The Supreme Court Probably Won’t Touch This

The Supreme Court is hearing arguments in a case that challenges “Section 230,” a provision in law that protects big social media companies from being sued for stuff people upload. For years conservatives have hated Section 230 and complained that if they eliminate it there will be no more censoring of conservative content in social media. This makes absolutely no sense and reinforces my opinion that today’s so-called “conservatives” lack the cognitive skills God gave asparagus.

Josh Hawley recently introduced a bill that would require big social media companies to apply for some sort of certification from the Federal Trade Commission that would require them to not favor one political party over another. I don’t know how you’re going to enforce that, but whatever. Without certification a social media platform could not claim Section 230 protection, meaning those companies would be liable for any harm done by what people post. “Not only would this legislation drastically hurt free speech and competition in the online ecosystem, it would mean more conservative content, not less, will be removed from these websites,” says this guy. Obviously. But some righties can’t see that.

Even National Review warns that narrowing or eliminating Section 203 would cause more censorship of “conservative” content, not less. If companies can be sued for what users upload, those companies will be forced to put all content through much tighter filters. Or else give up and close the site entirely.

Righties complain that Section 230 prevents people from suing social media companies for removing their content. I am not sure that’s what the law does, nor do I think that anybody believes social media companies have some kind of obligation to keep everything everybody posts public and untouched. There can be honest disagreements about what content is harmful or contrary to company standards and what isn’t, of course. And it’s not like the algorithms don’t sometimes bounce leftie content also; it’s just that lefties don’t whine about it so much.

The case in front of the court is explained in this SCOTUSblog post:

The case was filed by the family of Nohemi Gonzalez, a 23-year-old American woman who was studying in Paris when she was killed in an ISIS attack there in 2015. Their lawsuit alleges that Google, which owns YouTube, violated the Antiterrorism Act’s ban on aiding and abetting terrorism by (among other things) recommending ISIS videos to users through its algorithms, thereby aiding ISIS’s recruitment.

Representing the Gonzalez family, law professor Eric Schnapper told the justices that Section 230 distinguishes between claims that seek to hold internet companies liable for content created by someone else, and claims that seek to hold internet companies liable for their own conduct. Whether an internet company’s recommendations would fall within the latter category would depend on whether they met specific criteria outlined in the text of Section 230, Schnapper contended. But he faced a barrage of questions from justices across the ideological spectrum.

Justice Clarence Thomas has writtenskeptically in recent years about broad immunity under Section 230, but he appeared surprisingly sympathetic to the theory on which the U.S. Court of Appeals for the 9th Circuit relied in ruling for Google below – the idea that Section 230 protects recommendations as long as the provider’s algorithm treats content on its website similarly. If the same algorithm that recommends ISIS videos based on a user’s history and interests also recommends cooking videos to someone who is interested in cooking, Thomas asked, how can Google be held responsible for those recommendations?

I doubt the big tech/social media companies (except maybe Elon Musk’s Twitter) have a clear political bias; if anything, they probably skew libertarian. Their only bias is in favor of what makes them money by increasing clicks on content. What the Right is asking for is more censorship of content, not less.

Justice Ketanji Brown Jackson was perhaps most squarely in the Gonzalez family’s corner. In Section 230, she told Blatt, Congress was trying to protect internet platforms that were blocking and screening offensive materials. However, Jackson continued, you are arguing here that Section 230 protects platforms that are promoting offensive materials. “How,” Jackson asked Blatt, “is that even conceptually consistent with what Congress intended?”

So it would seem that Thomas is siding with lefties and Jackson with righties, which ought to give righties pause.

Most commentaries on the hearings are saying that it appears the Court will likely punt this issue to Congress. The justices on the whole don’t seem to want to touch it.

Meanwhile, Republicans on the House Energy and Commerce Committee already are drafting new legislation. And any sentence with the words “Republicans” and “House” should be cause for alarm. This is what they’re considering:

  • Limiting the right of tech companies to exclude users based on their viewpoints or political affiliations
  • Requiring “reasonable moderation practices” to address harms like illegal drug sales and child exploitation
  • Narrowing protected moderation to specific types of speech not protected by the First Amendment
  • Removing protection for discriminatory moderation decisions based on viewpoints.

The problem is that one person’s “viewpoint” might well be another person’s “yelling fire in a crowded theater” and not protected by the First Amendment. Posts that spread disinformation about vaccines get people killed, for example. Posts that promote armed insurrection or race wars or shooting abortion doctors probably are not protected by the First Amendment, but try telling a rightie that. If righties are censored more than lefties — and I’ve seen no data showing they are, but righties believe this to be so — maybe it’s because righties are posting more dangerous content. Just a guess.

In other news — In the ongoing Proud Boy seditious conspiracy trial, one Proud Boy testified the group was thinking about “all-out revolution.” From Politico:

A top lieutenant of the Proud Boys’ chairman, Enrique Tarrio, described on Wednesday a growing desperation among the group’s leaders as Jan. 6, 2021, approached and then-President Donald Trump’s efforts to overturn the election results sputtered.

That’s when the group’s thoughts turned to “all-out revolution,” according to Jeremy Bertino, the Justice Department’s star witness in the seditious conspiracy trial of Tarrio and four other Proud Boys leaders, who are charged with orchestrating a violent attempt to derail the transfer of power from Trump to Joe Biden.

I take it he’s changed his mind.

Also, too: Trump is supposed to be touring East Palestine, Ohio, today. Democrats are using this as an opportunity to revisit Trump’s role in the train derailment.

Donald Trump’s visit to the site of a toxic train derailment in Ohio is offering a political opening to battered Biden administration officials — by calling new attention to the former president’s record of rolling back regulations on both rail safety and hazardous chemicals.

Trump’s administration withdrew an Obama-era proposal to require faster brakes on trains carrying highly flammable materials, ended regular rail safety audits of railroads, and mothballed a pending rule requiring freight trains to have at least two crew members. He also placed a veteran of the chemical industry in charge of the Environmental Protection Agency’s chemical safety office, where she made industry-friendly changes to how the agency studied health risks.

These actions have mostly been a matter of Trump-era trivia amid the furor over the Feb. 3 derailment in East Palestine, which has brought fierce GOP criticism of the response by Biden appointees such as Transportation Secretary Pete Buttigieg. But Trump’s Ohio trip on Wednesday is provoking new scrutiny of his own track record — a development that some in the Biden administration were privately welcoming.

Whether the residents of East Palestine will hear any of this, I cannot say.

Demonstrating that he has all the sharp political insights of spinach, Mike Pence has decided to break with Trump on Social Security and Medicare, of all things.

You’ve probably heard about the Fulton County special grand jury forewoman who has been blabbing to the press. I don’t think she revealed anything significant or said anything that would hurt the eventual prosecutions, but we’ll see.

7 thoughts on “The Supreme Court Probably Won’t Touch This

  1. Though my knowledge of algorithms was what helped me pass the NY State Regents math exam in my Junior year in '75 (with a 66 – oy!), what I remember about them would fit on the back of an aspirin tablet – with room to spare.

    So I won't chime in on the Section 230 controversy – except to ask, how hard can it be to block child p*rn and calls for treason?

    Oh, wait!  That might mean hiring more people, and we can't have that now, can we?!?

    Watching that forewoman on the news over the last few days was like watching a child playing "21 Questions." 

    I kept waiting for the interviewer to open with "Animal, vegetable, or mineral?"

    Of course, if she answered "vegetable," we'd all probably guess, "Is it tRUMP?!?"

    Of course, "mineral" might yield the same guess, since tRUMP's dumber than a lump of Gypsum (he's always gipped some, but never all 🙂 ).

    On that (bad) note, I'll end this word-turd.


  2. I think your guess is right, Maha. The USSC will ask Congress to redefine the statutes on immunity for media conduits. Which probably means nothing will happen. My gut feeling is that the algorithms on what gets shared will continue to amplify the content that should be buried. A post (meme or Youtube video) that's factually false should go nowhere (in terms of being spread) or be deleted if the facts are egregiously false. Yes, this is what the MAGA's think they can sue to eliminate (posts containing lies about Covid being suppressed.) 

    Re the slew of train wrecks with side effects, here is where the Senate should step up with safety regulation that has some teeth in it. The damage from one incident far exceeds the cost of upgrading equipment, doing rail inspections, and setting staffing standards. Also, let labor blow the whistle on unsafe practices with protections and possibly rewards for alerting NTSB before the you-know-what hits the fan. The House will, of course, refuse to consider doing anything. Fine. There's an election in 2024. Let's run on what we did and they refused to consider. 

    I think the timing of the Proud Boys trial (which I thought was too slow) is working out well. I agree with the pundits who predict Trump will call for violence in response to indictments for crimes he committed. The wait is turning me into a religious fanatic –  "Please, God, let Georgia bring down charges today." I didn't pray this much or as fervently when I was an Altar Boy when the Mass was in Latin.

    The Forewoman – as far as I can tell – hasn't done any harm. But Trump's lawyers are looking for anything and I appreciate that she's making people nervous.  (If you charge Trump, she goes away. So charge him!)

     MTG expanded on what she means by a 'divorce.' It's an interesting glimpse into the deranged mind of the MAGA fanatics. Her segregation of red and blue states suggests that she's hallucinating an Ayn Rand dystopia where only the 'makers' live in red states and the 'takers' are all driven into blue states and have to be supported by those states. No, she doesn't intend to give up 'good' federal socialism like SS, Medicare, and (I'm guessing) Medicaid. There's no clue how we would get there from where we are – much of what she proposes would require a rewrite of the Constitution. 

    Let me go OT but this has been overlooked today, assuming it's true. "The Hill" is not a fringe lunatic publication.

    "More than 60 percent of young men are single, nearly twice the rate of unattached young women, signaling a larger breakdown in the social, romantic and sexual life of the American male…"

    "Even seasoned researchers struggle to fully account for the relationship gap between young women and men: If single young men outnumber single young women nearly two to one, then who are all the young women dating? "

    "Some of them are dating each other. One-fifth of Generation Z identifies as queer, and research suggests bisexual women make up a large share of the young-adult queer community."

    The right-wing might interpret this as evidence that society needs to enforce traditional roles and penalize women who find the companionship of women preferable to men. I'd say that (if true) it's evidence men need to improve their relationship game – a lot. The article points out that women are more educated than men and less reliant on men as the primary source of income compared to decades past. This situation may be a corollary to what was reported in DC during the Trump era. Women in DC who were dating were NOT dating Republicans. 

    Have we underestimated how women may have evolved beyond accepting neanderthal men? They can do without them economically and sexually – and they are! Is this a major root cause in the political conflict? Is the GOP actually trying to drag women back into bed because they are frustrated? 

  3. I have to say that Justice Kagan's little jape about how "we're not the experts" hit very flat.  They have to be, because there is no appeal from their decisions.  Otherwise it is authority without responsibility.  (And surely none of them still imagine that Congress is functional enough to clean up after them?)

    • That's one reason I think they're going to punt back to Congress. Of course, most of the fossils in Congress don't understand the tech stuff, either. 

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