to other platforms)]
Related: “In Europe, platforms are incentivized to take down first, ask questions second.” [William Echikson, Politico Europe] Pro-censorship UNC professor and New York Times contributing op-ed writer (and what a phrase that is to type) recalls days when media had but one throat to squeeze [David Henderson on Zeynep Tufekci in Wired] How Facebook recently navigated pressures on hosting a group whose leaders were prosecuted under British hate-speech laws [John Samples, Cato] From LBJ and Nixon to Trump and Elizabeth Warren, “regulation is an inherently political act.” So maybe think twice before putting Facebook and Google under the thumb of your worst political foe? [Donald E. Graham]
There is some evidence that algorithms employed by YouTube to suggest next videos can foster rabbit holing, in which curious newcomers are drawn into ever more extreme and outrageous content, including fever-swamp ideology. That’s a legitimate concern, for sure, but in this instance it’s melded with blithe urgings that the state get in and impose its ideological will on content, as if that wouldn’t raise dangers of its own [Zeynep Tufekci, New York Times] Note also a body of research contrary to the notion that social media encourages the formation of ideological bubbles and reinforcement [John Samples, Cato; [Michael A. Beam, Myiah J. Hutchens and Jay D. Hmielowski, Information, Communication & Society (“Facebook news use was related to a modest over-time spiral of depolarization.”)]