I’ve been reading lots recently about the interaction between First Amendment law and free speech principles with respect to online services in light of the events of the last few weeks.

And I have thoughts (MY OWN). So, I’m sorry ... a thread 1/25

One of the main reasons I think users are best served by a recognition that social media services have 1st Amendment rights to curate the content on their sites is because many users want filtered content, either by topic, or by behavior, or other. 2/
So online services should have the right to do this filtering, and to give their users the tools to do so too. For more detail see our Prager U amicus brief https://t.co/73PswB9Q7Q 3/
So, I disagree with my friends (and others) who say that every online service should apply First Amendment rules, even though they cannot be required to do so. There are both practical and policy reasons why I don’t like this. 4/
Most obviously, the 1st Amendment reflects only one national legal system when this is inherently an international issue. So it’s politically messy, even if you think a 1st Amendment-based policy will be most speech-protective (though probably only non-sexual speakers). 5/
And even when the 1st Amendment provides clear categorical rules, they are really hard to apply without the full consideration of evidence & the full context that courts are well equipped to do, but which social media companies are not, especially at scale. 6/
And that doesn’t even consider speech that may be restricted under strict or intermediate scrutiny schemes. We should not expect, or want, even large well-resourced companies to take on a quasi-judicial role for those type of ends-means balancing tests. 7/
And no – automation does not solve this problem. There is no magic robot that distinguishes protected speech from unprotected speech. And I doubt there ever might be. (And yes, I know about CSAM hashing, but that only detects images after they are known to be unprotected.) 8/
On a policy level, most online services, even those that spout lofty free speech rhetoric, don’t want a no-holds-barred service and don’t think their users do either. 9/
Some, for example, don’t want their users to be harassed on their sites or to harass others, even if it is protected speech. That doesn’t mean it’s easy or pleasant to define harassment. But they want to be able to try, at least sometimes. 10/
And then, of course, there is sexual content. Most sites, perhaps especially those based in the US, really seem to want to exclude a lot of non-obscene sexual content – and pretty much always have. https://t.co/FAdLxXCz6H 11/
Parler, as an example, holds itself out as a “free speech platform” but bans nudity and “indecent” speech. It has said it follows "FCC rules," though it seems to only mean the indecency regime (but without the 10 PM to 6 AM safe harbor). And those are hardly clear 'rules.' 12/
So, I disagree with those who urge a rethinking of 1st Amendment doctrine so that online services will have to remove more speech. They all already remove a lot of legal speech. You just want them to remove different legal speech. That doesn’t require rethinking the doctrine. 13/
Of course, users are also best served when such curatorial policies are clear, predictable, & consistently applied, & when decisions can be effectively appealed. & users are even better served when there are options: when users can choose among multiple curatorial styles. 14/
But it's bad that a few sites have so much power to control speech globally. I understand that allowing sites to moderate means there will be a lot of ‘censorship’ of protected speech. And historically silenced voices will inevitably encounter further silencing. 15/
This creates a huge (and of course unfunded) burden on these speakers and on civil society to advocate to challenge unjust moderation decisions and call out unjust policies and practices. 16/
Efforts, like the Santa Clara Principles, to establish a human rights framework for content moderation can help to address this. 17/ https://t.co/Ejj8M0Th7q
And any single service’s decisions would be less consequential if users had more options and more control–if social media, for example, was a more federated and interoperable system, & if users had tons of tools they could use to control their own online experiences. 18/
So instead of centralized filtering by a few companies, I’m a fan of our calls for competitive compatibility. https://t.co/wPk3kymG0G 19/
All that being said, I still hope, as I wrote in my WaPo op-ed that there is a place for some unmoderated sites. I hope, perhaps Pollyanna-ish-ly, that the positives from these sites will outweigh the negatives. 20/ https://t.co/MgoEbVLnww
The Trump decisions scarily showed the power sites like Twitter & Facebook wield. That raises serious free speech concerns in almost every other context. But as I’ve said, I am more concerned about state censorship of non-state speech, than the other way around. 21/
Re the Parler decisions by AWS & others, it concerns me that one can be shut off the Internet completely. I want a more neutrality by services deeper in the online stack, & don’t want unpopular speakers lose all access to the Internet. So yes to this 22/ https://t.co/HN6148FJmO
It was odd to see marketplace of ideas fans (of which I am not) bemoan the Parler decisions when in some ways it was an example of “inferior” ideas being culled from the marketplace by widespread non-state condemnation of those ideas. 23/
The market model assumes that some ideas get rejected. There is a problem is of course that these decision makers don’t adequately represent “the market.” 24/
Now that I got off my chest, I can concentrate on eye-rolling in response to those who spent 4 years complaining about the wrong-headed bothsidesism of media coverage yet now want to see a new Fairness Doctrine for online media. THE END.

More from Law

This issue was repeatedly highlighted bu Judge Totenberg:

Dominion’s system “does not produce a voter-verifiable paper ballot or a paper ballot marked with the voter’s choices in a format readable by the voter because the votes are tabulated solely from the unreadable QR code.”


Judge also found that Dominion's QR codes are NOT encrypted:

“Evidence plainly contradicts any contention that the QR codes or digital signatures are encrypted,”

This was “ultimately conceded by Mr. Cobb and expressly acknowledged later by Dr. Coomer during his testimony.”

Judge Totenberg said there was “demonstrable evidence” that the implementation of Dominion’s systems by Georgia placed voters at an “imminent risk of deprivation of their fundamental right to cast an effective vote,” which she defined as a “vote that is accurately counted.”

Judge Totenberg found that Dominion Systems inherently could not be audited.

She noted that auditors are severely limited and “can only determine whether the BMD printout was tabulated accurately, not whether the election outcome is correct.“

Totenberg stated in her ruling that a BMD printout “is not trustworthy” and the application of an Risk-Limiting audit (RLA) to an election that used BMD printouts “does not yield a true risk-limiting audit.”

Georgia used RLAs to claim no fraud...
A Call for Help!
1. we have a petition/open letter for the WHO
https://t.co/Bie8pUy7WJ
2. 372 people signed it but we want to boost it
3. I post link ascomment on related YT videos
Tks @KevinMcH3 for the tip
4. You can help by liking the comments
5. That will increase visibility!


6. Links for YT videos with comments are here
1. China curtails hunt for virus origins
https://t.co/NhcYdtsd2Y
2. China: nearly 500,000 may have been infected in Wuhan
https://t.co/KRUQ5hFrii
3. WHO becomes US-China battleground | DW Documentary
https://t.co/8ah8M8bpiB


4. Gravitas: The 'hidden hunt' for COVID-19 origins
https://t.co/hHhhUqgPYt
5. Seeking the invisible: hunt for origins of deadly Covid-19 coronavirus will take scientists to Wuhan
https://t.co/tCPQqjUZF3
6. WHO team to probe COVID-19 origins in

7. How forensic researchers track down origins of SARS-CoV2
https://t.co/r7A1lkr5li
8. Bats, roadblocks & the origins of coronavirus - BBC
https://t.co/Kh9jacC54t
9. New coronavirus strain is far more infectious and spreading among young - BBC

10. https://t.co/OcpAZ9nrl3
11. https://t.co/OcpAZ9nrl3
12. https://t.co/OcpAZ9nrl3
13. https://t.co/PhmoSfvbD8
14. https://t.co/TsvB7SYN2c
15. https://t.co/0o5YbmiUbJ
16. https://t.co/ir7QiwmlWt
17. https://t.co/PTT3KZDi8F
18.

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Funny, before the election I recall lefties muttering the caravan must have been a Trump setup because it made the open borders crowd look so bad. Why would the pro-migrant crowd engineer a crisis that played into Trump's hands? THIS is why. THESE are the "optics" they wanted.


This media manipulation effort was inspired by the success of the "kids in cages" freakout, a 100% Stalinist propaganda drive that required people to forget about Obama putting migrant children in cells. It worked, so now they want pics of Trump "gassing children on the border."

There's a heavy air of Pallywood around the whole thing as well. If the Palestinians can stage huge theatrical performances of victimhood with the willing cooperation of Western media, why shouldn't the migrant caravan organizers expect the same?

It's business as usual for Anarchy, Inc. - the worldwide shredding of national sovereignty to increase the power of transnational organizations and left-wing ideology. Many in the media are true believers. Others just cannot resist the narrative of "change" and "social justice."

The product sold by Anarchy, Inc. is victimhood. It always boils down to the same formula: once the existing order can be painted as oppressors and children as their victims, chaos wins and order loses. Look at the lefties shrieking in unison about "Trump gassing children" today.