Problems With The Publisher Argument

Law
#1

What I’m describing in the title as The Publisher Argument goes something like this (my words but not my view):

If you are running a forum or social media site, then to qualify as a non-publisher (or as a platform) you must set universal rules and only censor content based on those universal rules. As soon as you start to censor comments selectively, for example if you censor only right-wing comments and give left-wing comments free rein, then you are effectively acting as a publisher and therefore you become responsible for all commentary.

Ted Cruz made this comment for example (a key thing to bear in mind is this is not currently the law but he is arguing that the law should be amended):

If #BigTech is going to continue to act as a publisher to promote its political agenda, then it should no longer be able to enjoy special benefits provided under #Section230.

Jillian has decided to allow a very broad degree of freedom of speech here, so this forum might not be the best example, but at other sites you might get banned just because the administrators think you are wrong about something. The major social media sites such as Twitter and Facebook are much better examples, because they are censoring people more and more and in very biased ways. Crucially they are allowing a lot of content that might even breach laws (e.g. promoting terrorism) while heavily censoring voices critical of certain health policies for example.

One major problem with the publisher argument is moderation. On some smaller sites all comments can be practically moderated, but on sites with a larger volume of comments it becomes very difficult - anybody who has ever tried to run an online forum knows this is no small issue. Fearing libel actions, a site might well err on the side of caution if it feared that its “publisher” status might mean it became directly liable for libellous comments. This could have a chilling effect on freedom of speech on such a platform. The larger sites also seem (partly due to the volume of comments no doubt) to be relying on automated systems, and/or reporting from biased activists, to do the censoring, and this is obviously also very problematic for freedom of speech on those platforms.

At the moment we obviously also have a major related problem with governments trying to pressure social media websites to only allow an officially sanctioned narrative, for example on the subjects of “COVID” and “vaccines”. That’s why this publisher argument is especially important at the moment in my opinion.

Here is an article from the EFF:

“Publisher or Platform? It Doesn’t Matter.”

I think this author is wrong in the assertion in the title, I think it does matter in at least one respect because those falsely claiming to be merely platforms are in my opinion committing a type of fraud when they shadow-ban specific commentators. Those commentators who have spent a lot of time building up a following on a platform (e.g. Jillian on Facebook) also have a serious grievance when they are then banned for wrong-think - they have invested time in the platform on the understanding that it was a neutral platform. I also think that this is morally a type of fraud although one that’s harder probably to make a legal case for when the user was using the platform as a non-paying user.

However the above article goes deeply into the legal aspects so I think it’s quite an important article for those interested in the subject. This is the key quote from the article:

… before Section 230, courts effectively disincentivized platforms from engaging in any speech moderation

…

Congress resolved this problem by getting rid of republication liability altogether

There does seem to still be a problem however with libellous content, I’m not entirely clear what the law says on this and I need to do more reading on the subject.

CONCLUSION

To my mind this publisher argument is very problematic, primarily because I don’t think online forums necessarily so easily fall into either a publisher or platform category. Although aspects of online forums existed before (e.g. letters to the editor in newspapers) what is different is the sheer volume of commentary from a large number of individuals. I think we need new ideas, and perhaps a relaxation of old rules such as libel laws, in this new environment. I also think that if you have a problem with the way that platforms are censoring speech, you should not run to the government but rather set up your own platform, or encourage others to do so. Legal remedies for this problem are just going to entrench the big players, any increase in legislation will create a barrier to entry for new platforms.

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#2

Thank you for this, Chauncey.

I think the most important statement in the article is this:

Section 230 aside, both “publishers” and “distributors” are liable only when the speech they disseminate is independently illegal or tortious. The mere act of editing or curating your users’ speech is not actionable.

That can be depended on as long as the First Amendment is honored by the agents of law-enforcement.

The trouble is, we now have a government that does not honor the Constitution or the rule of law.

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#3

Yes, my understanding is that cases against Twitter have been based on the claim that the platform was in breach of contract law, so this is an example of where they fell foul of existing state laws. This seems to be a useful article on the subject:

“Social Media: Publisher, Public Forum, or Something Else? - James Madison Institute”

Quote:

deceptive acts or practices in the conduct of any trade or commerce

The big question in my mind as a website owner myself though is - could I fall foul of any proposed law by censoring comments of any user, or banning them outright? I would not dream of shadow-banning anybody, I think that is immoral, but I did once have occasion to permanently ban one individual who was just simply getting on everybody’s nerves with very long and sometimes abusive comments, and I explained to him at some length exactly why I was banning him. That user could level the same accusation at me that I made above, saying that he had invested a lot of time in commenting on my forum previously. One big point for us is perhaps that we are not making a profit from our websites, so we can’t be accused of fraud. Twitter and Facebook by contrast have huge revenues from advertising and harvesting user data.

Another argument that has been made is that size limits could be applied, this normally comes with the claim that Twitter/Facebook are de facto monopolies, and so they are in effect public squares rather than private platforms. I don’t find this convincing at all though, because there is nothing to stop someone creating a rival platform, so they are not monopolies, and since they are private companies they cannot be called public squares.

Yes the government are increasingly lawless but I think calling for bad changes to the law is just going to make that bad situation even worse.

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#4

A distinction has to be made between what such a website can be criminally indicted for, and what it can be sued for in a civil action.

In America, because of the First Amendment, criminal charges are (as yet) not to be feared.

Civil suits can always be brought, but they are costly, and the outcome is almost always uncertain.

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