Trying to clarify

Inspired by Mabel, trying to clarify my thinking about the line between publisher and common carrier.

First: Section 230 of the Communications Act was a bad piece of “law”, undoing a very old balance and a very old distinction. In the 1990s the new online publishers like Yahoo and Myspace didn’t look like newspapers, so it was possible to give them an exemption from libel that they didn’t deserve. In fact they were always publishers. After the older newspapers established their own online versions, the similarity should have become obvious, but by that time the onliners had gained huge monopoly power and were the main purchasers of “laws” from Congressmart.

Second: The hardware of the web, the wires and routers and wi-fi towers, is the equivalent of Bell Tel or the post office. The wires are a common carrier. In fact the web has always been built on the back of the actual phone system, starting with modems connected to a landline phone in 1957. The piggybackness is more obvious in the iPhone era, where phone service and web service are in the same device.

Third: Platforms like Yahoo and Facebook and Twitter are unquestionably publishers in the old sense. Like newspapers, they carry a mix of “information” and entertainment. Like newspapers, they invite and publish letters from their subscribers**.

Fourth: Newspapers traditionally had freedom to SELECT and publish anything they wanted, limited by libel laws and copyright laws and incitement laws. Libel has always been a high bar, hard and expensive to prove. Copyright has always been a low bar, easy and relatively cheap to prove.

Fifth: SELECTING is the key point of intentional misunderstanding between the two sides. “Freedom of the press” means that a publisher doesn’t have to publish anything at all. A publisher can publish nothing if it wants, or publish only articles written by its owner, or only articles containing no vowels, or any other fucking thing that doesn’t bump into the above three limits.

Key point of disagreement:

Two balances.

Government CAN force a common carrier to carry everything.

This force is balanced by an exemption from libel for Bell Tel or the post office.

Government CAN’T force a newspaper to publish what government wants.

This lack of force was balanced by the restriction of libel and copyright laws, which are really just an encouragement to edit more carefully.

Both sides in the current disagreement want an unbalanced arrangement.

The censoring side (mostly D) wants to remove the exemption and ALSO wants to remove the freedom of the press for the “online” publishers. The censoring side insists on forcing platforms to say exactly what government wants.

The “freedom” side (mostly R) wants to treat the publishers like common carriers, but doesn’t tell us that this ALSO means the publishers must be forced to carry everything whether they want to or not.

Neither side wants to regain the old balanced situation for publishers. Neither side wants to give publishers the freedom to DESIST from publishing.

= = = = =

**This similarity is somewhat hard to see when comparing with modern monopolistic newspapers, which only publish a few letters and never treat letters as articles. Before WW2, small-town newspapers and radio stations took a large part of their entertainment features from local people, and paid them for poetry or essays or musical performances.