July 7, 2020 — Many conservatives have long accused popular social media platforms of discriminating against their ideas, but that feeling reached a new urgency in late May when Twitter flagged several of President Donald Trump’s tweets for touting unsubstantiated claims and glorifying violence.
The move sparked outrage from some on the right. Some Republican users said that Twitter had treated other similarly controversial posts differently.
Shortly after, Trump called for the revocation of Section 230 of the Communications Decency Act, which states that “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.”
Don’t miss Broadband Breakfast Live Online on Wednesday, July 8, 2020 — “Section 230 in an Election Year: How Republicans and Democrats are Approaching Proposed Changes.” This event is part of a three-part event series,“Section 230: Separating Fact From Fiction.”
Put simply, the law protects online platforms from liability for the content their users post. In the event of an immediate threat or other illegal event on the website, the only person that can be held responsible for the crime is the individual user.
Shortly after he called for the statute’s repeal, Trump signed an executive order that attempted to restrict Section 230’s protections by potentially withholding federal funds from tech companies that engage in “viewpoint discrimination, deception to consumers, or other bad practices.”
The order was met with skepticism from many digital policy experts.
Michael Petricone, senior vice president of government affairs for the Consumer Technology Association, said it was “not only ill-considered, it is unconstitutional.”
“For the past few months, people… have relied on online platforms to connect and communicate,” he said. “It was Section 230 and the free speech protections enjoyed by online platforms that enabled their success and subsequently, their ability to support struggling Americans during the pandemic.”
The legal footing on which the order stands is unclear, but frustration at alleged incidents of bias have continued to grow.
Parler’s ‘free speech’ community standards
Several conservative commentators called for a conservative exodus from Twitter.
In its stead, some have migrated to platforms like Parler, which claims to offer users an escape from alleged anti-conservative bias.
Public figures like Sen. Ted Cruz, R-Texas, and Fox News anchor Sean Hannity made Parler accounts that garnered hundreds of thousands of followers in mere days. Some, like Sen. Mike Lee, R-Utah, had previously made accounts but only recently resumed use of them.
Big tech companies like Facebook and Twitter “have an unparalleled ability to shape what Americans see and hear and ultimately think,” Cruz wrote in a post to the site. “And they use that power to silence conservatives and to promote their radical leftwing agenda.”
Parler aims to be “a non-biased free speech driven entity,” and provides examples of Supreme Court outcomes and Federal Communications Commission media regulations to justify much of what they deem off-limits.
However, the platform still removes posts and even users that run afoul of content moderation policies, including legally-protected content like crass speech, pornography and spam — all behaviors that are permitted on Twitter, provided that pornography is tagged as “sensitive”.
In a post last week, Parler CEO John Matze warned users that such actions would not be tolerated on the website, and that if a user were in doubt about what is acceptable to post, he should “ask [himself] if [he] would say it on the streets of New York or national television.”
Further, the platform’s level of unacceptable content has caused the company to ask members of its userbase to sift through the potentially violent, pornographic, incestuous, bestial or otherwise undesirable content two hours a day without compensation, promising future payment of an unspecified amount.
One such post claims that Rep. Ilhan Omar, D-M.N., called for “all white men [to] be put in chains” in a post on Twitter. No such tweet exists.
One can find myriad examples of harmful behavior on mainstream platforms like Twitter and Facebook as well. But ultimately, both their and Parler’s ability to decide which legal content to leave untouched is protected by the very piece of legislation that the president, whom many of Parler’s users and investors support, is trying to repeal.
Gab’s looser guidelines on content
Other alternative social media networks, like Gab, allow far more content on their platforms than Parler. On Gab, users follow loose content guidelines that permit almost anything that is not copyright infringement, impersonation, unlawful threatening, and obscene or pornographic, although nudity for “protest or for educational/medical reasons” is permitted.
Because of the lax restrictions, CEO Andrew Torba said, “Gab is an online refuge for anyone who wishes to speak freely and securely away from the tyranny of Silicon Valley.”
However, such a refuge has led to communities centered around ethnic hatred that are generally banned on Parler, as well as the more “mainstream” and popular social networks Twitter and Facebook. In 2018, Gab user Robert Bowers sparked notoriety for the online forum when he posted on Gab that he was “going in,” before entering a synagogue to murder 11 people and leave several others injured.
Before the shooting, Bowers’ account was replete with anti-Semitic content. He railed against “Zionist Operated Governments” and the Hebrews Immigrant Aid Society, which assists refugees, and warnedof a “kike infestation.” The posts and Bowers’ account were removed following the shooting.
Torba claimed that journalists who accuse Gab of being a safe haven for white supremacists and radicals are “Marxist propagandists and proven liars,” and that there are numerous healthy groups on the site.
He also said that in the wake of Twitter’s response to Trump’s tweets, the platform has seen a spike in membership to over four million users.
“We saw an increase of 100,000 new daily active users join the Gab community in the past week alone,” he said. “In June, we brought on 200,000 new and returning users after the President’s tweets started getting ‘fact-checked’ by Twitter.”
Despite Gab’s history, its community guidelines are closer to reflecting its stated vision and seemingly less arbitrarily enforced than Parler’s. Torba said that because Parler is available in Apple’s App Store and Google Play (both of which have barred Gab), they are required to enforce not only their own community guidelines but also the guidelines of their providers.
“[This] is likely why Parler is already mass banning users,” he said. “From what I’ve seen, Twitter has more free speech than Parler does.”
In an interview with Pastor Rick Wiles of TruNews (who has warned of a “brown invasion” of the United States and referred to the impeachment of President Donald Trump as a “Jew coup”), Torba said he refuses to “bend the knee” to those who wish to see Gab fail, and that he sees his work as eternally important.
“Hey, if Christ can get up on that cross,” he said, “I can pick up the cross and do what I do. That’s the way I see it.”
Gab CEO supports Section 230
Torba is vocally pro-Section 230. In a Gab News post, he championed the right of private companies to “moderate their platform as they see fit.”
“They can ban anyone for any reason,” he continued. “They can have a rule that says no one can post videos of their cat anymore if they so choose and they can certainly decide to.”
However, Torba also contended that Section 230’s protections do not extend to Twitter or Facebook’s fact-checking practices.
“When Big Tech platforms “fact-check” posts or “editorialize” content, Section 230 does not apply to that speech,” he said. “That speech is them speaking, not a user. Section 230 does not prevent them from being held liable for their own speech.”
Other right-leaning figures, like David Harsanyi of the National Review, have argued that while Twitter’s decision to mark Trump’s tweets as false or glorifying violence will only fuel accusations of bias, it is within the platform’s legal right to do so.
“No American, not even the president, has an inherent right to a social media account,” he said. “Tech companies such as Facebook and Twitter are free to ban any user they see fit. They’re free to accuse Donald Trump — and only Trump, if they see fit — of being a liar, even if they shouldn’t.”
Parler’s Matze has expressed a contrasting view.
In an interview with Fox News’ Laura Ingraham, Matze said that while he does not like the idea of being perceived as a Twitter alternative, he believes that Parler’s practices are in better keeping with free speech and that Twitter is “acting more like publications rather than a community forum” — the same reasoning Trump used in arguing for the repeal of Section 230.
The future of Parler, Gab and other critics of Silicon Valley social networks
Torba said that Gab’s community guidelines will not change in the future, something that he claimed distinguished the site from its competition.
“This is where Gab stands out,” he said. “For years we have taken the principled position of defending speech that Apple, Google and other Big Tech companies wish to see censored. When Apple and Google demanded that Gab ban [First Amendment] protected speech, we refused to bend the knee and were banned from both app stores as punishment.”
Torba said that Gab’s users were committed to the company’s ideals, and that they did not need the help of “impotent members of Congress.”
“We have a loud majority of truth seekers speaking very freely who are infinitely more important and influential,” he said.
In the future, Matze said to Ingraham, Parler will focus on so-called “influencer marketing,”
“That’s really important right now — the influencers can convey the message better than individuals or the page as a whole,” he said.
In June, Matze offered $10,000 to a left-leaning pundit with at least 50.000 followers on Facebook or Twitter willing to join Parler. Finding no one, he raised the “progressive bounty” to $20,000.
To date, no one has accepted.
Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms
The decision resulted in an unusual court split. Justice Kagan sided with Justice Alito but refused to sign his dissent.
WASHINGTON, May 31, 2022 – On a narrow 5-4 vote, the Supreme Court of the United States on Tuesday blocked a Texas law that Republicans had argued would address the “censorship” of conservative voices on social media platforms.
Texas H.B. 20 was written by Texas Republicans to combat perceived bias against conservative viewpoints voiced on Facebook, Twitter, and other social media platforms with at least 50 million active monthly users.
The bill was drafted at least in part as a reaction to President Donald Trump’s ban from social media. Immediately following the January 6 riots at the United States Capitol, Trump was simultaneously banned on several platforms and online retailers, including Amazon, Facebook, Twitter, Reddit, and myriad other websites.
See also Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
Close decision on First Amendment principles
A brief six-page dissent on the matter was released on Tuesday. Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the law should have been allowed to stand. Justice Elena Kagan also agreed that the law should be allowed to stand, though she did not join Alito’s penned dissent and did not elaborate further.
The decision was on an emergency action to vacate a one-sentence decision of the Fifth Circuit Court of Appeals. The appeals court had reversed a prior stay by a federal district court. In other words, the, the law passed by the Texas legislature and signed by Gov. Greg Abbott is precluded from going into effect.
Tech lobbying group NetChoice – in addition to many entities in Silicon Valley – argued that the law would prevent social media platforms from moderating and addressing hateful and potentially inflammatory content.
In a statement, Computer & Communications Industry Association President Matt Schruers said, “We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute.”
“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.”
In a statement, Public Knowledge Legal Director John Bergmayer said, “It is good that the Supreme Court blocked HB 20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”
In his dissent, Alito pointed out that the plaintiffs argued “HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”
“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he said, referencing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.
“But we have rejected such claims in other circumstances,” he continued, pointing to PruneYard Shopping Center v. Robins.
Will Section 230 be revamped on a full hearing by the Supreme Court?
“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito said.
Alito argued that there is a distinction between compelling a platform to host a message and refraining from discriminating against a user’s speech “on the basis of viewpoint.” He said that H.B. 20 adopted the latter approach.
Alito went on, arguing that the bill only applied to “platforms that hold themselves out as ‘open to the public,’” and “neutral forums for the speech of others,” and thus, the targeting platforms are not spreading messages they endorse.
Alito added that because the bill only targets platforms with more than 50 million users, it only targets entities with “some measure of common carrier-like market power and that this power gives them an ‘opportunity to shut out [disfavored] speakers.’”
Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett all voted affirmatively – siding with NetChoice LLC’s emergency application – to block H.B. 20 from being enforced.
Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform
Parler’s Amy Peikoff said she wishes Twitter can follow in her social media company’s footsteps.
WASHINGTON, May 16, 2022 – A representative from a growing conservative social media platform said last week that she hopes Twitter, under new leadership, will emerge as a “sustainable” platform for free speech.
Amy Peikoff, chief policy officer of social media platform Parler, said as much during a Broadband Breakfast Live Online event Wednesday, in which she wondered about the implications of platforms banning accounts for views deemed controversial.
The social media world has been captivated by the lingering possibility that SpaceX and Tesla CEO Elon Musk could buy Twitter, which the billionaire has criticized for making decisions he said infringe on free speech.
Before Musk’s decision to go in on the company, Parler saw a surge in member sign-ups after former President Donald Trump was banned from Twitter for comments he made that the platform saw as encouraging the Capitol riots on January 6, 2021, a move Peikoff criticized. (Trump also criticized the move.)
Peikoff said she believes Twitter should be a free speech platform just like Parler and hopes for “sustainable” change with Musk’s promise.
“At Parler, we expect you to think for yourself and curate your own feed,” Peikoff told Broadband Breakfast Editor and Publisher Drew Clark. “The difference between Twitter and Parler is that on Parler the content is controlled by individuals; Twitter takes it upon itself to moderate by itself.”
She recommended “tools in the hands of the individual users to reward productive discourse and exercise freedom of association.”
Peikoff criticized Twitter for permanently banning Donald Trump following the insurrection at the U.S. Capitol on January 6, and recounted the struggle Parler had in obtaining access to hosting services on AWS, Amazon’s web services platform.
While she defended the role of Section 230 of the Telecom Act for Parler and others, Peikoff criticized what she described as Twitter’s collusion with the government. Section 230 provides immunity from civil suits for comments posted by others on a social media network.
For example, Peikoff cited a July 2021 statement by former White House Press Secretary Jen Psaki raising concerns with “misinformation” on social media. When Twitter takes action to stifle anti-vaccination speech at the behest of the White House, that crosses the line into a form of censorship by social media giants that is, in effect, a form of “state action.”
Conservatives censored by Twitter or other social media networks that are undertaking such “state action” are wrongfully being deprived of their First Amendment rights, she said.
“I would not like to see more of this entanglement of government and platforms going forward,” she said Peikoff and instead to “leave human beings free to information and speech.”
The acquisition of social media powerhouse Twitter by Elon Musk, the world’s richest man, raises a host of issues about social media, free speech, and the power of persuasion in our digital age. Twitter already serves as the world’s de facto public square. But it hasn’t been without controversy, including the platform’s decision to ban former President Donald Trump in the wake of his tweets during the January 6 attack on the U.S. Capitol. Under new management, will Twitter become more hospitable to Trump and his allies? Does Twitter have a free speech problem? How will Mr. Musk’s acquisition change the debate about social media and Section 230 of the Telecommunications Act?
Guests for this Broadband Breakfast for Lunch session:
- Amy Peikoff, Chief Policy Officer, Parler
- Drew Clark (host), Editor and Publisher, Broadband Breakfast
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.
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.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
Leave Section 230 Alone, Panelists Urge Government
The debate on what government should — or shouldn’t — do with respect to liability protections for platforms continues.
WASHINGTON, May 10, 2022 – A panelist at a Heritage Foundation event on Thursday said that the government should not make changes to Section 230, which protects online platforms from being liable for the content their users post.
However, the other panelist, Newsweek Opinion Editor Josh Hammer, said technology companies have been colluding with the government to stifle speech. Hammer said that Section 230 should be interpreted and applied more vigorously against tech platforms.
Countering this view was Niam Yaraghi, senior fellow at the Brookings Institution’s Center for Technology Innovation.
“While I do agree with the notion that what these platforms are doing is not right, I am much more optimistic” than Hammer, Yaraghi said. “I do not really like the government to come in and do anything about it, because I believe that a capitalist market, an open market, would solve the issue in the long run.”
Addressing a question from the moderator about whether antitrust legislation or stricter interpretation of Section 230 should be the tool to require more free speech on big tech platforms, Hammer said that “Section 230 is the better way to go here.”
Yaraghi, by contrast, said that it was incumbent on big technology platforms to address content moderation, not the government.
In March, Vint Cerf, a vice president and chief internet evangelist at Google, and the president of tech lobbyist TechFreedom warned against government moderation of content on the internet as Washington focuses on addressing the power of big tech platforms.
While some say Section 230 only protects “neutral platforms”, others claim it allows powerful companies to ignore user harm. Legislation from the likes of Amy Klobuchar, D-Minn., would exempt 230 protections for platforms that fail to address Covid mis- and disinformation.
Correction: A previous version of this story said Sen. Ron Wyden, D-Ore., agreed that Section 230 only protected “neutral platforms,” or that it allowed tech companies to ignore user harm. Wyden, one of the authors of the provision in the 1996 Telecom Act, instead believes that the law is a “sword and shield” to protect against small companies, organizations and movements against legal liability for what users post on their websites.
Additional correction: A previous version of this story misattributed a statement by Niam Yaraghi to Josh Hammer. The story has been corrected, and additional context added.
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