2/ They make bold claims without backing them up about how social media platforms don’t have incentive to protect their brands by moderating content. In reality, platforms are widely held accountable for content they allow, and respond to public pressure all the time!
3/ If you accepted this statement uncritically, it might seem persuasive. But that “consensus” doesn’t actually exist. Democrats want platforms to remove *more* content, and Republicans want them to remove less.
4/ They take a proposal for amending Section 230 as “good,” but predictably fail to grapple with any of the nuances of practicality or feasibility.
5/ And as if to drive home the point that they simply don’t understand what they’re talking about, they get the First Amendment very… wrong. There is no First Amendment exception for speech that “induces harm” or even “encourages illegal activity.”
6/ There’s room for good faith debate, but making baseless, exaggerated claims and regurgitating others’ ideas does little to actually advance any meaningful dialogue.
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Tomorrow, @HouseJudiciary will mark up 5 bills to regulate big tech platforms. Two essentially impose common-carrier-style requirements, but are totally unmoored from basic common carriage principles
1) the American Choice and Innovation Online Act (HR 3816) & the Ending Platform Monopolies Act (HR 3825) both apply broadly to the offerings of the five biggest tech companies just because they're big
That's not how common carriage works. It's not about size or market cap...
1a) HR 3816 replicates the "no reasonable discrimination" provision at the heart of common carriage (eg 47 USC 202(a)) while HR 3825 goes far beyond structural separation imposed on common carriers
Both bills use common carrier concepts in radically new ways
The value app stores create isn't primarily economic: it's ensuring user trust by protecting the privacy of user data, the security of their devices, and even users' physical safety against those who might stalk them
App stores are especially important for families, protecting kids against a variety of threats, and empowering parents to decide what apps & media are appropriate for their kids
Parents simply did not have such powerful control before app stores launched in 2008
Justice Thomas jumped into the #Section230 debate to embrace GOP arguments for narrowing protections for content moderation. He might think differently in a case where the issues he raised were actually briefed by both sides—unlike this very narrow case
Thomas often issues such statements when SCOTUS decides not to take a case—to vent his frustrations about the state of the law
But this is the first time SCOTUS has ever considered taking a case involving #Section230. The briefs here did not even address the issues Thomas raises
Justice Thomas is free to call for fuller briefing on Section 230’s meaning in, as he says, “an appropriate case,” but this is not that case. Justice Thomas had no need to express his own views, in extensive dicta, without the benefit of the briefing he acknowledges is needed.
#Section230 protects “tech platforms” just as it protects National Review’s site, or a user’s (ahem, Trump's) retweet of someone else’s defamatory statements
230 DOES Internet media differently from other print & broadcasting, because they ARE different
Traditional publishers review content pre-publication but Internet media just can’t b/c:
—SCALE: billions of pieces of content created daily
—SPEED: much content is real-time
WEBSITES AREN’T PUBLIC FORA: Supreme Court jurisprudence and case law DOES NOT support the EO’s claims that they are. The EO cites two cases that don’t apply to social media platforms:
1) Pruneyard (1980) was limited to shopping malls (very different from websites) and definitely wouldn’t be upheld by the Court today anyway, as made clear in Johnson v Twitter (2018) 2) Packingham (2017) is about restrictions on Internet imposed by STATE LAW, not private actors
1/6 @LindseyGrahamSC's #EARNIT Act would give AG Barr a blank check—via #Section230—to crack down on Internet services, effectively ban secure #encryption & impose other de facto mandates that could never get through Congress as legislation
2/6 AG Barr could use Graham’s bill to force Apple to give law enforcement a backdoor on iMessage, iCloud or even iPhones—effectively banning end-to-end encryption
3/6 #Section230 has never shielded child porn (CSAM) traffickers from federal prosecution, but Graham's bill would create vast new legal liability for websites—then use that liability to force them to do whatever the AG commands