Guest post: Bad effects

Originally a comment by Screechy Monkey at Miscellany Room.

Speaking only for myself, I have no opinion on whether or not Murphy is a bigot or got what she deserved. Certainly I’m aware of the skewed nature of the debate over trans issues and the casual accusations of transphobia; on the other hand, I haven’t scrutinized her writings enough to form an opinion.

For me, it’s just a sense that this kind of thing doesn’t belong in court. I won’t go so far as to say this was a frivolous lawsuit, but it was an utterly predictable and correct result in my opinion, as both a descriptive matter (current law pretty clearly precludes it) and a normative one (that body of law is wise and prudent in this regard).

I don’t know of any principled way to say that Murphy gets to have a judge or jury rule on whether Twitter’s moderation decisions are correct, but Donald Trump and Milo Yiannopolous don’t. Or every Slymepitter who got banned from B&W or Pharyngula don’t get to have a judge decide if Ophelia or PZ acted fairly and consistently. Of course you can say that Murphy’s banning was a bad decision and those other ones were good, and I might agree, but this is a question of who gets to decide that and how.

If disgruntled people can drag social networks and message boards and bloggers into court every time they’re unhappy, you’re not going to like where that leads. The threat of litigation alone is going to make moderation risky, especially for smaller players. People with deep pockets or access to interest groups with free lawyers are going to get deferential treatment from litigation-averse platforms. Terms of service and moderation decisions will get less nuanced so that companies can say “hey, we’re completely consistent, we ban these precise words and nothing else” (or whatever). This is also why I cringe at all the “repeal section 230” proposals from politicians of every stripe.

And all of those bad effects are true even if the courts do a super awesome job of sitting as the Twitter Judicial Review Panel. Which they most certainly would not. I assure you, there are many many judges who you do not want anywhere near these decisions, and here I’m talking less about political or other issue biases and more about simple ignorance — even in 2021, there are a shocking number of judges who are complete Luddites when it comes to the internet.

I don’t know if that makes me a free speech absolutist or not. That terminology gets a little confusing here anyway, in that many people would claim that Murphy is on the side of free speech here because she is fighting against “punishment” for her speech, so then we get into arguments about state action, and free speech rights of platforms vs the rights of their users… and to me that’s all unnecessary, because I think the pragmatic argument against this kind of litigation is so strong that you don’t even need to get into all that.

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