Section 230 critics are forgetting about the First Amendment
<p>It is a recurring theme in political circles that giant digital platforms such as Facebook, Twitter, and YouTube engage in bad behavior—distributing disinformation, allowing hate speech, removing conservative opinions, and so on—in part because they are protected from legal liability by...
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It is a recurring theme in political circles that giant digital platforms such as Facebook, Twitter, and YouTube engage in bad behavior—distributing disinformation, allowing hate speech, removing conservative opinions, and so on—in part because they are protected from legal liability by Section 230 of the Communications Decency Act, which says they aren’t responsible for content posted by their users.
Critics on both sides of the political aisle argue that this protection either needs to be removed or significantly amended. Former president Donald Trump signed an executive order in an attempt to get the Federal Trade Ccommission to do something about Section 230, although his efforts went nowhere. Section 230 also plays a role in his recent lawsuits against Facebook, Google, and Twitter. President Joe Biden hasn’t pushed anyone to do anything specific yet, but he has said that the clause should be “revoked immediately.”
One of the most recent attempts to change Section 230 comes from Democratic Senator Amy Klobuchar, who has proposed a bill that would carve out an exception for medical misinformationduring a health crisis, making the platforms legally liable for distributing anything the government defines as untrue. While this may seem like a worthwhile goal, given the kind of rampant disinformation being spread about vaccines on platforms like Facebook and Google’s YouTube, some freedom of speech advocates argue that even well-intentioned laws like Klobuchar’s could backfire badly and have dangerous consequences. Similar concerns have been raised about a suite of proposed bills introduced by a group of Republican members of Congress, which involve a host of other carve-outs for Section 230, aimed at preventing platforms from removing certain kinds of content (mostly conservative speech), and forcing them to remove other kinds (cyber-bullying, doxxing, etc.).
To talk about these and related issues, we’ve been interviewing a series of experts in law and technology using CJR’s Galley discussion platform, including Makena Kelly, a policy reporter for The Verge covering topics like net neutrality, data privacy, antitrust, and internet culture; Jeff Kosseff, an assistant professor of cybersecurity law at the United States Naval Academy, and author of “The Twenty-Six Words That Created the Internet, a history of Section 230;“ Mike Masnick, who runs technology analysis site Techdirt and co-founded a think tank called the Copia Institute;Mary Anne Franks, professor of law at the University of Miami, and president of the Cyber Civil Rights Initiative; James Grimmelmann, a law professor at Cornell Tech; and Eric Goldman, a professor of law at Santa Clara University.
“To the extent that people want to force social media companies to leave certain speech up, or to boost certain content, or ensure any individual’s continuing access to a platform, their problem isn’t Section 230—it’s the First Amendment,” said Mary Anne Franks. Grimmelmann agreed, arguing that the controversial CDA clause has become “the main battlefront in a new and confused proxy war over the First Amendment.” Kosseff said he doesn’t see any way that the Klobuchar bill would survive judicial scrutiny based on First Amendment principles. “Although it does not directly prohibit speech, it conditions a benefit (Section 230 protection) on a platform not using algorithms to promote what the Health and Homeland Security Secretary considers to be health misinformation,” he said. “For the bill to survive a legal challenge, the Courts would need to substantially expand the exceptions to the First Amendment, and I think that could have substantial negative consequences.”
Most of the proposed bills aimed at altering Section 230, including Klobuchar’s, would also “undermine or eliminate the things that people love most about the Internet,” said Goldman. Masnick said while he thinks there’s value in trying to figure out ways to deal with widespread (and potentially dangerous) misinformation regarding COVID-19 and vaccines, “I think it’s dangerously misguided to think that modifying Section 230 will do anything towards that particular goal. Indeed, it seems highly likely to backfire in ways that will make things significantly worse.” Whether we like it or not, said Masnick, “nearly all misinformation is protected by the First Amendment. So even if Facebook weren’t protected by Section 230, what would people even sue over? Any lawsuit would fail—it would just be a lot more expensive and wasteful of the court’s time and resources in the process.”
At this point, the dissemination pathway for disinformation is quite clear, said Goldman. “Politicians lie => cable broadcasters like Fox News amplify the lie => social media discusses the lie and extends the amplification. Focusing on the social media activity without fixing the first two won’t solve anything.” In fact, he said, if the government can’t ban disinformation because of the First Amendment, but Internet services can remove it thanks to the protection of Section 230, “we get better results than if Internet services are inhibited from doing this work without any protection from Section 230.” Some have argued that weakening the shield that Section 230 provides could incentivize the platforms to take down too much speech. While that’s a concern, Franks said, there are costs to leaving up too much speech as well: “There’s always a lot of handwringing over slippery slopes when it comes to restricting speech, but what about the slippery slope of allowing billion-dollar corporations to profit from speech that literally gets people killed?”
Here’s more on Section 230:
- Right to lie: The Biden administration should take the First Amendment as seriously as it does Facebook misinformation, writes Adi Robertson at The Verge, about the president’s attacks on Section 230 for protecting Facebook from liability. “The idea that Section 230 is holding back a crackdown on misinformation is… well, misinformation. Section 230 protects against lawsuits involving illegal content. With limited exceptions, the First Amendment allows people to lie and be wrong online.”
- Vulnerable: In the battle of Washington versus Big Tech, “the giants are vulnerable,” writes Stephen Maher, a Harvard Nieman Fellow, in an opinion piece published by the Center for International Governance Innovation. “The tech giants have not demonstrated they can be trusted to responsibly handle the sword and shield Congress provided for them through the passing of Section 230 back in 1996,” he argues.
- Do no harm: When it comes to Section 230 reform, “first, policymakers should do no harm,” writes Cameron Kerry, a former Obama administration official, in an opinion piece written for the Brookings Institution. “Ill-conceived changes to Section 230 actually could break the internet,” he said. “Many proposed solutions—such as mandating content moderation, imposing common carrier obligations, or outright repeal—present potential unintended consequences, including diminishing freedom of expression.”
