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  • Facebook Is Trying to Look Like the Good Guy on Section 230. Don’t Buy It.

    In March, Facebook’s founder and CEO, Mark Zuckerberg, appeared before Congress and gave a statement about misinformation on his platform and the role it plays in our political system.

    During the course of his testimony to the Consumer Protection & Commerce and Communications & Technology subcommittees, Zuckerberg advocated for reform of Section 230, a legal provision that currently prevents companies like Facebook from being held liable for things people say on their platform.

    “We believe Congress should consider making platforms’ intermediary liability protection for certain types of unlawful content conditional on companies’ ability to meet best practices to combat the spread of this content,” Zuckerberg said. “Instead of being granted immunity, platforms should be required to demonstrate that they have systems in place for identifying unlawful content and removing it.”

    Essentially what Facebook wants is for Section 230 to be modified so that companies are held liable for illegal content on their platforms unless they can demonstrate that they have systems in place for identifying it. And that’s not all. Since that point in time, Facebook has rolled out a full-blown advocacy campaign lobbying for its own regulation, even running ads on influential platforms like the New York Times.

    Zuckerberg is far from alone in his designs for Section 230. Lawmakers in both of the two major parties have been gunning for reform or even outright repeal for some time.

    For those who may not be familiar, Section 230 is a previously obscure piece of legislation that was written in the 1990s at the dawn of the internet to ensure free speech protections extended to this new frontier. It’s a very basic law that says websites cannot be held liable for what others post on them, and that business owners get the final say on what speech they promote or kick off their premises—the same as any brick-and-mortar would.

    For the past two years, Section 230 has been enjoying a “main character moment” thanks to former President Trump’s particular issue with it. Trump became upset by Twitter’s moderation of his content and began targeting the law towards the end of his presidency.

    Since that time, both Democrats and Republicans have introduced bills that would amend Section 230. Some propose that the companies should be held liable for speech if they choose to moderate content in a way that displeases Republicans. Others in the Democrat party suggest they should be liable if they allow content they deem as “misinformation” to stay up. Both sides are essentially seeking to strip social media platforms of their First Amendment rights to moderate content on their platforms as they see fit.

    Lawmakers in both camps are motivated by a desire to have more control over the content on these channels—Democrats because they want to force companies to censor more, and Republicans because they want to force companies to censor less.

    It is unlikely such laws would have much of an impact on Facebook, which already spends an exorbitant amount of money on its vast content moderation systems. Facebook already employs fact-checkers and systems that check for bullying, harassment, and violent threats.

    So why would Facebook lobby for its own regulation, especially for regulations that enforce what they’re mostly already doing? Easy. Zuckerberg and the rest of his team know that competitors and start-ups would have a much harder time positioning themselves for success under the new regulatory framework. Such systems would be expensive to develop and maintain, after all.

    Fortunately, at least one lawmaker is on to Zuckerberg’s grift. Senator Ron Wyden (D, OR), who is the original author of Section 230, wrote, “Mark Zuckerberg knows that rolling back Section 230 will cement Facebook’s position as the dominant social media company and make it vastly harder for new startups to challenge his cash cow.”

    Zuckerberg is as disingenuous in his stated aims as are the lawmakers. None of them actually care about free speech, truthful information, or bias. This is about money and control, as it almost always is when it comes to the government.

    And, if these groups got their way, consumers would ultimately pay the price. Such a change would lead to fewer online options at best under Zuckerberg’s proposal. And under the more radical proposals to repeal Section 230, they would likely lead to a world where either absolutely everything was moderated, or where consumers were unable to weigh in with their opinion at all.

    In 1971, economist George Stigler published a paper called, “The Theory of Economic Regulation.” In it, he offered a stinging rebuke of government regulations and the popular notion that they were implemented for the sake of consumers or to correct market “failures.” Rather, he said that regulations were designed primarily for the interest of businesses.

    It is actually not at all uncommon to see big corporations lobbying for regulations on their own industries. Why would this be if regulations were actually meant to restrain them? It wouldn’t. Rather, regulations are put in place to skew the market in their favor—allowing the government to pick winners and losers—and to hurt their competition. This is why it is imperative that people learn the difference between true free market policies and “pro-business” policies, which are commonly anything but free market.

    The free market and individual liberty work really well, when we let them. Under the current laws we have seen much innovation, growth, and yes, competition. And though a small number of companies seem to be currently dominating the market, it’s important to remember how quickly things can (and do) change. MySpace was once the dominant platform, and now comprises a much smaller share of the market. And dozens of other social media companies such as Rumble, Parler, and Tik Tok are currently working to build from the ground up to compete.

    While we may not like all of the practices of the current companies at the top, being principled means standing by our values even when things do not go our way. Ultimately, the problems presented by freedom are far less worrisome than those presented by regulation and big government interfering with the market.

    Those who are currently falling for the talking points behind Section 230 attacks are being hoodwinked into supporting a regulatory framework that will only hinder the competition and make Facebook stronger.


    Hannah Cox

    Hannah Cox is the Content Manager and Brand Ambassador for the Foundation for Economic Education.

    This article was originally published on FEE.org. Read the original article.


  • The Florida Deplatforming Law is Unconstitutional. Always has Been. 

    Last week, the Florida Legislature passed a bill prohibiting social media platforms from “knowingly deplatforming” a candidate (the Transparency in Technology Act, SB 7072), on pain of a fine of up to $250k per day, unless, I kid you not, the platform owns a sufficiently large theme park. 

    Governor DeSantis is expected to sign it into law, as he called for laws like this. He cited social media de-platforming Donald Trump as  examples of the political bias of what he called “oligarchs in Silicon Valley.” The law is not just about candidates, it also bans “shadow-banning” and cancels cancel culture by prohibiting censoring “journalistic enterprises,” with “censorship” including things like posting “an addendum” to the content, i.e. fact checks.

    This law, like similar previous efforts, is mostly performative, as it almost certainly will be found unconstitutional. Indeed, the parallels with a nearly 50 years old compelled speech precedent are uncanny. In 1974, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck down another Florida statute that attempted to compel the publication of candidate speech. 

    50 Years Ago, Florida’s Similar “Right of Reply” Law Was Found Unconstitutional

    At the time, Florida had a dusty “right of reply” law on the books, which had not really been used, giving candidates the right to demand that any newspaper who criticized them print a reply to the newspaper’s charges, at no cost. The Miami Herald had criticized Florida House candidate Pat Tornillo, and refused to carry Tornillo’s reply. Tornillo sued.

    Tornillo lost at the trial court, but found some solace on appeal to the Florida Supreme Court.  The Florida high court held that the law was constitutional, writing that the “statute enhances rather than abridges freedom of speech and press protected by the First Amendment,” much like the proponents of today’s new law argue. 

    So off the case went to the US Supreme Court. Proponents of the right of reply raised the same arguments used today—that government action was needed to ensure fairness and accuracy, because “the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.”  

    Like today, the proponents argued new technology changed everything. As the Court acknowledged in 1974, “[i]n the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the use of communications satellites, and the specter of a ‘wired’ nation by means of an expanding cable television network with two-way capabilities.”  Today, you might say that a wired nation with two-way communications had arrived in the global community, but you can’t say the Court didn’t consider this concern.

    You might wonder why the Florida Legislature would pass a law doomed to failure. Politics, of course.

    The Court also accepted that the consolidation of major media meant “the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events,” and acknowledged the development of what the court called “advocacy journalism,” eerily similar to the arguments raised today. 

    Paraphrasing the arguments made in favor of the law, the Court wrote “The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues,” just like today’s proponents of the Transparency in Technology Act.

    The Court was not swayed, not because this was dismissed as an issue, but because government coercion could not be the answer. “However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment.” There is much to dislike about content moderation practices, but giving the government more control is not the answer.

    Even if one should decry the lack of responsibility of the media, the Court recognized “press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”  Accordingly, Miami Herald v. Tornillo reversed the Florida Supreme Court, and held the Florida statute compelling publication of candidates’ replies unconstitutional.

    Since Tornillo, courts have consistently applied it as binding precedent, including applying Tornillo to social media and internet search engines, the very targets of the Transparency in Technology Act (unless they own a theme park). Indeed, the compelled speech doctrine has even been used to strike down other attempts to counter perceived censorship of conservative speakers.1

    With the strong parallels with Tornillo, you might wonder why the Florida Legislature would pass a law doomed to failure, costing the state the time and expense of defending it in court. Politics, of course. The legislators who passed this bill probably knew it was unconstitutional, but may have seen political value in passing the base-pleasing statute, and blaming the courts when it gets struck down. 

    Politics is also the reason for the much-ridiculed exception for theme park owners. It’s actually a problem for the law itself. As the Supreme Court explained in Florida Star v BJF, carve-outs like this make the bill even more susceptible to a First Amendment challenge as under-inclusive.  Theme parks are big business in Florida, and the law’s definition of social media platform would otherwise fit Comcast (which owns Universal Studios’ theme parks), Disney, and even Legoland.  Performative legislation is less politically useful if it attacks a key employer and economic driver of your state. The theme park exception has also raised all sorts of amusing possibilities for the big internet companies to address this law by simply purchasing a theme park, which could easily be less expensive than compliance, even with the minimum 25 acres and 1 million visitors/year. Much as Section 230 Land would be high on my own must-visit list, striking the law down is the better solution.

    The Control that Large Internet Companies Have on our Public Conversations Is An Important Policy Issue

    The law is bad, and the legislature should feel bad for passing it, but this does not mean that the control that the large internet companies have on our public conversations isn’t an important policy issue. As we have explained to courts considering the broader issue, if a candidate for office is suspended or banned from social media during an election, the public needs to know why, and and the candidate needs a process to appeal the decision. And this is not just for politicians – more often it is marginalized communities that bear the brunt of bad content moderation decisions. It is critical that the social platform companies provide transparency, accountability and meaningful due process to all impacted speakers, in the US and around the globe, and ensure that the enforcement of their content guidelines is fair, unbiased, proportional, and respectful of all users’ rights. 

    This is why EFF and a wide range of non-profit organizations in the internet space worked together to develop the Santa Clara Principles, which call upon social media to (1) publish the numbers of posts removed and accounts permanently or temporarily suspended due to violations of their content guidelines; (2) provide notice to each user whose content is taken down or account is suspended about the reason for the removal or suspension; and (3) provide a meaningful opportunity for timely appeal of any content removal or account suspension. 

    • 1. Provisions like Transparency in Technology Act’s ban on addendums to posts (such as fact checking or link to authoritative sources) are not covered by the compelled speech doctrine, but rather fail as prior restraints on speech. We need not spend much time on that, as the Supreme Court has roundly rejected prior restraint.

    Source: The Florida Deplatforming Law is Unconstitutional. Always has Been. | Electronic Frontier Foundation


  • Why Competition Is the Antidote to Big Tech’s Bad Behavior, Not Politicians

    Since the start of 2021, debates about hosting sites, web services, and social media bans have drawn attention from all sides of the spectrum with some calling foul, citing free speech concerns, while others attest that it is simply warranted ownership control.

    We have a love-hate relationship with technology that is confounded by ever evolving platforms, privacy concerns, and posting privileges. And those who recently rallied on Reddit are the latest instigators for attracting legislators.

    Big Tech is a hot button issue, and prohibiting access is a big deal. But these companies have the right to do so, just as hedge funders shouldn’t be demonized for doing their jobs while rogue investors claim revolution.

    As long as a company isn’t physically or forcefully harming another individual or their property, the ability to intervene is limited until new legislation is enacted, and we should be wary of calling for further government interference and be mindful that new laws can backfire. Regulatory decisions, even when meant to benefit the public, can impact future prospects and forms of competition within the marketplace.

    Actually, the success of Big Tech could be attributed to minimal government interference early on (since you can’t control what you can’t understand… which may still be the case). Larry Downes, a business internet analyst and digital strategist claimed in a 2018 article featured in the Harvard Business Review that “The best regulator of technology… is simply more technology. And despite fears that channels are blocked, markets are locked up, and gatekeepers have closed networks that the next generation of entrepreneurs need to reach their audience, somehow they do it anyway — often embarrassingly fast, whether the presumed tyrant being deposed is a long-time incumbent or last year’s startup darling.”

    Indeed, supposed monopolies in competitive economies don’t last forever; and although certain platforms and parties are currently in a dominant position, new entrants always emerge. Just as the rise of big box stores created concerns in the 1960s for Mom-and-Pop shops, the rise in online sales created similar concerns for the behemoths of the retail sector in the 1990s. The market self-corrects if given the chance.

    So instead of partaking in the illiberal Big Tech backlash, or pushing to raze or regulate existing systems — such as the charge to change the stock market or reprimand the GameStop mob — take comfort that when there are big problems and shifts in the status quo, new avenues will appear. Vending machines distributing COVID-tests and inventive restaurateurs and retailers demonstrating the power of a profit-motive are current examples for meeting marketplace needs.

    Just as the pandemic lockdowns were (and still are) debilitating and debatable, there has been a realization of resilience and the need for restructuring. And so, it is somewhat safe to say the same will be true for the online and trading realms. A ‘want’ doesn’t go unmet for long in advanced societies, and loopholes are ever-present for enterprising individuals.

    Change is never easy and pay to play models will likely emerge, but organic change may be just what is needed, and not new policy creation which is a common feature in daily news cycles.

    Legacy media and powerful platforms have dulled our senses, and even when our health depended on it, many were (unsurprisingly) unable to distinguish between what was true or false. This has pushed some to the peripheries throughout the pandemic and resulted in traveling down rabbit holes that only furthered the global distrust of media and fed existing biases. Personal discourse has evolved into online performativity, and it seems our metacognition(the ability to think about thinking) needs a serious redress given the success of some conspiracy theories and the swarm of shorting stocks.

    So, like any vice that is in our life, individuals need to take on some personal accountability for what has transpired in the online and trading realms.

    The power players didn’t achieve their status by force and most allowed us access to their services for free (whether for tweeting our thoughts or jumping on a bandwagon for buying stock). It is the producers and users (composed of individuals) who have furthered such ventures.

    Like an actor without a stage, a podcaster without a platform may simply need to change course and an investor without an advisor may realize the investment is worth a professional opinion.

    These current conundrums may force us to become more locally-oriented—investing in our communities, not corporations, and conversing with our neighbors rather than listening to mass media moguls, political pundits, and tribal troop leaders.

    Having a concern for community news rather than capitol chaos (which disgusts and distorts American viewpoints) will have more of an impact on our lives any day of the week, particularly since we struggle to understand what we are being shown and what is being shared when on a grander scale anyway.

    If given a chance, the market will provide new sources and structures, since creative destruction brings better processes. And Henry Hazlitt’s succinct words of wisdom are important to remember in situations such as this—“The ‘private sector’ of the economy is, in fact, the voluntary sector; and the ‘public sector’ is, in fact, the coercive sector.”

    Solutions will arise as long as regulatory bodies are kept at bay and rational ethical entrepreneurs and innovators are left unbridled. What is needed now is true economic freedom (removing the incentive of crony capitalism and political policing) and the welcoming of enterprising individuals.

    Kimberlee Josephson


    Kimberlee Josephson

    Dr. Kimberlee Josephson is an Assistant Professor of Business and the Associate Dean for the Breen Center for Graduate Success at Lebanon Valley College in Annville, Pennsylvania.

    This article was originally published on FEE.org. Read the original article.