January 21, 2021 by Ken Goldstein - 0 comments

My Take On 230

A good friend on social media asked for my opinion on why Donald Trump would be so adamantly opposed to Section 230 of the Communications Decency Act of 1996. For years it is precisely Section 230 that has allowed him to expand his unedited voice and create his vast following. Now he’s banned on most of these platforms including Twitter and Facebook, which some would argue are at long last exerting a form of editorial oversight. Rather than hide behind their legal ability to allow him to rant, they have essentially silenced him.

Ironic, huh? Not exactly what he wanted in limiting this broad permission.

Has something good or bad happened? I think the answer is neither, but something evolutionary is unfolding, and depending on where that takes us, we can decide later like most history if it was good or bad.

Confusing stuff, no question. Let me try to unpack some of it as someone who has been working in this space almost since day one of the commercial internet.

While personally I would say my life has improved without the constant noise of Trump tweets, I’m afraid the world is not that simple. The resolution of this exercise may have frightening connotations in the abstract. Many are worried about free speech and arbitrary limits on the power of a single individual to curtail the public expression of another, which is something that matters dearly to all of us.

I’m not a legal professional by any stretch, but I don’t think a specific defense of ex-President Trump is what matters here. Trump no more understands Section 230 than he understands global trade and tariffs. He wants his speech free and speech against him controlled, like any dangerous autocrat. Let’s set him aside (doesn’t that feel great?) and think about the real risks and privileges waltzing into the arena of public discourse.

For reference, the historic 26 words that constitute Section 230 read: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

As simply stated as possible, that means the technology platforms are not liable for what they publish. They don’t want to be considered authors, publishers, or broadcasters. If the Wall Street Journal prints something that bothers you and you think is unfair or sloppy, you can sue it. Same with legacy brand survivors like CBS, NBC, ABC, Fox, CNN, Us Weekly, or your local talk radio station. You can sue the person who said it or wrote it, too. If you think you have been libeled, you can sue everyone. You are way more likely to lose than win, but your case can be heard in court.

These kinds of traditional media companies have accepted the responsibility to abide by legal standards of accuracy and honesty of some sort, and they must stand by the messages they share. Mostly they print retractions when they find themselves wrong, but that doesn’t stop you from seeking damages. It’s an imperfect system dependent on evolving standards, and whether we like it or not we have learned to live with it.

If you don’t like what I say about you on Facebook or Twitter, you can sue me. You can’t sue Facebook or Twitter.

What’s the difference? Section 230.

Why is there a difference? That’s what’s about to be debated heavily.

Why was the exception created? That will also widely be debated in the months and years ahead, but having been there at the outset, my sense is that it was because federal lawmakers wanted the internet to grow. They wanted to increase free speech, so we all could bring our voices to the marketplace of ideas. They probably had an inkling some of us were wacky and would make up lunatic fringe falsehoods like QAnon, but they also knew if they held the platforms liable for everything published, very little would get published. The internet would have the same filters on it as traditional media, a funnel and a gatekeeper on opinions that limited expression with editorial oversight. They hoped for something more accessible.

Remember, this was a quarter-century ago. Better angels were optimistically anticipated.

The problem here is the division is not clean when all of our voices are collected. If the technology platforms exert no control, we have the chaos we have experienced. If they exert traditional editorial control to manage or reduce liability, all internet dialogue becomes gated, and as a practical matter, the scale of the task makes it impossible to be done by humans. That would put the editorial control at the mercy of algorithms, which at this point in their evolution given the nuance of language will be even less successful than humans.

That brings us to the present conundrum. If a platform now and again edits a comment to conform to its terms and conditions, has it crossed over to becoming an editor liable for everything else on the platform? According to current law, as private companies, these platforms have a right to state terms and conditions and assert the right to enforce them.

The real question becomes whether multiple infringements of terms and conditions can justly lead to the banning of an individual, like Trump. This is the heart of the matter: Do we want an individual company or CEO deciding who gets to have a public voice and who doesn’t?

I think the banning of Trump is going to open a huge can of worms to the platform companies because they just made policy on the fly and that can’t be extrapolated fairly.

Free speech is an interesting corollary, but only because we largely understand it must have limits to work in practice. Today we know there are legal restraints on free speech because it has been tested and adjudicated. While we now understand that a Nazi group had the right to march in Skokie, we also know that is not the same as yelling fire in a crowded theater. We didn’t always know that. It took a lot of time and argument to unfold and reveal itself to multiple courts. It’s been messy, and yet free speech survives.

I think we’re there with Section 230. It’s the right big idea, but 25 years later with wildly consolidated corporate power and big new media money at play, it requires a great deal of interpretation, nuance, and finesse. It’s no more an absolute than free speech. Yes, we really can disallow direct, personally threatening hate speech without fully destroying the First Amendment. The reasoning is not straightforward except in hindsight, when we consider the more pernicious alternatives.

Regulation here is our friend, not our enemy. My sense is the dialogue we need to have is not about throwing out Section 230, but reasonably debating the rights and responsibilities of social media platforms without making them liable for every post crossing their servers. Here is where it gets even more tricky, because the law clearly allows a private business to ban an individual for violation of its stated terms and conditions, yet provides very little in the way of enforcing those standards evenly beyond obvious discrimination.

One person gets banned, another does not. How does one challenge or appeal the equal application of silencing rules? In the final analysis, what ensures us or at least gives us confidence that authority is anything but arbitrary? There is no such thing as goodwill or trust when the profit motive of the platform benefits enormously from throwing kerosene on the fire of controversy—fueling viral engagement equates to generating revenue—yet it can eliminate its critics at will under the guise of decency. That is a mega problem we aren’t even close to solving!

We don’t want to make the economic consequences of our discourse addressable only at a practical level by silence. Likewise, we don’t want any business individual with a profit motive to have the power of doling out silence for convenience. Hearst had that kind of power. Zuckerberg can’t.

The Trump legacy may be the bookends that form around Section 230, which clearly are necessary because the platforms are neither fish nor fowl. This is new ground. Internet platforms are not voices per se, but the application of needed editorial standards around facts and lies does not make them voiceless. As I write often, technology advances much faster than our ability to understand its ethical consequences.

Sadly, this morass is likely to be argued largely on economic grounds, because the remedies surrounding liability are compensated in our system through cash settlement of lawsuits. The key problem with lawsuits is they favor the well-funded, and while legal, that will never approximate the ideal of fairness. I think there is a lot more at stake than whether a company might be brought to bankruptcy paying fines and settlements, which might cause it to be overly cautious, or bold and flagrant if it has deep pockets to defend itself. Financial penalties can’t be the point, be they absorbable or game-ending. There is a public-interest necessity in our ability to express ourselves. Our government has to protect that and let the business of the internet expand.

Yes, we can.

As for Trump’s point of view, he has demonstrated repeatedly that he only cares about what serves his agenda, not nuance or principle. He has succeeded in blasting open this door, but his own point of view remains self-serving. He is purposefully ignorant, a blunt object in a fragile ecosystem that requires reflection.

We are once again facing the question of whether we do truly relish the marketplace of ideas, or if this only matters when it is safe, convenient, and nominally polite. We don’t need to open the door to criminal insurrections that put our democratic nation at risk; the off switch just worked well in that regard and I’d comfortably welcome it again, if for nothing more than a badly needed time-out.

We have addressed this before, however imperfectly, and I have great faith that given the breadth of legal minds in our nation we will begin to solve it again. Trying to make it an either/or decision is a fool’s errand. We need to retain the big idea of Section 230 and add some guard rails. Once they are tested, we can adjust them. This is likely to be a combination of legislation and judicial resolution. It will be slow and complicated and evolving. It’s worth the ambiguity to sort it out carefully.

Let the real debate begin.

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Photo: Pixabay

February 17, 2020 by Ken Goldstein - 2 Comments

The Problem with Joker

I don’t write about movies often. On the occasions I do, it’s likely because something bothered me.

Joker really bothered me.

I can’t deny the performance of Joaquin Phoenix. He is a gifted actor. He gave a masterful depiction of a troubled, anguished, sick character.

That only makes my criticism more severe.

I’m also not going to argue against First Amendment expression. The creators have an inalienable right to make and distribute this work, for profit or otherwise.

That simply makes them guilty of intellectual laziness at best, and self-serving irresponsibility at worst. I think both have occurred, and I am deeply troubled by this because of the film’s enormous audience reach. Its success makes the laziness and irresponsibility all the more pernicious. They could have done better. They deliberately elected not to do so.

I’m going to tell you why I think this movie is psychologically problematic, but first, let me warn you, this will be one of the worst spoilers ever. Do not read a sentence further if you intend to see the movie and don’t want the ending ruined.

Okay, if you’ve seen it or don’t care to see it but want to know why I’m upset, please read on.

It is important to remember that the core source material for this literary work is a comic book. I read comic books a lot as a kid, and in fact I was about as big a fan of Batman as they come. That was in the escapist pages of a comic book.

The character portrayal in this onscreen depiction seems to me evolved from the school of naturalism, extending the realm of realism to a more interpretive form of social commentary. The extreme portrayal seems less a form of entertainment than it is a comment on cruelty and its origin. The clown makeup does not separate the storytelling from the gritty suffering in the streets. The imagery throughout could appear as hyperrealism, as Stanley Kubrick approached similar territory in A Clockwork Orange, but that would have required artistic choices that aren’t evident in Joker.

There can be obvious real-world consequences to confusing the worlds of fantasy and framing souped-up slice-of-life imagery as somehow predictive or inevitable.

The ending for me is what matters when an artist seeks to claim the high ground of unconventional storytelling, purposeful inclusion of uncomfortable scenarios, or violence that is meant to disturb us in order to reboot our thinking.

It is precisely the ending of Joker that is the biggest problem for me.

Even deeper than the ending is the punchline, which snaps into place so conveniently because the unmasked Arthur Fleck aspires to be a comedian. The irony in that kind of payoff could have been emotionally rich and telling. Instead, it’s simply exploitative because it’s enunciated as instructional.

Here’s the punchline: “You get what you f*ing deserve.”

I was almost okay with the movie until that line was uttered. That’s when I believe the writers, producers, and director abandoned moral ground and just went for accelerated shock value.

I guess it’s the writer in me that feels a churn in my stomach when fellow creatives let hope for commercial success undermine their better judgment. It’s not about political correctness. It’s about pride in authorship, embracing the seriousness of disciplined expression. There are consequences to our craft worthy of foresight.

It’s extraordinarily difficult to craft a satisfying ending to any story. The more outlandish the story, the more difficult it is to structure an acceptable conclusion. By acceptable I mean an ending that doesn’t waste an audience’s time and reflects the values of those who create it. No creative team wants to be embarrassed by an ending that ruins all that comes before it, but the true test of an ending is time. How we feel when we create something is one thing. How history treats it or how we feel about it decades after its creation are entirely different benchmarks.

My immediate sense is that there are at least two distinct, conscientious ways to think about resolving a work of popular fiction as the creatives involved start working toward an ending. There’s poetic justice and there’s existentialism.

If the intention is poetic justice, a wrong should be avenged. It should be made clear that evil will not triumph over good, and though any world is imperfect, the arc of our commonality ought to bend toward justice.

If the intention is existential—nature in its own social element—no moral summation is required; the world depicted is exact, unforgiving, and unapologetic. Yet here a storyteller with something to say may bravely suggest an observation of irony or social critique. The observed criminality may not be a tool pointing toward redemption, but it can be a window of material reflection.

Neither of these occurs in Joker, and that is where the bad is enshrined.

When late in the movie Arthur is invited on “The Murray Franklin Show,” he shoots his idol dead and utters the words: “You get what you f*ing deserve.”

It’s a carefully plotted moment and among the worst forms of premeditated murder imaginable, celebrated live on television before a presumably horrified viewing audience.

Sadly, that is just a setup use of the punchline. The truer horror is to follow.

A few minutes later, the wealthy Thomas Wayne and his wife are shot dead in the street by a rioting supporter of the savage clown. He echoes the same phrase: “You get what you f*cking deserve.”

Arthur uses his punchline to justify the act of homicide. That allows the stranger to justify his act of homicide.

This is an act of parroting. This is an act of emulation. In the story, both teaching and learning have occurred. Unfortunately, the lessons are abhorrent.

The moment the elder Waynes are slaughtered is without discussion or reflection specifically because it is integral to the larger epic of Batman. The child, Bruce Wayne, watches the brutal murder of his parents, which sets him on his life’s path to become The Dark Knight who will commit his adult life to avenging this wrong.

I’m sorry, I don’t buy it. That implied forward arc is not responsible storytelling. An act this vicious must be resolved in its own context or it is no more than isolated, exploitative horror.

Again, why am I so bothered?

Think of all the unconscionable violence around us. Think of the common occurrence of mass killings, of widespread gun violence too often triggered by mentally troubled individuals who have lost any sense of a moral compass.

Presume a tiny segment of the population watching this movie and these unnerving scenes are themselves abandoned victims of social cruelty. Might they see their own suffering in Arthur’s eyes? Might they also be in any way mentally disturbed as the film’s protagonist?

What message is this movie sending them? Is it a moment of necessary caution or claimed victory? Is it a moment of hesitancy or reinforcement of their unapplied curb on self-control?

What the hell is the purpose of this punchline beyond its catchy shock value? Was this two-beat mimicry necessary to secure the film’s blockbuster potential?

My answer is that the filmmakers could have done so much better if they’d wanted something better. They could have had their cake and eaten it. All they had to do was worry as much about the possible byproducts of the film’s success as achieving financial gain. It’s not that hard to care about what you’re saying directly or inadvertently. It just has to matter to those at the helm.

If you want to tell difficult stories, you work harder to create difficult endings. Don’t walk away from the problems you frame just because you can. You have the right, but doing it isn’t right.

Joker isn’t right.

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Photo: Warner Bros Gallery

December 5, 2017 by Ken Goldstein - 3 Comments

Every Hope is Worth Saving

It’s been a rough year.

I’m not sure what to make of 2017. What we’ve seen this year on the public stage is unlike anything I can remember. We hear casual conversation about whether our elected officials and senior federal employees colluded with Russia to soil our national election. We observe mass shootings like the one in Las Vegas, now so common we barely discuss it a week later and don’t even bother utilizing it to foster a conversation on common-sense gun control. We watch the parade of famous men from all walks of life falling from prominence when confronted with their ghastly predatory behavior. We experience nature’s record storms devastating the southeastern mainland United States and Puerto Rico as we strip down the EPA, deny climate change, and fail to provide adequate resources to those fighting to rebuild their lives.

Maybe for you this was just another year. For me it was something different. I can’t get my feet to walk solidly on a path below me. My legs are too shaky. The ground is unfirm.

Despite the turmoil, the holidays have arrived. It is the season of wishes. Here are a few I am guessing many of us share:

Don’t you wish the President of the United States was a man of grace, wisdom, and compassion whom our children could admire, instead of cementing this image of awfulness in their brains for the rest of their lives?

Don’t you wish Harvey Weinstein had been called out decades ago so that dozens of women could have been spared his lurid, violent, inexcusable acts of supremacy and self-importance?

Don’t you wish the U.S. Olympic gymnastics team comprised of child champions had been spared the physical and psychological abuse of their team doctor posing as their protector?

Don’t you wish that our absolute defense of the First Amendment wasn’t being utilized by racists unashamed to wear swastikas in public and proclaim a new day for Nazi ideology?

Don’t you wish that a tax cut for the wealthy was not broadly accepted as an apologia for the reprehensible inattention to human needs our Congress trades for the financial support that keeps them in office?

Enough already, right? I told you that for me this wasn’t just another year. This was more than enduring tone-deaf leaders who won’t lead. This wasn’t a year solely to rant. This was a year that tested my belief in fairness. This was a year that took me on an inward journey where I questioned the ability to maintain my values in a world that too often and too easily openly rejects them. This was a year where I wondered if justice was more than an eloquent ideal, and whether healing was possible in a nation that can no longer find common ground in a path forward that invokes a shared understanding of our founding principles.

And so I go looking for a hope.

Because it’s the holiday season, I am also listening to a lot of Trans-Siberian Orchestra. This music is an annual tradition in our home. Last weekend my wife and I attended the TSO concert in Southern California as we do every year around this time.

The shows are fun. They are energizing. No matter how many times we hear the same songs played live under laser beams and surges of flames, the story of hope rekindles my childlike sense of wonder and optimism. In particular of late, these lyrics keep hitting me with profound motivation:

Let it go!
Let it go!
This old world that I know
For soon everything will be changing
In a single glance
Where it all enchants
And every hope is worth saving

Paul O’Neill, the visionary who created TSO, died this past year. Yes, we lost him, too, but he left behind words like this that matter to a lot of people. At this year’s concert, music director Al Pitrelli noted in honoring his former boss that Paul used to say, “Individually we are finite, together we are infinite.”

I’m buying into that. Every hope is worth saving. We cannot give up hope. We’ve had presidents who have talked about that, in metaphor and aspiration. We can lampoon the storybook notion all we want, cynical survivalists that we are, or we can be childlike and share in the embrace of vital idealism.

In my last book, my wife picked this line as her favorite, spoken by Daphne, the wise mentor and guiding light of experience:

“Hope is the strength that keeps us going.”

I’m going to try to continue that theme in my writing this year. I can always find snippets in songs that inspire me, but maybe we can find some resets hidden in the hard events surrounding us.

Throughout the darkest hours in Puerto Rico, there were quiet acts of selflessness where local individuals stood in ten-hour lines for fuel, foregoing their own ration for an elderly friend. When we see goodness in action, we are reminded that grabbing for oneself has none of the power of building together.

I recently saw a TV news story where a judge in Minnesota met repeatedly with a pregnant young heroin addict until she assured him she would get clean and become the mother he believed she could be. He could have gone by the book and sent her away, but instead he invested the time to work with her. Today the mother has a healthy son, and the son has a healthy mother.

The national (and hopefully global) awareness of men exploiting women in the workplace is likely to instill new norms of decency in our interactions. If nothing else, the immediate fear of losing everything should shut down a lot of the oppressive behavior that morosely became too common. Deterrent is a good start. Choosing to live by example is where we need to go.

Even more than the season of wishes, this is the season of hope. We can grab firmly onto any teetering branch that is reachable and attempt to repair it, or we can walk away from the broken bough and give up against overwhelming odds of measurable impact. Those are difficult words to write without sounding preachy. It is a more difficult promise to make and keep to oneself.

We arrive at the end of this year in an awkward place. In my heart I want to move along and tackle new turf, but at the moment I feel stuck. I know I am not alone. We need to get unstuck together.

Together we are infinite.

_______________________

Image: The Ghosts of Christmas Eve, Tran-Siberian Orchestra