matthewmarkus

My goal isn't to hurt Google/Twitter/YCombinator, but to interject some responsibility.

That responsibility is coming as common law works through systems outside the USA. For instance, consider George Galloway, a far-left UK politician, and his push towards making Google pay for keeping defamatory videos online [1].

Hopefully, once people understand that, to quote the article, "an intrinsic part of freedom of speech is the right to be heard if one thinks one's character has been falsely impugned," the USA will take a serious look at either reforming or, ideally, repealing CDA 230.

"X is a rapist." (Where X is a private figure for simplification.)

The nuance is as follows:

A) Under Cubby without proactive moderation.

The website is not liable for the above speech. All the website needs to do is remove the offending speech once it is made aware of its defamatory nature, maybe via a court order.

B) Under Stratton with proactive moderation.

The website is making an effort to determine the truthfulness of content. As such, letting a defamatory post go through subjects the website to liability.

C) Under CDA 230.

As per YouTube, "Because we are not in a position to adjudicate the truthfulness of postings, we do not remove video postings due to allegations of defamation." [1]

Option C is the worst. It is akin to letting an oil company pick and choose which spills are worth cleaning up. Websites can remove things they think are defamatory to certain people and leave up other things that are defamatory to others with no repercussions.

Ideally, we would live in a world governed by A and B. In that world, sites could choose between moderation and no moderation and the corresponding legal and financial burdens. What we have right now is a mess that works to the advantage of Big Tech.

One of your sources says: No, that is wrong. CDA 230 is a superset of First Amendment protections. I agree with your source. However, I think these additional protections are a bad idea because they absolve YouTube and the like from certain responsibilities:

"Because we [YouTube] are not in a position to adjudicate the truthfulness of postings, we do not remove video postings due to allegations of defamation." [1]

That absolution is ridiculous.

There is a valley of nuance between Cubby, Inc. v. CompuServe Inc. [1] and Stratton Oakmont, Inc. v. Prodigy Services Co. [2]. All of this nuance was being worked out in the courts via common law principles before Congress short-circuited the process with CDA 230, which turned out to be one of the things that helped facilitate the rise of the Big Tech oligopoly that Congress now decries.

The big flaw is revealed in the Lawfare blog:

"[CDA 230] merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment grounds—but with far less hassle, stress and expense. At the scale of the billions of pieces of content posted by users every day, that liability shield is essential to ensure that website owners aren’t forced to abandon their right to moderate content by a tsunami of meritless but costly litigation."

The principle here isn't whether all the cases have merit or not; it is that every individual gets their day in court. That is, it is up to the courts to decide the merit of a case based on fact, which, of course, is case-dependent [1].

Denying individuals access to the courts makes them bear a cost. That cost should, in truth, be borne by Big Tech and subtracted from its profits.

As for Hacker News, it might not survive in its present form should CDA 230 be repealed. That's OK, though. Perhaps it would become PG's blog, and I would have to start my own blog to comment on matters of the day. That's entirely acceptable, and I don't find it hypocritical.