The whole history of the old broadcast Fairness Doctrine is one of regimenting opinion to benefit political insiders and favor establishment views. Unless that’s your goal, keep it away from the Internet. Paul Matzko explains at Cato, with many historical details.
- “Banana Costume Copyright Assailed at Third Circuit” [Emilee Larkin, Courthouse News, earlier]
- In a new piece for The Bulwark, I sort through some comments by presidential candidate Pete Buttigieg critical of identity politics;
- Supreme Court’s decision in Apple v. Pepper, with Justice Brett Kavanaugh joining four liberals, takes a little nick out of Illinois Brick doctrine limiting antitrust suits [my new Cato post]
- Ninth Circuit will soon hear case in which judge ordered Idaho prison system to provide inmate with transgender surgery; I’m quoted saying lower court decision amounted to battle of the experts [Amanda Peacher, NPR/KBSX, plus followup piece (“medical necessity” not a fixed standard, definitions of cruel and unusual punishment hitched in some ways to public opinion) and NPR “Morning Edition”; audio clip]
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] “A Single Global Standard for Internet Content Regulation Is a Recipe for Censorship” [Jacob Mchangama, Quillette] And Jonah Goldberg on right-wing rage at social media platform moderation;
- Some politicos in Britain engage in “‘karaoke Thatcherism’, preaching low-tax, low-regulation mantras divorced from new challenges or detail,” then falling for truly bad ideas like laws to assure real estate tenants indefinite tenure against owners’ wishes [Ryan Bourne]
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (Section 230 of the Communications Decency Act of 1996).
Those 26 words (and not a member of Congress) invented the internet as we know it. These words protect internet platforms from lawsuits based on user-generated content, allowing them to open their doors to a dizzying variety of sentiment and speech. Absent that sentence, social media platforms would have strong incentives to suppress any speech that might cause them legal woes. Or, in contrast, they might avoid legal liability by not moderating their forums at all, likely rendering them unusable. Jeff Kosseff tells the story of the institutions that flourished as a result of this powerful statute. He introduces us to those who created CDA 230, those who advocated for it, and those who were involved in some of the most prominent cases decided under the law. As section 230 and the platforms it protects face increasing scrutiny, Twenty-Six Words demystifies this little-known yet vital statute.
Commenting at the Cato forum for Jeff Kosseff and his book were: David Post, former professor of law, Temple Law School; Emma Llansó, Center for Democracy and Technology; and Cato’s John Samples as moderator.
More: Nick Gillespie, Reason (conservatives, liberals on Capitol Hill both turning against Section 230). And Eric Goldman has written recently about how the First Amendment is by no means a dependable backstop should incursions on Section 230 widen speech liability, and how the FOSTA law, which curtailed some Section 230 protections in the name of combating sex trafficking, is unlikely to achieve much toward that goal even as it prepares the way for further incursions on online liberty.
“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.
Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):
said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.
Under the new law, “a single significant act can land you in trouble,” he told reporters.
Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:
Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”
Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.
“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.
I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea. [cross-posted from Free State Notes; see also earlier]
Related: an Ohio student has been arrested and faces expulsion over a Twitter account on which he made vicious comments about female classmates; whatever view the law takes of the prospective expulsion of 18-year-old Mehros Nassersharifi by Perrysburg High School, his arrest, on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech went further than simply “rating” of classmates)]
Mar 2000: Palm Pilot IPO’s at $53 billion
Sep 2006: “Everyone’s always asking me when Apple will come out with a cellphone. My answer is, ‘Probably never.’” – David Pogue (NYT)…
Jun 2007: iPhone released
Nov 2007: “Nokia: One Billion Customers—Can Anyone Catch the Cell Phone King?” (Forbes)
A brief history of impregnable tech monopolies that were pregnable after all, from personal computers to music distribution to social media, by Geoffrey Manne and Alec Stapp [Truth on the Market][adapted and condensed from Cato at Liberty]
In a Cato Podcast with Caleb Brown, John Samples discusses his new Cato policy analysis, “Why the Government Should Not Regulate Content Moderation of Social Media.” One thing that changed just lately: Facebook founder and CEO Mark Zuckerberg, in the words of Nick Gillespie,
is explicitly calling for government regulation of specifically political speech on his platform and beyond. In his quest to limit expression on social media, Zuckerberg is joined not only by progressive Democrats such as Sen. Elizabeth Warren (D-Mass.) but conservative Republicans such as Sen. Ted Cruz (R-Texas) and Sen. Josh Hawley (R-Mo.), who are calling for the equivalent of a Fairness Doctrine for Twitter and similar services.
For those of us who believe in freedom of expression, this is a revolting development.
More: “Will a Free Press Cheer on Government Censorship of the Internet?” [Scott Shackford, Hans Bader] Several commentators note that having made Facebook the big success in its market, Zuckerberg can now ask for regulations that would tend to lock in its dominance by heaping compliance burdens on rising competitors [Coyote, Andrea O’Sullivan, Mercatus]
- “Arkansas Passes Bill to Prevent Sale of ‘Cauliflower Rice'” [Bettina Makalintal, Vice via Anthony M. Kreis (“Carolene Products of our time”, and more on that celebrated filled-milk case]
- Ted Frank has another case raising the cy pres issues the Supreme Court just sidestepped in Frank v. Gaos [Marcia Coyle on rewards-program class action settlement in Perryman v. Romero]
- Feds recommend 12 year sentence for copyright and ADA troll Paul Hansmeier [Tim Cushing, TechDirt]
- Didn’t realize New York City still had such a substantial fur industry – much of it in the district of an elected official who’s keen to ban it [Carl Campanile, New York Post]
- “Who’s Afraid of Big Tech?” Cato conference with Matthew Feeney, Alec Stapp, Jonathan Rauch, Julian Sanchez, Peter Van Doren, and John Samples, among many others [panels one (“Big Brother in Big Tech”), two (“Is Big Tech Too Big?”), three (“Free Speech in an Age of Social Media”)]
- Looking forward to this one, due out from New York lawyer James Zirin in September: Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits [St. Martin’s Press]
- “In Cato’s latest ‘funny brief,’ Ilya Shapiro and Trevor Burrus are once again telling the Court that scandalous speech is valuable to society and that there’s no way for a government office to be trusted to decide what’s ‘scandalous.'” [Ilya Shapiro and Trevor Burrus on Cato certiorari amicus brief (with P.J. O’Rourke, Nadine Strossen, and others) in trademark registration case of Iancu v. Brunetti]
- Could someone remind the President of the United States that there’s no law against making fun of him on TV? [Jacob Sullum]
- New Zealand declares it a crime to possess or distribute manifesto of Christchurch mass murderer, begins filing charges against persons who shared on social media [Charlotte Graham-McLay, New York Times via Josh Blackman, Tripti Lahiri/Quartz]
- Airport concession flap appears to set up a First Amendment case that Chick-fil-A would win, should it choose to pursue its rights against the city of San Antonio [KSAT, Hans Bader] Courts take seriously the doctrine of First Amendment retaliation even in otherwise discretionary areas of government operation [David French on Riley’s American Heritage Farms v. Claremont Unified School District, C.D. Calif. (school field trips to “living history farm” with outspokenly conservative owner)]
- Courts should narrowly construe “true threat” exception to free speech law to cases where there is objective threat, not just malicious intent [Ilya Shapiro and Michael Finch on Cato certiorari amicus brief in Knox v. Pennsylvania]
- Did a federal magistrate judge order the Chicago Sun-Times not to publish a juicy, mistakenly unsealed FBI affidavit from the city’s unfolding corruption case? (The paper published anyway) [Tim Cushing, TechDirt]
Mike Masnick at TechDirt examines claims that YouTube, Facebook, and other social media companies irresponsibly refrained from deleting user-posted copies of the March 14 mass murder at Christchurch, New Zealand mosques.
- Was this an entry in a contest to draft the most unconstitutional bill? “Florida Bill Would Make It a Crime for Minors to Post Pictures of Guns on Social Media” [Eugene Volokh]
- “Everyone involved in politics has bad days, when one’s interests conflict with one’s ideals.” But conservatives should resist the temptation to call in government to regulate the Internet [John Samples] New Republican interest in antitrust explainable by wish to bust corporations considered unfriendly to Republicans [Steven Greenhut]
- Lafayette, La. mother jailed after posting video to social media showing fight between two high school students [Megan Wyatt, The Advocate; editorial; Dave Cohen, WWL]
- Suit over online harassment could puncture liability protections of Section 230, some hope and others fear [Elizabeth Nolan Brown]
- “So, to be blunt here, Warren’s campaign screwed up with its ad design [by] including the [Facebook] logo.” The really bad part, though, was the spinning afterward [Scott Shackford]
- Tweeting wrong sorts of things about gender can result in a visit from the British police, cont’d [Tom Potter, Ipswich Star (Suffolk; quoting local activist who “said police had a right to intervene if it was felt the posts were causing offence.”)] And another case from Hitchin, Hertfordshire [Martin Beckford, Daily Mail; earlier here, here, etc.
- Content moderation “is, in many ways, the commodity that platforms offer.” Will they be left free to offer it? [Will Duffield, Cato Journal, reviewing Custodians of the Internet by Tarleton Gillespie]