The One Thing Trump and Biden Agree On
On May 28, President Trump signed an executive order targeting Twitter, one of the largest and most influential social media platforms. Stating that Twitter was engaging in “selective censorship,” the order threatens to punish the company for annotating two of his comments about voting by mail.
Yet, the order goes on to criticize these platforms for permitting free speech, specifically in reference to what Trump called “the long-disproved Russian Collusion Hoax.”
Trump’s almost-certain opponent in this November’s election agrees with him. Last October, Joe Biden called on Facebook to reject political advertising which included "previously debunked content." The content to which Biden referred was a Trump campaign ad tying Biden’s son Hunter, and Biden himself, to corruption in Ukraine. Then in January, Biden said that Facebook should be legally liable for false information posted on its platform.
Fortunately for the rest of us, Trump’s executive order is 100% unconstitutional. And despite Biden’s misgivings, we shouldn’t be too worried about our inability to sue social media giants for defamation, false advertising, or slander.
What’s the fuss about?
Trump and Biden both want to repeal a snippet of law found in the Communications Decency Act, a statute Congress passed by Congress in 1996. Section 230(c), “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” reads:
(1) Treatment of publisher or speaker. 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.
(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of—
(A) 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; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)
Of course, 1996 was the dawn of the internet age. It was a time when courts were beginning to grapple with the liability of internet companies for false, misleading, or defamatory posts on their websites. The emerging legal consensus was that websites that didn’t moderate any user-posted content couldn’t be held liable for libel, slander or similar wrongful conduct. But websites that did could be liable in such cases because they censored some posts, but not others.
Section 230’s intent was to encourage internet companies to regulate themselves without fear of being sued. The phrase “publisher or speaker” in Section 230 is crucial. It makes clear that an “interactive computer service” merely provides a forum where users may self-publish. An internet company can’t be held liable for the content of those posts, no matter how harmful they may be. It can only be liable for its own posts or for posts that violate federal criminal law or intellectual property claims.
If you post a negative review of a restaurant on Yelp, the restaurant can’t sue you. Nor can Biden or Trump hold you accountable if you post or forward a message claiming that “Sleepy Joe” has Alzheimer’s Disease, or that the “Screaming Carrot Demon” is actually a Russian asset. Section 230 is thus perfectly compatible with the legal protection for free speech enshrined in the First Amendment to the Constitution.
Just as importantly, it’s helped America dominate the global internet economy. Most other countries don’t give blanket protection for free speech, giving American internet companies an inherent advantage to their overseas competitors.
It’s true that Section 230 shields websites from facing legal consequences for violent, misogynistic, or defamatory content their users publish. But individuals who create false or defamatory material online aren’t shielded from liability. Thus, the courts have refused to dismiss defamation lawsuits against internet provocateur Alex Jones, founder of Infowars.com.
Without Section 230, the only way Reddit, Facebook, Twitter, and other internet companies that host user content could avoid legal liability would be to continuously scour posts being uploaded for objectionable content. That would require an army of moderators with robust artificial intelligence tools to ensure controversial content is either never posted or quickly removed. Many internet companies would be forced out of business, and the competitive advantage American internet companies have over their foreign rivals would end.
In the words of law professor Eric Goldman, without Section 230, “a lot of things online we take for granted today will not work the way they currently work, and some things will no longer be available at all."
But even if Section 230 isn’t repealed outright, the liability protections it contains could be further weakened by legislation. That process began in 2018, when Congress approved amendments to Section 230 to exempt websites that promote prostitution and sex trafficking from its protection.
The (possibly) unintended consequence of these amendments was to make sex workers more vulnerable to violence, because the online tools they used to keep themselves safe were no longer available. There’s no reason to think that additional carve-outs to Section 230 will be any different.
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