Tag Archives: Content Moderation

The Twitter Files and Political Exploitation of Social Media

07 Wednesday Dec 2022

Posted by in Censorship, Regulation, Social Media

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I’ve been cheering for Elon Musk in his effort to remake Twitter into the kind of “public square” it always held the promise to be. He’s standing up for free expression, against one-party control of speech on social media, and especially against government efforts to control speech. That’s a great and significant thing, yet as Duke economist Michael Munger notes, we hear calls from the Biden Administration and congressional Democrats to “keep an eye on Twitter”, a not-so-veiled threat of future investigative actions or worse.

Your Worst Enemy Test, Public or Private

As a disclaimer, I submit that I’m not an unadulterated fan of Musk’s business ventures. His business models too often leverage wrong-headed government policy for profitability. It reeks of rent seeking behavior, whatever Musk’s ideals, and the availability of those rents, primarily subsidies, violates the test for good governance I discussed in my last post. That’s the Munger Test (the “Your Worst Enemy” Test), formally:

“You can only give the State power that you favor giving to your worst enemy.”

On the other hand, Musk’s release of the “Twitter Files” last weekend, with more to come, is certainly a refreshing development. Censorship at the behest of political organizations, foreign governments, or our own government are all controversial and possibly illegal. While we’d ordinarily hope to transact privately at arms length with free exchange being strictly an economic proposition, one might even apply the Munger Test to the perspective of a user of a social media platform: would you trust your worst enemy to exercise censorship on that platform on the basis of politics? Like Donald Trump? Or Chuck Schumer? If not, then you probably won’t be happy there! Now, add to that your worst enemy’s immunity to prosecution for any content they deem favorable!

Cloaked Government Censorship?

Censorship runs afoul of the First Amendment if government actors are involved. In an interesting twist in the case of the Twitter Files, the two independent journalists working with the files, Matt Taibbi and Bari Weiss, learned that some of the information had been redacted by one James Baker, Twitter’s Deputy General Counsel. Perhaps not coincidentally, Baker was also formerly General Counsel of the FBI and a key figure in the Trump-Russia investigation. Musk promptly fired Baker from Twitter over the weekend. We might see, very soon, just how coincidental Baker’s redactions were.

Mark Zuckerberg himself recently admitted that Facebook was pressured by the FBI to censor the Hunter Biden laptop story, which is a key part of the controversy underlying the Twitter Files. The Biden Administration had ambitious plans for working alongside social media on content moderation, but the Orwellian-sounding “Disinformation Governance Board” has been shelved, at least for now. Furthermore, activity performed for a political campaign may represent an impermissible in-kind campaign donation, and Twitter falsely denied to the FEC that it had worked with the Biden campaign.

Solutions?

What remedies exist for potential social media abuses of constitutionally-protected rights, or even politically-driven censorship? Elon Musk’s remaking of Twitter is a big win, of course, and market solutions now seem more realistic. Court challenges to social media firms are also possible, but there are statutory obstacles. Court challenges to the federal government are more likely to succeed (if its involvement can be proven).

The big social media firms have all adopted a fairly definitive political stance and have acted on it ruthlessly, contrary to their professed role in the provision of an open “public square”. For that reason, I have in the past supported eliminating social media’s immunity from prosecution for content posted on their networks. A cryptic jest by Musk might just refer to that very prospect:

“Anything anyone says will be used against me in a court of law.”

Or maybe not … even with the sort of immunity granted to social media platforms, the Twitter Files might implicate his own company in potential violations of law, and he seems to be okay with that.

Immunity was granted to social media platforms under Section 230 of the Communications Decency Act (DCA). It was something many thought “the state should do” in the 1990s in order to foster growth in the internet. And it would seem that a platform’s immunity for content shared broadly should be consistent with promoting free speech. So the issue of revoking immunity is thorny for free speech advocates.

Section 230 And Content Moderation

There have always been legal restrictions on speech related to libel and “fighting words”. In addition, the CDA, which is a part of the Telecommunications Act, restricts “obscene” or “offensive” speech and content in various ways. The problem is that social media firms seem to have used the CDA as a pretext for censoring content more generally. It’s also possible they felt as if immunity from liability made them legally impervious to objections of any sort, including aggressive political censorship and user bans on behalf of government.

The social value of granting immunity depends on the context. There are two different kinds of immunity under Section 230: subsection (c)(1) grants immunity to so-called common carriers (e.g. telephone companies) for the content of private messages or calls on their networks; subsection (c)(2) grants immunity to social media companies for content posted on their platforms as long as those companies engage in content moderation consistent with the provisions of the CDA.

Common carrier immunity is comparatively noncontroversial, but with respect to 230(c)(2), I go back to the question: would I want my worst enemy to have the power to grant this kind of immunity? Not if it meant the power to forgive political manipulation of social media content with the heavy involvement of one political party! The right to ban users is completely unlike the “must serve” legal treatment of “public accommodations” provided by most private businesses. And immunity is inconsistent with other policies. For example, if social media acts to systematically host and to amplify some viewpoints and suppress others, it suggests that they are behaving more like publishers, who are liable for material they might publish, whether produced on their own or by third-party contributors.

Still, social media firms are private companies and their user agreements generally allow them to take down content for any reason. And if content moderation decisions are colored by input from one side of the political aisle, that is within the rights of a private firm (unless its actions are held to be illegal in-kind contributions to a political campaign). Likewise, it is every consumer’s right not to join such a platform, and today there are a number of alternatives to Twitter and Facebook.

Again, political censorship exercised privately is not the worst of it. There are indications that government actors have been complicit in censorship decisions made by social media. That would be a clear violation of the First Amendment for which immunity should be out of the question. I’d probably cut a platform considerable slack, however, if they acted under threat of retaliation by government actors, if that could be proven.

Volokh’s Quid Pro Quo

Rather than simply stripping away Section 230 protection for social media firms, another solution has been suggested by Eugene Volokh in “Common Carrier Status as Quid Pro Quo for § 230(c)(1) Immunity”. He proposes the following choice for these companies:

“(1) Be common carriers like phone companies, immune from liability but also required to host all viewpoints, or

(2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis).”

Option 2 is the very solution discussed in the last section (revoke immunity). Option 1, however, would impinge on a private company’s right to moderate content in exchange for continued immunity. Said differently, the quid pro quo offers continued rents created by immunity in exchange for status as a public utility of sorts, along with limits on the private right to moderate content. Common carriers often face other regulatory rules that bear on pricing and profits, but since basic service on social media is usually free, this is probably not at issue for the time being.

Does Volokh’s quid pro quo pass the Munger Test? Well, at least it’s a choice! For social media firms to host all viewpoints isn’t nearly as draconian as the universal service obligation imposed on local phone companies and other utilities, because the marginal cost of hosting an extra social media user is negligible.

Would I give my worst enemy the power to impose this choice? The CDA would still obligate social media firms selecting Option 1 to censor obscene or offensive content. Option 2 carries greater legal risks to firms, who might respond by exercising more aggressive content moderation. The coexistence of common carriers and more content-selective hosts might create competitive pressures for restrained content moderation (within the limits of the CDA) and a better balance for users. Therefore, Volokh’s quid pro quo option seems reasonable. The only downside is whether government might interfere with social media common carriers’ future profitability or plans to price user services. Then again, if a firm could reverse its choice at some point, that might address the concern. The CDA itself might not have passed the “Worst Enemy” Munger Test, but at least within the context of established law, I think Volokh’s quid pro quo probably does.

We’ll Know More Soon

More will be revealed as new “episodes” of the Twitter Files are released. We may well hear direct evidence of government involvement in censorship decisions. If so, it will be interesting to see the fallout in terms of legal actions against government censorship, and whether support coalesces around changes in the social media regulatory environment.

On Quitting Facebook, One Year Later

25 Friday Feb 2022

Posted by in Censorship, Social Media, Uncategorized

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I’m very happy to be off Facebook, or “Meta” as it now calls itself. The platform has become, effectively, a propaganda arm of governments, and one that appears to be engaging in unconstitutional censorship. More on that below.

One year ago my profile dropped off of FB entirely. I had decided to quit in January 2021 after about 15 years. I downloaded everything from my profile and wrote a blog post called “On Quitting Facebook”. It was my last entry there, so that’s really when I quit, but it took a month before they completely deactivated me.

You have to resist the temptation to go back during that interim month or it starts all over again — a new interim period, that is — when you finally decide to get out. I knew immediately that I loved being free of it, so that part was easy. My feelings haven’t changed a bit.

F-R-Double E

I no longer have to put up with the propaganda that FB prioritizes nor the “demoted post” phenomenon. None of my posts had actually been blocked outright, but I knew “Facebook jail” was happening to users with increasing frequency, as well as post blocking and “red flags” authorized by politically-motivated FB “fact checkers”.

Free of FB, I no longer have to put up with various “frenemies” I’d somehow collected. And quitting FB allowed me to reclaim precious time I’d been wasting on an obsession that one would think avoidable: scrolling through my news feed, sometimes more than once a day, to view an assortment of photos of meals, puppies, and peoples’ lovely feet propped-up in “relax mode”, plus huge dollops of left-wing political and economic BS, often delivered with snark. But of course the lefty BS is almost everywhere in media.

There was one other disturbing anomoly on FB that became more frequent for me: friend requests from exceptionally gruesome-looking characters. I think they were fake requests, but I had tight security on my profile, so the source and motive is anyone’s guess. The increasing frequency led me to wonder whether someone had information about me, which my security settings should not have allowed. That would have meant it was partly an “inside job” on FB, perhaps designed to intimidate me in one way or another. I have no idea, but I don’t miss those requests.

So there’s a lot to like about quitting FB! It certainly brought a few disappointments and challenges. Unfortunately, I did lose touch with some good people. In what follows I elaborate on certain legal ramifications of FB’s poor conduct in hosting users both privately and within what’s purported to serve as a “public square”; the social media frustrations I’ve experienced since quitting; and my impressions of a few other platforms.

Government Censorship?

FB is a private company, so the usual libertarian position is that it can run its platform any way it wants. It is therefore no business of the government’s whether FB moderates content, bans certain users, or takes editorial positions. However, FB benefits from immunity to prosecution under Section 230 of the Telecommunications Act of 1996, which was traditionally intended for common carriers like telephone companies. That means they can’t be held liable for anything a third party might say on their network. Say what you want on the phone, because liability-free carriers shouldn’t care. FB and other social media platforms receive this same protection. But should they?

While we can think of FB as a kind of modern public square, in some respects it looks more like a common carrier. By that I mean much of the communication that takes place on the platform is voluntary and between private contacts, or groups of “friends”. The voluntary nature of these connections is a key aspect of what Eugene Volokh calls the “hosting function”. No one is forced to look at what you post. Yet FB makes a habit of moderating the content of those posts and conversations and still receives immunity under Section 230.

In other respects, FB does resemble a public square. Content posted by one party can be shared by each contact with their own network of friends, and thus can “go viral”. But if FB moderates content, censors users, or takes political positions of its own via the “recommendation function” often exercised by social media platforms, then it is not acting purely as a public square. Indeed, in that case it is more like a publisher, which otherwise would not be immune from lawsuits.

The case against FB is even stronger than that, however. It has acted as a de facto agent of the government in several respects. A recent FOIA request has revealed a White House email showing:

“… Facebook, Merck, and the CDC Foundation, whose corporate partners includes Pfizer, have formed an alliance ‘to use social media and digital platforms to build confidence in and drive uptake of vaccines.’”

FB has also acted to delete user accounts at the behest of the U.S. and Israeli governments. And FB has partnered with a security firm called FireEye, which is funded by the CIA. There are other areas of “cooperation” between entities performing government-funded activities described at the last link.

The topic of social media giants censoring speech on behalf of the U.S. and other governments has been discussed by Vivek Ramiswamy, who notes the obvious breach of constitutional rights that it represents. It’s fine for a private firm to regulate speech on its own premises, but conducting censorship at the behest of government is equivalent to censorship by government and a flat out a violation of the First Amendment.

Moreover, FB has had the audacity to propose government “oversight” in its effort to moderate content. What, in the name of regulatory capture, could go wrong? I’d say the whole thing is Orwellian, but perhaps no more than what we’ve already seen. The best policy response, as Volokh suggests, might be to separate the hosting and conversation functions of social media from the recommendation function. The former can be treated as “common carrier” functions for the purpose of applying Section 230, with an obligation for non-discrimination and minimal content moderation, while the latter function would receive no immunity under Section 230.

My Post-FB Social Media Escapades

My blog lost a lot of readership when I quit FB. Last spring, however, I began a roughly five-month stint as a contributing blogger on a site that brought a jump in my readership. Unfortunately, it became clear, over time, that it was largely an audience unwilling to entertain more objective and sometimes technical considerations. I also became disillusioned after finding myself writing posts to debunk certain conspiratorial fantasies of other contributing bloggers on the site. I didn’t want to be associated with those writers, so I cut ties. My readership crashed again, but I’m not sure I lost many high-quality readers in that instance.

I joined various “free speech” social media platforms: first Parler (until it was taken down by Amazon, and I haven’t been back), and I’d been on MeWe, but then Gab, CloutHub, GETTR, and Telegram. MeWe, Gab, and CloutHub sponsor groups with shared interests, and I’ve made it a point to join Libertarian groups when I can find them. Those groups are not very active on CloutHub. GETTR feels a bit more like Twitter to me, and there are no group pages. Telegram is a secure messaging app with extra features. I just started a so-called “channel” there to which I can post my content. Users can view and subscribe to my channel if they wish, but I have to cross-post to other channels to find them. We’ll see how it goes, but there are a lot of people who LOVE Telegram!

A few friends from my FB days followed me to one or two of the “free speech” platforms, but only one of them seems to have maintained any presence there. Most of them became entirely inactive from what I can tell. I know some went back to FB, upon which so many people are dependent. Sometimes that’s for business reasons, which is both understandable and regrettable. Anyway, at least one of my former FB connections is still cross-posting some of my articles to FB, which is fine and I truly appreciate it.

Like FB, the alternative platforms I’ve tried are dominated by meme warriors. While a few trolls lurk there, MeWe, Gab, and CloutHub are very much echo chambers. But at least dissident voices have a place where they aren’t censored! In an ideal world we’d have diversity of thought and civility.

I’ve grown kind of numb to all the memes. I tend to scroll right past them in search of meatier fare. Memes tend to over-simplify complex issues and appeal to mood affiliations. They generally offer zero evidence in support of their messages. Even worse is their impact on attention span. It’s extremely difficult to get users to read anything longer than a meme blurb. In fact, there are people who notice the headlines on my posts and make immediate comments on that basis, as if I’m posting memes! But again, FB is very much a hall of memes, so I don’t mean to imply that there’s been any change for me in that respect … I just like to bitch about memes!

There are a few anti-semites on some of the “free-speech” sites, Gab in particular. In fact, Gab is thoroughly dominated by the religious right, so the anti-semitism is all the more striking. Excepting the Jew haters, whom I can block, I respect the religious right, and our interests are often aligned. However, a steady diet of posts with Christianity as an emphasis makes Gab less than ideal for me. Besides, every time I click on the Gab app it takes like 15 seconds to load on my phone!

I joined MeWe well before I quit FB. Nevertheless, I’ve had trouble getting traction there and I’m thinking of dropping out just to simplify my life. So far, CloutHub seems a little better in terms of generating visits to my blog.

It’s hard for a small-time blogger like me to get much notice on GETTR. There are some well-known conservative personalities there, so there are some decently informative posts. I have not been very active on Telegram, but that might change, as I said above.

I’ve been on LinkedIn for many years, but I’ve only recently decided to begin posting my articles there. I’ve lost a handful of connections as a result! That’s okay. As I like to say, eventually I’ll piss everyone off! I do get some views from LinkedIn, but users who might agree with my point of view are often too chickenshit to say so. That’s more understandable on a platform oriented toward career and professional contacts. However, I think the perception of social pressure is not very much different than the intimidation some people feel on FB.

I’ve considered joining the Truth Social platform, Donald Trump’s foray into social media. It’s billed as a “big tent”, but it will be another echo chamber, I’m sure. It’s also been a technical mess so far (not unique among new apps in that respect). I’m no Trump hater by any means, but any post that might be critical of him is almost certain to attract some hate on Truth Social (the link no is satire, btw). That’s not censorship per se, but TS might not be a great place for some of my posts.

No Going Back

Maybe the last section above was more self-assessment than anything else. As a personal decision, quitting FB was unequivocally positive for me. It hurt my blog readership, but I still hope to gain momentum on other platforms and to promote Sacred Cow Chips by placing links on other sites. In any case, I blog for myself as much as anyone else, just because I enjoy writing, thinking about issues, and occasionally doing a “deep dive” to research an issue.

The censorship occurring on the big social media platforms is simply unacceptable, and I wish more people would rise-up against it. I experienced some schadenfreude when I saw that Meta’s (Facebook’s) financials were a disappointment last quarter. The number of active users declined ever so slightly, but that was a first for FB. One can only hope it’s a trend in the making. And see this, though it might be a bit over-optimistic. Damn the censorship!