November 11, 2020 – The pervasiveness of the debate over recrafting Section 230 of the Communications Decency Act is even impacting discussions about the future of journalism.
Speaking on Tuesday at the final day of the Lincoln Network’s Reboot conference, Alberto Ibarguen, CEO of the John S. and James L. Knight Foundation, set the tone for the day in advocating transparency as a theme in legislative changes to Section 230.
Ibarguen acknowledged the debate in the journalism industry between those say the tech platforms are too big not to be regulated and those that said they shouldn’t have too much regulation so they can maintain market efficiency.
But as a lawyer and a newspaper editor, he said there is nothing wrong with changing Section 230 such that it would hold speakers or platforms accountable for provable harm.
Ibarguen projected that such changes would “make things more conservative” and cause tech platforms to invest more in artificial intelligence agents. Such agents have been envision for a decade by Tim Burners Lee, the creator of the World Wide Web.
Such changes to Section 230 would be a boon for transparency and accountability and would guide Americans into the future, he said.
Free speech and Section 230
Yaël Eisenstat, visiting fellow at Cornell Tech and former Facebook global head of elections integrity, discussed the connection between free speech, Section 230, and platform amplification.
Platform “amplification” has changed the dynamics of free speech because tech platforms are controlling what gets priority in the public square, and not the public at large.
While emphasizing her support for free speech, Eisenstat acknowledged the oddity of tech companies bearing no responsibility for what gets put forward on their platforms.
This is why, in her view, more and more people are advocating for transparency: Users need to know why the algorithm is favoring one post over another.
Eisenstat also discussed using data to target certain markets. She said that while algorithms cannot directly target people, political ads can. Most of the time data targeting manifests itself in data being used to determine our preferences for marketing Adidas or Nike shoes.
But big data is problematic when used politically because people don’t gather round the water cooler and talk about how they got two different ads when they were seeking the same information.
Moreover, social media is all about engagement on an emotional level, and it is antithetical to listening, she said.
Lower barriers to entry for media companies
Speakers discussed how lower costs and barriers to entry have allowed new entrants to falsely pose as reputable news sources. Jarod Dicker, vice president of commercial at Washington Post said that during election week, whereas his media stream was usually more broad, he had about three people he was actually listening to for election information because he didn’t trust anyone else.
Millie Tran, chief product officer at the Texas Tribune, responded saying that Dicker’s deference to limited sources in times of uncertainty showed the power of legacy news and it has a role that “other substacks aren’t going to fill.”
Is hyperlocal news a thing again?
Still, speakers acknowledged that journalists needed to adapt to the changing times. American Journalism Project CEO Sarabeth Berman and North Base Media Managing partner Marcus Brauchli advocated for a focus on communities.
David Chavern, president and CEO of News Media Alliance, said that news has recently been becoming more local as opposed to the long term national trend, seen clearly with President Donald Trump.
Berman and Brauchli agreed that communities provided a natural basis for fact-checking. Berman said journalists needed to remind communities why they were helpful. She pointed out that since the decline of the newspaper, civic engagement has decreased and polarization has increased.
Brauchli stressed that because information was the bedrock of the economy domestically and globally, investors needed to financially support quality media. “Misinformation is a cancer on global markets.”
He also said that funding is not as simple as growing revenue. Rather, it involves training audiences to care about quality journalism. Once people are on their smart phones, they have limitless choices of what to pay attention to.
In other words, Chavern said, people still want quality news, and that’s why journalism is not going to go the way of the buggy whip.
The Lincoln Network is a Silicon Valley-focused think tank. Executive Director Garrett Johnson moderated the session with Alberto Ibarguen. The Lincoln Network is not connected to the Lincoln Project of disaffected Republicans who created political advertisements in the presidential contest and campaigned against Trump.
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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