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Which speech acts are likely to incur legal sanction, exactly? What about the effects of those speech acts upon their subjects? The German approach is to hold the speaker liable for that cost. Some speech acts reduce the freedom of other people.

[zAy0LfpBZLC8mAC]

> Which speech acts are likely to incur legal sanction, exactly?

This is not about legal legal sanction, but about de-facto legal sanction. By definition, Facebook is only exercising its property rights. But that doesn't change the fact that they do limit perfectly legal speech as a result of a law that forces them to decide whether a given speech act is illegal, thus putting them in the de-facto role of a court, just with completely skewed incentives.

If the same law said that a judge would have to pay heavy fines if they didn't order the deletion of "obviously illegal speech", that would incentivise judges to not respect the constitutional rights of citizens, right? And would therefore probably be unconstitutional, right? Now, this law has effectively the exact same effect, by simply making Facebook the de-facto judge with that incentive, just with the added problem that the people making the decisions have no clue of the law.

[anigbrowl]

It seems to me that Facebook is in the business of publishing people's comments and pictures on its platform in order to profit by displaying advertising next to them. As a publisher in the German market, it can be held to the same standard as any other publisher. You complain that the people making the decisions have no clue of the law, but nothing stops Facebook hiring German staff with the requisite legal knowledge to discharge that obligation, or alternatively declining to accept connections from German IP addresses.

Now that I have answered your points, please do me the courtesy of answering the question I posed above instead of deflecting it.

[zAy0LfpBZLC8mAC]

> It seems to me that Facebook is in the business of publishing people's comments and pictures on its platform in order to profit by displaying advertising next to them. As a publisher in the German market, it can be held to the same standard as any other publisher.

Well, I am not sure I complete agree (it is obviously substantially different from traditional publishers, but at the same time it's substantially different from mere printers or telcos, so I don't think it's an obvious classification), but sure, let's say that is the case.

> You complain that the people making the decisions have no clue of the law, but nothing stops Facebook hiring German staff with the requisite legal knowledge to discharge that obligation, or alternatively declining to accept connections from German IP addresses.

Which doesn't change that they in fact don't, because they have no incentive to, and that this is the behaviour that is to be expected given the incentives created by the law. The law does not create an incentive for legally educated decisions that preserve constitutional rights, the law creates an incentive to remove illegal content. The state can not hide behind private entities by pretending that the incentives it creates have nothing to do with how those private entities act. Facebook is not bound by the constitution, so they have no reason to hire legal experts to make these decisions, they will simply follow the law. It's the responsibility of the state to not incentivise private entites to violate constitutional freedoms, not the other way around.

> Now that I have answered your points, please do me the courtesy of answering the question I posed above instead of deflecting it.

I don't think I have deflected any question, rather your questions were missing the point. I don't agree with a private corporation deciding what for all intents and purposes are criminal cases and limiting constitutional freedoms based on incentives created by a questionable law. None of that implies that anyone has in fact declared Facebook a court or that Volksverhetzung should not be prosecuted--it simply means that Facebook is not the entity that should be incentivised by the state to make decisions that limit constitutional freedoms that would be obviously inacceptable if the state made those decisions itself.

If you think there still is an unanswered question, please let me know what it is.

[anigbrowl]

Facebook chooses to simply delete rather than evaluate posts. They're not forced to take the lowest cost economic option, they could decide to offer a higher-quality product at a slightly lower profit margin. The state is absolutely creating an economic incentive for publishers to consider the consequences of their publication, but it's not dictating how that should be implemented. You're blaming the state for Facebook's commercial decision to use blanket deletion.

You might feel that Facebook is obliged to choose the lowest-cost option on behalf of its shareholders. This isn't the case, legally. Conversely, Germans who want to express controversial views that might be defensible and don't want to just have them auto-deleted can always seek out another publisher or publish themselves on a blog. When I say people don't have an automatic right to publication, I mean they don't have the right to have a particular publisher host their controversial content. Presumably you would agree that Facebook is within its rights when it declines to host pornography, for example, even though I think the community standards' it cites are prudish to the point of ridicule (eg banning people for photographs of statues depicting nude figures in art museums).

[zAy0LfpBZLC8mAC]

> Facebook chooses to simply delete rather than evaluate posts. They're not forced to take the lowest cost economic option, they could decide to offer a higher-quality product at a slightly lower profit margin. The state is absolutely creating an economic incentive for publishers to consider the consequences of their publication, but it's not dictating how that should be implemented.

I am not sure I would categorize Facebook as just a publisher, but anyway ...

> You're blaming the state for Facebook's commercial decision to use blanket deletion.

No, I am not. I am blaming the state for creating the incentive for that decision. The fact that Facebook could decide to act differently does not change that the state's actions are what incentivises them to act this way. The fact that Facebook is morally to blame for their behaviour is simply not relevant to the question of whether the state is incentivising a violation of constitutional freedoms. That is precisely what I mean by "the state can not hide behind private entities". The state cannot incentivise a private entity to act in a certain predictable way and then pretend their incentive has nothing to do with that entity's actions just because that entity would have the legal but risky and/or costly option of acting in a way that would not affect constitutional freedoms.

For an analogy I constructed to demonstrate maybe more clearly the problems with that approach, see also the first few paragraphs here:

https://news.ycombinator.com/item?id=16147727

> You might feel that Facebook is obliged to choose the lowest-cost option on behalf of its shareholders. This isn't the case, legally.

Which is irrelevant, see above. No, they are not obliged to. But they can. And the state has to consider the fact that they can when it creates incentives.

> Conversely, Germans who want to express controversial views that might be defensible and don't want to just have them auto-deleted can always seek out another publisher or publish themselves on a blog.

Which is also irrelevant to the question of constitutional freedoms. For one, the same incentive applies to all "social networks", so potentially people's constitutional freedoms are at risk on all such platforms, but also, and probably more importantly: A constitutional freedom does apply globally. It's not that the state has to allow you to speak somewhere, it's that the state may not interfere with you speaking (obviously within the limits established by further laws, as far as the constitution allows for such laws, and also within the limits due to collision with other constitutional rights, such as property rights, but that's not the point here). "We only prevented him from speaking on the market square, but he was free to speak on the corner of his street" is not an sufficient justification for it not being a restriction of a constitutional freedom. It's not up to the state to decide where I can speak, neither directly nor indirectly.

Also, it's not just that that is the established understanding, it's an absolute necessity: The freedom to speak your opinion is completely void if you cannot choose your audience. It is not about you being free to make an utterance, it is about you being free to make yourself heard. Just as freedom of movement is not about being allowed to move a bit, it is about you being free to choose where you go, and in particular to go and live with people you want to live with.

> When I say people don't have an automatic right to publication, I mean they don't have the right to have a particular publisher host their controversial content. Presumably you would agree that Facebook is within its rights when it declines to host pornography, for example, even though I think the community standards' it cites are prudish to the point of ridicule (eg banning people for photographs of statues depicting nude figures in art museums).

Yes, but none of that is relevant to the question of whether the state is allowed to incentivise Facebook one way or the other. Constitutional freedoms restrict how the state may interfere in the lives of poeple. The fact that Facebook could choose to act the exact same way of its own accord is irrelevant to the question of whether the state may incentivise it to behave this way.

Any private landlord could legally decide to not rent their house to people with glasses. That does not mean it would be constitutionally acceptable if the state created laws that incentivised landlords to not rent to people with glasses. Just because people are allowed to behave a certain way does not make it necessarily constitutional for the state to create incentives to behave that way.