Thursday, April 11, 2019

COPA opinion (2007) still does bear on the "free content without gatekeepers" question

Given some debates going on concerning “free content” on the Internet, where speakers want to be heard and are willing to let platforms make profits from their work, I thought I would refer to the Pacer copy of the COPA opinion again.

On page 11, at the bottom, there is mention of me as a plaintiff for putting my first book online (with extra footnotes), which I did on July 31, 1998 (I remember doing this from my cozy apartment in the Churchill in Minneapolis well).

On page 51, for several pages, there is detailed narrative of what would happen, given 2007 technology, if visitors had to offer age verification through credit cards to visit most websites unless there were filters. But the narrative becomes relevant were there ever a public policy change eliminating “free content” as a public “hygiene” problem (to control echo chambers, fake news, “stochastic threats” and the like).  This is at least conceivable in the future, given many other recent developments. 
The link is in the third paragraph of the March 22, 2007 post on this site.  It's ironic that there is a discussion of free content on this opinion when the law was designed to target "commercial sites", but that paradigm is not a clean one today. 
This issue is relevant for a Wordpress post I published April 10, 2918, “What happens if platforms are treated as if they were publishersor movie studios, and not as utilities?” 

Addendum: April 13

The First Amendment normally is interpreted to the narrow legal concept of "publication" (a statement to at least one person who understands it). You submit an LTE, magazine article or book manuscript to a traditional print publisher, it is under no obligation to publish it and generally does so based on its own best interests as a business (will the book sell?)  The publisher shares the First Amendment right with you. With hosted and social media platforms, publication happens mostly under the user control.  Technologically (starting in the late 1990s) this had been unprecedented. The platform has the right to curate the content with algorithms, as part of its own First Amendment right. It has the right to remove or censor content or users whom it deems as unacceptable under its own political ideology, But it would probably not have the right to collude with other businesses to get them to do so and hinder competition. Judge Reid's comments starting on p. 51 probably help support that idea.  YouTuberLaw (Lior Leser) is working on a complaint with the FTC over collusive behaviors that have allegedly been taken against conservative speakers, especially in late 2018 (as with Sargon of Akkad, Milo Yiannopoulos and others).