Thread by @jess_miers

#Section230 panel about to begin #SOTN2023

I'm sitting next to @AriCohn who unsurprisingly is even funnier in person

.@ma_franks kicks it off with two points:

1. the 230 (c)(1) immunity overwrites the (c)(2) good faith moderation provision;

2. 230 operates like a "super immunity" reaching beyond publication torts (i.e. defamation).

Except that 230(c)(2) has always served as a back-fill provision for instances where (c)(1) fails (i.e. Barnes, Fyk).

and 230 was always intended to apply beyond defamation, signaled by the existence of statutory exceptions under 230(e)

That content moderation line between 230(c)(1) and (c)(2) is imaginary.

"a finding for Gonzalez would render Section 230 a dead letter." @SteveDelBianco

Steve rightfully pushes back on Justice Kagan's suggestion in Gonzalez that #Section230 was a "pre-algorithm" law.

Algorithms underpin the web. There is no such thing as a "pre-algorithm" era of the Internet. Hell, TCP / IP is an algorithm in itself...

Matt Wood suggests a line between rote distributive liability versus when a platform "knows" of the harm caused by 3P content.

But as we saw in Taamneh, such a test would render future 230 case law a convoluted, unnavigable mess -- a Plaintiff's paradise.

.@ma_franks reiterating Justice Kagan: "every industry has to deal with lawsuits."

Right -- but let's be concrete. We're talking specifically about the industry of providing access to speech and expression on the Internet.

Treating the Internet like oil & gas or automotive or pharma industries is, respectfully, absurd.

Alex Abdo -- I'm concerned about human rights advocates and government officials who need to blow the whistle but the platforms may be discouraged from hosting that speech. #Section230

Matt Wood -- we need to take a look at #Section230 when these platforms claim "tough luck", "nothing you can do" in the face of harm.

Strawman alert. Websites have immense incentives to do the right thing / mitigate harms. Not to mention, 230 isn't limitless.

.@ma_franks brings up jawboning as a reason to curb #Section230 and notes the status quo for websites is to do whatever will make them money.

Problematic take aside, yes -- we know that websites act non-neutrally. Editorial discretion always implies bias. That's 1A for you.

.@SteveDelBianco also points out that both sides of the aisle are excited to force websites to host their own speech and block their opponents. #Section230 empowers websites to keep the balance.

Remember: anything one party bakes into 230 can be weaponized by the other.

.@rmack: Wikimedia will be affected by a ruling for Gonzalez. Such ruling would make it impossible for us to empower volunteers to self-govern their communities.

She notes the panel keeps referring to "the platforms" forgetting that 230 also protects users / smaller services.

.@SteveDelBianco agrees and notes that whenever wikipedia suggests a link to another source that a Gonzalez holding could render wikipedia liable for those suggestions. Same for Yelp.

Same for any websites that engages with user created content.

.@BerinSzoka presses @ma_franks on her point that 230(c)(1) only applies to publication torts. Berin notes that if we're going to take a textualist approach to 230, then why would Congress add a separate provision for exceptions, having nothing to do with publisher torts.

Berin rightfully calls out Prof. MAF for making identical arguments that the Trump administration makes regarding jawboning. He's not wrong. #Section230