August 7, 2019 3:24PM

WSJ, WaPo, NYT Spread False Internet Law Claims

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Section 230 of the Communications Decency Act is much debated and under bipartisan attack. The legislation, which includes the “26 words that created the Internet,” is attacked from the right by those who complain about alleged “Big Tech” anti-conservative bias and from the left by those bemoaning the spread of extremist content. Accordingly, Section 230 has been the topic of much discussion in newspaper pages. Unfortunately, the Fourth Estate has recently allowed misinformation about Section 230 to spread, which is especially regrettable given that falsehoods about Section 230 are already ubiquitous.

The most recent example of such misinformation is an op-ed in The Wall Street Journal by the conservative commentator and Prager University founder Dennis Prager. The first falsehood appears in the subhed: “Big tech companies enjoy legal immunity premised on the assumption they’ll respect free speech.”

This is not true. Congress did not pass Section 230 on the understanding that Internet companies would engage in minimal moderation and “respect free speech.” In fact, §230(c)(2)(A) of the CDA states the following:

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

This portion of Section 230 explicitly states that companies as large as Facebook and those as small as a local bakery that includes a comments section on its WordPress site can take “any action” to remove content they consider objectionable. I am at a loss trying to figure out where Prager got the idea that Section 230 was premised on Internet companies respecting “free speech.” It’s possible that he’s considering one of Section 230’s findings:

The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

While this finding emphasizes the value of the Internet as an ecosystem capable of hosting  a diverse range of political views, it does not encourage specific sites to adopt politically neutral content moderation policies. Nor does it make such neutrality a necessary condition for Section 230 immunity.

We should keep in mind that oped page contributors rarely write their own subheds. But Prager makes the point explicitly in his oped’s text:

The clear intent of Section 230—the bargain Congress made with the tech companies—was to promote free speech while allowing companies to moderate indecent content without being classified as publishers.

But Google and the others have violated this agreement. They want to operate under a double standard: censoring material that has no indecent content—that is, acting like publishers—while retaining the immunity of nonpublishers.

There was no such agreement or bargain. Section 230 was passed in an explicit attempt to encourage moderation of speech. This portion of Prager’s oped also raises another myth that abounds in Section 230 debates: the “platform” vs. “publisher” distinction.

There is no legal difference between a “platform” and a “publisher.” Indeed, publishers enjoy Section 230 protection. The Wall Street Journal is a publisher and can be held liable for defamatory content oped contributors write. But The Wall Street Journal also hosts moderated comment sections, which do enjoy Section 230 protection. The comments section below Prager’s oped says as much.

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When Prager writes, “But Google, YouTube and Facebook choose not to be regarded as ‘publishers’ because publishers are liable for what they publish and can be sued for libel” he is making a significant error. Google, Youtube, and Facebook did not “choose” to not be considered publishers. Social media sites don't "choose" not to be regarded as publishers. CDA§230(c)(1) makes the decision for them:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

These “26 words that created the Internet” include no provision that allows social media site to “choose” whether they’re “publishers” or “platforms.”

Section 230 was passed to encourage Internet companies to moderate user content and does not classify such companies as “publishers” or “platforms.”

Prager’s last important claim is that the fact that Youtube users who have opted into “restricted mode” can’t access dozens of Prager U videos because of an anti-conservative bias at Youtube. This claim doesn’t withstand scrutiny. Research by NetChoice demonstrates that that only 12 percent of Prager U’s videos are in “restricted mode,” compared to 54 percent of Daily Show videos and 71 percent of Young Turks videos. Prager may be correct to point out that these videos are restricted because of expletives, but expletives aren't the only kind of content that can result in videos being restricted. "Mature subjects," "violence," and "sexual situations" can also result in videos being unavailable to users in restricted mode. Anyone who takes a look at Prager U's Youtube channel can see content that would understandably put it out of reach of users who have opted into “restricted mode.”

It’s bad enough to get the facts of Section 230 wrong. Spreading falsehoods in pursuit of an agenda that isn’t supported by what the facts reveal is worse.

Dennis Prager is the most recent proliferator of Section 230 misinformation, but he’s hardly the only one.

Yesterday, The New York Times published a Section 230-heavy article which featured on the front page of its business section. The headline read: “Why Hate Speech on the Internet Is a Never-Ending Problem.” To its credit, The New York Times has since issued a correction and fixed the headline. As I discussed above, Section 230 doesn’t protect hate speech per se. You can thank the First Amendment for that. Rather, it allows companies to remove speech that violates their content moderation rules without becoming liable for everything posted by users. Footage of a white nationalist murdering someone would run afoul of Facebook’s content moderation policy, but it might be left up by moderators of a neo-nazi forum. Section 230 allows Facebook to remove the footage, which is legal under the First Amendment.

Last month, The Washington Post published an oped by Charlie Kirk, founder of Turning Point USA. The Kirk oped repeats the same “publisher” v. “platform” error often seen in Section 230 debates. But it also includes the following claim:

Social media companies have leveraged Section 230 to great effect, and astounding profits, by claiming they are platforms — not publishers — thereby avoiding under the law billions of dollars in potential copyright infringement and libel lawsuits.

Kirk’s comment on  Section 230’s interaction with copyright law is the opposite of the truth. Section 230(e)(2) reads:

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

At the time of publication neither The Washington Post nor The Wall Street Journal have issued corrections, editorial notes, or retractions related to the Prager or Kirk opeds. 

Useful policy debates only happen when participants can agree on facts. Sadly, some of the most reputable newspapers in the country have allowed for misinformation about an important piece of legislation to spread without correction. Anyone hoping for the quality of Section 230 debates to improve any time soon will be disappointed.

November 29, 2018 10:23AM

Keep Government Away From Twitter

Twitter recently re-activated Jesse Kelly’s account after telling him that he was permanently banned from the platform. The social media giant informed Kelly, a conservative commentator, that his account was permanently suspended “due to multiple or repeat violations of the Twitter rules.” Conservative pundits, journalists, and politicians criticized Twitter’s decision to ban Kelly, with some alleging that Kelly’s ban was the latest example of perceived anti-conservative bias in Silicon Valley. While some might be infuriated with what happened to Kelly’s Twitter account, we should be wary of calls for government regulation of social media and related investigations in the name of free speech or the First Amendment. Companies such as Twitter and Facebook will sometimes make content moderation decisions that seem hypocritical, inconsistent, and confusing. But private failure is better than government failure, not least because unlike government agencies, Twitter has to worry about competition and profits.

It’s not immediately clear why Twitter banned Kelly. A fleeting glance of Kelly’s Twitter feed reveals plenty of eye roll-worthy content, including his calls for the peaceful breakup of the United States and his assertion that only an existential threat to the United States can save the country. His writings at the conservative website The Federalist include bizarre and unfounded declarations such as, “barring some unforeseen awakening, America is heading for an eventual socialist abyss.” In the same article he called for his readers to “Be the Lakota” after a brief discussion about how Sitting Bull and his warriors took scalps at the Battle of Little Bighorn. In another article Kelly made the argument that a belief in limited government is a necessary condition for being a patriot.

I must confess that I didn’t know Kelly existed until I learned the news of his Twitter ban, so it’s possible that those backing his ban from Twitter might be able to point to other content that they consider more offensive that what I just highlighted. But, from what I can tell Kelly’s content hardly qualifies as suspension-worthy.

Some opponents of Kelly’s ban (and indeed Kelly himself) were quick to point out that Nation of Islam leader Louis Farrakhan still has a Twitter account despite making anti-semitic remarks. Richard Spencer, the white supremacist president of the innocuously-named National Policy Institute who pondered taking my boss' office, remains on Twitter, although his account is no longer verified.

All of the of the debates about social media content moderation have produced some strange proposals. Earlier this year I attended the Lincoln Network’s Reboot conference and heard Dr. Jerry A. Johnson, the President and Chief Executive Officer of the National Religious Broadcasters, propose that social media companies embrace the First Amendment as a standard. Needless to say, I was surprised to hear a conservative Christian urge private companies to embrace a content moderation standard that would require them to allow animal abuse videos, footage of beheadings, and pornography on their platforms. Facebook, Twitter, and other social media companies have sensible reasons for not using the First Amendment as their content moderation lodestar.

Rather than turning to First Amendment law for guidance, social media companies have developed their own standards for speech. These standards are enforced by human beings (and the algorithms human beings create) who make mistakes and can unintentionally or intentionally import their biases into content moderation decisions. Another Twitter controversy from earlier this year illustrates how difficult it can be to develop content moderation policies.

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Shortly after Sen. John McCain’s death a Twitter user posted a tweet that included a doctored photo of Sen. McCain’s daughter, Meghan McCain, crying over her father’s casket. The tweet included the words “America, this ones (sic) for you” and the doctored photo, which showed a handgun being aimed at the grieving McCain. McCain’s husband, Federalist publisher Ben Domenech, criticized Twitter CEO Jack Dorsey for keeping the tweet on the platform. Twitter later took the offensive tweet down, and Dorsey apologized for not taking action sooner.

The tweet aimed at Meghan McCain clearly violated Twitter’s rules, which state: “You may not make specific threats of violence or wish for the serious physical harm, death, or disease of an individual or group of people.”

Twitter’s rules also prohibit hateful conduct or imagery, as outlined in its “Hateful Conduct Policy.” The policy seems clear enough, but a look at Kelly’s tweets reveal content that someone could interpret as hateful, even if some of the tweets are attempts at humor. Is portraying Confederate soldiers as “poor Southerners defending their land from an invading Northern army” hateful? What about a tweet bemoaning women’s right to vote? Or tweets that describe our ham-loving neighbors to the North as “garbage people” and violence as “underrated”? None of these tweets seem to violate Twitter’s current content policy, but someone could write a content policy that would prohibit such content.

Imagine developing a content policy for a social media site and your job is to consider whether content identical to the tweet targeting McCain and content identical to Kelly’s tweet concerning violence should be allowed or deleted. You have four policy options:

     
  Delete Tweet Targeting McCain Allow Tweet Targeting McCain
Delete Kelly's Tweet

1


2

Allow Kelly's Tweet

3


4

 

Many commentators seem to back option 3, believing that the tweet targeting McCain should’ve been deleted while Kelly’ tweet should be allowed. That’s a reasonable position. But it’s not hard to see how someone could come to the conclusion that 1 and 4 are also acceptable options. Of all four options only option 2, which would lead to the deletion of Kelly’s tweet but also allow the tweet targeting McCain, seems incoherent on its face.

Social media companies can come up with sensible-sounding policies, but there will always be tough calls. Having a policy that prohibits images of nude children sounds sensible, but there was an outcry after Facebook removed an Anne Frank Center article, which had as its feature image a photo of nude children who were victims of the Holocaust. Facebook didn’t disclose whether an algorithm or a human being had flagged the post for deletion.

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In a similar case, Facebook initially defended its decision to remove Nick Ut’s Pulitzer Prize-winning photo “The Terror of War,” which shows a burned, naked nine year old Vietnamese girl fleeing the aftermath of an South Viernamese napalm attack in 1972. Despite the photo’s fame and historical significance Facebook told The Guardian, “While we recognize that this photo is iconic, it’s difficult to create a distinction between allowing a photograph of a nude child in one instance and not others.” Facebook eventually changed course, allowing users to post the photo, citing the photo’s historical significance:

Because of its status as an iconic image of historical importance, the value of permitting sharing outweighs the value of protecting the community by removal, so we have decided to reinstate the image on Facebook where we are aware it has been removed.

What about graphic images of contemporary and past battles? On the one hand, there is clear historic value to images from the American Civil War, the Second World War, and the Vietnam War, some of which include graphic violent content. A social media company implementing a policy prohibiting graphic depictions of violence sounds sensible, but like a policy banning images of nude children it will not eliminate difficult choices or the possibility that such a policy will yield results many users will find inconsistent and confusing.

Given that whoever is developing content moderation policies will be put in the position of making tough choices it’s far better to leave these choices in the hands of private actors rather than government regulators. Unlike the government, Twitter has a profit motive and competition. As such, it is subject to far more accountability than the government. We may not always like the decisions social media companies make, but private failure is better than government failure. An America where unnamed bureaucrats, not private employees, determine what can be posted on social media is one where free speech is stifled.

To be clear, calls for increased government intervention and regulation of social media platforms is a bipartisan phenomenon. Sen. Mark Warner (D-VA) has discussed a range of possible social media policies, including a crackdown on anonymous accounts and regulations modeled on the European so-called “right to be forgotten.” If such policies were implemented (the First Amendment issues notwithstanding), they would inevitably lead to valuable speech being stifled. Sen. Ron Wyden (D-OR) has said that he’s open to carve-outs of Section 230 of the Communications Decency Act, which protects online intermediaries such as Facebook and Twitter from liability for what users post on their platforms.

When it comes to possibly amending Section 230 Sen. Wyden has some Republican allies. Never mind that some of these Republicans don’t seem to fully understand the relevant parts of Section 230.

That social media giants are under attack from the left and the right is not an argument for government intervention. Calls for Section 230 amendment or “anti-censorship” legislation are a serious risk to free speech. If Section 230 is amended to increase social media companies’ risk of liability suits we should expect these companies to suppress more speech. Twitter users may not always like what Twitter does, but calls for government intervention are not the remedy.

January 8, 2014 1:03PM

Administration’s Good Intentions Could Hurt Black Students’ Achievement

Today the Department of Education and Justice Department released new discipline guidelines intended to reduce racial disparities in punishment in the nation's schools. The move stems from a combination of factors: African-American students are disciplined more harshly, on average, by public schools; and suspensions and expulsions are associated with negative long-term educational outcomes for the disciplined students. The guidelines are technically voluntary, but as the Associated Press reports, "the federal government is telling school districts around the country that they should adhere to the principles of fairness and equity in student discipline or face strong action if they don’t." Unfortunately, this federal pressure may end up hurting black students far more than it helps them.

The problem is that while expelling disruptive students may be associated with negative educational outcomes for the disruptor, it is associated with positive educational outcomes for the rest of his classmates. That is the finding of a uniquely sophisticated study conducted by Joshua Kinsler and published last year in the prestigious International Economic Review (a draft is available here). Kinsler found that cutting out-of-school suspensions in schools with many disruptive students lowers overall student achievement.

In that and earlier work, Kinsler also discovered that the disparity in punishments handed out to students of different races is almost entirely explained by the schools the students attend, and not by racism. Black students, Kinsler found, are more likely to attend schools that have harsh discipline policies, and hence are more likely to receive harsh discipline. But, within a given school, the punishments accorded to white and black students are generally the same. Majority black schools with severe discipline policies apply those policies in the same way to their white students, and majority white schools with more lenient policies also apply those policies in the same way to their black students (see Kinsler's 2011 study in the Economics of Education Review, a draft of which can be found here).

There are much better approaches to school discipline than those practiced in most public schools today, but until such time as those policies become widely adopted, simply pressuring districts to mete out less severe punishments seems likely to drive down the academic achievement of the very students it is meant to help.

What are those better discipline policies and how can we encourage their widespread adoption? I offered some suggestions in my Senate testimony on the subject a little over a year ago.

April 17, 2012 3:52PM

A Cautionary Tale

Somewhat belatedly, I've come upon this essay in which a "libertarian economist retracts a swipe at the left—after discovering that our political leanings leave us more biased than we think." It presents a problem for anyone trying to communicate ideas that lack popular support: we are all "my-side biased," tending to block out arguments and evidence that we know (or even suspect) will threaten any of our cherished convictions. How to overcome humanity's natural ideological defense mechanisms?

Plato's Socrates tried to do it by taking his interlocutors by surprise. First, get them to acknowledge all the key facts of a particular matter in isolation, in a way that does not present an obvious ideological threat, and only then tie them logically together so that the interlocutor cannot help but realize that his original presumption must be wrong. Hard to do.

An even tougher challenge is trying to minimize our own my-side bias so that we are not so thick-headed when one of our own convictions is contradicted by reality. Reading articles like the above from time to time no doubt helps.

January 26, 2010 9:22AM

Biased Budget Reporting

I was certainly surprised to see Barack Obama propose any sort of spending freeze. Less surprising, however, is how it's been reported.

For reasons that I admit escape me, it is apparently a law of journalism that any budget-related act will be made to look as stingy as possible. Remember this when you read the news.

Spending increases that were planned all along aren't considered increases at all and do not make the news. Unplanned increases, those over and above the planned ones, are reported as though only the unplanned parts were increases. Large spending increases get extra praise for boldness. Reductions in the rate of spending growth are called "spending cuts." Real though tiny cuts are described as draconian measures. We would probably have to invent a new word, something scary with reference to the intimate anatomy, if significant, across-the-board spending cuts ever arrived. Within most of our lifetimes, this has never happened.

Today's reporting fits the pattern perfectly. The Washington Post headline proclaims, "Obama to Propose Freeze on Government Spending." The New York Times declares, "Obama to Seek Freeze on Some Spending to Trim Deficits." It is, we learn, "an initiative intended to signal his seriousness about cutting the budget deficit."

Wonderful! Or stingy! Or both!

But not, you know, accurate. The details are in the fine print, and they don't remotely live up to the headlines. The freeze applies only to discretionary spending. It doesn't touch military or entitlement programs, and these are the large majority of the budget. It may not even be a meaningful freeze on the discretionary portion, as my colleague Dan Mitchell points out. And it's only down in the fifth paragraph where the Times notes that "The estimated $250 billion in savings over 10 years would be less than 3 percent of the roughly $9 trillion in additional deficits the government is expected to accumulate over that time."

In other words, today's news is a virtual nothing with almost no likelihood of being carried through anyway. If this is "intended to signal seriousness," I wonder what an unserious proposal would look like. I also wonder what sort of proposals we'd get from our politicians if our media reported on budget matters without its deeply ingrained bias against fiscal discipline.

December 3, 2009 2:57PM

Is Trade Policy Obsolete?

That is one of the conclusions in my new paper, "Made on Earth: How Global Economic Integration Renders Trade Policy Obsolete."

For hundreds of years, trade policy has been premised on the assumptions that exports are good, imports are bad, and the interests of domestic producers are tantamount to the "national interest." Though that mercantilist worldview has never been accurate, its persistence as a pillar of trade policy into the 21st century is especially confounding given the emergence and proliferation of disaggregated production processes, transnational supply chains, and cross-border investment. Those trends have blurred any meaningful distinctions between "our" producers and "their" producers and speak to a long chain of interdependent economic interests between product conception and consumption.

Still, trade policy places the interests of domestic producers above all else even though the definition of a domestic producer is elusive and even though actions on behalf of producers often harm interests along the product continuum, which include engineers, designers, financiers, processors, assemblers, marketers, shippers, retailers, consumers, and others.

In 2008, foreign nameplate automobile producers, employing American workers, paying American taxes, and supporting American businesses, communities, and charities, accounted for almost half of all U.S. light vehicle production. The largest "U.S." steel producer, Arcelor-Mittal, is a majority-Indian-owned company with headquarters in Luxembourg and Hong Kong. The largest "German" producer, Thyssen-Krupp, is completing a $3.7 billion green-field investment in steel production facilities in Alabama, which will create an estimated 2,700 jobs in that state.

So, who are "we"? And who are "they"?

Are these foreign-named or –headquartered companies not "our" producers because some of the profits they earn are repatriated or invested in operations outside the United States? If so, then shouldn’t we consider U.S. Steel Corporation, which earned 25 percent of its revenue last year on steel produced in Slovakia and Serbia, and General Motors, which has had success producing and selling cars in China, to be "their" producers? Why should U.S. Steel, General Motors, and the unions that organize workers at those companies dictate the parameters of U.S. trade policy, while Toyota, Thyssen and their non-union workers have no input? Why should trade policy reflect a bias in favor of producers—or worse, particular producers—at all? That bias hurts other interests—both foreign-based and domestic—in the supply chain.

Global commerce isn’t a competition between "us" and "them." It is instead a competition between entities that defy national identification because of cross-border investment or because the final good or service comprises value added from many different countries. This reality demands openness in both directions, which flies in the face of conventional trade policy wisdom, which seeks to maximize access for domestic producers abroad while minimizing access for foreign producers at home.

It is only for simplicity’s sake that a container full of iPods shipped from China and unloaded in Seattle registers as imports from China. But the fact is that only a few dollars of the $150 cost to produce an iPod is Chinese value-added. The rest is mostly value attributable to Japanese, Korean, Singaporean, Taiwanese, and American components and labor. Then iPods retail for about $300 and most of the mark-up accrues to Apple, which uses the profits to support innovation and higher paying jobs in the United States.

From a trade policy perspective, each iPod imported from China adds $150 to our bilateral deficit in "high tech" goods. It is regarded as a problem to solve. The temptation is to restrict.

But from a commercial perspective, each imported iPod supports U.S. economic activity up the value chain. Without access to lower-cost labor abroad—if rudimentary component manufacturing and assembly operations were required to take place in the United States—ideas hatched in American labs would be far less likely to make it beyond the white board. Much higher costs would make it far more difficult to create these ubiquitous devices that have, in turn, spawned new ideas and industries.

Essentially, the factory floor has broken through its walls and today spans borders and oceans, making Chinese and American labor complementary in this and many other industries. Yet, despite all of this integration, despite the reliance of producers in the United States and abroad on imported raw materials, components, and capital equipment, trade policy still pretends that access to the domestic market is a favor to grant or a privilege to revoke. Trade policy is officially ignorant of commercial reality.

Openness to trade in both directions is an imperative in the 21st century. Policies that do not try to channel incentives for the benefit of specific groups but rather provide the greatest opportunities for citizens to participate most effectively in our increasingly integrated global economy are the ones that will maximize economic growth and national welfare. People in other countries should be thought of more as customers, suppliers, and potential collaborators instead of competitive threats.

In the 21st century, instead of serving the exclusive interests of domestic producers, trade policy should be about welcoming investment and attracting and cultivating the human capital necessary to make the United States the location of choice for the world’s highest value economic activities.

October 20, 2009 11:15AM

Department of Bias

The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?

The Justice Department's ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their "candidates of choice" - identified by the department as those who are Democrats and almost exclusively black.

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters' right to elect the candidates they want.

This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.