At noon, Prof. Hamburger will repeat his nonsense claims that the First Amendment is a sword by which government can force private websites to host speech they find reprehensible.
https://twitter.com/_/status/1376605326288551943
His Fairness Doctrine for the Internet is the opposite of what the right has argued for decades, as @AriCohn and I explained here
lawfareblog.com/wall-street-jo…
lawfareblog.com/wall-street-jo…
Read our thread here
https://twitter.com/TechFreedom/status/1357069231188299781
Prof. Volokh is a scholar and a gentleman but is simply mistaken: He'll cite Fair v. Rumsfeld as allowing the government to force law schools to host military recruiting, despite their disagreement with "Don't Ask, Don't Tell"
But SCOTUS said recruiting wasn't speech
But SCOTUS said recruiting wasn't speech
Websites are absolutely held responsible, by their users and the advertisers who fund them, for the speech they host
Thus, they are no different from newspapers or parade organizers, as @CorbinKBarthold and I explained here lawfareblog.com/no-florida-can…
Thus, they are no different from newspapers or parade organizers, as @CorbinKBarthold and I explained here lawfareblog.com/no-florida-can…
.@BrendanCarrFCC: #Section230 acts as both a sword and a shield when it comes to censorship
Nope. 230 doesn't give websites any more of a "sword" to "censor" any more than the First Amendment does.
(c)(1) merely says they don't have to litigate hard con law questions
Nope. 230 doesn't give websites any more of a "sword" to "censor" any more than the First Amendment does.
(c)(1) merely says they don't have to litigate hard con law questions
In this sense, in protecting content moderation, #Section230 is merely providing a civil procedure shortcut to allow websites to vindicate their right not to carry websites they don't like
Hamburger: the problem isn't private censorship, it's government outsourcing censorship that it could not do itself
Wrong. Again, just as newspapers have a right not to carry op-eds, obituaries or ads for editorial reasons, so do websites have the same right not carry speech
Wrong. Again, just as newspapers have a right not to carry op-eds, obituaries or ads for editorial reasons, so do websites have the same right not carry speech
Volokh: Congress isn't enabling private censorship, it's merely recognizing the private website's right to remove content. This doesn't make private entities' action state action. Yup.
But then he gets it wrong, claiming that only (c)(2)(A) protects moderation
No. (c)(1) does, too -- IF the website isn't responsible for creating the content
(c)(2)(A) is a belt-and-suspender protection for content moderation
No. (c)(1) does, too -- IF the website isn't responsible for creating the content
(c)(2)(A) is a belt-and-suspender protection for content moderation
Hamburger: #Section230 might be unconstitutional because it favors one set of speakers over another
lol no
230 applies equally to EVERY provider (and user) of a website insofar as they host/moderate the speech of others, from newspapers to social media to the tiniest blogs
lol no
230 applies equally to EVERY provider (and user) of a website insofar as they host/moderate the speech of others, from newspapers to social media to the tiniest blogs
Hamburger: but also in (c)(3)... oh, sorry (c)(2)
🤦
He clearly has only a cursory familiarity with the statute
🤦
He clearly has only a cursory familiarity with the statute
As Volokh keeps telling Hamburger, #Section230 protects providers/users of interactive computer services
Does Hamburger understand that Trump himself relied on 230 to escape liability for retweeting defamation?
Does Hamburger understand that Trump himself relied on 230 to escape liability for retweeting defamation?
Likewise, last week, when NCLA first posted about this panel, @TechFreedom replied to note our debunking of Hamburger's arguments
NCLA "censored" this tweet by hiding it. 230 protected them for doing so, as did the First Amendment
lawfareblog.com/wall-street-jo…
NCLA "censored" this tweet by hiding it. 230 protected them for doing so, as did the First Amendment
lawfareblog.com/wall-street-jo…
Note the irony that the same organization that complains about "censorship" responded, when confronted with counter-arguments (from an organization that joined NCLA in an amicus brief just last year) by simply hiding our legal analysis from their readers' vulnerable eyes
Hamburger: 230(c)(2) protects removal of content, not viewpoint discrimination
WHY are we not talking about (c)(1), which ALL courts have ruled protects the full range of decisions publishers make, including the withdrawal of content
Again, (c)(2)(A) is a backstop
WHY are we not talking about (c)(1), which ALL courts have ruled protects the full range of decisions publishers make, including the withdrawal of content
Again, (c)(2)(A) is a backstop
No, websites can't be regulated as common carriers no matter how popular they are. The DC Circuit upheld treating ISPs as common carriers over Kavanaugh's First Amendment arguments only insofar as they held themselves out as providing unedited connectivity to the entire Internet
Because at common law, the essence of common carriage was carrier holding itself out to everyone as treating all traffic equally
Social media services *obviously* do not do that. They make clear that they will remove a wide range of speech
Social media services *obviously* do not do that. They make clear that they will remove a wide range of speech
And no, websites can't be treated like cable companies, as in Turner (1994), because (a) SCOTUS emphasized that no one blamed cable companies for the broadcast channels they were required to carry and (b) they never objected to the *content* on broadcast channels
In both respects, websites/social media are obviously different from cable companies and can't possible be regulated as common carriers OR subject to must-cary mandates, any more than newspapers can be
Now we're going round and round about what 230(c)(2)(A) means. Hamburger arguing that it doesn't bar forcing websites not to discriminate based on viewpoint
(c)(1) moots this issue in 99% of cases: ICS providers simply can't be treated as publishers
READ ZERAN!
(c)(1) moots this issue in 99% of cases: ICS providers simply can't be treated as publishers
READ ZERAN!
Vokokh: state laws requiring condos to let residents display US flags is viewpoint discrimination but a law could require condos to display whatever they want
Maybe but condos aren't websites. They don't curate an overall expressive product, as parade organizers & newspapers do
Maybe but condos aren't websites. They don't curate an overall expressive product, as parade organizers & newspapers do
Hamburger keeps decrying 17th century censorship, where the Star Chamber didn't tell the Stationers' Company what to censor
Volokh: um, Stationers' Company was the only outlet allowed to publish anything, bro. THAT was the censorship 🤦
Volokh: um, Stationers' Company was the only outlet allowed to publish anything, bro. THAT was the censorship 🤦
Also Hamburger loses a lot of credibility as a scholar of free speech and censorship when he pronounces "samizdat" (sam-iz-dat) as "sam-diz-at"
This isn't a rare word. It was kind of a big deal in the 80s. You know, bringing down the USSR and all...
This isn't a rare word. It was kind of a big deal in the 80s. You know, bringing down the USSR and all...
Hamburger keeps insisting that 230 bars only liability for damages, not injunctions
That's a fancy way of saying that the government should be able to force websites to host speech they find noxious
This, from the guy who keeps ranting about the power of the Star Chamber
That's a fancy way of saying that the government should be able to force websites to host speech they find noxious
This, from the guy who keeps ranting about the power of the Star Chamber
Dumbest question yet in the Q&A
Nah, brah. 230 explicitly overruled a court decision that imposed liability for *hosting* third party content precisely because Prodigy engaged in content moderation
en.wikipedia.org/wiki/Stratton_….
Only (c)(1) does that, not (c)(2)(A)
Nah, brah. 230 explicitly overruled a court decision that imposed liability for *hosting* third party content precisely because Prodigy engaged in content moderation
en.wikipedia.org/wiki/Stratton_….
Only (c)(1) does that, not (c)(2)(A)
I have to go explain how wrong all of these arguments are to a bunch of law students
Enjoy the rest of the wrongfest
Enjoy the rest of the wrongfest
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