Monday, September 09, 2013

Outfielders have to keep their eye on the baseball and not play too shallow; so do free speech activists; Section 230 proposal will come up soon

Right now, it’s important for free speech advocates to keep their eyes on the ball.  Baseball provides a good analogy.  Outfielders sometimes move in, with weaker hitters (or in the bottom of the ninth with less than two outs and the winning run on third).  But they can’t afford to let the balls get over their heads.  They can’t afford to lose a ball in the sun or lights while they chase it.
Congress is very distracted right now with the Syria issue, as it officially returns to work today, Monday, September 9, 2013.  But it still faces the possibility of an intractable budget and debt ceiling fight in October.  None of this makes much sense, and it could leave persons and small businesses in this country vulnerable to destruction by terrorism carried out as blowback from an attack.  The whole NSA thing is double-edged, because if there really is a plot, to explode a dirty bomb or EMP flux device, “we” need to know about it.
There’s also the issue of the proposal by state attorneys general to remove Section 230 downstream liability protections to service providers with respect to state criminal laws (not civil).  I haven’t yet heard that this has yet been introduced, but I suspect it will be submitted at any time in each house.  Is the concern overblown?  After all, it would only come into play when a state law specifically said that a service provider (or its officers or employees) could be prosecuted.  That sounds unlikely, but New Jersey recently tried to implement such a law (I’m not sure if a similar law in Washington state went as far).  Generally, most state and federal laws on matters like this say that a party faces liability when it “knowingly” does or possesses something illegal (child pornography possession laws generally work this way, but not absolutely always).  States may try to criminalize setting up websites for the “purpose” of facilitating sex (or illegal pharmaceuticals) trafficking, or for attracting revenge porn or malicious accusations (such as with the STD carriers site discussed here March 12, 2012).  It could quickly become a serious challenge to stop these from becoming overbroad.

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