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Internet Industry Under the Microscope as House Committee Grills Witnesses on Liability for Online Content

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Photo of Section 230 hearing by Masha Abarinova

WASHINGTON, October 16, 2019 – The chairman of the House Energy and Commerce Committee on Wednesday said that technology companies need to “step up” and better address challenges surrounding online content. If not, they will likely have to navigate a world in which Section 230 of the Communication Decency Act is modified.

The internet is more sophisticated than it was when Section 230 was enacted as part of the Telecom Act of 1996, said Chairman Frank Pallone, D-N.J.

But Ranking Member Greg Walden, R-Ore., countered that the internet isn’t something that can be regulated and managed by the government. When discussing Section 230 reform, he said, there needs to be differentiation between illegal content and constitutionally protected speech.

The witnesses present at the hearing echoed the notion that Section 230 needs to stay. Yet the bill does have some issues that should be addressed.

Reddit Co-Founder and CEO Steve Huffman said that even slightly narrowing the constraints of the CDA could undermine the freedom of the internet. At Reddit, for example, individual users play a crucial role in self-moderation of content. Those interactions, he said, helped curb Russian meddling in the 2016 election via social media.

Section 230 needs to return to its original purpose, said Danielle Keats Citron, professor of law at Boston University School of Law. When the bill was first introduced, she said, its goal was to incentivize online platforms to be at the forefront of moderation.

Nowadays, Citron added, Section 230 has created a legal shield that covers the actions conducted by these platforms, including websites that may engage in illegal activities. This problem, she said, requires legal reform and can’t be solved by the market alone.

The CDA has helped regular people by removing much of the gatekeeping for social change, said Corynne McSherry, legal director at Electronic Frontier Foundation. Increasing company liability, she said, could lead to over-censorship and stifle competition as smaller firms would be burdened by regulation.

In contrast, Gretchen Peters, executive director at Alliance to Counter Crime Online, said that tech companies need to face greater liability in order for them to reduce online safety risks. Social media algorithms, she said, are used by terrorist organizations and other nefarious people to further their agendas.

Section 230 is more about liability than freedom of speech, she said. Because of safe harbors and broad interpretation of the bill, tech firms have failed to uphold their end of the bargain to protect people from dangerous online content.

Hany Farid, professor at the University of California, Berkeley, advised the Committee not to view artificial intelligence as the “savior” for content moderation. The billions of contents created every day, he said, would be too much for mere automation to handle. Human action is necessary to uphold a decent standard of online communication.

Google’s Global Head of Intellectual Property Policy Katherine Oyama said that her company’s ability to take action on questionable content is underpinned by the foundation of Section 230’s regulations.

The CDA helps differentiate the US from how countries such as China and Russia approach the internet, she said. Furthermore, weakening online safe harbors could have a recession-like impact on investment and cause companies to suffer more intensely from consumer litigation.

Without Section 230, Oyama added, online platforms would either not be able to filter content at all or over-filter content that needs to be heard, hurting both consumers and businesses.

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Free Speech

Noted Classical Liberal Legal Scholar Countenances Regulation of Social Media

Georgetown University professor Randy Barnett said that the ability to post on social media might be a civil right.

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Photo of Randy E. Barnett, a legal scholar and constitutional law professor at Georgetown University, obtained from Flickr.

WASHINGTON, October 21, 2022 – Classical liberal political theory should acknowledge the need for government to regulate certain privately owned businesses that operate in the public sphere, said Randy Barnett, a legal scholar and constitutional law professor at Georgetown University.

Barnet’s argument, made at a Federalist Society web panel discussing on the regulation of social media platforms Thursday, is significant in that even a well-known libertarian scholar is putting forth a plausible case to regulate speech on such technology platforms.

Between fully public and fully private entities, there is a middle category of privately-owned entities that operate in the public sphere, such as public accommodations and common carriers, Barnett said.

The Civil Rights Act of 1875, for instance, regulated “privately owned, public institutions such as railroads, inns, and even places of public amusement such as opera halls,” he explained. Barnett suggested that regulation of public accommodations can protect an individual’s “civil rights.”

“Civil rights are the rights that one gets when one leaves the state of nature and enters into civil society, and these are the rights that are basically the government protections of our preexisting natural rights, but they’re also more than, they are privileges you have as citizens,” Barnett argued. “You also have a civil right to be able to travel throughout the country and to enter into places of public accommodation as an equal to your fellow citizens,” he added.

Barnett said he wasn’t sure if social-media platforms should be considered public accommodations, however. “Are Facebook and Twitter in or are they out” of the public-accommodations category, he mused. “That’s the thing about which I think reasonable people can still disagree,” he said.

Whether social media companies have First Amendment right to moderate content on their platforms had been seen as a well-established view about free speech in the United States. With increasing criticism of the tech sector from the Trump-infused element of the political right, the issue has now become a more open question.

In 2021, to combat alleged discrimination against speech by conservatives, Texas and Florida have each passed laws barring platforms from engaging in various kinds of viewpoint-based content-moderation.

The 11th U.S. Circuit Court of Appeals largely struck down Florida’s law in May, but the Fifth Circuit upheld the Texas statute in September. The Fifth Circuit has stayed the decision pending a likely Supreme Court review.

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Free Speech

Panel Hears Opposing Views on Content Moderation Debate

Some agreed there is egregious information that should be downranked on search platforms.

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Screenshot of Renee DiResta, research manager at Stanford Internet Observatory.

WASHINGTON, September 14, 2022 – Panelists wrangled over how technology platforms should handle content moderation at an event hosted by the Lincoln Network Friday, with one arguing that search engines should neutralize misinformation that cause direct, “tangible” harms and another advocating an online content moderation standard that doesn’t discriminate on viewpoints.

Debate about what to do with certain content on technology platforms has picked up steam since former President Donald Trump was removed last year from platforms including Facebook and Twitter for allegedly inciting the January 6, 2021, storming of the Capitol.

Search engines generally moderate content algorithmically, prioritizing certain results over others. Most engines, like Google, prioritize results from institutions generally considered to be credible, such as universities and government agencies.

That can be a good thing, said Renee DiResta, research manager at Stanford Internet Observatory. If search engines allow scams or medical misinformation to headline search results, she argued, “tangible” material or physical harms will result.

The internet pioneered communications from “one-to-many” broadcast media – e.g., television and radio – to a “many-to-many” model, said DiResta. She argued that “many-to-many” interactions create social frictions and make possible the formation of social media mobs.

At the beginning of the year, Georgia Republic representative Marjorie Taylor Greene was permanently removed from Twitter for allegedly spreading Covid-19 misinformation, the same reason Kentucky Senator Rand Paul was removed from Alphabet Inc.’s YouTube.

Lincoln Network senior fellow Antonio Martinez endorsed a more permissive content moderation strategy that – excluding content that incites imminent, lawless action – is tolerant of heterodox speech. “To think that we can epistemologically or even technically go in and establish capital-T Truth at scale is impossible,” he said.

Trump has said to be committed to a platform of open speech with the creation of his social media website Truth Social. Other platforms, such as social media site Parler and video-sharing website Rumble, have purported to allow more speech than the incumbents. SpaceX CEO Elon Musk previously committed to buying Twitter because of its policies prohibiting certain speech, though he now wants out of that commitment.

Alex Feerst, CEO of digital content curator Murmuration Labs, said that free-speech aphorisms – such as, “The cure for bad speech is more speech” – may no longer hold true given the volume of speech enabled by the internet.

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Free Speech

Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill

Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.

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Parler CPO Amy Peikoff

WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of  the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.

The decision keeps the law from taking affect until a full determination is made by a lower court.

Parler CPO Amy Peikoff

During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.

“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”

Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.

“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”

Different perspectives

Principal at McCollough Law Firm Scott McCollough said Wednesday  that he believed the law should have been allowed to stand.

“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”

McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.

“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”

Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”

Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”

Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.

“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars

The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.

Panelists:

  • Scott McCollough, Attorney, McCollough Law Firm
  • Amy Peikoff, Chief Policy Officer, Parler
  • Ari Cohn, Free Speech Counsel, TechFreedom
  • Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
  • Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast

Panelist resources:

W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry.  Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.

Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.

Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.

Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Photo of the Supreme Court from September 2020 by Aiva.

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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