from then stop it department
I really wasn’t going to write anything about the latest Spotify/Joe Rogan/Neil Young stuff. We have published older case studies on content moderation issues regarding Rogan and Spotify and we should have a guest article coming up exploring some angle of the Rogan/Young debate we’re working on.
However, as it now comes up several times, I wanted to address a point and make a small explanatory article: Spotify’s decisions regarding Rogan (and Young and others) have absolutely nothing to do with article 230. At all.
Now, we can blame Spotify a bit for people who think that’s the case, because (for reasons I don’t understand, and why its lawyers and PR people should be replaced) Spotify has try make it a “content moderation” issue. A few hours after Spotify’s internal “content policy” leakedthe company published a blog post officially publish the policy… which had already leaked.
And, when you say ‘content policy’, it sounds like the same old debates we’ve had about content moderation, trust and safety and ‘user-generated content’ websites and so on. . But the decision of keep Rogan on the platform has absolutely nothing to do with article 230. The only problem for article 230 here is if Rogan did something that created an underlying cause of action – like defamation – then, there could be a Section 230 issue if the defamed person chose to sue Spotify. Spotify could then use Section 230 to be removed from the lawsuit, although the plaintiff could still sue Rogan. (If you want an analogous case, years ago AOL was sued for something Matt Drudge wrote – after AOL cleared the Drudge report to distribute to AOL users – and the court said Declare that Section 230 AOL Protected of a trial – Drudge himself did not think).
The fact is, no one (that I can find at least) here is alleging an actual underlying cause of action against Rogan. They simply argue that somehow Section 230 is to blame for Spotify’s decision to keep Rogan on their platform.
But the question of Spotify’s decision whether or not to keep Rogan has nothing to do with Section 230. Spotify has every right to decide whether or not to keep Rogan the same way a book publisher decides whether to publish or not someone’s book. And that right is protected by the 1st Amendment. If someone sued Spotify for “hosting Joe Rogan”, Spotify would easily win, not using Section 230, but for not stating an actual claim, backed by Spotify’s 1st Amendment right to work with content providers of their choice (and not work with those they don’t).
Unfortunately, Spotify founder Daniel Ek made things even dumber yesterday by get out of the mythical and totally non-existent “platform/publisher” divide:
At the employee town hall, Ek and content and publicity manager Dawn Ostroff repeatedly used the phrase “if we were a publisher.” which very strongly implies that we are not a publisher, so we have no editorial responsibility? for the Rogan show, said a second Spotify employee who listened to the remarks? and who, like some Spotify employees listening in, found the executives? position “a dubious assertion at best.”
In a chat linked to the Town Hall livestream, “A lot of the angry comments were about how Spotify’s exclusivity with Rogan means it’s more than just a regular platform.” said an employee.
This LA Times article, by Matt Pearce and Wendy Lee (who are good reporters and should know better), also confuses things, implying that Section 230 depends on whether or not a website is acting as a than “publisher or platform”. This does not. Section 230 applies equally to all “interactive computer services” with respect to content provided by “another information content provider”. There is no distinction between “platform” and “publisher”. The only issue is whether Spotify helps create the content — in whole or in part — and the courts have determined that simply paying for it doesn’t matter here. This is whether the company actively played a role in creating the actual content (and, more specifically, contributing to the illegal nature of any content). But it is not the case here.
Yet with all this talk of ‘platforms’ and ‘publishers’, ‘content policies’ and content moderation – people seem very, very quick to blame section 230. Spotify doesn’t deserve the section 230, which is weird, again, because section 230 isn’t involved in Spotify’s decision at all.
“It’s great to have different opinions. It’s not great to post incorrect facts. There is a difference. There’s always some, no matter how you slice it.? @karaswisher on Spotify’s decision to add a content advisory to all podcasts that discuss Covid-19. pic.twitter.com/e7aYCe1ALt
—Anderson Cooper 360? (@AC360) February 1, 2022
Then the folks at Sleeping Giants, an activism group that I think does a pretty good job of communicating with advertisers about where their ad dollars are going, also tweeted about the LA Times article suggesting that this was another reason section 230 was “too wide”. “After I (and many others) tweeted to them that it wasn’t a 230 problem at all, they quickly apologized and deleted the tweet:
Lesson learned. Never tweet and then go to a show for two hours. pic.twitter.com/q6W5Yqlrqh
— Sleeping Giants (@slpng_giants) February 3, 2022
But since so many smart people are confused, I wanted to try my best to explain why it’s not a 230 problem.
And the easiest way to do it is: How would this situation play out differently if Section 230 did not exist? If it didn’t exist then… Spotify would still decide whether or not to strike a deal with Rogan. Spotify, like a publishing house, newspaper, cable TV news channel, would have a 1st Amendment editorial right to determine who to allow on its platform and who not. 230 does not create a right of editorial discretion (both upward and downward). It already exists thanks to the 1st amendment.
Indeed, if you think Spotify could somehow be responsible if someone gets hurt because they listened to someone broadcast stupid advice on Rogan’s podcast, that’s not going to fly – but, again, because of the 1st Amendment, not Section 230. As Section 230/1st Amendment Expert, Professor Jeff Kosseff explained in this great topicbook publishers have (many times!) been held not responsible for dangerous information found in the books they publish.
There’s been a lot of talk about Spotify, Joe Rogan and Section 230. The problem with the talk is that 230 is irrelevant because there’s no viable cause of action against Spotify – or Rogan – for misinformation about health. These books from the 80s explain why. pic.twitter.com/o1iFPfVvBt
— Jeff Kosseff (@jkosseff) February 3, 2022
In the two cases he describes, people were hurt, tried to hold the publisher responsible for telling them to do something dangerous, and the courts said the 1st Amendment didn’t allow it.
or surrounding legal doctrines to suggest that such an obligation should be imposed on publishers. . . If we were tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs.”
— Jeff Kosseff (@jkosseff) February 3, 2022
So the only way 230 comes into play here is in the specific case of if Rogan broke the law with his speech on the podcast (libel being the most obvious possibility). As far as I know, Rogan has never been sued for libel (although he threatened to sue CNN for libel, but that’s another stupid story for another day). So the risk here seems minimal. Some people have suggested suing for “medical misinformation,” but anything Rogan says along those lines is almost certainly protected by 1st Amendment speech as well. Corn, if Rogan somehow said something that opened him up to a civil suit and the plaintiff also sued Spotify… Section 230… would help Spotify… just a little bit? This would likely help Spotify get the case thrown out a bit earlier in the process. But even if we didn’t have a 230, based on the state of the law before 230 (and examples like those shown by Jeff Kosseff), the courts would probably say that Spotify could only be held liable if he had knowledge of the illegal nature of the content. , which Spotify could easily show, as Rogan produces the show himself without Spotify.
So, ultimately, 230 gives Spotify a little advantage here – the same one it gives all websites that host third-party content. But this advantage has nothing to do with the decision to keep Rogan or not. This would only apply to the most unlikely situation of a person suing, and even then the benefit would be something like “having a case dismissed for $50,000 instead of $100,000 because the case would always be dismissed”. Just with a little less lawyer time.
We can have debates about Joe Rogan. We can have debates on Spotify. We can have debates on section 230. Anything can be worth discussing. But the argument that Spotify is keeping Rogan has something to do with Section 230… is simply wrong. The 1st Amendment allows Spotify to host Rogan’s podcast, just like it allows any publisher to publish someone’s book. Removing it will not change Spotify’s calculation. It won’t make Spotify more likely to remove Rogan.
So go ahead and have these other debates, but it makes no sense to try to pretend this is one debate.
Filed Under: content moderation, daniel ek, intermediary liability, joe rogan, liability, license, podcasts, section 230