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Free Speech: Cherished liberty under relentless attack (1)


Now the other day I posted a post which referred to Section 230. It seems I may have erred in my comments. This piece has more information

Members of Congress are fond of wrongly calling Section 230 (47 U.S.C. § 230) a “big tech company” immunity, implying that it doesn’t protect anyone else. And they are not alone in this mistake. We frequently hear the same mischaracterization from friends in academia and legacy news media. 

The characterization is wrong because Section 230’s protections have been enjoyed and employed by a wide variety of Internet users. The law’s protections are in no way limited to “tech companies,” of any size.

Section 230, by its language, provides immunity to any “provider or user of an interactive computer service” when that “provider or user” republishes content created by someone or something else, protecting both decisions to moderate it and those to transmit it without moderation. “User,” in particular, has been interpreted broadly to apply “simply to anyone using an interactive computer service.” This includes anyone who maintains a website, posts to message boards or newsgroups, or anyone who forwards email. A user can be an individual, a nonprofit organization, a university, a small brick-and-mortar business, or, yes, a “tech company.”

The “news media entity-social media platform” dynamic is a helpful example here. Legacy news media companies often complain that Section 230 gives online social media platforms extra legal protections and thus an unfair advantage. But Section 230 makes no distinction between news entities and social media platforms. Instead, the only distinction the law creates is between online and offline publication, a recognition of the inherent differences in scale between the two modes of publication. And plenty, if not the vast majority, of news media entities publish online—either solely or in tandem with their print editions. When a news media entity publishes online, it gets the exact same Section 230 immunity from liability based on publishing someone else’s content that a social media platform gets.

So, for example, news media entities have Section 230 immunity from any liability that arises from comments that readers post to articles, wire service stories, or advertisements. And they have been highly successful when they do raise Section 230 as a defense. As Prof. Eric Goldman has catalogued, “One of the safest bets in Section 230 jurisprudence is that a traditional media publisher won’t be liable for user comments to its website.” Conversely, a big tech company is not protected by Section 230 when it publishes someone else’s content in print. So, for example, Airbnb can’t use Section 230 to shield it from liability based on user reviews or letters to the editor that it might publish in its new print magazine.

EFF’s own work on Section 230 reflects the wide variety of Internet users who are protected from liability by the law. In our current challenge to FOSTA, our clients are the Internet Archive, nonprofit human rights organizations and individuals who maintain websites, and an individual who wishes to advertise on Craigslist. We previously represented the Internet Archive in two other cases challenging restrictions to Section 230’s protections.

Of course, the ultimate beneficiaries of Section 230 are all of us who want online intermediaries to exist so that we can post things online without having to code it ourselves, and so that we can read and watch content that others create. Intermediaries, be they social media platforms, news sites, or email forwarders, aren’t protected by Section 230 for their own sake. They’re protected so that they can be available to all of us who rely on them.

To be sure, “tech companies” that provide a platform for the speech of others rely on Section 230 immunity to a great extent. But it’s a mistake to say that they are the only or even the majority of those who do so, or that only or mostly they assert it as a defense to liability in court.

H/T Electronic Frontier Foundation

In NZ we see the following affronts to free speech:

Labour – Electoral Finance Act

National – Digital Communications Act

Massey University – banning Don Brash

Auckland City Council – denying facilities to Southern/Molyneux

Green Party NZ – Gharahman and Davidson

Labour Party – excessive secrecy

Labour Party – Louisa Wall

NZ First – Winston Peters and his antipathy to any questioning

NZ media for their supine sycophancy to the state

NZ media for their bias

NZ Government, whether from left or right because of the way it finances and controls media

Teachers and the way they indoctrinate children

Andrew Little and his call for a law review in this area

Ardern and the rubbish talkfest ( cult of personality) that is the Christchurch Call

We need in NZ a law, an entrenched law, that protects free speech unequivocally akin to the US First Amendment, legal rulings therefrom and Section 230.



  1. adamsmith1922 permalink*
    13/05/2019 11:08

    I know that,what I wrote was the need for a Law in NZ unequivocally protects free speech across society as a whole.


    • 13/05/2019 13:39

      I am not aware of any such law, anywhere in the world. Are you?

      I am as close to a free speech absolutist as you will find, but there are a few lines that I still think need to be drawn. If you unequivocally protect free speech across society as a whole, then you are opening up a potential holocaust of hatred.

      Should you be permitted to criticise Islam, its history, its holy writings, and its laws? Absolutely.

      Should you be permitted to take the stage in front of a crowd of Whale Oil readers and incite them to burn mosques? You may well say “yes”, but I couldn’t possibly agree.

      Furthermore, if you are thinking of a law that regulates, for example, Twitter, facebook, etc., then aren’t you infringing on private property rights, of the right to free association? Do you think the government has a role in mandating what the media must embrace? Surely that is also an attack on free speech.

      To often I fine people thinking that free speech means speech without criticism, without consequences. It does not. It means you are free to speak your mind while others are free to critique your musings. It means that your employer, social group, bar flies, may impose sanctions if your break the rules of the group.

      For example – Lions International is a voluntary membership body. One of its rules is that neither politics or religion have a place in Lions. I, a left leaning, socialist, atheist, was Vice President to a Christian, Liberal Party Candidate for State election. We would often chide each other over politics, but always quietly and as a pair, not in a meeting. Had either of us developed our differences in to an argument, one or both of us could have been expelled under the rules. Is that an attack on our free speech? You may well think so, but I couldn’t possibly agree. We freely accepted that rule on taking up membership.

      It is the same with Israel Folau. His is not a case of free speech, rather one of employment law.

      As with Don Brash. It was not about Brash’s right to be obnoxious, just about where that might be acceptable. He was not punished or prosecuted for his views, just told that he needed to book a different venue.


      • adamsmith1922 permalink*
        13/05/2019 15:22

        thank you. I much appreciate your comment. I will need some time to consider it. I think you are on point in some areas, but I am not sure I agree in others, but again many thanks for your helpful analysis


        • 13/05/2019 15:33

          No worries, I’d like to think that I am on point in all areas, but you couldn’t possibly agree. :-))


        • 16/05/2019 09:57

          Hi Adam, here is a classic case of where does Free Speech begin and end.

          Cunt is just a word, like any other word, a simple four letters, but with many uses and meanings.

          If you are aware of the word cunt then it is impossible to be shocked by it.

          If you are unaware of the word cunt, as, say, you would expect a 5-year-old to be, then there is no fear of infecting the child. If the child is aware of the word cunt, then is that the fault of the fish shop owner? or the parent?

          Does such a word have a place in advertising?

          Up until recently, I had no hesitation in using the word when I felt it appropriate, but have recently modified my language in response to understanding more about how women respond to and feel about it. I have no hesitation using it in this post as bowdlerising it to “C word” is dubious.

          Hopefully, you see this and are able to comment.


  2. Roj Blake permalink
    13/05/2019 11:03

    How many times do I have to point this out? How many fucking times?

    The US First Amendment only applies to the government restricting free speech. It does not bind private companies, public companies, churches, sports clubs, universities, ISP’s, Media, new or old, or any other case you can think about.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


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