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posted ago by Legal_Latino (edited)

HEY PEDES! I've been seeing a lot of questions and misinformation going around about the executive order (not to mention the fake news that's been trending on r/REDACTED). So I wanted to do a quick summary for all of you pedes who want a short but in-depth explanation about Section 230. Moreover, my legal thesis in law school was on Section 230 of the CDA, the very law the executive order today is affecting.

Here is a brief explanation:

-A publisher is an entity that controls the content that they present to a user—Think of CNN. Because they are in control of the content being presented (like a news article), they are legally responsible for it and any fake news that they publish (defamation for example), even if they hire someone else to write it. The less control they exert over the content they publish, the less likely they will be considered a publisher (and less likely to be held responsible for the content).

-In 1996 Congress passed the CDA which includes Section 230. Section 230 was passed for two reasons, to stop the spread of pornography on the internet and at the same time to allow other speech to live freely.

-Section 230 basically stated that any internet platform which hosts other users is not responsible for the content posted by those users (and therefore not considered a publisher). So, if a user were to post leaked naked pictures on Facebook, then Facebook could not be held jointly liable for hosting those pictures EVEN IF THEY DID NOT REMOVE THE PICTURES. The intent by congress was that if we protect these companies from liability from users then they will avoid taking action by limiting and censoring posts and as such, speech.

-However, Section 230 contains a clause which has been the subject of a lot of legal debate. 230(c)(2)(A) provides that even if a social media platform exerts control over material that is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable", then it still cannot be considered a publisher (remember that exerting control over content usually makes you legally responsible for that content).

-The problem is that the clause was almost unequivocally referring to violence and porn, but federal courts (who knows why) began interpreting "otherwise objectional" as anything that a platform finds offensive. As such, social media platforms were able to ban and censor speech just because they found it offensive. Thus, exerting control and still immune under the language of 230(c)(2)(A).

-In addition to the vagueness of the term "otherwise objectionable". Some promoters of free speech argued that 230(c)(2)(A) is an explicit condition/clause. In other words, a platform can ban things considered "obscene, lewd, etc..." without being defined as a publisher (exerting control) but as soon as they begin to exert control over content that does not meet these criteria explicitly listed, then they are risking moving into publisher territory and no longer immune from lawsuits based on the content posted on their website.

-Trump's executive order is attempting to clarify the law and the enforcement of the law. The executive order is basically saying, if you begin to ban or control content that is not under the list in 230(c)(2)(A) then you're going to be considered a publisher. So social media companies have a choice, they can back off and allow free public discourse to take place on the internet, all the while enjoying their (very generous) lawsuit immunity, or they can exercise their free speech rights of association and ban everything to hell, but then they no longer have the immunity.

I'll try to answer as many questions as I can in the comments. Hope this helps!

-Legal_Latino

HEY PEDES! I've been seeing a lot of questions and misinformation going around about the executive order (not to mention the fake news that's been trending on r/REDACTED). So I wanted to do a quick summary for all of you pedes who want a short but in-depth explanation about Section 230. Moreover, my legal thesis in law school was on Section 230 of the CDA, the very law the executive order today is affecting. Here is a brief explanation: -A publisher is an entity that controls the content that they present to a user—Think of CNN. Because they are in control of the content being presented (like a news article), they are legally responsible for it and any fake news that they publish (defamation for example), even if they hire someone else to write it. The less control they exert over the content they publish, the less likely they will be considered a publisher (and less likely to be held responsible for the content). -In 1996 Congress passed the CDA which includes Section 230. Section 230 was passed for two reasons, to stop the spread of pornography on the internet and at the same time to allow other speech to live freely. -Section 230 basically stated that any internet platform which hosts other users is not responsible for the content posted by those users (and therefore not considered a publisher). So, if a user were to post leaked naked pictures on Facebook, then Facebook could not be held jointly liable for hosting those pictures EVEN IF THEY DID NOT REMOVE THE PICTURES. The intent by congress was that if we protect these companies from liability from users then they will avoid taking action by limiting and censoring posts and as such, speech. -However, Section 230 contains a clause which has been the subject of a lot of legal debate. 230(c)(2)(A) provides that even if a social media platform exerts control over material that is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable", then it still cannot be considered a publisher (remember that exerting control over content usually makes you legally responsible for that content). -The problem is that the clause was almost unequivocally referring to violence and porn, but federal courts (who knows why) began interpreting "otherwise objectional" as anything that a platform finds offensive. As such, social media platforms were able to ban and censor speech just because they found it offensive. Thus, exerting control and still immune under the language of 230(c)(2)(A). -In addition to the vagueness of the term "otherwise objectionable". Some promoters of free speech argued that 230(c)(2)(A) is an explicit condition/clause. In other words, a platform can ban things considered "obscene, lewd, etc..." without being defined as a publisher (exerting control) but as soon as they begin to exert control over content that does not meet these criteria explicitly listed, then they are risking moving into publisher territory and no longer immune from lawsuits based on the content posted on their website. -Trump's executive order is attempting to clarify the law and the enforcement of the law. The executive order is basically saying, if you begin to ban or control content that is not under the list in 230(c)(2)(A) then you're going to be considered a publisher. So social media companies have a choice, they can back off and allow free public discourse to take place on the internet, all the while enjoying their (very generous) lawsuit immunity, or they can exercise their free speech rights of association and ban everything to hell, but then they no longer have the immunity. I'll try to answer as many questions as I can in the comments. Hope this helps! -Legal_Latino
Comments (200)
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deleted 253 points ago
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05OBXT 84 points ago

Stickied for sure!!!

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HemRoidRage 35 points ago

Keep it sticky frosty

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deleted 19 points ago
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OwningTheLibs 42 points ago

Much needed reform, the courts have given these silicon valley companies too much power to discriminate against conservatives because content they find our shitpost objectionable.

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radiox305 16 points ago

We are superior to leftists in civil, mechanical, and electrical engineering

We run and operate energy utilities that power their data centers and provide the infrastructure that keep the wheels turning ...for what? So that leftist packet kiddies can run bots to silence us on social media. Hell no.

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Licensetomeme 8 points ago

It was either the red pill or the blue suppository for me. It's quite clear which I picked.

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K-Harbour 2 points ago

Hey J.D. Pede......back in the ‘90’s, before that kooky term “net neutrality” was invented....we used to say this was based on the concept of common carrier.

Interestingly, originally this was to protect hosting providers....as social media companies had not really started to any significant extent.

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deleted 144 points ago (edited)
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deleted 38 points ago
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deleted 23 points ago
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CaliPede24601 26 points ago

To me it’s genius… Trump is basically providing an opportunity during an economic downturn for social media companies to lay off a significant portion of their content moderators (99% overpaid, brainwashed lefties who clog up HR with microaggression complaints), all while simultaneously clarifying and reinforcing their legal immunities. Couple this with Nancy Pelosi‘s horrifically stupid statements about social media companies “exploiting and profiting off falsehoods” and “making money at the expense of the truth and the facts that they know,” and... well, money talks... and those dollars are telling the CEOs how wonderful their new friend Donald is.

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agile_a 7 points ago

if you want to stop the censorship you need to declare Twitter and Facebook and any social media company with more than 200 million monthly viewers as a public utility. like the telecoms. The telephone company was a public utility and Twitter Facebook excetera became the new telecoms

if they became a public utility they would no longer be able to broadly sensor anybody they choose. They would be strict rules about denying service. They proved that they can't be trusted to do it themselves.

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NostalgicFuturist 6 points ago (edited)

And the social media have infinitely more power over our culture than the phone companies. The Ma Bells did not and could not censor free speech. They controlled communications infrastructure; social media are trying to control our minds.

Imagine Sprint sending you an email saying they are canceling your service because they found the content of your phone conversations did not meet their "community standards"

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DRGEOTUS2020 2 points ago

That’s the argument that gets ISPs back into Title 2 territory.

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Oppoboycott 3 points ago

Damn this speaks of first hand knowledge. You in the biz pede?

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rooftoptendie 13 points ago

I think GEOTUS does a lot of stuff at the pace he does it because he is trying to balance getting things done fast for us, and then on the other hand doing them so fast that the left flips out and starts screeching about dictatorship. Even the 2018 thing, we know that was a fucking shitshow. But I have a relative who was really really upset and in tears over Drumpf all the time and couldnt sleep because they thought ww3 was about to happen... and when they got the house back in 2018, that person was suddenly so relieved, and could finally sleep thinking that at least there was ONE roadblock to evil drumpf doing whatever he wanted to unchecked. It kept them from going out and marching in the street, or drinking themselves to death.

He lets things become obvious to all before he fixes them, he just gives them more rope and more rope and more rope, and then SNAP goes the trapdoor. If this were a plane, and we were all passengers and GEOTUS was flying, it'd be like we were in Top Gun or something. He cuts things close. But he knows what he's doing.

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agile_a 1 point ago

so you think Trump purposely allowed to Democrats take back the house for shits and giggles?

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Mitschu 7 points ago

We let the big man down bigly in 2018, and you want to blame him for us sitting on our asses contentedly while never-Trumpers went out and stole the House?

It wasn't Trump's decision, and it wasn't in his hands.

It was ours, and we fumbled.

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DL535 3 points ago

No, I think it was pretty brazen election fraud in places like Orange County, CA.

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DRGEOTUS2020 0 points ago

Still waiting for a snap that puts people in cuffs rather than what amounts to a sternly worded letter.

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doug2 5 points ago

If executive orders aren't laws how are people being arrested for violating them? Not arguing, it is a genuine question.

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missusellis 7 points ago

Executive Orders are not laws... they are Executions/Enforcements of existing law. It instructs the Fed Govt on how to enforce/execute the law.

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jacquire14 5 points ago

Executive Orders give guidance and clarify instruction for executive branch agencies to carry out the wishes of the President. The DOJ and others now have specific dated orders to focus on this issue, and they know full well they have a public commitment from the Commander-in-Chief. Likewise, offenders of the current law stated in the EO are put on notice that their offense will be prioritized by the government powers and no longer ignored. The wheels of enforcement now begin to turn.

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deleted 1 point ago
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HongKongFluey 2 points ago

If the social media platforms see this a stripping their liability protection from user content we might see a shift to greater restrictions. Definitely not the intended result but possible depending how their legal teams interpret it.

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memechallenger33 3 points ago

Yes, they will have to choose. More restrictions = they are publisher, and exert more control, but they have to pay people to exert that control. Fewer restrictions = they only exert control to remove porn, excessive violence, and harassment (doxxing) and leave everything else alone. This is the less expensive option and I think they will choose it. On the other hand, little of what Twitter does is a good idea from a business perspective lately, so maybe they will choose the former? Dunno.

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Overkillengine 7 points ago

but they have to pay people to exert that control.

And they are almost guranteed to fuck that up, since they will employ lefties and a great number of lefties are closet Mao wannabes that will let something pass because they like it enough to forget that their employer will get sued if it is left up.

And then their employer gets sued to oblivion over and over again until they either go with the free speech model or manually approved submissions and comments only....or go out of business to be replaced by a competitor.

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salvecitizen 2 points ago

Remember that "the social media platforms" is not constant. If a given platform starts acting more openly as a publisher, their audience is likely to change. Then market forces can act, and more open platforms could do better. There is a niche for open discourse.

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HongKongFluey 0 points ago

Agreed but that brand loyalty does not shift overnight. Users have followers, post history, years invested in their presence on a given platform. A new platform has to provide a significant advantage to promote that shift and it will take time to know if it's real. Even if that happens the "legacy" platforms will not just away quietly. They will persist for many years likely. Not to mention that Twitter is POTUS favorite platform by far. Hard to see him switching now despite the current state of things.

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_TheConsumer_ 22 points ago

Could you imagine the NYT saying “We refuse to print Reagan’s comments on Soviet Russia. They violate our policies”?

Twitter is 2020’s newspaper of choice. Twitter editing/censoring/blocking posts from Trump and others is flat out dangerous. It could manipulate domestic and foreign policy in a way that is hazardous.

The same way newspapers aren’t immune under 230, neither should Twitter be.

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Chick-fill-eh 7 points ago

Why would NYT say anything? They just simply don't run the story. This happens very regularly.

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_TheConsumer_ 13 points ago

Not running the story is still an editorial decision. When you start making editorial decisions, you’re a publisher.

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Dalewyn 7 points ago

Could you imagine the NYT saying “We refuse to print Reagan’s comments on Soviet Russia. They violate our policies”?

Yes.

Source: Fake news media refusing to broadcast Coronavirus Task Force press briefings, among many other examples of selective broadcasting.

The important thing though, is that when the fake news media spews bullshit we can take them to account. The Covington defamation case where CNN ended up settling for huge sums of money is proof of that.

As you said, just like how the rest of the fake news media are, Twitter and the rest of the social media swamp must be held accountable for as long as they continue to act as publishers.

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NostalgicFuturist 1 point ago

Absolutely. It is giving aid and comfort to our Enemy No. 1, China, while subverting Trump's policies and America's standing worldwide. (Just saw an article about a German minister saying China was the new global hegemon, so time to do even more kow-towing.)

In effect, Twitter is an undeclared lobbyist for a (hostile) foreign power and a national security threat.

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salvecitizen 1 point ago

Back then, no.

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BarbaraManatee 11 points ago

Doesn't Devin Nunez already have a lawsuit against Twitter for censorship?

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deleted 1 point ago
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MsQleo 10 points ago

It wouls take a ton of money and time they no longer have to rebuild their presence

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1776-or-1984 15 points ago

I'll be watching twitter stock price with great interest over the coming months

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MsQleo 8 points ago

When insaw the draft last night my comment was SELL SELL SELL

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LORD_RM 2 points ago

Yeah I’m thinking about shorting it

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sixfingerdildo 1 point ago

Don't fight the fed.

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HongKongFluey -1 points ago

Don’t see how this will affect their stock price. It’s unlikely to hurt their advertising revenue. As long as the financials are solid the stock price will be steady. If they get more restrictive and it hurts the user experience then that can change.

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USA1 5 points ago

Most of them dont make money lol. Facebook is one of the few...and it's not what it use to be. It's basically an advertising page you login to.

All social media is aids.

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Yawnz13 4 points ago (edited)

It's a good idea in theory. The problem is that it grew from a glorified address book into the dumping ground for every schlub's opinions. This predominantly applies to Facebook and the old Myspace.

On the other hand, Twitter seems almost tailor-made for this sort of shit. Even with the extended character limit, you can't really have any kind of reasonable discussion. The layout blows.

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Carry_Your_Name 1 point ago

I believe this is the dirty game the anti America leftists are playing to invalidate the 1st amendment. The leftists know that the constitution was written to limit the power of the government and it protects private citizens. Since congress shall make no law, the power is shifted to these tech tyrants. They take control of the information flow, then they do what the leftists want them to do by shutting you up.

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05OBXT 46 points ago

The fucking hero we need and deserve!!! Love this legal_latino keep it up!!

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Cheesemaker 43 points ago

Great post

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TheMAGAnificent 15 points ago

Yeah, actually very reasonable, not not overreaching at all. Trump is doing great at enforcing the spirit of the law without creating new regulation.

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trumpORbust 4 points ago

Indeed -- very crisp and clear directions to agencies without any new laws that Hawaii 9-0 can put a freeze on. Just telling law enforcement to enforce the law, with deadlines for transparency an be status reports

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stonetears4fears 40 points ago

Thanks, fellow legalpede! Stellar work!

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TaggartCiscontinenta 15 points ago

Holy shit, your username has to be the all-time best! I literally LOL’d. Bravo

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The_Litehaus_Abides 11 points ago

If memory serves me, this attorney helped catch Stonetear asking for advice on Reddit about deleting/changing Hillary's emails.

An OG Centipede for real.

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trumpORbust 5 points ago

I will believe you -- great if true

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stonetears4fears 3 points ago

Why thank you

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DatNewbChemist 28 points ago

That's very kind of you and I'll definitely give your thesis a read! (Already saved it) Please make sure you didn't dox yourself though (does your alma mater have a copy someone could cross check, did you remove all acknowledgements and/or thank yous, all that stuff).

Please accept this ticket for the Trump Train as my thanks for the info

https://www.youtube.com/watch?v=i-Wf993QFs4

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OlDirtyBarrister 25 points ago

This.

I’m an attorney. I also wrote a paper about this for directed research in my 3L year. I would never post it online because I would almost certainly be doxxed.

My professor read it, my peers read it, and it was submitted for journal publication and to the dean of academics.

Guy says he’s a J.D. (rather than saying lawyer because the ethics rules forbid calling yourself a lawyer unless you’ve passed the bar and are certified), so I’m assuming that means he’s not barred / practicing. Even still, I don’t think he’d wanna be doxxed, so i’d urge caution in putting things like this out here.

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_TheConsumer_ 18 points ago (edited)

I had an incredible thesis on Obama and the extrajudicial killing of Anwar al Awlaki. It won an award in my law school - which shocked me because I concluded that Obama should be tried for treason.

That said, I would never post it online. The last thing I need is some leftist loon doxxing me and saying I wrote a paper on how Obama should be executed - rather than the whole legal thought behind his criminal charges.

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OlDirtyBarrister 13 points ago

Well and the main reason I urge caution, especially for someone not barred yet, is that pretty much every state bar in the country is full of foaming-at-the-mouth leftists. Including on character and fitness committees who can, and will, get their hands on these things if they want.

I like getting people information, but I’m not putting my license on the line.

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_TheConsumer_ 13 points ago

Same here. I’m in NYC and every judge I’ve ever appeared before is a Democrat.

They’d likely “tolerate” a closeted Trump supporter, but they wouldn’t accept a vocal one. In fact, they would be vindictive.

So it’s best to operate in the shadows.

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OlDirtyBarrister 11 points ago

I’m practicing in a much more conservative state, and even people I work with / around who are conservative won’t admit supporting Trump out loud. They won’t even call themselves conservative and will hide behind some “I’m a libertarian” or “classical liberal” bullshit.

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CitizenPlain 2 points ago

This is something that needs to be fixed. The Left controls the media which ultimately controls public opinion, which causes the backlash against conservatives. Our culture needs to be repaired of this (somehow).

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CuomoisaMassMurderer 5 points ago

This goes deep. The Fed was created in 1913. Read up on how that happened sometime, it changed everything about US history. Before that, US history was synonymous with the fight against the creation of a central bank. After that, We the People just stopped fighting. They own MSM. Not only do they do that to deliberately control public opinion, but they exert undue influence over academia. (SEE: CFR and Cecil Rhodes) They also own big pharma, which suddenly allows them to exert a LOT of control! (Richard Bright, remember that name)

We can fix this before November by citizen's arrest of our Governors, physically removing them from Office all at the same time. We should've done that 3/31. About 40 of them are guilty of mass murder and citizen's arrest is legal when we stop a felony in progress. The rare State with a decent Governor, they should focus on the most tyrannical Mayor. Class action lawsuits, both criminal and civil. We do this one thing and the rest of our enemies shit their pants and retreat back into the shadows where they prefer to operate from anyway. DJT says he "caught them all" which means he can help us rout them out of their hiding places, which is essential.

While this may seem like an indirect route, we really can't get to those who own controlling interest in the Fed. Governors aren't in their club though, they won't make any effort to protect Governors. And now, we won't get any resistance from civilians. If we miss this opportunity to act, things get WORSE.

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terrapin11 5 points ago

You’re thinking of attorney. All attorneys are lawyers, but not all lawyers are attorneys. Source: just passed my bar exam and I’m pending licensure in a jurisdiction.

https://www.lawyeredu.org/attorney-vs-lawyer.html

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OlDirtyBarrister 3 points ago

The rules of ethics don’t allow for someone to hold themself out as a lawyer or attorney until passing the bar. This is because to the layperson the terms are interchangeable and the point of the rule is to make sure that people don’t think you are licensed to give legal advice when, in fact, you are not.

So no, I was not thinking of attorney. Law students like to say that they are lawyers after graduation using a technicality of the definitions as we understand them. That is not, however, what the ethics rules say about it.

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CuomoisaMassMurderer 2 points ago

Thanks for posting here! We should be filing class action lawsuits in every State, targeting Governors for their every act of tyranny. I saw there's about 1300 filed already. Is there a good way to check for class action lawsuits we could sign on to?

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terrapin11 1 point ago

What rules? Model rules? State rules? Because this case law, speaking broadly of professional licenses, says something very different to what you're claiming. Those restrictions of speech are ". . . confined to occupational- related speech made to individual clients." “There is a difference, for First Amendment purposes, between . . . professionals’ speech to the public at large versus their direct, personalized speech with clients.”

"https://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/01/serafine.pdf

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OlDirtyBarrister 1 point ago

My mans, I’m not your legal ethics professor, so I’d suggest you get in contact with that person or your state bar. Not only do the model rules cover this, but every state’s rules do (which largely adopt the model rules wholesale) and most states have forbidden this in the criminal code. That is to say, you can’t call yourself a lawyer/attorney in just the same way you can’t call yourself a police officer unless you actually are one.

I’m a little surprised that you cite the first amendment since this has absolutely nothing to do with that as any 1L could tell you there’s clearly a compelling state interest in forbidding this sort of thing.

In any event this side discussion is asinine and has nothing to do with the point, so I’m not going to be responding further. If you don’t think this is correct then I really would highly suggest you call the ethics hotline of your state’s bar assn.

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terrapin11 -1 points ago

The case I cited and linked you went over the compelling governmental interest standard and made it clear where that stops. And as you should know, rules must further law. I.E.: the state's rules can't run afoul of the First Amendment.

"Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”"

Lawyer and attorney are different words for a reason. I won't need to be calling the state ethics hotline either since I'm swearing in shortly and don't need to worry about the nuances of this rule.

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Liberal_Tear_Addict 22 points ago

This is excellent. Thanks for posting. I look forward to reading the thesis after my miniPede goes to bed.

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HemRoidRage 17 points ago

It's a wrap for Jackie Chan

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MeSewCorny 16 points ago

I think the big question everyone has been asking is how the Executive Order affects a huge company like Twitter, and how it affects sites like thedonald.win that are specifically built as biased. Hope I asked that right. Would this EO affect thedonald.win?

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Donnybiceps 7 points ago (edited)

Thedonald.win is a platform. So the thedonald.win wouldn't be responsible for death threats made by other people on here.

Edit: actually wait i think I'm wrong, death threats aren't okay so those comments can be removed without no government intervention. If thedonald.win were to remove content that they deemed offensive then i would think it would be considered a publisher.

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RapidAsparagus 4 points ago

We remove anti Trump content all the time.

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V43_of_ii_dim 8 points ago

Yeah, but we have site rules which explicitly forbid anti-Trump stuff. Our goal isn’t some pie-in-the-sky “connect the world” thing like the big tech publishers. This place is purpose built as a place for Trump supporters to gather and talk/shitpost/etc. None of the site rules are vague about what’s rule-breaking.

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TrumpTrain 1 point ago

I agree. This site is a platform, but it’s not a platform without rules and boundaries

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EatDatSideOfBeef 5 points ago

This is the big question that I haven't seen adequately answered; under this new EO will it be possible for small, focused forums like T_D.win or hobby specific forums to moderate the content they host without holding the site operators liable for whatever random illegal bullshit may happen to be published on their site?

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rooftoptendie 6 points ago (edited)

yes, its been answerd in the body of this post, but I can see how some might not catch it...

ill try to break it down a little more.

currently the law says THESE are the reasons under which it IS ok to take stuff down (if you are a platform): "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable"

mmkay

well, quite predictably, twatter or whoever will take something down like "pizzagate is real"... and when asked, hey why'd you do that, theres nothing obscene, lewd, lascivious, filthy, excessively violent, or harassing in that post at all! Why'd you take it down?" and they will say "well, its OTHERWISE OBJECTIONALBE, OKAY SO FUCKOFF."

What this EO does is say "otherwise objectionable" must fall within the realm of "obscene, lewd, lascivious, filthy, excessively violent, or harassing"... and that "otherwise objectionable" may no longer be used as a catchall that covers your ass when you are questioned on why you altered or removed part of your content.

Hope that makes sense...? Also... hope I got that right...?

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CuomoisaMassMurderer 1 point ago

I think it's more nuanced than that. I think a "platform" is allowed to state what it objects to. As long as it's consistent about that it should be ok.

Hopefully the OP will chime in here?

For example, a forum for knitting (they do exist and are actually pretty popular) might decide that the last 500 posts by biker gangs just don't belong, so they remove them all. This shouldn't run afoul unless they discriminate, like only allowing one biker gang to post all their hoodlum stuff while everyone else is confined to talk about knitting.

If I'm wrong on the principle involved I'd love to see that reasoning explained.

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DCdeplorable 1 point ago

I haven't really seen this discussion yet from OP or other CDA experts, because from everything I've read so far, the site's stated terms of service aren't really considered.

But the EO makes pains to talk about TOS violations which are not applied equally and where the user has no recourse. So i would like to think that, in an ideal world, you could moderate non-obscene content, if it is clearly stated in TOS that you will do. Luckily td.win is fine either way, because shills, cucks, and leftists are the most obscene, lewd, lascivious, and filthy content creators around (eat a bag of dicks you bunch of dirty fucking communists)

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CuomoisaMassMurderer 2 points ago

We're honest about what we don't tolerate. Twatter could be ok if they just openly stated "orange man bad will get a standing ovation, any dissenting opinion is prohibited." That would be a win for us because we'd have a level playing field. Obviously not our preference, but at least they'd be honest about it.

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_TheConsumer_ 15 points ago

Fellow attorney here. I think your analysis is spot on. Social media was using 230 as a shield, while wielding a very sharp sword on editing/censoring speech on their sites. This approach allowed them to grow unbelievably powerful - because they were conning the system.

I would like to add one point to your post: Twitter and company are no longer “websites.” They have morphed into news outlets - where global leaders post to rapidly disseminate information. In that sense, Twitter is the newspaper of the digital age. It is no longer about hosting users. It’s about being a used and trusted news source.

And, like newspapers of yore, they are making editorial decisions. As a result they are publishers and should be responsible for their content in a similar way.

Whatever happens from this EO, one thing is certain: social media will be forced to either go back to being an open (unmoderated) forum OR face potential litigation over any of the billions of posts and comments put on their site.

Trump took the fight to them, and may have crippled them. Don’t get me wrong, I am fully in favor of this. No entity should have editorial/censorship power over heads of state without restriction or penalty.

What are your thoughts?

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memechallenger33 3 points ago

I like the Locals.com model. I think that might have to be the wave of the future and everything else will be the Wild West of free speech.

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Registered 12 points ago

Thanks, much needed info and clarification.

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KurtMueller 11 points ago

This is the kind of content I'd love to see on the actual news. A foolish hope, I know.

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f_bastiat 10 points ago

So basically if they exert control as they have done with conservatives, they are more a publisher, and if for example someone writes a tweet or sends a DM to someone saying they are going to kill them, and then they go kill them, the publisher could be held at least partially liable for contributing to the situation?

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thrakkorzog 2 points ago

IANAL, but fairly certain DMs are a different kettle of fish. Keep in mind that at the time the law was written, DM's didn't really exist outside of third party programs like ICQ and you had to kind of get someone's friend ID to chat with them.

There's also privacy issues, The site owner probably shouldn't know what people are saying to each other in a DM. So a DM to John Smith saying "I'm going to kill you." John Smith has the option to take that to the cops, and at most the tech platform has to do is just show John Smith his DMs so he can show them to the cops.

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Dell_Fargus 10 points ago

Thanks for the explanation.

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PolarBears4Trump2020 10 points ago

Thank you Legal_Latino for posting this great thread!

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leftistMediaFakeNews 9 points ago

My question is what’s to stop tech companies from putting anything they don’t like in the “ obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” bucket?

Though I remember reading the EO today which had some clarity.

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Legal_Latino [S] 12 points ago

There is not really a whole lot, but one thing that will definitely change will be consistency in how conservatives are treated vs. liberals. A deviation in this consistency will likely be considered "bad faith".

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HumphreyBeans 6 points ago

So what is the remedy? What legal action needs to be taken? What authority is there to challenge this censorship?

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GeneralTsoTofu 9 points ago

Thank you for this. You make it simple to understand.

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Maijinservo 9 points ago

Quality post

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IncredibleMrE1 9 points ago

We have the best law students, believe me folks!

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1776-or-1984 9 points ago

Congrats on the sticky! Thx, many thx for the writeup!

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WassermanSchultz 8 points ago

Great writeup! I had a general idea of what this was all about, but I understand it much better now.

You rock.

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hashtag6zer0s 8 points ago

The legal and regulatory transformation of these social media giants to "publisher" status cant happen fast enough.

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MeSewCorny 8 points ago

Oh dude, this needed to happen!

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Barack0bama 7 points ago

the best part is that these dumb fucks are doubling down. I can't wait for Twitter to get hit with thousands of lawsuits and for their stock price to tank

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mathteach314159 7 points ago

If they were to violate the laws on the books, now that it appears they are more likely to be enforced could their internal dynamics be subject to investigation should the DOJ have the balls to actually do it? I am not sure it would be the DOJ but you get the point of my question. Thanks!

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canadianhere 7 points ago

The problem is that the clause was almost unequivocally referring to violence and porn, but federal courts (who knows why) began interpreting "otherwise objectional" as anything that a platform finds offensive. As such, social media platforms were able to ban and censor speech just because they found it offensive. Thus, exerting control and still immune under the language of 230(c)(2)(A).

Clarifying that won't do a thing, unfortunately. The other terms are "obscene, lewd, lascivious, filthy, excessively violent, harassing" and they will absolutely pivot by saying conservative opinions are obscene, violent and harassing. Make a post against gun control laws? Excessively violent. Making fun of Alyssa Milano's latest tweet? Harassing. See where this is going?

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Legal_Latino [S] 8 points ago

I think the result of the EO is yet to be seen. But one thing that I think will happen is that banning and filtering content will be more consistent across the board, as opposed to targeting one specific ideology. If twitter bans tweets talking about RGB needing to die, but doesn't ban #MassacreMitch, then they will likely fall under "Baith Faith" censorship and lose their immunity.

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RapidAsparagus 2 points ago

"Bad Faith"?

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_TheConsumer_ 6 points ago

IIRC, Trump said that these sites need to steer clear of swaying politics. So, banning someone for talking about gun rights would be a no-no.

Banning someone for making fun of Milano? Eh. Not political.

What I also think should happen: if Twitter is going to have a “fact checker” link on Trump’s tweets, that page that pops up needs to read “Opinion Column From Twitter.” No different than a newspaper.

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CuomoisaMassMurderer 1 point ago

Making fun of Milano is both politics AND religion. My religion requires me to make fun of Alyssa Milano, 5x a day. And I don need no stinking rugs!

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CuomoisaMassMurderer 2 points ago

DJT's agenda is straight 80's Democrat.

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FaustyArchaeus 6 points ago

Thank you

Wish I could get my accounts back

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Tobba 6 points ago

What does J.D stand for?

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Legal_Latino [S] 7 points ago

Juris Doctor

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CuomoisaMassMurderer 2 points ago

Ha! Here I was thinking it meant you worked for the Justice Dep't., lol

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MakeAmericaVapeAgain 6 points ago

excellent post. thank you. hey, do you think any of these companies will try their luck against Trump? i am wondering how effective this eo is.

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DeplorableMimi 5 points ago

That helps immensely OP. Thank you for your explanation. When listening to President Trump about the EO I didn't understand. I have total trust in President Trump so I wasn't concerned. I should've known one of my online palswould know. I appreciate the time you took to explain for those of us that need an ELI5 version. Interesting read. Thanks again

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Axiom502 5 points ago

Explained this on the comments section of the Hill on Facebook. Single mom pizza place waitresses apparently know better!

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Robyna7 3 points ago

I sometimes read the comments on that site and don't see how vile people can be to someone they have never met.

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Ladimir_Wewtin 5 points ago

Happy to see you made a separate post for this. Great info here. Thank you!

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I_Love_45-70_Gov 4 points ago (edited)

Some time ago I had read of a clause in section 230 that roughly stated that hosts should exercise extreme caution while determining whether to censor/remove speech about political, religious, and other socially divisive subjects -- reminding them to always consider the spirit of the law and not get carried away with feelz.

It specifically mentioned political discussions within the text, I am certain.

I can't recall much of the exact wording, but something along those lines pops into my memory. It may have been in the original drafts of the legislation and was later removed. Regardless, the wording made it easy enough to understand what was and was not considered going overboard with censorship.

Do you have idea/recollection on this?

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TheMadManDidItAgain 4 points ago

Explained very well.

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crusadetiem 4 points ago

Thank you for your service, legalpede.

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DemsH8America 4 points ago

Awesome appreciate the summary!

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Arwyn3x 4 points ago

Thanks J D Pede, you wrote:

Trump's executive order is attempting to clarify the law and the enforcement of the law.

What do you think of President Trumps chances?

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Legal_Latino [S] 12 points ago

I actually think that if the Supreme Court heard this case it is very possible they would eliminate Section 230 of the CDA entirely because the law incentivizes private companies to ban and remove some protected speech. Congress can't violate the 1st amendment and in turn, should not be able to ask other people to do so in its place.

If twitter challenges the law, then they risk sacrificing immunity for everyone, IMO. The SC has already invalidated a different part of this same law because it used language similar to the language here.

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Arwyn3x 3 points ago

Thanks !

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rooftoptendie 1 point ago

would they replace it with something else, or does it not need to be replaced because there are other laws in place... i ask because I do NOT want to see pr0n and gore all over the place that can't be taken down because muh free speech?

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CuomoisaMassMurderer 1 point ago

Here's the thing though, reddit is mainly porn. This was theoretically written to prevent porn from being so widespread online?

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Filetsmignon 1 point ago

So why doesn't / hasn't someone challenged this part of the law (Section 230 of the CDA) and taken it to SCOTUS?

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blurryface 4 points ago

Wait, they couldn't be held jointly liable even if they didnt remove the pictures. Elaborate? Once the platform was notified of the content was it then liable to remove it? If there was a court case, and the defendant won, would they be ordered to remove the content?

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Legal_Latino [S] 6 points ago

If they qualify as a platform under the CDA then they are not liable even if they don't remove the pictures or the libelous content posted by someone else. The court could always order the person who posted it to remove it. According to courts, notification of the content does not create liability for platforms under the CDA. Its a monstrous immunity, so only platforms that truly promote free speech should qualify.

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blurryface 4 points ago

Oh so that wasnt in the legislation directly? It was a court interpretation? Is it different if the content itself is illegal, like child porn? Did they have a legal obligation to remove that?

And yeah if they just made the platform liable if they didn't remove the content in a reasonable amount of time after being notified that would have been 100x better.

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Legal_Latino [S] 8 points ago

Yes, that part is a court interpretation. And the law does not protect against criminal liability that they are made aware of, so they would be forced to remove anything explicit relating to children.

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blurryface 4 points ago

And now we see why our judiciary branch is so important. Its amazing how much they control thorough interpretation.

Thank you for the answers and for making yourself available :)

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CuomoisaMassMurderer 1 point ago

I dont know if you are aware, but I have read many times that reddit is largely child porn. This could get interesting ...

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SamQuentin1 4 points ago

How much leeway would this give online platforms to ban racism or obscene language?

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Legal_Latino [S] 5 points ago

I think they will have a lot of leeway for now, but its going to push them to do so equally across the board.

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Finnigan12 3 points ago

Why is hardcore porn allowed on Twitter, but conservative speech is considered offensive and a violation of "community standards?"

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XCorneliusX 2 points ago

I posted this several days ago, but a while back I was trolled with a Twitter link and on the page were posts by 20 something white males who were nude using dildos and more. I clicked out as it is not my thing, but my after thought was how is that there and conservative words get banned.

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CuomoisaMassMurderer 2 points ago

You probably can't post Eric Ciaramella, Seth Rich, or EDKH, because it's too offensive.

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JustInTime2_ 3 points ago

Dang, we have some of the Best Latino Lawyers.

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magaman4000 3 points ago

Great work!

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Suture_Self 3 points ago

How is vague subjective terminology such as "lewd, obscene, excessively violent" enforceable?

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Legal_Latino [S] 8 points ago

Very difficult, but one thing I hope the EO will affect is the inconsistencies of treatment depending on the viewpoint. Banning violent comments from conservatives but not liberals might get these platforms labeled as "bad faith" curators, which could result in a loss of immunity.

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habanero 1 point ago

Don't think I've ever seen any violent comments from conservatives, TBH. So we're good.

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JerseyDrewNJ2 3 points ago

I like you. You're cool and smart!

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HemRoidRage 6 points ago

Saying this while acting as a publisher nullifies the agreement. They subjected themselves in their own action in violation of Section 230. Waiting for the FTC and FCC verdict but for now there is a checkmate on the board.

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Deplorable_in_PA 3 points ago

I had some questions....

1: Couldn't Twitter claim they are justified in banning material they don't like under the guise of it being "otherwise objectionable"?

2: Where does speech from fringe groups like Nazi or Klan groups fall under? Couldn't Twitter claim racist tweets as "otherwise objectionable"?

3: Who makes the determination that Twitter is now a "publisher" versus a neutral platform?

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Nellie_the_Beaut 3 points ago

Thank you for posting this helpful explanation, J.D. Pede! What I’m wondering is - will Yelp finally be held accountable for all their review manipulations and extortion under this new EO? As a business owner, I’ve had to deal with some nasty fake reviews messing up our rating for years. Even after proving to Yelp that they were fake and malicious, the only answer I ever got back was a smug “We encourage free and honest reviews, therefore as a platform, we don’t interfere or censor customers’ . Then they suggested we sign up for a PAID listing where there are “enhanced features” to address reviews we feel are malicious. We told them, in so many words, to FOAD.

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magaorg 3 points ago

So can they still suppress trending content?

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AntsCamera 3 points ago

I showed this shit to 3 other people because you explained it better than I ever could. This is why I come here to be amongst the best and brightest.

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Jcholl9 3 points ago

Finally something is being done... Looking forward to seeing how this all plays out!

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philandy 3 points ago

Thank you for your comments, which leave me with some questions:

  • What existing court cases would you use?
  • Considering the past few years, why would they care? They double down every time.
  • How should this proceed?
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Legal_Latino [S] 6 points ago

If I were arguing in favor of trump, I would use the history of the legislation, the written purpose. Reno v. ACLU is a good case discussing the vagueness of the language in the CDA and need for the law to be executed properly in order to not violate the 1st amendment.

It's possible that they don't care but they would open themselves up to a tidal wave of lawsuits.

We just have to see how the FCC and FTC move forward with the EO. It's very possible there will be a constitutional challenge and its very likely that the Supreme Court will hear the case.

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Wulfschilde 3 points ago

I saw one article that dared to say that Trump was attacking Twitter’s free speech. You’d think that if Twitter is exercising their free speech on other people’s content, that’d be an admission that they are a publisher and not a platform. A platform doesn’t exercise its own free speech on other people’s stuff.

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Legal_Latino [S] 7 points ago

That article was clearly written by someone who has little understanding of the law in play. Twitter has a first amendment right of association so Trump cannot force twitter to host certain people on their platform regardless of their views, but he can strip them of CDA legal immunity if they choose to ban people based on arbitrary or "bad faith" reasons (which is exactly what he is doing).

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Wulfschilde 2 points ago

Another argument I'd imagine is that if they expand what is considered "flagrantly offensive", accusing anyone of something that is offensive enough for a platform to censor might invite defamation lawsuits. I don't think someone can have their cake and eat it too on that one.

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spaceforce_maganaut 2 points ago

Why didn't we do this on January 21, 2017?

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memechallenger33 2 points ago

How do they take down spam or bot accounts? Do these count as harassment?

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HongKongFluey 2 points ago

Thanks for this post! Super informative. The kind of content we need.

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WhoFlu 2 points ago

The problem is that the clause was almost unequivocally referring to violence and porn, but federal courts (who knows why) began interpreting "otherwise objectional" as anything that a platform finds offensive. As such, social media platforms were able to ban and censor speech just because they found it offensive. Thus, exerting control and still immune under the language of 230(c)(2)(A).

That language appears to suggest they could single me out because I prefer a society without government, think the food-pyramid is invalid, or think the W.H.O. is spreading lies, or any number of other objectionable opinions I might have, or liberal race-baiting is racist, or...

I hope that part is clarified in the near future, because free speech is all about "objectionable" speech.

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HumblePede 2 points ago

Fantastic summary! Thank you.

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Mama2girliez2020 2 points ago

Thanks for the explanation!

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Troll 2 points ago

Do you think it is possible that this could, in the long run, inadvertently lead to Steve Huffman's death at the gallows after a solid conviction of treason for his anti-American activities?

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Walrus_Tooth 0 points ago

So much of America is anti-American I cant see us ever having ‘anti-American’ laws

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Deathlessly 2 points ago

My friend. Could you please post this on R Conservative?

People arguing with me are pretending to be conservatives but I see their post history and they're actually leftists and democrats lashing out like a dying snake biting at anything.

They're very angry.

I'm sick and tired of "I thought you Conservatives this... I thought you Conservatives that..." "If you don't want to bake the gay cake..."

Plot twist. They still want to force a Christian to bake a gay cake and then tell you to go find your own social media platform, bigot!

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Sticky 2 points ago

They'll change their public ways slightly and just go back to shadowbans and other orweillian crap we don't see. I doubt they back off now.

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salvecitizen 2 points ago

Thanks man. We needed some real knowledge on this thing.

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fugg 2 points ago

Would social media sites still have this protection if there was evidence of collusion to silence? Anytime a free-speech platform, e.g. Gab, comes under fire, hosts and service providers drop them.

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ViolaWilly 1 point ago

"Otherwise objectionable" to whom? To me this means to the public generally, not to the company or to an irate minority. The opinions of the majority of Americans cannot possibly meet this criterion by any definition.

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Redpillhope 1 point ago

This hurts my brain. I don’t see how anything will change. The mainstream media publish lies every day despite threat of lawsuits. Public opinion is shaped by them. People are brainwashed. I saw idiots on twitter claiming their rights are being violated because of this. What right? They just say 230. This means, I think, they believe they have a right to not see something that is "objectionable."

Our nation is filled with petulant children of all ages. We keep churning them out day after day. No logical thinking. Just emotional tirades and over confidence in self.

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doug2 1 point ago

"To stop the spread of pornography on the internet and at the same time to allow other speech to live freely."

I'm out.

But really from what you're saying is that this is simply a warning?

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RussianLimbaugh 1 point ago

230(c)(2)(A) provides that even if a social media platform exerts control over material that is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable", then it still cannot be considered a publisher (remember that exerting control over content usually makes you legally responsible for that content).

How is this not in violation of:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

?

Congress has passed a law that extends judiciary protections to online platforms as though they were physical town squares. However, it’s given them the wiggle room to abridge the freedom of speech and of the press, thereby abridging the right of the people to peaceably assemble in these virtual “social media” town squares, as well as abridging the right of the people to petition the govt for a redress of grievances.

The answer to all this can’t be a govt all in-or-out approach. I don’t have a solid proposal to suggest right now, but I think the Bill of Rights & our Constitution give us enough to figure this out. I am certain, though, that these platform protection laws were made to skirt the Bill of Rights & our Constitution. Also, think about all the reasons why they would need judicial protection... If I were a Brownstone in this day & age, what might my address be?

Thank you for posting your knowledge & understanding of the Sec 230/twitter issue and for opening the floor for this discussion.

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Carmencarp 1 point ago

Would these clarifications also apply to Youtube?

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maxkenn 1 point ago

"President Barack Obama signed an executive order last week that could give the U.S. government control over the Internet.
.
With the wordy title "Assignment of National Security and Emergency Preparedness Communications Functions," this order was designed to empower certain governmental agencies with control over telecommunications and the Web during natural disasters and security emergencies."
.
Hmm. This seems very mild compared to Obama's. But I guess President Trump doesn't have to do anything, There's already an executive order and emergency... And the left can scream about Obama order which they were fine with.

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TrumpTrain 1 point ago

In your opinion, is Twitter violating this clause? If so, do you consider them a publisher? Do you a specific example or two that warrants this?

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TrumpTrain 1 point ago

If the EO is like a warning, which I believe is what you are saying, Twitter seems to have little concern with it. They’ve defended and continued their actions, even on Trump’s tweets. Do you believe there are alternative ways of interpreting this clause and that Twitters legal teams have dissected it in depth and aren’t afraid to take this on?

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CaptainChrisPBacon 1 point ago

Mr J D Pede you forgot one thing. The courts have already ruled that social medias are the town square and free speech cannot be stopped.

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Legal_Latino [S] 3 points ago

I think you are referring to Packingham v. North Carolina? While that case is very heavily quoted, the law created by that holding is that THE GOVERNMENT cannot ban people from accessing social media. The case does not stand for prohibiting Social Media companies banning people from their websites.

However, it is possible that the court would extend the law to apply to both if it heard the issue now.

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Filetsmignon 2 points ago

Wasn't there a case down in the South a few decades ago where a whole town was owned by a company (streets, sidewalk, town center, etc.)...it was a mill town or something. Anyway, I guy was protesting on a street corner and they shut him down because the company didn't like what he was saying. It went to SCOTUS and they ruled that even though it was private property they considered it a public square and ruled in the guy's favor for his right to 1st amendment free speech. I can't remember the name of the case, but it sounds a lot like this Twitter, FB, etc. (average citizen exercising their 1st amendment rights on a private domain but due to the size of the domain it's considered a public square).

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Legal_Latino [S] 2 points ago

Yes. Good catch. There are some advocates that feel that the internet should be considered a public forum, and therefore internet platform companies do not have a right to censor speech on those platforms (i.e. Social media companies forfeit part of their own constitutional rights of association). Some even argue that the Supreme Court could follow that decision for the internet.

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CuomoisaMassMurderer 1 point ago

This is what I mean by labeling it a "utility." It's designed for everyone to use. We regulate utilities already, and that seems to help the public. Does that seem like a (future) stronger legal case to you than the platform / publisher divide?

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salvecitizen 1 point ago

OP,

In your opinion, how strong is the EO's position?

It's great that Trump is fighting this, but my inner Scalia says that Congress passed "or otherwise objectionable" whether we like it or not. That phrase doesn't say objectionable how, or even to whom. So how can a platform/publisher be burned by taking advantage of the vagueness to defend their actions?

Seems to me that a real victory must include a change to that text. But meanwhile, maybe the stockholders will get nervous enough to pull the reins on the CEOs.

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Trump2k20 1 point ago

Thanks for posting this.

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ImpeachTheWitchHunt 1 point ago

Hmmmm. Saved

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Troll 1 point ago

This interpretation makes me feel like the EO is weaksauce.

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Karl_Spain 1 point ago

In other words, Congress passed an unconstitutional law.

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OGTD1 1 point ago

Will this get us all the way to a SCOTUS decision in a few years? How could us as refugees of T_D help get together a class action lawsuit against Reddit?

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MakeCaliGr8Again 1 point ago

A MAGA latino? You are no latino, gringo!

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deleted 1 point ago
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deleted 1 point ago
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daomino 1 point ago

ContentNeutrality

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cciv 1 point ago

Does it matter if the platform itself is making the content?

For example, Twitter didn't remove Trump's tweets, they just added their own content to them. Users didn't add it, Twitter did. Would Twitter be open to lawsuits from Trump if (we know he won't, this is a thought exercise) he wanted to sue for libel?

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maxkenn 1 point ago

It's a good executive order, and uses an argument I've been making for several years online, and not as a legal academic, because my field is somewhat different, IT.
.

.

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WindsOfWinter 1 point ago

What are the odds this actually changes things for public discourse as a whole? Surely this isn't going to change all the algorithmic suppression of conservative voices or affect the voter manipulation these companies are capable of. It seems like a solid step in the right direction, but it looks like a tiny baby step to me.

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MAGAlikeLINCOLN 0 points ago

Thank you for the clarification. I aside from censorship of illegal stuff (pizza gate type stuff) I can forsee still problems. Forums that do not censor spam will just be overrun by bots spamming content.

What do you think then will happen in the future? Will they for instance be able to ban people who post their own website or phone number? What about doxing other people?

Personally I think death threats should stay up. Even calls to violence if it is on a stale post. Why? Because it is good to have a historical record of these things. Censoring a death threat does not mean it wasn't made. It doesn't make the person threatened more safe. I guess it would make the person less safe to be honest. What is next? Taking the writings of half the leaders in history down?

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deleted 0 points ago