| | | Case law, over time, will head off the exceptions Congress makes, herding them back towards equality with the larger body of law similarly subjected to legal wrangling. Not the case with Section 230, which was very concisely written ("the twenty-six words that changed the internet") and it has been interpreted broadly in every federal circuit and a majority of state appellate courts. It has literal a mountain of precedent to that effect, and that precedent is binding on all lower courts. Plaintiff lawyers have been trying to creatively plead around it for two decades, and all that has resulted is more binding precedent that locks out that maneuvering. Only Congress can change that, as it stupidly and unnecessarily did recently with the FOSTA bill that helped nobody, hurt sex workers and created lots of false soundbites for political campaign speeches. FOSTA was specifically targeted to being down Backpage, but Backpage was brought down by the feds before FOSTA was even enacted into law. There were already criminal laws on the books to deal with their bad acts. But, FOSTA's enactment has cost in uncounted ways, such as depriving law enforcement and families of trafficking victims of an invaluable resource previously used to track down the victims and the perpetrators, and for zero benefit to anyone other than politicians' trove of re-election soundbites. Human trafficking wasn't compromised in the least; it was merely driven out of the light of day, so the politicos could claim a false victory. How did that help the children? Or law enforcement? Or families? Or anyone?
Backpage appears it was a fairly classic example... of how an overly aggressive interpretation... can lead pioneers we might otherwise see as delivering social benefit in change... into getting out ahead of their skis. That is not what happened at all. Backpage was fine until they crossed the line and began to actively participate in the crafting and development of the illegal content. By doing so they mitigated their 230 immunity. They stopped being passive participant; they were no longer just publishing third-party content and exercising their immunized editorial discretion; they were creating the content. It had nothing to do with interpretation of the law; they simply and stupidly became the author of the illegal content rather than the platform that was merely publishing it. As I mentioned above, Section 230 didn't need to be amended to accomplish that; it happened before the FOSTA amendment was ever enacted.
Ripeness is happening. Not because of conflicts in the law, but because of the snowflake PC mentality that is offended by others exercise their First Amendment rights and would prefer to have laws to muzzle opposing or what they decide is "offensive" speech, rather than self-censoring what content they consume. Even Congress is making noise about legislation "fairness" into speech, but it's all senseless talk... they will hit the brick wall of the First Amendment, as they have every time they meandered down that legislative path in the past. In the end, it's all political rhetoric parroted by the MSM talking heads who really don't know what they are talking about.
One more point; every time a law is passed (the EU's RTBF, GDPR, the upcoming CCPA, etc.) under the unspoken theory that it's going to "reign in" big tech titans like Facebook and Twitter, all it does is stifle their existing smaller competition as well as new competition. They can afford to throw massive amounts of money to comply with new regulations, which isn't even rounding error on their income statements. Meanwhile, it is a burden that cannot be taken on by smaller or would-be competition. The titans love new regulations, even if they pretend to oppose it. By "reigning them in" all government is doing is giving them a stranglehold over everyone else and future would-be new comers. That is the true unintended consequences of all of this. |
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