NY Times Joins Lots Of Other Media Sites In Totally And Completely Misrepresenting Section 230

from the seriously,-guys? dept

So, about a week ago, the NY Times properly mocked politicians for totally misrepresenting Section 230 of the Communications Decency Act. This week it needs to mock itself. Reporter Daisuke Wakabayashi wrote a piece provocatively titled (at least as it was originally published) Why Hate Speech On The Internet Is A Never Ending-Problem, with a subhead saying: "Because this law shields it." And in case you believed it might be talking about some other law, between the head and the subhead it showed part of the text of Section 230 (technically, it showed Section (c)(1)).

If you want to see how badly the NY Times botched this, just check out the current headline on the piece. It's pretty different. Now it says: "Legal Shield for Websites Rattles Under Onslaught of Hate Speech." Even that's... not great. Also, the NY Times added the following whopper of a correction notice:

An earlier version of this article incorrectly described the law that protects hate speech on the internet. The First Amendment, not Section 230 of the Communications Decency Act, protects it.

Yeah. So that's kind of a big deal. The original version blamed Section 230 -- a bill currently under attack from both sides of the aisle -- for somehow being the root cause of hate speech online, saying it's what "protected" it. And now the article admits in the fine print that, oh, whoops, actually it's that old 1st Amendment that protects it. Kind of a big difference, and one that completely undermines the entire point and thrust of the original article. That's a pretty massive fuck up

Of course, it's not entirely clear who is to blame here. Editors, not reporters, tend to write the headlines, so it's very likely that the incorrect headline came from the editorial team at the NY Times, and not Wakabayashi himself. After all, the article itself suggested that he had done some research on the matter, including speaking to Section 230 expert Jeff Kosseff, who spends much of his time these days debunking myths about 230. It also notes the actual history of Section 230, and how it was designed in order to encourage content moderation, not block it. Of course, you would not get that from that original headline, which suggested something very, very different.

Law professor and the UN's expert on free speech, David Kaye, wrote an excellent piece in response to the NY Times piece detailing not just the problems with that original headline, but some other important points regarding the idea that Section 230 is somehow responsible for hate speech:

But that headline… Does hate speech persist online because Section 230 of the Communications Decency Act “shields it”? I’m sorry, Times readers; if you were looking for an easy fix to online hate, this isn’t it.

From there he goes on to list four important questions anyone looking to regulate "hate speech" online needs to answer. You can read his entire piece for explanations of each question, but I'll just list them out there:

First, what is “hate speech”?

Second, who should regulate it? Who decides?

Third, should there be a global standard and global enforcement?

Fourth, and finally, what to do about Trump and other public officials who trade in hateful content?

Too often people get stopped at that first one, with some sort of "well, it's obvious" kind of response. And that would be great if that were so, but it's not. And when you combine the first and second questions, we've noticed quite a pattern, in that when governments get to define hate speech, they quite frequently use it to target critics, the marginalized, and the powerless. I mean , it's not like we have ton of articles showing just that.

And, given that Kaye's final question is what to do about Trump and other public officials, a related "5th" question might be why would you want a government led by someone like Trump, who has shown a propensity to ratchet up tensions and hate, deciding what counts as hate speech? Because he (and his supporters) certainly would argue that nothing he says should count as hate speech. To them it's either everyone else "misinterpreting" him, or it's a joke. Or, I guess, sometimes they'll just lie and claim "fake news."

But there's a bigger point here. Taking away Section 230 certainly doesn't do anything to stop hate speech online. Making platforms liable for content could very likely increase that kind of speech online for a variety of reasons. First of all, as noted, at least in the US, it's protected by the 1st Amendment. And some of the proposals to modify Section 230 are premised on the idea that platforms need to leave up all speech that is protected under the 1st Amendment. That would certainly lead to much more of the kind of speech that the NY Times is apparently concerned about.

Other proposals try to put some sort of "knowledge" standard on the speech. And, in such cases, you go back to a standard where platforms are encouraged to just look the other way and deliberately blind themselves to avoid having any kind of "knowledge." It's hard to see how that makes any sense at all.

The whole point of Section 230 -- which the NY Times of all papers should understand -- is that it created an important balance to try to enable the most "good" speech possible, while limiting the most "bad" speech. And it did so in a very clever way -- by letting the various internet platforms decide how best to meet that balance, rather than by dictating what is and what is not "good" and "bad" speech. Different platforms can and do create their own standards. That has been incredibly valuable not just for free speech online, and not just for innovation on the internet, but also in allowing for widespread experimentation with platform moderation.

It's too bad that rather than educate its readership about all of that, the NY Times decided to jump on the misleading (and simply incorrect) bandwagon claiming that 230 is somehow to "blame" for bad stuff online.

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Filed Under: free speech, moderation, new york times, section 230, social media