How GOP Congressman Chris Cox set the stage for internet bans of content

[Anti Federalist]

The Deplatforming Wars, Part I: Screwed by Cox

https://www.takimag.com/article/the-deplatforming-wars-part-i-screwed-by-cox/

by David Cole

December 04, 2018

Hello, friend! Do you happen to be on the right? Mainstream conservative, perhaps? Alt-right? Racialist right? Or just a good old-fashioned “bombs ’n’ tax breaks” neocon? However you identify, chances are you’ve been banned or locked out of social media at least once. We all have. For anyone on the right, being deplatformed is our pubes, our sign of manhood. Twitter and Facebook admins have never seen a right-leaning post they don’t consider to be hate speech, and they make sure we know it.

Now, here’s the funny part…did you know that you have a Republican to thank for the rampant deplatforming of rightists? Yep, a do-gooder Republican. And honestly, is there any worse animal? In 1999, Bill Maher—already whacked by the ugly stick but yet to receive the follow-up idiot-stick drubbing—gave an interview to Rolling Stone in which he uttered my favorite-ever quote about Republicans: “I would be a Republican if they would. Which means that I like the Barry Goldwater Republican Party, even the Reagan Republican Party. I want a mean old man to watch my money.” Agreed. I don’t want warm, fuzzy Republicans. I don’t want Republicans who care. I want Republicans who are willing to tell the widders and orphinks to go fuck themselves. But Republicans, like the rest of us (perhaps more so due to nonstop media guilt-tripping), are prone to fits of sentimentality and do-goodism.

Worse still, Republicans lack foresight. Back in 1990, as all of my GOP buddies were frothing at the mouth over the Supreme Court ruling that classified flag desecration as protected speech, I tried to talk a little sense into my cloth-worshipping patriot friends. “You want to allow states to prosecute flag desecration? Okay, who defines desecration? In your mind, desecration is a commie hippie burning a flag. But what about a San Francisco judge or jury? How will they define it? I’ve seen pro-life literature that depicts a bloody aborted fetus wrapped in an American flag. You don’t think a California judge will consider that desecration? I’ve seen antigay literature that uses the flag as a backdrop. How will a San Francisco jury view that? The term ‘desecration’ is open-ended. Eventually, the left will find a way to use it against you.”

Thanks to Antonin Scalia, I never had to be proved right on that one. But shortsighted, virtue-signaling Republicans have caused a great deal of damage elsewhere.

Reagan’s oh-so-generous illegal-alien amnesty, for example. What’d that get us? A nation of grateful, GOP-voting beans and a southern neighbor that respects our borders? That’s a good one! Bush Sr.’s Americans with Disabilities Act? I can hear the old windbag now in 1990: “Well, Bar, I’m sure this legislation born of my soft heart will never be misused.” Now that H.W.’s joined the cadaver club, I truly hope a planeload of mourners misses his funeral because their flight is delayed by a neurotic headcase trying to board with her emotional support elephant. And for a truly fitting tribute, Bush’s body should be flown to D.C. by legally blind pilots. And Bush Jr.? Wotta heart he had. Oh sure, American soldiers might have been cannon fodder to him, but did he ever pour money into saving Africans from AIDS! Hell, they’ve erected statues of the man in Ghana! And why shouldn’t that be what we want from a president…someone worshipped as a deity by hut dwellers on the other side of the world?

So, back in 1995, Chris Cox, GOP congressman and former senior counsel to Ronald Reagan, was killing time reading a newspaper when he should have been out shooting guns at old tin cans (that’s the best way to keep GOPs harmlessly occupied). And he read a story about how someone had won a defamation suit against some kinda newfangled “Internet” thingy called Prodigy, a service provider that hosted bulletin boards or something of that nature. At the time, previous court cases had determined that a service provider was not responsible for bulletin-board or message-board postings by users or subscribers (said postings in 1995 were, of course, mainly limited to debates over Captains Kirk vs. Picard). But in the Prodigy case, a court had determined that because Prodigy moderated comments, it was now a publisher by law, and therefore liable for the material it published. The court determined that content moderation is what makes an online platform provider legally liable. If they don’t moderate, they’re not responsible.

Well, Cox threw down that newspaper and rode his mighty steed to Capitol Hill, for to defeat this wickedness. From his perspective, if sites like Prodigy become liable simply by moderating third-party content, they’ll have a disincentive to moderate, and therefore these “bulletin boards” and “message boards” will become a Wild West of immorality. Prostitution! Kiddie porn! Donkey rape! Cox wanted more online moderation, so therefore immunity for those who moderate was needed.

Cox went to hardcore leftist Oregon Demeecrat Ron Wyden and was all like, “Bro, will you help me draft bipartisan legislation that’ll protect this newfangled ‘Internet’ thing from immorality by giving providers total immunity to police bad actors?” And I’d like to think that at this point, Wyden, seeing the gift that was being handed to him by this dumb-ass, began laughing maniacally in Cox’s face. Big, hearty, evil laughter. And Cox was like, “What’s so funny, dude?” And Wyden, eyes darting back and forth, replied, “Oh, nothing. Just a joke I heard earlier today. You know why a farmer never tells secrets in his field? The corn has ears!”

And Cox was like, “Oh dear heavens, that is funny! I’ll have to tell that one at Sunday supper. Now, to work!”

Almost certainly, Wyden, a son of Holocaust survivors who understands that repression is the only way to stop repressive forces from exercising repression, was thinking big-picture. Churchy McGee’s desire to sponsor a content-provider immunity bill could, long-term, pay big dividends for the left. So, a bipartisan bill, supported in the Senate by puritanical Nebraskan J. James Exon (taking a break from publishing the Daily Bugle) emerged—the Communications Decency Act (CDA) of 1996.

Wanna hear a funny joke (funnier than that farmer one)? From Cox and Exon’s perspective, the CDA was all about stopping porn. But the very next year, the Supreme Court struck down most of the anti-porn provisions.

So what was left?

Buried within the law was section 230, which protects providers of interactive computer services from liability from any and all content posted by any and all users. If you’re a fan of the old FX series The Shield, you may remember the immunity deal the feds gave Mackey in the second-to-last episode. Well…this immunity deal makes that one look like nothing.

Do-gooderism was strong in Cox, but foresight was strong in Wyden. Jews may not be known for being farmers, but boy, did that mamzer plant a seed. Because CDA section 230 (c)(2)(A) gives providers of interactive online services complete and total immunity to remove any content they see fit, for whatever reason. As Cox was thinking, “This clause will help promote decency,” Wyden was likely thinking, “This clause will protect leftist orthodoxy from opposing views.”

The left’s holy grail—the total suppression and banishment of ideas they find objectionable. Exactly what we’re seeing now.

Here’s the text of CDA 230 (c)(2)(A). I’ve italicized and underlined the important parts:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Do you see the irony? CDA (c)(2)(A) was advocated by Cox because he trusted that moderators would only remove the things that he didn’t like (like porn, and…uh…porn). But Wyden almost certainly envisioned a future in which leftist moderators would remove constitutionally protected political speech…the stuff he wanted banned.

Once again, we got played by the left. And played well.

CDA 230 is the very definition of blanket immunity. CDA 230 is why Facebook and Twitter can tell you, “Hey, we’re banning you, we’re removing your content, we’re locking you out, we’re closing your account, and you know what, fuckface? There’s not a damn thing you can do about it.” Cox and Wyden could not have crafted that section any “better.” That “otherwise objectionable” line is pure genius. Could Wyden have, in 1996, envisioned a day in which it would become a hate crime to use proper gender pronouns? I mean, in ’96, even Bill Clinton was against gay marriage. But I can’t help but think that Wyden and his leftist pals just instinctively knew what a great long-game enabler that clause would be. “We don’t yet know what we’ll want to censor in 2018, but this all-encompassing wording will allow us to silence whatever speech we decide is forbidden 22 years from now.”

Leftists are so damn good at that kind of calculated planning. In 1996, they couldn’t yet push for gay marriage. In 2000, they couldn’t yet push for tranny men using the girls’ bathroom. In 2008, “he,” “she,” and “illegal alien” were not yet hate speech. The left loves open-ended legal terminology because it provides the flexibility needed by an ideology that continually invents new thought crimes. It’s exactly the point I made to my Republican friends about banning flag “desecration.” Vague wording in legislation hands leftists the tools they can use for decades to come, as their judges find new meaning beyond original intent (is that not what leftist SCOTUS justices have done for decades with the Constitution?). You hand the left open-ended wording in a federal law, it’s like giving an A-bomb to Ted Kaczynski. He’ll know how to use it, and he’ll use it well.

In theory, CDA 230 has some merit. People should have the right to police their websites as they see fit. But it’s just plain nutty that the primary federal law dealing with online content removal was written in 1996. I liken it to drafting FAA regulations while the Wright brothers were still testing biplanes. CDA 230 only works if online providers are ideologically neutral, which of course they’re not. In the hands of partisans with an agenda and a monopoly, CDA 230 is downright dangerous.

Still, the issue is not “Is CDA 230 good or bad?” It’s the law, regardless. The issue for rightists is, is there a workaround?

Well, I’m not the only one ruminating on that question. And next week, in part II, we’ll hear from some legal experts on the right, left, and center who shared with me their thoughts on CDA 230, and whether those who run afoul of the ideological preferences of social media admins have been hopelessly boned by Cox, or whether, perhaps, there just might be a small glimmer of hope on the horizon.

[Swordsmyth]

Here’s the text of CDA 230 (c)(2)(A). I’ve italicized and underlined the important parts:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
But it doesn't say that they aren't a publisher if they do it.

This says they are:


But in the Prodigy case, a court had determined that because Prodigy moderated comments, it was now a publisher by law, and therefore liable for the material it published. The court determined that content moderation is what makes an online platform provider legally liable. If they don’t moderate, they’re not responsible.

That means they can be held legally liable for ANY content that the don't remove.

[Anti Globalist]

But I thought the GOP would protect people from getting their content banned.

[donnay]

But I thought the GOP would protect people from getting their content banned.

There is plenty of fakes in the republican party, and they toe the establishments line. Paul Ryan, John McCain, Mitch McConnell, Jeff Flake just to name a few on the "r" side that are complete traitors.

[Anti Federalist]

The Deplatforming Wars, Part II: A New Hope

https://www.takimag.com/article/the-deplatforming-wars-part-ii-a-new-hope/

by David Cole

December 11, 2018

As a weapon of leftist ideology enforcement, deplatforming is proving to be strikingly effective, because it accomplishes two things: It removes opposing viewpoints from the marketplace (if one team can’t get to the playing field, the other team wins by default), and it scares potential dissenters into silence, forcing them to self-censor so as not to lose their online presence. Deplatforming is how the left is taking its bubble, that safe terrarium occupied by Hollywood elites and mainstream journalists in which opposing views are out of sight and mind (the “rather special world” lovingly spoken of by the late Pauline Kael), and making it everyone’s bubble.

I devoted last week’s column to the federal law that makes deplatforming possible: Section 230 (c)(2)(A) of the 1996 Communications Decency Act (CDA), which gives “interactive computer service providers” full and complete immunity to remove any content, including constitutionally protected speech (yes, the law specifically states that), for any reason. Over the past sixty years, the Supreme Court has generally expanded First Amendment protections beyond what a strict reading of the text would suggest. The amendment speaks only of Congress, but over the decades, SCOTUS has declared that other entities—state and local governments, schools, and any institutions that accept public money—also cannot censor constitutionally protected speech. Even in the private workplace, there are limits (due to antidiscrimination laws) to the extent to which an employer can penalize an employee for expressing certain beliefs. But CDA 230 provides an out for online service providers. They can ban your content on a whim, they can kick you off a platform on a whim. It’s an immunity law, and a thorough one.

Last week was the history lesson. This week, strategy. Just how ironclad is CDA 230? Well, pretty damn ironclad. But that doesn’t mean there isn’t hope. The thing is, though, that “hope” requires rejiggering certain cherished conservative and libertarian principles. Specifically, the concept of governmental nonintervention in the affairs of the private sector. See, leftists have no problem buggering their principles on this one. Their most prized goal is in sight—the complete silencing of opposition thought—and all that matters is the win. Have you noticed how the left, always so quick to call for regulation and nationalization, has yet to do so with internet giants like Google, Facebook, and Twitter? Leftists realize that online companies only have the awesome power of CDA 230 speech suppression because they’re private. So all that “government runs things better and restrains the wild impulses of the robber barons” rhetoric gets chucked out the window. Because in this case the “robber barons” are leftists. So by all means, let’s keep the government’s sticky little fingers out of their business!

The online silencing of the right depends on the left embracing deregulation and nonintervention. Conversely, for the right to fight back, it’ll have to embrace regulation and intervention.

As Bugs Bunny would say, “Ironic, ain’t it?”

San Diego attorney Al Rava recently scored a major victory against the online dating service Tinder, which was forced to abandon its policy of higher pricing for older users. What made the victory important was that Tinder, an online entity, was held to the standards of a brick-and-mortar (B&M) business and subjected to state law (California’s Unruh Act, which prohibits discrimination by “business establishments of every kind whatsoever”). In the Tinder case, the 2nd District Court of Appeal ruled that Unruh’s “every kind whatsoever” overruled the CDA’s sweetheart immunity deal for online businesses.

“The point is, there’s no legal consensus here. This is brand-new territory.”

But the Tinder case was about pricing, not speech removal. Following the Tinder ruling, Facebook hastily retreated from its policy of allowing paid advertisers to target one specific race, following a legal challenge on the grounds that such ads were in violation of federal antidiscrimination laws. In an amicus brief in the Facebook case, U.S. government attorneys stressed that CDA 230 immunity did not apply to Facebook ads, because Facebook was a partner in the ad creation process (i.e., a content creator). The amicus stressed that CDA 230 content removal immunity was still sacrosanct. All the same, another precedent was set, because another online entity was restrained by antidiscrimination laws (this time federal).

When Roommates.com was accused of discrimination because of an online questionnaire for prospective roomies that forced them to detail things like gender and sexual orientation, the 9th Circuit held that CDA 230 did not provide immunity from content produced by a site that could lead to potential discrimination. In other words, the court held that CDA 230 immunity could be restrained by federal antidiscrimination laws. But then, damn near ten years later, a different court ruled pretty much the opposite in a suit against Airbnb. In that case, what was at issue was the site’s policy of letting property owners demand a photo of prospective renters. The plaintiffs argued that this allowed property owners to discriminate against blacks. The initial judge was like, “That’s so covered by CDA immunity, bro,” but then a district court judge was “Whoa, that’s totally not covered by CDA immunity, brah.”

Faced with these contrasting rulings, Airbnb retreated, just like Facebook did. Now property owners can only demand photos of guests after they’ve already booked the reservation.

The point is, there’s no legal consensus here. This is brand-new territory. Courts have gone back and forth regarding CDA immunity for content a site creates (the Roommates questionnaire) and content it allows (one user demanding another user’s photo). But there’s yet to be a successful challenge to CDA 230’s content removal immunity. The Tinder case shackled an online entity to state law, the Facebook case demonstrated that CDA 230 immunity can be constrained by federal antidiscrimination laws, and the Airbnb case showed that the courts don’t know their ass from their gavels regarding the scope of CDA immunity.

So, is there any way to use the left’s beloved antidiscrimination laws, either state or federal, against CDA 230 content removal immunity? Using Unruh, as Al Rava did in the Tinder case, is “problematic.” Unruh does not prohibit discrimination based on ideology or politics, and Rava told me he’s doubtful that Unruh could ever be applied to viewpoint discrimination claims. Eugene Volokh, my go-to legal whiz whose WaPo blog is one of the best things on the ’net, straight-out said, forget it. CDA 230 immunity absolutely trumps state law, and likely trumps federal antidiscrimination laws. However, that was last year, before the Tinder and Facebook cases were resolved. The Tinder case did see state antidiscrimination laws successfully held against an online provider, and the Facebook case saw federal antidiscrimination laws held against an online provider.

So if antidiscrimination laws are the way to go, how can they be used regarding content removal? It’s unlikely (no, impossible) that any court would place viewpoint discrimination on the same level as racial, religious, or gender discrimination.

Ah-hah! But what if it can be shown that sites like Facebook and Twitter hold different races to different standards, and punish members of one race (or religion or gender) from saying things that members of a different race/religion/gender can say without sanction? When I floated that idea to Jeremy Malcolm, former senior global policy analyst for the Electronic Frontier Foundation, he replied, “I think that would be an interesting case to try,” adding that he believes antidiscrimination laws “would apply” in some cases.

I reached out to law professor Eric Goldman, whose Technology & Marketing Law Blog is a must-read for anyone interested in this topic. As a strong advocate for an internet unburdened by governmental interference, Goldman favors a robust interpretation of CDA 230 immunity. But what about content removal that creates a double standard whereby one “protected” group is allowed to say things that a different group isn’t? Does CDA immunity cover that?

“This is a tricky area, so I’m not sure what the answer would be. Prof. Volokh is right that Section 230 routinely applies to claims that a service exercised its editorial discretion over third party content, even if the intent or effect was to discriminate on the basis of some protected classification. However, it’s not clear Section 230 preempts all claims based on anti-discrimination laws.”

In other words, maybe. And getting a “maybe” from Goldman, with his pro-immunity bias, is encouraging to those who might want to forge this trail.

What’s abundantly clear is that even though the CDA was written in 1996, the relevant cases that will eventually determine CDA immunity limits are just now starting to come in. That’s what happens when you write defining internet law during the period when people were still using Mosaic to jack off to dial-up porn on Angelfire sites. The courts are currently grasping for consensus. So using antidiscrimination laws against CDA content removal immunity may work. Jared Taylor’s problem when he sued Twitter was that he went about things rationally (in typical Taylor fashion). “You say I’m a violent extremist, yet there’s not one piece of evidence that I am. Restore my account.” Sorry, old friend, but CDA immunity absolutely allows arbitrary banning based on no evidence.

What’s needed is a test case about content removal that focuses on discrimination against an identity group (race, religion, gender). For example, members of one race banned for saying things that members of a different race can say with no sanction.

I can’t answer the question of whether people on the right should use antidiscrimination laws to challenge CDA immunity. Is it ethical to take regulations that already bedevil brick-and-mortar businesses and expand them so that they similarly hobble online entities? Wouldn’t B&M establishments love blanket immunity when it comes to removing customers? Should we fuck up the one remaining marketplace in America where that immunity exists? I mean, yeah, at present it smarts because the internet giants are run by leftists. But a libertarian would say that the remedy is to start our own social media platforms. If we eventually develop a right-leaning Twitter or Facebook, won’t we want that immunity?

On the other hand, if we agree that society suffers when vigorous debate is silenced and ideological hegemony enforced, we have to ask ourselves, which is the greater long-term risk? Expanding already-existing government regulations, or watching the slow death of the free and open exchange of ideas? Which is the greater sin—doing something, even if it means suspending previously cherished principles, or doing nothing, and leaving the game to the team that never respected principles in the first place?

Those are questions I can’t answer for you. What I can say is, using federal antidiscrimination laws against social media giants is as good a plan as any, and even a recognized scholar who hates the idea admits that he can’t rule out that it might work.

And speaking of work, mine is done on this topic. The rest is up to any bright, ambitious attorney who decides to give this strategy a try. Should that happen, it’ll be damn fascinating to see the results, however they shake out.

[Swordsmyth]

Former Employee Says Facebook Has a Black People Problem; Facebook Removes Post (http://www.ronpaulforums.com/showthread.php?529019-Former-Employee-Says-Facebook-Has-a-Black-People-Problem-Facebook-Removes-Post)
As to the external problem of how Facebook deals with black users, Luckie — leaning on his research experience as an editor — wrote that “black people are one of the most engaged demographics on Facebook.” Fleshing that out, he wrote:
Black people are far outpacing other groups on the platform in a slew of engagement metrics. African Americans are more likely to use Facebook to communicate with family and friends daily, according to research commissioned by Facebook. (https://www.facebook.com/iq/articles/digital-diversity-a-closer-look-at-african-americans-in-the-us) 63% use Facebook to communicate with family, and 60% use Facebook to communicate with friends at least once a day, compared to 53% and 54% of the total population, respectively. 70% of black U.S. adults use Facebook and 43% use Instagram, according to the Pew Research Center (http://www.pewinternet.org/fact-sheet/social-media/). 55% of black millennials report spending at least one hour a day on social networking sites, 6% higher than all millennials, while 29% say they spend at least three hours a day, 9% higher than all millennials, Nielsen surveys found (https://www.nielsen.com/us/en/press-room/2016/nielsen-2016-report-black-millennials-close-the-digital-divide.html). Black people are driving the kind of meaningful social interactions Facebook is striving to facilitate.
One might reasonably expect that the social-media giant — driven by both its claims of diversity and the fact that black people represent a significant percentage of its regular users — would treat black users the same as anyone else. One would be reasonable to assume that, but, if Luckie is correct, one would appear to be wrong. Luckie assets that black people routinely find “what are meant to be positive efforts” interpreted as “hate speech” and even “despite them often not violating Facebook’s terms of service” those users find “their content removed without notice” and their “accounts suspended indefinitely.” He went on to write:
There is a prevailing theory among many black users that their content is more likely to be taken down on the platform than any other group. Even though the theories are mostly anecdotal, Facebook does little to dissuade people from this idea. Black people continue to use the platform because for many it is still their best way to connect directly with the causes they care about (https://www.npr.org/2018/08/05/635127389/majority-of-black-americans-value-social-media-for-amplifying-lesser-known-issue). Our communities should be able to trust that we have their best interests at heart.
As if to verify the feeling among black users of the social platform that “their content is more likely to be taken down on the platform than any other group,” Facebook initially removed Luckie’s note, prompting him to use Facebook’s biggest competitor to tweet (https://twitter.com/marksluckie/status/1069993173957701632?ref_src=twsrc^tfw|twcamp^tweet embed|twterm^1069993173957701632&ref_url=https://www.cnet.com/news/facebook-temporarily-pulls-down-post-by-ex-employee-who-accused-tech-firm-of-black-people-problem/), “Turns out Facebook took down my post challenging discrimination at the company, disabling users' ability to share or read it. Further proves my point.”
Only after it became a point of embarrassment did Facebook restore Luckie’s post.

More at: https://www.thenewamerican.com/tech/...k-removes-post (https://www.thenewamerican.com/tech/computers/item/30824-former-employee-says-facebook-has-a-black-people-problem-facebook-removes-post)

[Swordsmyth]

Facebook Contradicts Its Senate Testimony in Court: Site IS a Publisher (http://www.ronpaulforums.com/showthread.php?528795-Facebook-Contradicts-Its-Senate-Testimony-in-Court-Site-IS-a-Publisher)

[Swordsmyth]

Are Black/Yellow/Brown/Red/Whatever "Pride" posts allowed but White "Pride" post not allowed?

[Swordsmyth]

Would posting "It's okay to be white" be allowed?