On today’s internet, the boundaries of acceptable speech are set by a few massive platforms, including Facebook, Twitter, Instagram, YouTube, and a handful of others. If those companies find something unacceptable, it can’t travel far — a restriction that’s had a massive impact for everyone from copyright violators to sex workers. At the same time, vile content that doesn’t violate platform rules can find shockingly broad audiences, leading to a chilling rise in white nationalism and violent misogyny online. After years of outcry, platforms have grown more willing to ban the worst actors online, but each ban comes with a new political fight, and companies are slow to respond in the best of circumstances. As gleeful disinformation figures like Alex Jones gain power — and the sheer scale of these platforms begins to overwhelm moderation efforts — the problems have only gotten uglier and harder to ignore. At the same time, the hard questions of moderation are only getting harder.
How a tall tale from a California water official tested the Constitution’s limits.
Courtesy of the Fifth Circuit Court of Appeals, where law goes to die. The rule (requiring age verifications and health warnings on sites with a high percentage of adult content) was blocked in August through a lower court decision that’s now been overturned — without any explanation from the appeals court, which I guess we should expect by now.
Copyright law can’t seem to keep up with how fast YouTube and streaming trends evolve, so creators have long taken it upon themselves to set up industry norms for “react”-style videos.
Recently, Twitch and Kick star xQc caught a lot of heat for breaking those norms after posting what essentially amounted to reuploads of content by smaller creators.
He challenged YouTuber Ethan Klein to a debate over the merits of fair use, but the conversation devolved into... xQc doing the worm? I think there’s a real discussion to be had about copyright and content creation, but this definitely wasn’t it.
Republicans on the House Judiciary Committee keep saying they’re investigating “collusion” between the Biden administration and Big Tech to “censor” conservatives, but they’re starting to act more like an Elon Musk fan club than anything else.
On top of investigating the Federal Trade Commission’s investigation into Musk’s Twitter takeover, they’re now going after the Center for Countering Digital Hate (CCDH) for its role in this “censorship regime.”
Musk, of course, sued CCDH just two days ago, accusing the non-profit of unlawfully accessing Twitter data and cherry-picking posts to make the platform look more hateful than it is.
I won’t rehash the law’s problems. But the District of Columbia Appeals Court says it’s constitutional because it can be interpreted narrowly to only target aiding and abetting “prostitution of another person,” disregarding its overall chilling effects on online speech:
Nothing in the First Amendment required Congress to confer Section 230 immunity on speech that violates federal criminal laws in the first place, and nothing in the First Amendment ossifies such immunity once granted against any later clarification.
The decision echoes an earlier district court ruling, and the Woodhull Freedom Foundation — which sued over FOSTA-SESTA along with other organizations in 2018 — says it’s still evaluating its future options.
The messaging app has become a key channel for news about the Russian invasion of Ukraine. But the government’s relationship with it is complicated.
I can almost feel the EFF’s David Greene gritting his teeth as he graciously explains why a recent court ruling on government censorship and social media addresses a real problem in the most transparently bad-faith manner possible. Even if you don’t know or care what “jawboning” is, stick around for this deadpan gem:
In an unfortunate moment that has caused many to question the seriousness of the court’s endeavor, the court characterizes the complaint as describing “arguably the most massive attack against free speech in United States history.”
[Electronic Frontier Foundation]
Remember SB 396 in Arkansas, which banned minors from an oddly specific set of web platforms? NetChoice — which also has active suits against Florida, Texas, and California — has sued to block it. You can read the full complaint here.
Over the last year, the US Congress and state legislatures have put out bill after bill to protect kids online — some going as far as banning under 18s from using the internet at all without parental consent.
For Wednesday’s Vergecast, I spoke to legal experts, Sen. Ed Markey (D-MA), and our friend David Pierce about how many of these bills threaten the free speech and privacy of all internet users.
And it requires not just a “reasonable person” viewing the words as objectively threatening, but some kind of subjective intent to threaten, or at least recklessly disregarding a risk of it. The ACLU is happy with the outcome, which follows arguments held in April. Ken White of Popehat has some more complicated thoughts well worth reading:
This century, the Supreme Court has protected the First Amendment right to free speech more vigorously and strictly than any other constitutional right. This decision is more of a middle-ground approach, neither as speech-protective nor as censorship-friendly as it could be.
[popehat.substack.com]
One of Section 230’s lesser-known elements is protection for users, not just providers, of online platforms. That element got an interesting test this month, when an appeals court ruled on whether a high-schooler who created an Instagram account was liable for letting friends bully teachers with it. Per the ruling, things did not go well for him:
When a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech. And because H.K. contributed to the harmful speech by creating the Instagram account, granting K.L. and L.F. access to the account, joking with K.L. and L.F. about their posts, and accepting followers, he bears responsibility for the speech related to the Instagram account.
Legal blogger Eric Goldman thinks this was the wrong call — but either way, it’s a fascinating edge case for 230.
It’s leaving in place a lower court ruling that said Reddit is immunized by Section 230 for failing to take down nonconsensual pornography, despite attempts invoke the limits placed on 230 by FOSTA-SESTA. The decision comes after the court dodged reconsidering the law in Gonzalez v. Google:
“Today’s denial of review in the Reddit case suggests that their aversion was more than just about the Google case, specifically – and that the court is willing, at least for now, to leave any changes to Section 230 to Congress,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
The Meta (formerly Facebook) Oversight Board is going to make a call on it:
The increasing use of mind-altering drugs in the United States for purposes that blur the line between medical treatment, self-help, and recreation, makes it particularly difficult to ascertain whether this content should be treated as promoting pharmaceutical drugs, which is generally allowed on the platform, or as endorsing drugs for non-prescribed purposes or in order to achieve a high, which is generally not allowed.
Moderation is hard. If you have a compelling argument on either side, you have until June 8th to submit it to the board.
[oversightboard.com]
Well, maybe not in 2024 if a new law banning TikTok within the state takes effect. Makena Kelly can explain more.
The Senate Judiciary Committee just approved the STOP CSAM Act, a bill that would penalize tech companies for not removing child sexual abuse material from their platforms once alerted to it.
The committee has been on a roll teeing up floor votes on these kinds of bills over the last few weeks. While removing CSAM is an admirable goal, many of these bills have civil liberties experts spooked over their potential to chill encryption adoption and free speech online.
