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TL;DR The First Amendment and Section 230 immunity work together to protect free speech on the Internet. Attempts at Section 230 reform based on how online platforms use their editorial discretion will run into Constitutional limitations.
The First Amendment and Section 230 immunity work together to protect free speech on the Internet. Attempts at Section 230 reform based on how online platforms use their editorial discretion will run into Constitutional limitations.
Complaints of anti-conservative bias by major online platforms have led to proposals to modify Section 230 immunity in ways that target the manner in which platforms moderate user-generated content. Proponents contend that absent some sort of liability these dominant digital “gatekeepers” of news and social opinion will skew their content-moderation practices to reflect their own political preferences, dishonestly labeling conservative views as offensive or otherwise in violation of the platform’s terms of use.
Online platforms have a First Amendment right to adopt whatever content standards they choose. With very few exceptions the government may not mandate speech. But a law requiring online platforms to adopt a particular set of content moderation practices — say, to maintain a “balance” of political views — would do just that. Conditioning Section 230 immunity on online platforms giving up their right to editorial discretion would be unlikely to survive the strict standard of review to which such government regulation of speech would be subjected by the courts.
Download the tl;dr explainer PDF here
Regulatory Comments In this comment, we address the first question presented by the Commission (“Is there a continuing need for the Rule as currently promulgated? Why or why not?”). This comment answers that question in the negative, arguing the FTC should return to the pre-2013 version of the COPPA Rule.
In this comment, we address the first question presented by the Commission (“Is there a continuing need for the Rule as currently promulgated? Why or why not?”). This comment answers that question in the negative, arguing the FTC should return to the pre-2013 version of the COPPA Rule. However, these comments also speak to several other questions, including specifically:
b. What are the aggregate costs and benefits of the Rule?
• The benefits are unclear, but the costs — in the form of restricting the ability of family- friendly content creators to monetize their products — are real.
c. Does the Rule include any provisions not mandated by the Act that are unnecessary or whose costs outweigh their benefits? If so, which ones and why?
• The 2013 amendment’s definition of personal information is not only arguably inconsistent with the statute, but also very costly in restricting targeted advertising.
2. What effect, if any, has the Rule had on children, parents, or other consumers? a. Has the Rule benefited children, parents, or other consumers? If so, how?
• The benefits to parents or children are unclear.
b. Has the Rule imposed any costs on children, parents, or other consumers? If so, what are these costs?
• The costs on children and parents are felt in less-available zero-priced online children’s content.
c. What changes, if any, should be made to the Rule to increase its benefits, consistent with the Act’s requirements? What costs would these changes impose?
• The repeal of the 2013 amendments and returning the focus of COPPA to protecting children from online threats would decrease COPPA’s costs while maximizing its benefits to society.
9. Do the definitions set forth in § 312.2 of the Rule accomplish COPPA’s goal of protecting children’s online privacy and safety?
• The definition of personal information does not clearly protect online privacy and safety, but it does impose costs on online children’s content creation.
12. The 2013 revised COPPA Rule amended the definition of “Personal information” to include, among other items, a “persistent identifier that can be used to recognize a user over time and across different websites or online services.” Has this revision resulted in stronger privacy protection for children? Has it had any negative consequences?
• There are no clear benefits to privacy in this revision, but there are negative consequences in less online children’s content creation.
In Part I, this comment argues that the 2013 amendments got the purpose of COPPA wrong in focusing on targeted advertising rather than protection from predators. In Part II, this comment explains how the 2013 changes to the definition of personal information and the YouTube enforcement action exemplify this changed focus and resulted in making the monetization of children-friendly content online much harder. Part III then analyzes the 2013 definition of personal information in a cost-benefit framework and finds the uncertain benefits to children’s privacy are outweighed by the harm to children’s content creation.
TOTM The central irony of the Economists’ Hour is that in criticizing the influence of economists over policy, Appelbaum engages in a great deal of economic speculation himself. Appelbaum would discard the opinions of economists in favor of “the lessons of history,” but all he is left with is unsupported economic reasoning.
John Maynard Keynes wrote in his famous General Theory that “[t]he ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.”
Read the full piece here.
TOTM For most people, the word discrimination has a pejorative connotation of animus based upon prejudice ... but another definition is a lot less charged: the act of making or perceiving a difference.
A spate of recent newspaper investigations and commentary have focused on Apple allegedly discriminating against rivals in the App Store. The underlying assumption is that Apple, as a vertically integrated entity that operates both a platform for third-party apps and also makes it own apps, is acting nefariously whenever it “discriminates” against rival apps through prioritization, enters into popular app markets, or charges a “tax” or “surcharge” on rival apps.
TOTM The shift in oversight responsibility from parents to the FTC will likely lead to less-effective oversight, more difficult user interfaces, less children’s programming, and higher costs for everyone — all without obviously mitigating any harm in the first place.
The FTC’s recent YouTube settlement and $170 million fine related to charges that YouTube violated the Children’s Online Privacy Protection Act (COPPA) has the issue of targeted advertising back in the news. With an upcoming FTC workshop and COPPA Rule Review looming, it’s worth looking at this case in more detail and reconsidering COPPA’s 2013 amendment to the definition of personal information.
TOTM Monday July 22, ICLE filed a regulatory comment arguing the leased access requirements enforced by the FCC are unconstitutional compelled speech that violate the First Amendment.
Monday July 22, ICLE filed a regulatory comment arguing the leased access requirements enforced by the FCC are unconstitutional compelled speech that violate the First Amendment.
Regulatory Comments ICLE submitted comments to the FCC on the First Amendment implications of the leased access rules. Associate Director, Legal Research Ben Sperry argued the changes in the video marketplace towards competition undercut the justification for subjecting regulation of cable operators' speech to only intermediate scrutiny.
ICLE submitted comments to the FCC on the First Amendment implications of the leased access rules. Associate Director, Legal Research Ben Sperry argued the changes in the video marketplace towards competition undercut the justification for subjecting regulation of cable operators’ speech to only intermediate scrutiny. As a result, the leased access rules should be reviewed as compelled speech under strict scrutiny. The leased access rules are not narrowly tailored to a compelling government interest and therefore would fail under the strict scrutiny standard.
Click here to read the full comments.
TOTM Despite the simplistic narrative tying President Trump’s vision of the world to conservatism, there is nothing conservative about his views on the First Amendment and how it applies to social media companies.
Yesterday was President Trump’s big “Social Media Summit” where he got together with a number of right-wing firebrands to decry the power of Big Tech to censor conservatives online. According to the Wall Street Journal…
TOTM After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied.
After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied. For instance, I think the law and economics tradition, specifically the insights of Ludwig von Mises and Friedrich von Hayek on the importance of price signals, can explain one of the major problems for public defenders and their clients: without price signals, there is no rational way to determine the best way to spend one’s time.
