131 Comments

Actually, Section 230 prevents the individual an avenue for legal redress against the platform who has harmed the individual. The platform is free to harm the individual and it is the individual who is rendered helpless to stop it.

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As Dr. Seuss was being cancelled, we put an order in on Amazon for one of his “racist” books. We were expecting the order to be filled, and even got a shipping notification from the Amazon marketplace seller. Then it never showed up and I got a notice that when they printed the shipping notice they received legal letters stating they were being sued for shipping these books. When I looked at their seller feedback, there were many cancelled orders with people complaining, all with the Amazon response: Message from Amazon: The fulfillment issues associated with this order were not due to the seller

So now the richest person in the world gets to decide everyone else in the world’s values and impose censorship on us all. Instead of boycotting Amore party store (the marketplace seller), we should all boycott Amazon.

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Great article, thanks. What drives me nuts in this discussion is how much we're allowing big tech (and I'd argue the Left, but I get that may be a more limited view) to define and dominate the discussion.

I really have no idea whether repealing or amending 230 would solve the problem, though I suspect there is at least a chance it will help. I just don't understand what that has to do with how we evaluate Section 230. Maybe it's true the internet as it exists today wouldn't exist without 230. So what? That is a questionable argument in support of a law and Constitutionally, it's silly. Why do we assume as given that Section 230 is resulting in the best possible outcome then pretend any modification of 230 is an intervention in the market?

1. Constitutionally, The Court was wrong and Section 230 is a gross violation of free speech rights. Section 230 is a law, made by Congress, that gives private parties safe harbor from the courts when they restrict the speech of others. The plain language of the First Amendment prohibits (a) Congress, (b) from making laws, that (c) limit speech. The law limits speech by failing to exclude pernicious limitations from the safe harbor provision, thereby sanctioning any limitation. We're currently talking about whether government action is required to protect speech, but we should be asking whether government action is already unconstitutionally restricting it. I'll defer to the Justices, I seriously doubt I'm as smart as they are; but I think the question they were presented in Zeran are not the reality and we should do as Thomas suggests.

2. As a statutory matter, 230 is a clunker. We offer lots of safe harbor provisions in the law, probably not enough. But they frequently have a feature in common, there is some requirement in order to avail yourself of the safe harbor. In 230, Congress could have added language limiting the safe harbor provision to circumstances where the provider was not restricting speech in a manner that would be impermissible if Congress were making the restriction (which in fact it is). If Congress gave safe harbor to businesses for excluding people from their property I bet someone would think to make an exception for protected classes. 230 needs to read something along the lines of 'you can't be sued for content neutral restrictions consistently.'

We're not really asking Congress to intervene in the free functioning of the market. We're asking Congress to stop intervening. The Court probably should revisit this and if they do I suspect it fails strict scrutiny. But even better would be Congress just fixing their shoddy work, and we could help that cause if we were not so defensive about who is asking for government intervention here.

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I am of the mind that, generally speaking, the government should stay out of the dealings of private companies. However, there have been two very scary and transformative happenings that have truly freighters me in my adult life - 1. The 9/11 attacks and 2. When big tech effectively banished Parler from the entire market. These companies had combined to create an outcome that would be wildly unconstitutional had it been the federal or even a state government. That combined power is thusly limitless. Not even the sovereign power of the people (as expressed in the protections of the constitution) could stop tech from shutting down alternatives to politically correct viewpoints. They’re still doing it. But I don’t think that the government should create some new set of laws that manage social media because that would be a nightmare. For me the obvious question is, why are they censoring constitutionally protected speech in the first place? The simplest solution is that people act like adults, and when they see speech they don’t like they take it upon themselves to never see it again in their own feed - in other words, mind YOUR business. You never have to see that “Q” think piece ever again. Instead the loudest amongst us want to be scolds and inject themselves into everyone else’s lives. With this in mind I tend to agree with Justice Thomas and those that see these platforms as a modern public forum, and I tend to see the monolithic ideological stance of these tech giants as a broad threat to the sovereignty of the people being able to determine, through their legislatures and due process, what should or should not be allowed. Think about how many former SM C-suite professionals are in the employ of the Biden administration. What sort of influence do these individuals have on moving constitutionally dubious end goals through ideologically sympathetic tech CEOs? The threat of a shadow government seems to me to be very real even if the government isn’t actively pushing them toward that goal behind closed doors. We just heard reports of CEOs gathering in a conference to discuss pushing progressive agendas through combined actions designed to pressure state legislators to ignore the will of their voters. That’s not the same as tech censorship, but it is an example of the threat of international corporations to accomplish legislation outside of the constitutional process. We’d be a a constitutional republic in name only, run totally by oligarchs.

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I have to confess that I have terrible taste in tech even though it is my business and my livelihood. So don’t think you want me regulating it. I didn't think the cell phone was "going anywhere" as my one remaining friend frequently reminds me. I also didn't think people would need computers in their home, forget about on their hip. So you won't be surprised if I tell you that I joined FaceBook in or near the beginning. I succeeded in getting friends and family to join so that I would have someone type at. Then I then promptly abandoned it because I didn't think it was going anywhere - just like this comment. I also found that I didn't want to live inside the heads of these people I thought I knew. I find weddings and funerals to be just the right amount of contact with people you might have to hit up for a kidney some day.

Facebook was too exhausting. It’s like sitting Shiva for the rest of your life. All the babies looked alike. There I said it. Perfectly normal people act like they're off their meds. There’s more FB rant in me; but I’ll hold off for now.

But anyway back to Bari’s question. Regulation is the obvious answer. Bari listed some of the most egregious abuses. I don’t think we need a Solomon or a Brandeis to solve this issue. But nothing will change unless a case is brought before the Court before it’s expanded to double digits. The status quo suits the folks in power just fine. Their Ox is fat and happy. It will call you Hitler if you dare approach it.

I advise people to dump FB all the time. But with my record of picking losers they just smile and move on. I can’t blame them.

I’m only slightly shocked that so many Facebookers and tech users in general seem to be satisfied with the way things are. Voyeurism is addictive and Facebook made it acceptable.

They just can’t stop themselves. Like Jeff Jefferies in Rear Window they can’t stop looking.

Twitter on the other hand provides an outlet for the anger that Twitter gins up. This is almost perfect symmetry. Almost - you must stay up on the approved opinions. If you hold last months or last years opinions you will be digitally disappeared. I forgot to tell you that I joined Twitter somewhat late in the game. I had nothing to say. It seemed like a crowded bar full of drunks going through their 15 minutes of fame. I left before I was asked to leave. I still don’t understand how they make money on the proverbial users two cents. I guess I’m not much of a tech guy.

I keep wishing we could go back in time to a time when we had these very useful things called adults. I keep thinking that we don’t need a full blown Solomon for G_D’s sake. But maybe a few words from Mrs. Sinibaldi who watched us neighborhood kids and settled our childish disputes fairly and firmly. I later found out that she was the “little bird” who told our parents everything. No one sulked - much - or sued. Her decisions were final. She didn’t pit us against each other. She was an adult. Boy I miss her and her kind.

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X7C00 Thank you for this humorous piece, mixed with a good dose of nostalgia! Ain't it the truth, though!

I ventured out to use Facebook because my teenage (at the time) nieces had "pages" and I thought it might encourage communication between us. Not so much. It seemed to be a virtual showcase of their latest outfits or adventures as an extension of their school day.

I eventually began to feel a vague discomfort each time I would visit the site. And then it dawned on me, IT'S VERY IMPERSONAL while being VERY PERSONAL. Not what I would consider "True" Relationship Building. I'm sure there are exceptions, but I still prefer the old fashion way of friendship, face to face & heart to heart. I guess I'm showing my age now. ☺️

I continue to have my "page" to this day, but I seldom use it unless I have something funny, encouraging, uplifting or educational to share. And even then, my "friends" are small in number.

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I forgot to mention that Bari Weiss and many other writers of all sorts are doing rather well I think publishing on this platform, Substack. Thy do not need Twitter or Facebook or the New York Times or The Wall Street Journal nor does anyone else to publish their samizdat to the world to get their word out and even make a buck while doing so.

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Excellent. I agree, it’s an issue that is very tough to take a side on. Merits to many different viewpoints on how best to handle the censorship and power. Will be extremely interesting if SCOTUS takes a case on this...insightful as usual, good work Bari. Enjoy reading your work.

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As far as I understand, the tension that 230 was meant to resolve was between allowing platforms to moderate -- thus making them more hospitable to minors and, well, normal people -- and holding them responsible for users' content -- which would have made their liability prohibitive.

So I can see treating these platforms more like trains, which I assume can kick me off for being naked but not for being a Communist. I'd like to know how that plays out in a court of law, though. What exactly is the statue? Where does the burden of proof lie?

That said, I may be more inclined to Amash and the Libertarians on this. I heard about the Biden laptop even though I neither follow Twitter nor read the 'Post. And I don't even think the story is terribly important. The better solution to this problem is vastly better civics education, so that citizens are less distracted by nonsense and less manipulable. Of course I have no clue as to how -- or if -- that can be done.

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Big Tech censoring and deplatforming people clearly needs to be addressed and other commenters on this post have done a good job of explaining the multiple reasons, using legal precedent, to do so. The truly alarming part of all of this is the obvious partnership between Big Tech and the Democratic Party. Democrats use Big Tech as their digital bullies to get rid of, and intimidate, dissidents, which is why Democrats currently debating this issue want more censorship from Big Tech. Big Tech's censorship of the NY Post Hunter Biden laptop story clearly had an impact on the election, so I guess the success of that move has emboldened Democratic politicians to go all in on assaulting free speech?? And I fear it's only going to get worse. See the link below to a story about someone on the Left who criticized AOC and was visited by police after someone reported to police that he threatened her life. How can this possibly be happening in America? Very few people want to live in a country like this...that's why so many people left their home countries to come to America.

https://nypost.com/2021/04/10/ca-podcaster-gets-visit-from-police-after-aoc-tweet/

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More and more these days I seem to find myself being actually afraid of my own government. I never thought I would say that in America. I don’t know anything about the law, but I wish I had the opportunity to thank Justice Thomas for stepping up to protect the American people. He is a hero.

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I think the part of this that is getting the least attention here is Bari's clear attestation that this all hinges on the monopolistic status of our big tech companies. If our legislators should be doing anything, it's looking into why these monopolies exist and what can be done about it. Personally, I think we should look into sponsoring non-profits. Having tech platforms that exist to serve the public and not shareholders, yet maintain the ability to self-regulate and still balance out the marketplace, seems like an enticing proposition to me.

But the for-profit market should not be ignored; there's no reason that alternatives to Twitter and Facebook shouldn't be able to thrive, and government has been successful in the past in promoting healthier competition through various legal and regulatory means. Start by forcing Facebook to sell Instagram.

In any case, we are going down a dangerous road if we start telling online communities that they can't have standards. Twitter will turn into even more of a toxic sewer than it already is, and Facebook will continue to be an abject disaster to humanity that we must all endure if we want to share our vacation photos with our high school friends. Differing community standards provide a good point of differentiation between services in a vibrant market. Time for Teddy's big stick to come out of retirement.

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They need to be regulated and covered under the First Amendment.

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Big Tech censorship prior to the election was in fact coordinated: a TIME story lauded unnamed ‘groups on the left’ meeting with the heads of the aforementioned platforms to stop ‘misinformation or hate speech.’ TIME thought that was just terrific. The same groups promote opinions advocating ‘killing whiteness.’ We are to thank God for the suffix, I suppose, and not consider it ‘hate speech’ at all.

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That Time story proved the "conspiracy theory" that so many people already believed. Of course, it wasn't described as interference, but as "fortifying" the election. I don't know about voting machines, ballot oversight etc, but Big Tech clearly influenced the election results in multiple ways, including by censoring the NY Post Hunter Biden laptop story. Polls have shown that voters would have voted differently if they had been aware of the story.

It's disturbing that a few weeks after an article came out referring to whiteness as a pandemic and saying that the only way to stop the whiteness pandemic is to isolate it and kill it, now the CDC says racism (i.e., whiteness) is a pandemic. The rise in anti-Asian violence is supposedly due to the description of the current pandemic, so why would describing another pandemic using racial/ethnic language, not simply lead to more violence? Describing everything as "racism" and "whiteness" prevents actual discussions about the root cause of problems, which in this case would be the cause of legitimate health disparities among parts of our population. This problem should obviously be addressed, but describing it purely as racism isn't helpful. If the CDC actually wants to look at racism as an infectious disease, they should start with the spread of CRT throughout this country. CRT is replicating, transforming into variants, and infecting institutions throughout this country, producing neoracists.

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They openly say they want to 'silence' opposition. It is as if the underpinnings of the U.S. never existed. This joke of a campus ideology, in a matter of months, is a serious threat to Western liberal democracy.

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I feel like since some prescient people, not including me, warned for years about what would happen if these platforms reached a critical mass over time, that the solution to controlling these platforms is going to take time. And it would start by the users deciding to reduce their use of the platforms. I think it's part of the Twitter brain effect that any suggested solution that won't cure things by the time people finish reading a tweet is considered ineffective. Cut down on your use of the platforms and reduce their ad revenue. I think that would be a good start. Show the companies that you don't like or need their products.

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Good piece.

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Common carrier argument is powerful. Another great piece, Bari. Glad I heard you on Prager and am now a subscriber.

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Bari, I, too feel torn between "Bad and Worse" choices.

To me, the worst possible choice is one which most curtails free speech.

Ideologically, I'm conservative. But my ideology is my guide, not my master. There are times when I feel I must oppose ideological conformity, so I will not be following the ideological purists who are committed to the total pre-eminence of private businesses to act as they wish, especially wrt free speech and more especially when those business are acting in ideological lockstep with one political viewpoint.

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