Parler and the total legality of content moderation

Sun Jan 10 18:14:31 UTC 2021

In article <469b70b8-b1f5-bef7-5c03-b1e5d8b2c0aa at meetinghouse.net> you write:
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>That's my understanding as well, from years of hosting email lists.  As 
>soon as one starts moderating, the rules change, and immunity goes away.

Thanks for bringing it up, because that understanding is 100% completely WRONG.

In 1995 a New York state court decided Stratton Oakmont v. Prodigy.
Stratton Oakmont was a stock broker, Prodigy was an early online
service, and one of Prodigy's users posted a message that allegedly
defamed Stratton Oakmont. The state court misinterpreted the earlier
federal Cubby v. Compuserve and found that since Prodigy moderated its
forums, it was a publisher and was responsible for the user's message.
(Stratton Oakmont actually was a bunch of crooks, several of whom
later went to jail, but by then this issue was long over.)

In response the US Congress passed the widely misunderstood 47 USC
230, which has two significant sections. The first part 230(c)(1) says
that "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." 

That means that if, for example, I sent a message here saying you'd
just been fired for having unnatural relations with an underage sheep,
you could sue me for libel, but you couldn't sue NANOG for carrying
the message.

The other section 230(c)(2) says "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;"

That means that if NANOG decided to that this list is about network
management, not livestock management, and deleted my message, that
still doesn't make them liable, even if there were other messages they
didn't delete. Courts have interpreted "good faith" and "otherwise
objectionable" very broadly, to include all sorts of moderation and
spam filtering.

So you are specifically allowed to moderate all you want, even if you
do not do it perfectly.

For reasons I do not fully understand, this simple law is wildly
misinterpreted, including by a lot of members of Congress who should
really know better.

You don't have to take my word for this. Lots of actual lawyers have
explained it. Here's Mike Godwin on Slate:

https://slate.com/technology/2020/12/legal-scholars-mary-anne-franks-mike-godwin-and-jeff-kosseff-on-section-230-of-the-cda.html

And here's Eric Goldman, a law professor who has been writing about
technology law for a long time:

https://blog.ericgoldman.org/archives/2021/01/new-op-ed-people-who-understand-section-230-actually-love-it.htm

https://blog.ericgoldman.org/archives/2020/07/want-to-learn-more-about-section-230-a-guide-to-my-work.htm

R's,
John

PS: with respect to Parler, it means that while Amazon wasn't
responsible for the sewage flowing through Parler, it was entirely
allowed to turn it off at any time.