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Twitter has allegedly censored a New York Post story alleging possible corruption by Hunter Biden and, by implication, Joe Biden in overseas business dealings.[1]

Sen. Ted Cruz on Thursday said Twitter blocked him from sharing a story from The Post that describes Hunter Biden’s pursuit of a China business deal described by documents on an alleged hard drive formerly belonging to the Democratic presidential candidate’s son.

By this editorial behavior, has Twitter waived its protection as a "platform" or "distributor" and exposed Twitter to potential tort liability as a "publisher" for all its content?[2]

Historically, American law has divided operators of communications systems into three categories.

  1. Publishers, such as newspapers, magazines, and broadcast stations, which themselves print or broadcast material submitted by others (or by their own employees).

  2. Distributors, such as bookstores, newsstands, and libraries, which distribute copies that have been printed by others. Property owners on whose property people might post things —such as bars on whose restroom walls people scrawl "For a good time, call __"—are treated similarly to distributors.

  3. Platforms, such as telephone companies, cities on whose sidewalks people might demonstrate, or broadcasters running candidate ads that they are required to carry. And each category had its own liability rules:

  1. Publishers were basically liable for material they republished the same way they were liable for their own speech. A newspaper could be sued for libel in a letter to the editor, for instance. In practice, there was some difference between liability for third parties' speech and for the company's own, especially after the Supreme Court required a showing of negligence for many libel cases (and knowledge of falsehood for some); a newspaper would be more likely to have the culpable mental state for the words of its own employees. But, still, publishers were pretty broadly liable, and had to be careful in choosing what to publish. See Restatement (Second) of Torts § 578.

  2. Distributors were liable on what we might today call a "notice-and-takedown" model. A bookstore, for instance, wasn't expected to have vetted every book on its shelves, the way that a newspaper was expected to vet the letters it published. But once it learned that a specific book included some specific likely libelous material, it could be liable if it didn't remove the book from the shelves. See Restatement (Second) of Torts § 581; Janklow v. Viking Press (S.D. 1985).

  3. Platforms weren't liable at all. For instance, even if a phone company learned that an answering machine had a libelous outgoing message (see Anderson v. N.Y. Telephone Co. (N.Y. 1974)), and did nothing to cancel the owner's phone service, it couldn't be sued for libel. Likewise, a city couldn't be liable for defamatory material on signs that someone carried on city sidewalks (even though a bar could be liable once it learned of libelous material on its walls), and a broadcaster couldn't be liable for defamatory material in a candidate ad.

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There has been no change in the law since the May 28 executive order on section 230. The Sec'y of Commerce in consultation with the DoJ were ordered to file a petition for rulemaking with the FCC, requestion the FCC to propose clarificatory regulations. This was done, see here. The topic of the rule making is about the interpretation of the statute – you can see the proposed rules at the end of the petition. The most applicable aspects of the proposed rule regard the interpretation of "good faith", and the interpretation of §230(f)(3), specifically interpreting the statutory language “responsible, in whole or in part, for the creation or development of information” so that it

includes substantively contributing to, modifying, altering, presenting with a reasonably discernible viewpoint, commenting upon, or editorializing about content provided by another information content provider

The point of these proposed rules relates to the civil immunity granted to "interactive computer services" as opposed to being a publisher. The theory is that under the new rules, a platform that restricts content based on viewpoint fails to be an interactive computer service, and instead is a publisher. This page has the collected comments on the proposed rules.

If the rules are finalized, Twitter might in the future be held quasi-liable for content that it makes available, but only within the realm of FCC's administrative power to sanction an internet stuff provider: this would not enable you to sue Twitter for libel. The courts might defer to the administration's new rules, if they find that the rules are reasonable and Congress had not spoken directly to issue. But this is all "what might happen": the existing law does not support Twitter liability.

The petition lays out the legal history of this question, if you want details.

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No. Twitter is traditionally a platform, not a distributor or a publisher. Blocking linking is not editorializing like in a publisher.

They don't act as an editor in mounting warnings or deleting posts, they enforce their rights under the Communications Decency Act, Section 230 (emphasis mine):

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

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    actually, it doesn't even matter: they block statements under Secton 230 of the CDA. – Trish Oct 15 '20 at 22:57
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    No, they simply have the right under CDA s230. It doesn't even need a neutral standpoint in deciding that. They just have to decide "we don't want this" and it is gone, and nobody may cry foul. Twitter is not a state actor and thus can freely discriminate viewpoints. – Trish Oct 15 '20 at 23:02
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    If I had a service similar to twitter - let's call it BLURP - and blurp would tag every post that does claim there are no aliens as fake news and restrict access to after looking at that message, BLURP does just act under section 230 CDA - they restrict access. BLURP also could delete the offending posts and would just act under the same right. – Trish Oct 15 '20 at 23:05
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    Censorship is a very specific thing in law: it is governement action that restricts first amendment freedom. Since when is Twitter an arm of the government? It isn't! – Trish Oct 15 '20 at 23:06
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    @AlexanneSenger "Otherwise objectionable" is a very, very broad umbrella. There's not much you can't cover by it. – zibadawa timmy Oct 15 '20 at 23:50

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