Pepe the Frog Edition :)
Is that a Q under the flag?
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.
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).
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.
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.
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.
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.
I think they will have a lot of leeway for now, but its going to push them to do so equally across the board.
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.
Then the goal of the EO is that they will no longer be immune under the CDA and therefore be liable for any and all content posted on their platform by third parties.
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.
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.
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".
Top 50. And that is very un J.D. of you to insult me personally because you disagree with my legal analysis on a topic you probably just started researching today. Sounds like you are the ambulance chaser stooping to those kinds of lows?
Executive orders are used to expand on and clarify legislation all the time as long as they stem from and are consistent with an act of Congress or the Constitution or in this case both. If you need a refresher I'll point to the factors set forth in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
The law was basically vague on when (if at all) the immunity was stripped after censorship occurs. Trump is basically drawing a line in the sand, saying "here is the new limit, cross that line from now on and your immunity is gone"
Just a quick correction to your statement, right now they are not considered publishers but they might be in the future if they continue to editorialize. It's my interpretation that certain "hateful" content will still be removed, but this random censoring of trump tweets or videos of republican politicians will probably be curbed significantly.
I think it will change the way courts address the law. If done in the way the executive order clarifies then it won't be toothless, just slow to catch fire.
They would be legally responsible for everyone's posts, not just republicans they remove. The amount of defamatory/ libelous comments that occur on twitter by everyone from both sides is horrendous, but there is no point in suing because there is no money to be made off of an individual user. If twitter is liable as a party then people would be much quicker to sue.
You're not wrong in saying that they could pull it off, but why spend that much effort and money on legal fees and algorithms, when immunity is free.
That's a good question and something that hasn't really been addressed given that almost everybody has enjoyed immunity pretty broadly until (hopefully now). My thought is that the company and or persons will be responsible for the area that they control. If facebook is found to be a publisher then it will be responsible for any area that it could monitor.
Yeah, that was the intent, but not by force, through incentive. The difference between CNN and twitter is sheer number. CNN posts a few dozen articles a day? Twitter has millions of posts in an hour. CNN can easily editorialize its content and it still spends a huge portion of its budget on its legal team. Imagine twitter having to do that with every post. Moreover, who would go on twitter if you had to wait an hour or two before your tweet was approved? Or if only a few thousand people were approved to post? Nobody, in my opinion.
I'm not an expert on retroactive application of executive orders (so don't quote me as definitive law) but there are a few factors that a court would analyze before determining if a retroactive application is allowed. One of the most important factors is the declaration of intent of the President. I didn't see a declaration of his intent for the law (or clarification) to apply retroactively, but that's not to say it couldn't be interpreted to apply that way.
In theory, yes. While they still might not be held "liable", it will be harder for them to get dismissed from the lawsuit as quickly as they do now. That, in turn, could mean more legal fees and payout settlements.