Daily Archives: January 23, 2021

PHILADELPHIA (KYW Newsradio) Several social media platforms have kicked President Trump off their feeds over allegations he incited the violence at the Capitol, while last week, the Philadelphia District Attorney's office began investigating whether one of their own detectives committed a crime when he allegedly posted he was ready for war over the election results.

All of this begs the question: what are your First Amendment rights on social media?

Basically, you are free to yell and scream in protest in the town's square, as it's a public space, operated by the government. But when it comes to social media, First Amendment attorney Kaitlan Gurney with Ballard Spahr said you don't actually have a "right" to be there.

"You have no first amendment right to post anything on Twitter, because it's a private company," she explained. That also goes for Facebook, Snapchat or any other platform, as social media isn't a protected platform for free speech.

"It's their own private constitution, if you will, but the U.S. Constitution is simply not involved," she added. "When one of my kids invites a friend over to my house, they need to abide by my rules. And that's exactly what's happening on social media. These companies are saying if you post on my platform, you need to abide by my rules."

When it comes to your job, Gurney said you have to abide by their social media policies.

"It can be a little different if you are a government employee or if you have a specific contract that lays out the rules for which you need to abide by, but if you are just a typical employee working for an everyday company and you are considered a work for hire, you can absolutely lose your job for what you say on social media," she said.

As for the detective, he has been suspended and relieved of his weapon, according to a DAO spokeswoman, while they investigate whether he advocated for a violent crime.

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Does the First Amendment protect you on social media? - RADIO.COM

WENTWORTH Amy Simpson, the former senior deputy director of the Rockingham County Board of Elections, recently filed a federal lawsuit against the board and two of its members, alleging they violated her First Amendment rights and state law by firing her Sept. 29.

In Simpsons complaint, made by her attorney Walter Horton of Winston-Salem in U.S. District Court for the Middle District of North Carolina, Simpson alleges she was wrongfully terminated after board members Toni Reece and Bonnie Purgason acted to have her ousted based on a private conversation Simpson had with her doctor about placement of a sign outside his office.

Simpson, who is seeking a jury trial, asks in the lawsuit for $100,000 in punitive damages, both from the board and from Reece and Purgason, $25,000 in compensatory wages for time she performed the duties of interim elections board director, reinstatement as senior deputy director of the elections board, and further damages to be awarded at the discretion of a jury, including legal costs.

A longtime county employee who had served in various jobs over the past 20 years, including interim Register of Deeds, Simpson was dismissed 10 months before she became eligible for full retirement benefits.

The lawsuit claims Simpson, during a visit to her physician, asked the doctor, "if a friend could put a sign up outside of his office He said, yes, the suit reads.

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Simpson sues Board of Elections, claims dismissal violated First Amendment rights - Greensboro News & Record

The Jan. 6 attack on the U.S. Capitol by supporters of President Donald Trump has brought simmering controversies over social media platforms to a boil. In the wake of Trumps incitement of the attack, Twitter first suspended and then permanently disabled his account, albeit reluctantly. Reactions from other firmsincluding Amazon, Apple, Facebook, and Googlefollowed quickly. Some suspended Trumps accounts. Others targeted disinformation, either directly, such as when YouTube began limiting false claims about the 2020 president election, or indirectly, as when Apple and Google removed Parler from their app stores.

Prior to the election, lawmakers on both sides of the aisle were already demanding that social media platforms be regulated more closely. As a candidate, President Joe Biden said he would like to see Section 230 of the Communications Decency Act repealed, though he has given no indication he will make doing so a priority. The role of online misinformation and conspiracy theories in fomenting an attack on the Capitol may generate additional urgency for reform, but there is no consensus on what such regulation ought to achieve. If increased political pressure translates into legislative activity, it will mean alterations to or the outright repeal of Section 230, which provides platforms with liability protection for most content posted by users and has emerged as the central battleground in debates over platform regulation. One Democratic proposal, floated by Reps. Anna Eshoo and Tom Malinowski in the aftermath of the attack, would limit Section 230 protections for content that encourages civil rights abuses or terrorism. A bipartisan proposal authored by Democratic Sen. Brian Schatz and Republican Sen. John Thune is aimed at encouraging transparency and consistency in platform content moderation decisions. Democrats and Republicans are deeply divided on their reasons for reforming the law: Republicans want to strip Section 230 protections because social media companies moderate too much content; Democrats want it reformed because platforms arent doing enough to quash harmful misinformation. Platforms thus face the Goldilocks problem: They can neither remove nor host too much content, but must get their curation exactly right to satisfy both camps.

These political divides hasnt stopped a wide range of observers from predicting Section 230s demise as a result of the attack on the Capitol. Getting rid of Section 230 is a seemingly straightforward way to press platforms to intervene more frequently. But a repeal is likely to cause significant disruptions in the short to medium term. In the long run, changes will be far less dramatic than either proponents or critics envisionthe information available online will probably remain relatively constant, but the entities that carry it may shift, especially if increased costs create disadvantages for start-up companies.

The first and most predictable effect of a diminution of Section 230 will be a wave of litigation. Aggrieved social media users and enterprising plaintiffs attorneys will challenge platforms decisions to leave up or take down content, to ban or restrict users, and to label posts as inaccurate or disputed. Conservative activists have already begun suing sites such as YouTube and Twitter to challenge restrictions on their accounts based on posting fake news. To date, these claims have failed. But unhappy users will re-litigate existing theories and try out new ones to compel platforms to remove or replace content. The increase in lawsuits will only gather steam if state legislatures are now authorized to draft and pass regulations, as North Dakota has already shown. This development will be helpful in at least one way: It will gradually clarify the boundaries of post-230 safeguards, such as firms terms of service, in enabling platforms to engage in content curation. However, it will be expensive and protracted.

In addition, different courts are likely to come to different conclusionsan undesirable outcome for global sites that would prefer to enforce consistent rules. While the U.S. Supreme Court might ultimately resolve some disputes, such as over First Amendment claims, others such as state-based contract doctrines do not fall directly under its purview. Variegated laws on the same internet subject make it difficult and expensive for national entities to comply fully, as past experience with anti-spam rules, privacy laws, and the contours of Section 230s exception for intellectual property have demonstrated.

The second immediate effect is likely that internet sites will become much more cautious about content. This could cause smaller and less well-funded sites, such as local journalism outlets or start-up platform firms, to disable user comments and other forms of interaction to avoid the risk of liability. Larger platforms are likely to struggle and generate incoherent responses, restricting political debate in some instances and leaving up conspiracy theories in others. A muddled response is an inevitable reaction to the uncertainty that the change in the regulatory landscape will produce. However, it will also fuel the outrage that some users feel about inconsistent standards and the purported bias by large technology companies. Changes to the sorts of user-generated content that platforms allow could have significant social consequences. It would not be a huge sacrifice to face cuts to the number of cat videos on YouTube. It would be a major loss if the sites new approach reduced copwatching.

A secondary effect of this new hesitancy will be increased costs for sites that do allow user-generated content, as they will have to review if not police it much more extensively. Users may not feel higher costs directlymost major platforms will remain nominally free, deriving revenue through ads and user data. However, to the extent one is concerned about the size of platformsif we worry about the Big part of Big Techthese increased expenditures will be counterproductive. The larger the platform, the more readily it can absorb new costs. Smaller firms and startups, though, may not be able to do so as easily, or at all. Thus, the current set of antitrust concerns around platform size and market dominance is in tension with reforming Section 230, as larger firms will be much better poised to navigate the changing legal landscapeand to shape it.

In the medium term, other areas of law will have to resolve internet-related questions that were previously dealt with under Section 230. For example, Section 230(c)(1) immunized platforms and their users for most content created by someone else. If I posted a defamatory tweet about you, you could sue me, but not Twitterand not anyone who retweeted it. This meant that courts rarely had to consider how to classify platforms under standard tort doctrine. Is Twitter more like a newspaper, which faces greater risk of liability as a publisher, or a bookstore, which is generally liable only when it has actual knowledge that it is offering defamatory content? Does retweeting make that user an author of the underlying content in the original Tweet? Or will courts, in their role of promulgating common law standards, arrive at an entirely new scheme for online information exchange?

Contract law will also have to adapt in the medium term to efforts to limit the disclaimers and protections that internet firms can build into their terms of service. It may no longer be possible, for example, to require a user to forfeit any legal claims based on removal (or retention) of content. These types of public policy choices instantiated through contract doctrine are not new but are likely to proliferate. Federal courts will have to further elucidate the question of who has standing to bring suitan issue that the Supreme Court famously ducked in Spokeo v. Robbins. Standing doctrine often serves as a get out of jail free card for federal courts, who can dispose of litigation that does not seem meritorious on a procedural question rather than a substantive evaluation of the claims. In short, without Section 230 to manage these issues, other areas of the law will be under pressure to adapt so as to create new boundaries that put users and firms on notice about the contours of potential liability.

A reform or repeal of Section 230 is also likely in the medium term to fuel another round of the encryption wars. The policy goal of reducing undesirable content such as incitement and child sex abuse material (CSAM) will probably encourage law enforcement agencies to renew their push for limits on encryption, particularly the end-to-end variety present in apps such as Signal. Most observers would support steps that would reduce harms to children, but it is not clear how much of a barrier encryption currently creates for law enforcement. For example, in 2019, federal courts authorized 3225 wiretaps. Of those, 121, or 3.75%, were encrypted; in 104 of those, law enforcement could not ultimately decrypt the information exchanged. A New York Times investigation found that law enforcement agencies devoted to investigating CSAM were understaffed and underfunded; the Justice Department has not even bothered to write reports that are required under federal anti-CSAM legislation. If encryption use by criminals is on the rise, calls for back doors, key escrow, and other limits on apps capabilities are likely to resonate. There are, however, important tradeoffs for privacy and security of user communications, especially if those users are political dissidents, journalists, or others with well-founded fears of surveillance. The past few cycles of the encryption wars have largely ended in stalemates, but another flare-up is likely brewing.

In the long term, and perhaps surprisingly, the content in the social media ecosystem will probably look similar to that available in the current environment with Section 230. This is because Section 230 is, in significant fashion, a statutory clearinghouse for constitutional concerns based on the First Amendment. As a rule, courts avoid deciding constitutional questions when there is another path for resolving an issue or case. Right now, Section 230 does this work. For the most part, it has not been necessary to decide whether and under what circumstances content moderation by internet sites constitutes protected expression by those sites (although some state courts have taken up the question).

It is likely, though, that editorial decisions about what information to permit on a platform are protected by the First Amendment. The internet is not broadcast radio or cable television. The first major Supreme Court case dealing with First Amendment questions over federal indecency regulation online resulted in a resounding defeat for the government, and the establishment of the principle that internet communication would be protected as strongly as more traditional media such as newspapers. Subsequent cases have confirmed this approach, and the Roberts court has been highly speech-protective. New attempts to regulate platforms are not likely to fare well when confronted with the powerful protections for free information exchange under the First Amendment. Thus, constitutional law will likely block most new regulation by state and federal governments alike, particularly where the underlying speech is lawful, even if repugnant. And platforms are likely to enjoy some protection for hosting even unlawful communication in some instances, particularly as they evolve toward more traditional gatekeepers instead of simply hosts for anything users produce.

The day after Section 230 is repealed or reduced is likely to be chaotic. Users and platforms will confront uncertainty about what is permissible, and both sides are likely to test those boundaries, for both must-carry and must-remove questions around content. In time, though, disputes will be resolved, and the online information ecosystem will probably adapt to the statutory changeat least, the larger platforms will. We may, though, lose the next Twitter to the added costs that a repeal would inevitably entail. New platforms may not be able to afford systems that screen material, making it harder for them to gain funding, to be acquired by larger tech firms, and ultimately to survive. Section 230 embodies American free speech norms that favor open discussion and dialogue. Even if our shared commitment to those norms wavers at times, it ultimately endures, and the longer-term online landscape for free expression will reflect that.

Derek E. Bambauer is a professor of law at the University of Arizona, where he teaches internet law and intellectual property.

Amazon, Apple, Facebook, Google, and Twitter provide financial support to the Brookings Institution, a nonprofit organization devoted to rigorous, independent, in-depth public policy research.

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What does the day after Section 230 reform look like? - Brookings Institution

A lone Trump supporter Mark Leggiero, of Florida, N.Y., stands outside the New York state Capitol objecting the inauguration of President Joe Biden, Wednesday, January 20, 2021. (AP Photo/Hans Pennink)

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We now have evidence that the biggest threat to American democracy was not the violent rioters who stormed the Capitol on January 6, but the bad-faith Republicans who work at the Capitol and spent two months fueling the Big Lie that the election was stolen in the first place. We also have evidence that ex-president Donald Trump could never have threatened democratic self-government without the help of social media companies. And we now have a case study on what happens to insurrectionists when private companies refuse to let them use those platforms to recruit, organize, and incite violence.

The cowards melt away. Deplatforming works. Delegitimizing people like Ted Cruz and Josh Hawley and Trump works. Inauguration Day proved that.

My fears of violence at the inauguration of President Joe Biden did not come to passthankfully. The day went off without a hitch. Covid-19 made this inauguration look different from all the recent ones, not white supremacists in red hats. Joe Biden still got to fist-bump Al Roker. Katy Perry got to sing Firework to fireworks. It was a beautiful day.

Its fair to say that putting 25,000 troops on the ground and locking down Washington, D.C., for a week probably played a bigger role in securing the inauguration than temporarily suspending Majorie Taylor Greene from Twitter. And one can only hope that militarizing the ceremonial functions of government does not become a new normal we all have to endure.

But there was no analogous show of might at state capitols, which the Capitol insurrectionists and other extremist groups had also threatened to attack. While state governments beefed up security ahead of the inauguration, they didnt go with the full military burlesque. However, on the day of reckoning, after the months of threats and maskless protests and plots to harm elected officials, nobody showed up to the rumble. There was no storm. There was no Kraken. There was no West Side Storyjust The Sound of Silence.

Well, I shouldnt say nobody. One person showed up in Albany, N.Y., to protest the election. A handful showed up in Sacramento, Calif., to do the same. One guy showed up in Vermont to protest the injustice of the automated customer service provided by AT&T. I tried to document the protests at state capitals around the country on Inauguration Day, because it turns out lone Trump supporter is actually my favorite phrase in the English language right now.Current Issue

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What changed between January 6, when these people gathered in significant numbers to invade the Capitol, and January 20, when these people couldnt maintain the intensity of John Cusak in Say Anything?

There are a lot of factors, but I would argue that the biggest one is that the social media companies took away their toys. One protester at the Texas state capitol in Austin even said so. Kaley Johnson, a reporter at the Fort-Worth Star-Telegram, cited a man who said he expected more people to be here, but was banned from Facebook so didnt know if anything was planned.

This is a truth that the social media companies have been denying all along in their attempts to justify making money off the forces that threaten democracy. Twitter and especially Facebook act like they are neutral platforms that are not responsible for the recruitment and aggregation of violent extremists. But weve seen report after report from experts in radicalization who have exposed how social media platforms are tools that are used to coordinate violence.

January 20 is what happens when these platforms take even minimal steps to block violent extremists from their services. After the Capitol siege, Facebook finally decided to ban QAnon accounts. It didnt even ban that many accounts: Reports suggest it restricted around 2,000 Facebook groups and around 10,000 Instagram accounts, barely a dent in its overall user base. Yet, scarcely two weeks after removing some of the most obvious bad users, the violent insurrectionists are already reduced to a couple of randos milling around state capitols with arts-and-crafts projects, wondering where the party went.

Facebook and Twitter also removed the most notorious bad user: Trump. The last 10 days have been blissfully void of his inane complaints about the election and terrifying love notes to white supremacists.

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And look whats happened. The New York Times reports that the Proud Boys, who pledged themselves to Emperor Trump not three months ago, are now calling him a total failure. Removing Trump from his Twitter account for only two weeks has already helped to cause a rift between the militant forces of white supremacy and the head of the Republican Party.

I will always believe that if Twitter had banned Trumps account the moment he started lying about the results of the election, five people would not have died in a riot at the Capitol. I will also believe that if Twitter had banned Trumps account the moment he started lying about the coronavirus, hundreds of thousands of people might have been saved from this disease. And I will always believe that if Twitter had banned Trumps account the moment he started lying about Barack Obamas nation of birth, he would never have been president in the first place.

That tells us a lot more about Twitter and the social media universe that distorts reality than it does about Trump. After all, its not like the man was silenced. Its not like he, or anybody else who had their accounts blocked in the wake of January 6, were stripped of their First Amendment rights. Indeed, to me, the most beautiful thing about these state capitol protests around the inauguration was not the schadenfreude but how those protests proved that the First Amendment is alive and well, and people who exercise their rights pose no real threat to free elections or democratic self-government.

One guy showed up at the state capitol in Idaho holding up a sign that read, Legalize Arson. He was not, to my knowledge, arrested or harmed by the government. In Georgia, two people were spied holding a sign that said, I Hate My Government. No constitutional crisis ensued. A guy in North Carolina had a sign calling the new president an imposter. Another man, in Washington, brandished a sign calling him a traitor. No Tomahawk missiles were sent to their locations.

Thats the First Amendment in action, folks, and its a beautiful thing. It is wonderful to live in a country where you can walk up to the seat of the government, scream I hate you for a few hours, and return home, safely, in time for supper. The people who object to the state have every right to voice their objections. The right to peaceably assemble must not be abridged by the government.More from Mystal

But what were not going to do is collapse the difference between the governments criminalizing political speech (which it cannot do) and private companies banning violent extremists from their services (which they should have done already). What were not going to do is require private companies to give a platform to Republican elected officials so those officials can give aid, comfort, and legitimacy to those violent extremists. What were certainly not going to do is let people who are literally talking into a cable news microphone whine about being silenced. The First Amendment was not created so Republicans with presidential ambitions could play footsie with extremists while maintaining plausible deniability. If Republicans want to freely associate with these people, go, associate, and let everybody know what youre doing. Nobody will stop you. Just dont come crying to Twitter because its harder to slide into its DMs.

What stopped the Proud Boys, banned from social media, from showing up in-person at state capitols? What stopped the Congressional Seditionist Caucus from protesting alongside their people on Inauguration Day, instead of participating in the ceremony inaugurating a new president theyve spent two months claiming is illegitimate? What stopped Trump from holding a press conference, in the room in his old house that was designed for such a thing, after he was banned from Twitter? Twitter only went live in 2006. How do all these people think protests were organized in 2005? Do these white wing nuts think Paul Revere came home one night and said, Honey, Ive been deplatformed. Nobody will sell me a saddle. Curse you, King George, you mad, brilliant bastard.

Nah, the people who tried to rebel against the government on January 6 had the same suite of First Amendment protections that were available to them on January 20. What they lost over the intervening two weeks was courage. And nerve. And the false sense of importance generated by spending their lives in an online echo chamber. Its not fun plotting the violent overthrow of the government when nobody can like your rebellion. Its not cool to share baseless online conspiracies when your employer fires you the next day. Its not strong to share memes about harming elected officials when it gets you kicked off the force.

These people will be back, of course, because social media companies have a business incentive to bring them back. The platforms want to create echo chambers and news silos where extremists feel safe and can have their worldviews confirmed by the wisdom of the like-minded crowd. Telling people youre right keeps them glued to the screen, sharing their information and seeing advertisements. Telling people youre a crazy nut job makes them feel sad and put down their phones. I do not believe people like Mark Zuckerberg or Jack Dorsey have learned anything from the insurrection they helped foment that will prevent them from making the same mistakes in the future. Even if they have, there will always be another tech bro eager to grab the underserved white-supremacist market share.

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Social media companies can never again act like theyre merely neutral players in the marketplace of ideas. Theyve created tools that can be used to radicalize people to commit violence. Theyve created a way for strongmen (and con men playing at strongman) to mobilize an insurrection against the government. If they refuse to police the forces theyve unleashed, our country will continue to be overrun with lies and violence.

But these problems are not intractable. The forces that led to Trumpism are not destined to thrive. Flush out the violent leaders of these movements from their online hidey-holes and leave their deranged followers to protest in peace. We can survive the people who are actually willing to show up to a protest; we cant survive people who have been sent to mount an insurrection. Showing up to a protest is a right, one that requires some measure of courage. Showing up to an insurrection is a violation of that right, and must be met with accountability and justice.

Inciting a mob online through social media is not a right. It is a privilege. One that social media companies should revoke. After four years of Trump, we now have proof that deplatforming liars and violent extremists just might save the country.

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Twitter and Facebook Just Proved That Deplatforming Works - The Nation