Thread by @AriCohn

1/ I regret to inform you that Adam Candeub, one of the most pervasive sources of misinformation about #Section230, is at it again with a policy brief that is dishonest in both its framing and its statements about the law. americarenewing.com/issues/policy-…

2/ Candeub leads with the "why don't we treat online platforms the way we treat newspapers or bookstores" argument. But that ignores what’s different about online platforms: the unfathomable number of posts that occur each minute, even second.

3/ In 2020, Twitter had a staggering 200 *billion* tweets—6,000 new tweets per second on average. Facebook has, on average, 350 million new photos posted each day.

There's good reason to have different liability rules at that scale

4/ Candeub implies that websites are immune from the liability a bookstore might face for knowingly distributing child pornography.

Not true: platforms face the same potential criminal liability because #Section230 doesn't limit federal criminal liability.

5/ He alludes to Facebook's attempt to dismiss a civil suit in Texas based on state sex trafficking law. The trial court, and an appellate court, refused to dismiss the case, without any substantive analysis. That case is now before the TX Supreme Court. techdirt.com/articles/20200…

6/ FOSTA-SESTA allowed civil suits under *federal* sex trafficking laws (the wisdom/efficacy of FOSTA-SESTA is a matter of considerable question, but that’s for another time).

7/ Under FOSTA-SESTA, websites know when they’ll face civil liability—instead of having to worry about 50 different state laws. Facebook argues that it can only be sued under federal, not state, sex trafficking laws.

8/ Facebook could, in fact, be liable under FOSTA-SESTA in a federal civil suit for knowingly facilitating sex trafficking, and having supported the law, Facebook is surely aware of that. Candeub’s framing, intended to persuade that 230 is broken, is misleading at best.

9/ As Section 230 Truthers are wont to do, Candeub insinuates that 230 is a law about porn. That’s just not true. The CDA provisions targeting porn were all struck down.

10/ What is now Section 230 started as the Wyden-Cox bill, was added to the House’s version of the 1996 Telecom Act by a vote of 421-4, then got jammed together with the anti-porn Communications Decency Act in conference with the Senate’s version of the Telecom Act.

11/ 230’s authors have been very clear that the law aimed to allow websites to determine what kind of site they want to be, and moderate content accordingly. If Congress had wanted 230 to enable moderation only of porn, it would have said so

12/ In a remarkable self-own on this point, Candeub cites to the Stratton Oakmont decision (which was in part the genesis of Section 230), But that case wasn’t about porn at all; it was about whether Prodigy was liable for defamatory user posts because it moderated content.

13/ The leap from defamation to porn is strange, and he proves himself wrong again when he (incorrectly) claims that Congress sought to incentivize moderation of porn in 230(c)(2)(A), which explicitly covers far more than porn.

14/ Underlying his arguments is the pervasive and incorrect belief that 230(c)(2)(A) is the sole provision protecting content moderation. Why this is not the case (which of course Candeub takes issue with) has been explained ad nauseum, including here: lawfareblog.com/wall-street-jo…

15/ Candeub’s historical fiction continues, again asserting that Congress’ intent was porn-focused and completely ignoring the fact that they put the words “otherwise objectionable” into the statute. But I guess if you’re going to make stuff up, ignoring words isn’t a big deal.

16/ Candeub claims that Congress intended to protect websites from publisher liability, but not from distributor liability.

17/ Bemoaning the 4th Circuit’s decision in Zeran, he hyperventilates about the court’s conclusion that 230(c)(1) immunizes from liability for “unlawful” content that a site has knowledge of.

But he misses the boat.

18/ The plaintiff in Zeran made the same argument about distributor liability that Candeub makes. But as the Zeran court explained, distributor liability isn’t distinct from publisher liability.

19/ It’s simply a subset of publisher liability with an additional requirement (knowledge).

Rather, distributer liability is simply a *subset* of publisher liability with an additional requirement (knowledge).

20/ Candeub addresses part of the “Moderator’s Dilemma” solved by #Section230, but ignores the other half: if liability hinges on knowledge (actual *or* constructive, which he fails to mention) of the offending content, there's strong incentive to avoid obtaining such knowledge.

21/ Websites could well simply remove reporting/flagging features, and make it difficult for a plaintiff to establish that a website had sufficient knowledge of the offending content. That outcome would undercut Section 230’s goal of encouraging content moderation.

22/ It is also odd that Candeub seems confused about why the court would create a novel, “never before in history” rule, while, in other places, acknowledging that the Internet is a novel and massively expansive world of information that requires special treatment.

23/ That's the point, and he Canteub have it both ways. It's easy to conclude that imposing liability for content that is brought to a website’s attention isn’t a huge burden—if you’ve never taken the time to think about how much information is posted (and reported) every minute.

24/ Candeub toots a political dog whistle in claiming that California courts are responsible for expanding #Section230 beyond its “proper sphere.” What he omits is that Zeran was a 4th Circuit decision (VA) written by a leading Reagan appointee.

25/ Of course, the Ninth Circuit has dealt with more #Section230 cases than other federal circuits, because most tech companies are based in California. But 𝑍𝑒𝑟𝑎𝑛 has been widely influential across the country, and mostly outside the 9th Circuit

26/ Candeub lists a parade of horribles allegedly flowing from websites’ immunity for exercises of editorial functions. Notably, he claims that a platform’s decision to ban women or African Americans couldn’t be challenged under “the Civil Rights Laws.”

27/ But websites are not places of public accommodations under federal law, and I am not aware of any serious, credible claims that social media platforms are actively banning people based on their membership in a protected class. This is just patently obvious concern trolling.

28/ He complains that platforms are immunized from “consumer fraud” lawsuits over content moderation policies. But that hits Section 230’s core purpose. Allowing suits over the application of moderation policies would discourage what 230 was meant to encourage: moderation.

29/ Finally, Candeub gets to his real beef: he believes social media platforms are discriminating against conservatives. Never mind that it took until a literal insurrection for Twitter to ban Trump, or that Facebook’s most successful pages are nearly all conservative.

30/ Drawing from Justice Thomas’ recent concurrence in the mooting of Biden v. Knight First Amendment Institute, Candeub proposes declaring social media to be public accommodation. Notably he does not propose common carriage treatment, likely because he opposed it for ISPs.

31/ But simply declaring something to be a public accommodation doesn’t resolve the underlying First Amendment issue of compelling publishers to carry expression that they disagree with.

32/ Indeed, in his Masterpiece Cakeshop concurrence, Thomas *disagreed* with the notion that the negative impact of being compelled to associate with speech is obviated by the fact that the law compels it. More on that from @berinszoka & @corbinkbarthold: lawfareblog.com/justice-thomas…

33/ Adam Candeub has been consistently wrong, for years now, about Section 230’s purpose and what it does. Many have attempted to explain his mistakes to him, and yet he keeps pushing misinformation. At this point, it’s hard to see anything more than a partisan axe to grind.