Item — HN Reader

I don't like Section 230 because "actual knowledge" no longer matters, as tech companies willfully blind themselves to the activities on their platforms.

~~As an example, there are subreddits like /r/therewasanattempt or /r/interestingasfuck that ban users that post in /r/judaism or /r/israel (there used to be a subreddit /r/bannedforbeingjewish that tracked this but that was banned by reddit admins). This isn't the First Amendment, since it's just a ban based on identity instead of posting content.

According to the US legal system, discrimination based on religion is wrong. I should be able to fix this by complaining to reddit and creating actual knowledge of discrimination. In practice, because there is no contact mechanism for reddit, it's impossible for me to create actual knowledge.~~

edit: I still believe the above behaviour is morally wrong, but it isn't an accurate example of the actual knowledge standard as others have pointed out. I'm leaving it here for context on the follow-up comments.

The TechDirt article doesn't engage with this. It asserts that:

>> Section 230 now has been used to shield tech from consequences for facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking. And in the meantime, the companies grew to be some of the most valuable in the world.

> None of those cases would have succeeded under the First Amendment, again because the companies had no actual knowledge of the underlying issues, and thus could not be held liable.

However, if you try to use Facebook's defamation form[1] and list the United States as an option:

> Facebook is not in a position to adjudicate the truth or falsity of statements made by third parties, and consistent with Section 230(c) of the Communications Decency Act, is not responsible for those statements. As a result, we are not liable to act on the content you want to report. If you believe content on Facebook violates our Community Standards (e.g., bullying, harassment, hate speech), please visit the Help Center to learn more about how to report it to us.

[1]https://www.facebook.com/help/contact/430253071144967

4 comments

> This isn't the First Amendment, since it's just a ban based on identity instead of posting content.

This is not why the First Amendment does not apply. The First Amendment does not apply to private entities. It restricts the government…

> 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.

At least from a First Amendment standpoint, Reddit can do what it feels like to establish a religion, ban all religious discussion, tell reporters to go to hell, start a news feed, etc. There are other laws they do need to deal with of course.

More commentary on this here:

https://www.cnn.com/2021/01/12/politics/first-amendment-expl...

I agreed with you. If Reddit wanted to ban certain types of posts, they're entitled to under the First Amendment.

They're not entitled to discriminate against certain races, ethnicities, or religions though.

https://harvardlawreview.org/print/vol-133/white-v-square/

They most certainly are allowed to discriminate based on religion. The only laws on the books regarding religious discrimination are for employers who could potentially discriminate against their employees (or in hiring) based on their religion:

https://www.eeoc.gov/religious-discrimination

There's no law that says you can't say, run a website that only allows atheists to participate, or non-Jews, or non-Christians, or non-Muslims, or whatever religion or religious classification that you want.

Discriminating based on race or ethnicity is a different topic entirely. You can choose your religion (it's like, just your opinion, man) but you can't choose your race/ethnicity. There's much more complicated laws in that area.

> The only laws on the books regarding religious discrimination are for employers who could potentially discriminate against their employees (or in hiring) based on their religion.

You've overlooked prohibitions on religious discrimination in public accommodations [1].

[1] https://www.law.cornell.edu/uscode/text/42/2000a

Reddit is not a place of public accommodation. It's a private web company. And furthermore, Reddit isn't the one doing the banning. It's Reddit users that are blocking members from their subreddit. The rest of Reddit is free to be browsed by said users.

If I create a Google chat group, and I only invite my church members to said group is Google violating anti-discrimination laws? No.

~~You're~~ the commenter 3 layers above is trying to interpret anti-discrimination laws to cover the actions of users of a service, no the service itself.

> You're trying to interpret anti-discrimination laws to cover the actions of users of a service, no the service itself

You are failing to take into account context. My comment had nothing whatsoever to do with anything about Reddit.

My comment is responding to a comment that asserted that the only laws regarding religious discrimination are for employers potentially discriminating against employees.

I provided an example of a law prohibiting religious discrimination in something other than employment.

There absolutely is such a law, the Civil Rights Act of 1964, specifically Title II. If you provide public accommodations you may not discriminate based on religion. You can't stick a "No Muslims allowed" sign on your restaurant because it's open to the public.

Reddit is publicly available even if they require registration, and neither Reddit nor subreddit mods may legally discriminate based on anything covered under the CRA.

https://www.justice.gov/crt/title-ii-civil-rights-act-public...

The CRA only covers physical spaces (places of "public accommodation"). Not services (like Reddit).

My understanding is that businesses cannot deny service based on protected class. E.g. Reddit couldn't put "Catholics are barred from using Reddit" in their TOS.

But subreddit bans are done by users of Reddit, not by Reddit itself. If someone on Xbox Live mutes the chat of Catholics and kicks them from the lobbies they're hosting, you can't go complain to Microsoft because these are the actions of a user not the company.

Websites are public accommodations, this has been litigated over and over and over again. That why you can sue the owner of a website over ADA violations if they offer services or products to the public.

I don't know why you keep doubling down when you're verifiably, provably wrong. I understand you may not want this to be the case, but it is.

But Reddit isn't discriminating against certain races, ethnicities, or religions. Individual subreddit admins are discriminating on the basis of identity. This no different than creating a Discord server or IRC chat channel where you only let in your church friends. Reddit isn't refusing service on the basis of protected class. Reddit users are doing so.

The issue is that individual subreddit moderators each control hundreds of subreddits with millions of users. If 10% of the top subreddits ban anyone that participates in /r/Judaism or /r/Israel, that's a much bigger impact than a ban happy Discord mod.

If one friend group is racist and you can't eat dinner at their house, that's qualitatively different than systemic discrimination by the restaurant industry.

In this case, Reddit's platform has enough systemic discrimination that you have to choose between full participation in front-page posts or participation in Jewish communities.

If you're talking about what your opinion of is morally right, or a healthy social media ecosystem I'm not really disagreeing with you - I don't think it's good for the subreddit mods to do this. But as per your comments, it does sound like you're making the claim that this activity is running afoul of nondiscrimination laws. This is incorrect.

> If 10% of the top subreddits ban anyone that participates in /r/Judaism or /r/Israel, that's a much bigger impact than a ban happy Discord mod.

The impact is not what matters. What matters is that the banning is done by users, not by the company. Non-discrimination laws prohibit businesses from denying business to customers on the basis of protected class. It doesn't dictate what users of internet platforms do with their block button.

> that's qualitatively different than systemic discrimination by the restaurant industry.

Right, but a restaurant refusing a customer is a business denying a customer. If Discord or Reddit put "We don't do business with X race" in their ToS that's direct discrimination by Reddit. If subreddit moderators ban people because they do or don't belong to a protected class, that's an action taken by users. You're free to create your own /r/interestingasfuckforall that doesn't discriminate.

A bar can't turn away a customer for being Catholic. If a Catholic sits down at the bar, and the people next to him say "I don't want to sit next to a Catholic", and change seats to move way from a Catholic patron that's their prerogative. Subreddit bans are analogous to the latter.

> But as per your comments, it does sound like you're making the claim that this activity is running afoul of nondiscrimination laws.

I edited my original comment because others have pointed out it doesn't run afoul of antidiscrimination laws. You acknowledge that this behaviour is morally wrong, but don't say whether or not a platform should have a responsibility to prevent this behaviour. I believe they should

While the mechanism by which systemic discrimination occurs is different because it's individual users instead of the business, the impact is the same as businesses/public spaces discriminating against individuals.

This is because common social spaces are barred off to people of certain ethnicities and that means they can't fully engage in civic life.

Here's another question. Let's say a mall is composed entirely of pop up stores that close at the end of every month. These stores invariably ban visible minorities from using their services. Attempts to sue the stores fail, because the store no longer exists by the time you gather the information necessary to sue it. While the mall itself does not promote racial discrimination, it is impossible for visible minorities to shop at the mall.

Should the mall have an obligation to prevent discrimination by its tenants?

I would say "yes". In your bar example, it is still possible for a Catholic to get a drink at the bar. In the mall example, it is impossible for a minority to shop.

On Reddit, if it is impossible for someone to be Jewish or Israeli because they are banned on sight from most subreddits, that should be illegal.

> Here's another question. Let's say a mall is composed entirely of pop up stores that close at the end of every month. These stores invariably ban visible minorities from using their service

Again, this is already illegal because the stores are businesses and they can't deny service on the basis of protected class.

The issue at hand is that the government cannot compel individual users to interact with other users. How would this work? You try to mute someone on Xbox Live and you get a popup, "Sorry, you've muted too many Catholics in the last month, you can't mute this player." Likewise, would Reddit force the moderators to allow posts and comments from previously banned users? And what would prevent their content from just getting downvoted to oblivion and being automatically hidden anyways?

Reddit can (and sometimes does) control who can be, and who is a moderator.

So your distinction doesn't exist: This is effectively the business Reddit engaged in discrimination.

Plus when I read Reddit I'm not interacting with a moderator, I'm interacting with a business.

An actual analogous example would be if individual people use a tool to block anyone Jewish from seeing their comments and replying to them. It would be pretty racist of course, but not illegal. A subreddit though, is not the personal playing area of a moderator.

Reddit bans subreddits whose moderators do not remove content that breaks the ToS. They do not require that communities refrain from banning certain people or content. Basically, you can only get sanctioned by reddit as a moderator for not banning and removing content from your subreddit.

> A subreddit though, is not the personal playing area of a moderator.

Oh, yes. Yes it is.

Many of the better communities have well organized moderation teams. But plenty do not. And the worst offenders display the blunt reality that a subreddit is indeed the play thing of the top mod.

None of this has to do with the First Amendment including the legal review you linked to.

The Unruh Civil Rights Act that is discussed does not extend the First Amendment as the First Amendment does not restrict the actions of businesses. The Unruh Civil Rights Act does not extend the First Amendment as it does not restrict the actions of Congress or other legislatures.

Freedom of Speech in the Amendment also has specific meaning and does not fully extend to businesses.

https://constitution.findlaw.com/amendment1/freedom-of-speec...

People need to understand that the only entity that can violate the constitution is the government. Citizens and companies are not restricted in their actions by the constitution, only the law.

False. See generally the state actor doctrine. Courts have ruled extensively in the context of criminal investigations and FedEx; railroads and drug testing; NCMEC and CSAM hashes; and informant hackers and criminal prosecution.

Which is just the government acting through proxies

> I don't like Section 230 because "actual knowledge" no longer matters, as tech companies willfully blind themselves to the activities on their platforms.

This is misleading. It seems like you're predicating your entire argument on the idea that there is a version of Section 230 that would require platforms to act on user reports of discrimination. But you're fundamentally misunderstanding the law's purpose: to protect platforms from liability for user content while preserving their right to moderate that content as they choose.

Section 230 immunity doesn't depend on "actual knowledge." The law specifically provides immunity regardless of whether a platform has knowledge of illegal content. Providers can't be treated as publishers of third-party content, period.

It's not that "'actual knowledge' no longer matters," it's that it never mattered. Anti-discrimination law is usually for things like public accommodations, not online forums.

My point is that platforms should have more of a responsibility when they currently have none.

> But you're fundamentally misunderstanding the law's purpose: to protect platforms from liability for user content while preserving their right to moderate that content as they choose.

I understand that this is the purpose of the law, and I disagree with it. Section 230 has led to large platforms outsourcing most of their content to users because it shields the platform from legal liability. A user can post illegal content, engage in discrimination, harassment, etc.

> Anti-discrimination law is usually for things like public accommodations, not online forums.

Anti-discrimination law should be applicable to online forums. The average adult spends more than 2 hours a day on social media. Social media is now one of our main public accommodations.

If one of the most-used websites in the USA has an unofficial policy of discriminating against Jewish people that isn't covered by the current laws as that policy is enforced solely by users, that means the law isn't achieving its objectives of preventing discrimination.

> platforms should

> Anti-discrimination law should

I don't disagree with you. But you must distinguish between what the law does, and what it should do, in your view. Otherwise you are misleading people.

You're correct (as you pointed out elsewhere), so I edited my original comment.

I'm not sure where you learned that the US legal system is against religious discrimination in private organizations, but it's not strictly true.

Many religious organizations in the US openly discriminate against people who are not their religion, from christian charities and businesses requiring staff to sign contracts that state they agree with/are members of the religion, to catholic hospitals openly discriminating against non-catholics based on their own "religious freedom to deny care". One way they can do this is an exemption to discrimination called bona fide occupational qualification suggesting that only certain people can do the job.

In a more broad sense, any private organization with limited membership (signing up vs allowing everyone) can discriminate. For example some country clubs discriminate based on race to this day. One reason for this is that the constitution guarantees "Freedom of Association" which includes the ability to have selective membership.

It's on a state-by-state basis.[1] In California in particular, courts have ruled online businesses that are public accommodations cannot discriminate:[2]

> The California Supreme Court held that entering into an agreement with an online business is not necessary to establish standing under the Unruh Act. Writing for a unanimous court, Justice Liu emphasized that “a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services,” and that “visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store.”

I'm not sure what Catholic hospitals refuse non-Catholics care. My understanding is they refuse to provide medical treatments such as abortion that go against Catholic moral teachings, and this refusal is applied to everyone.

[1] https://lawyerscommittee.org/wp-content/uploads/2019/12/Onli...

[2] https://harvardlawreview.org/print/vol-133/white-v-square/

> In California in particular, courts have ruled online businesses that are public accommodations cannot discriminate.

Yes.

But there is a legal distinction between a business website that offers goods/services to the public (like an online store), and a social media platform's moderation decisions or user-created communities.

Prager University v. Google LLC (2022)[1] - the court specifically held that YouTube's content moderation decisions didn't violate the Unruh Act. There's a clear distinction between access to services (where public accommodation laws may apply), and content moderation/curation decisions (protected by Section 230).

[1] https://law.justia.com/cases/california/court-of-appeal/2022...

You are right, thank you for the citation.

edit: there's another comment chain you might be interested in about whether the federal civil rights act is applicable.

Thanks :-)

That's a good thing. We don't want Meta to be adjudicating defamation. Just look at the mess DMCA takedown notices are. When you tell companies to adjudicate something like copyright or defamation, they are just going to go with an "everybody accused is guilty" standard. (The only exception is large and well known accounts that bring in enough ad revenue to justify human involvement.) This will just turn into another mechanism to force censorship by false reporting.