Elections, Rejections & the FCC

How FaceBook and Twitter are losing their role as platforms and becoming publishers.

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That Was The Week, #40


Publishers or Platforms? The Answer Matters.

It seems as if some questions will not go away. This week Mark Zuckerberg, after vociferously resisting for a long time, announced that he was OK with banning any Holocaust denial on the FaceBook platform. Opinions about mass killings of other ethnic groups could proceed without challenge. Later in the week, Facebook and Twitter acted when a post and tweet linked to a New York Post article containing hacked documents from Hunter Biden’s hard drive.

Facebook and Twitter said they will be limiting the distribution of or blocking a New York Post story making unverified claims about former vice president Joe Biden. Buzzfeed News, October 14, 2020, at 12:57 p.m. ET

The whole episode got more confusing when Jack Dorsey, the Twitter founder, and CEO, tweeted his anger at the company’s response:

Aside from the perpetual moving ball that both companies are playing with, it is clear that neither has a solid policy about its duties and responsibilities. And both are slowly but surely creeping towards editorial decision making about what their platforms can allow.

Of course, as private companies, they can do what they want, as Kara Swisher said so elegantly on CNBC Squawk Box on Thursday morning. The piece is 6 minutes but well worth watching.

And when they do “do what they want,” reasonable people can react as John Battelle from @TheRecount did:

Excuse me while I point out the most fucking obvious thing in the world when it comes to what an editor actually does: We draw lines about what is and isn’t acceptable, either as fact, as truth, as hypocrisy, or what is in the public interest. That’s the damn job of journalists: To call bullshit. And regardless of Facebook’s longstanding claims to not be a publisher or a journalistic entity, the truth is, these actions prove the company understands it is an arbiter of facts, truth, and the public interest. The  simple reality is this: The company has tried to have it both ways for Too. Fucking. Long. It’s time we treat Facebook for what it is: A media company, subject to the norms, responsibilities, and behaviors we all expect and demand from our media providers. BatelleMedia, 13 October 2020

The real decision here is whether the world can cope with platforms where a person or organization can express any legal perspective. The human race is diverse, as are its beliefs and opinions. Facts, of course, are facts, but thoughts and ideas are not. Can we collectively handle the existence of open platforms that can encompass the wide breadth of real-world points of view? Facebook and Twitter can choose to be platforms, or they can choose to be publications – that is up to them. And the trend seems to be headed towards publications with editorial policies. But in my opinion (just my idea) that is a mistake. Human beings are certainly capable of understanding that a platform, by definition, is open to all views. We can distinguish between ideas we agree with, ideas we disagree with, opinions, facts, and beliefs. We can collectively discuss and debate these points of view, and we can change or become more entrenched. And together we can influence each other by contributing facts, ideas, opinions and beliefs.

What is the alternative to this open approach? It can only be that some people designate themselves as more capable of truth than others and impose that truth on everybody. Such a ‘benevolent’, big brother, brave new world, approach goes against any sense of freedom and democracy. It reminds me of Plato in his Republic, placing all decision making power in the hands of philosopher kings so as not to have to trust the people. It does not end well.

Now (Thursday evening) the FCC has moved to state that it intends to act on Trump’s Executive Order regarding the interpretation of Section 230 of the Communications Act. Chairman Pai said that “the FCC has the legal authority to reinterpret Section 230”. The Verge pointed out:

Pai’s decision to move forward with rulemaking follows a series of moderation decisions on Wednesday made by Facebook and Twitter against a New York Post article regarding former Vice President Joe Biden’s son, Hunter Biden, who has been the subject of political attacks from the right throughout the 2020 presidential election. Facebook reduced the reach of the story, saying that it was eligible for third-party fact-checking. Twitter went even further, banning linking to the story entirely. In a thread Wednesday night, Twitter cited a 2018 rule against posting hacked information as justification for its decision. The Verge, 15 October 2020

This discussion is rapidly morphing into active policy.

Techdirt – a respected publication – responded Friday morning by questioning the FCCs power to do any reinterpretation of law:

This is bullshit. And what’s worse is that Pai knows it’s bullshit. And he’s still doing it. Because he’s a coward. He saw what happened when his fellow Commissioner Mike O’Rielly — who was effectively fired for daring to point out that the 1st Amendment blocked forcing internet websites to carry his propaganda — and Pai folded like a cheap suit.

Pai is wrong in almost everything he says above. The FCC has no jurisdiction over internet websites. Previous lawsuits have already held that. Furthermore, the FCC has no jurisdiction over Section 230, which was explicitly written to deny the FCC any authority over websites. The FCC has no power to reinterpret the law.

The final paragraph is the most ridiculous of all. He is correct that social media companies have a 1st Amendment right to free speech. And Section 230 as was written and properly and regularly interpreted by dozens of court decisions — none of which the FCC has ever said a word about — helps guarantee that right is not diminished through frivolous, bogus, and mis-directed litigation. That Pai would ignore all of that to keep a whiny President happy should tarnish Pai’s legacy much more than his dismantling of net neutrality. The fact that he now goes back on everything he has ever said in the past about the FCC and regulations on the internet is just the fetid, rotten cherry on top of a giant pile of bullshit that he has created over the years.

Also, the claim that the immunity is “denied to other media outlets” is straight up wrong. ANY outlet is protected from liability for 3rd party content on their websites. It’s why Fox News and Breitbart can have comments on their websites. It’s why things like Parler and Gab can exist. Pai knows this. He’s just being disingenuous.

In terms of actual impact, all this will serve to do is rile people up, waste a ton of time, and not actually change anything. Because it can’t. But it will create a huge mess in the meantime, distracting everybody, and wasting a ton of resources.

As a final note: we’ve long disagreed with Pai about his stances on many issues, regarding net neutrality, the digital divide, municipal broadband and more. But at least he was consistent. I’d previously believed that he was misguided, but stuck true to his principles. That is clearly no longer the case. He’s a lying hypocrite with no principles, no backbone, and should be regarded as a complete joke. No one can even say that his stance on net neutrality was a principled “small government, fewer regulations” stance any more, because this moves proves it was not. He has no problem moving for regulating the internet when it’s politically convenient. And that’s just pathetic.

So, Mark, Jack, please hold on to open platforms and resist the temptation to intervene, especially when offended. Do not continue down the path of editorial and publisher control. Trust us, humans, to be smart. And tell the FCC that you are Platforms not Publishers.

Late Update: @Jack was busy yesterday I suspect.

According to the statement Twitter now supports the following:

We believe that labeling Tweets and empowering people to assess content for themselves better serves the public interest and public conversation. The Hacked Material Policy is being updated to reflect these new enforcement capabilities.

For my part I am sympathetic to @freedomhawk:

and @BW

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