Reforming or repealing Section 230 to force Twitter to be neutral won’t work

This will be a short blog post. I do not endeavor to explain Section 230; that explanation may be found elsewhere on this blog (click here). This post is for folks who know and understand what Section 230 is and want to know why repealing it will fail.

1. The proposal to make Section 230 conditional on “content neutrality” is flatly unconstitutional

Forcing someone to be “content-neutral” to obtain state privileges is itself a content-based speech mandate, presumptively unconstitutional and subject to strict scrutiny review.

There isn’t a compelling state interest in overriding Twitter’s Terms and Conditions. Adding a political neutrality provision to Section 230 should and probably would be struck down.

2. Repealing or modifying Section 230 will not have any effect on contract law; consumers will lose.

Much of the current debate around Section 230 ignores the fact that Twitter’s Terms and Conditions already permit Twitter to do what it wants with your content.

Even if you were to abolish 230 overnight, for most users (including the President of the United States) in a courtroom they’d need to somehow get over the threshold issue that they made a bargain with Twitter which, for whatever reason, they are now asking a court to set aside, which is no easy thing.

Twitter’s current Ts and Cs, presumably written and periodically reviewed by very expensive tech lawyers, do a very good job of covering the company’s ass:

The Twitter Entities make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis.

We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules and Policies or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to unlawful conduct, (iv) your account should be removed due to prolonged inactivity; or (v) our provision of the Services to you is no longer commercially viable.

There’s also a liability cap of $100.

Assuming arguendo s. 230 were repealed, and I were advising Twitter, I’d advise them to change up their Ts and Cs to cap liability at $1 and make every reader of the platform indemnify them.

Depending on the facts of a particular case, they may be colorable issues here with adhesion contracts, unconscionability and/or state-level unfair trade practices rules. Unfortunately for users, regardless of what clever arguments it is possible to make, going into this the balance of probabilities is stacked in Twitter’s favor rather than the user’s, particularly where the user hasn’t provided much by way of consideration to use the service and damages are likely to be de minimis.

The consequence of all this would be that (a) Twitter would want to pass on any liability for unlawful speech to its users; (b) it would likely require more identifying information from its users and (c) there would be a lot more content-based takedowns.

The result would be less speech and less free speech for every American.

3. Repealing or modifying Section 230 will destroy the U.S. internet startup ecosystem.

Complying with DMCA takedown requests and fielding subpoenas and search warrants, as all online startups must do at some point in their lives, is very expensive. Repealing or modifying Section 230 will make it impossibly expensive for businesses of all kinds – websites, blogs, even newspapers with comment sections – to permit third party dialogue on their sites.

Section 230 doesn’t just protect American companies. It protects American citizens. On more than one occasion I have seen vexatious threats originating abroad (civil and regulatory) against American speech on American websites. Section 230 allows companies to shrug off those requests, with the result that American internet users aren’t muzzled by foreign litigants, states, and courts which are not constrained by the First Amendment.

The United States is unique in the world because of our free speech protections. Section 230 may allow platforms to interfere with our speech (230(c)(2)) but it also grants them latitude to protect our speech (230(c)(1)). The combination of these immunities means platforms can choose whatever moderation policy they want without consequence, even to permit speech that is not permitted by the First Amendment (subject to certain statutory limitations). It grants the platform immunity and places liability for the speech on the speaker.

Most publishing platforms do not operate at the extreme edges of the continuum. Rather they live somewhere in the middle:

  • Apple is the most illiberal of the Big Tech firms (Amazon is a close second). It yanked the Quartz news app in Hong Kong for engaging in what, in America, would be totally run of the mill reporting in order to appease the Chinese government.
  • Mastodon.social, a node in the decentralized “Fediverse,” screens legal but politically incorrect speech by default (see Section 2 of its code of conduct);
  • Twitter usually gets involved if there are swear words, doxing, or “glorification of violence” (although, as the Trump Administration complains today, that policy is unevenly applied), although they appear to adhere to local law outside of the U.S. (which is usually less permissive than the First Amendment). Twitter’s scandal du jour is that they censor the President – both on his personal account and on the White House’s account – but they aren’t censoring users like Cardi B who are calling for violent uprisings in the streets.
  • Gab states that it strives to adhere to a moderation policy that mirrors the First Amendment; the First Amendment has no cognizance of political correctness, hate speech, or even glorification of violence, but permits the state to punish categories of speech like incitement (as defined in Brandenburg v. Ohio), threatening, defamation, obstruction or perjury.

In all of the cases listed above, each company – Apple, Mastodon.social, Twitter, and Gab – is actually not availing itself of the theoretical maximum which Section 230 allows. In each case it is possible to find an internet user for whom the companies’ respective policies are too restrictive.

These immunities are necessary to run an online business; all three of those companies are currently immune from every shrieking harpy in the world who is offended in his or her subjective way by American speech on those platforms. Without Section 230, such people would sue and win against US companies in overseas forums and seek to then enforce those judgments in American courts. Nobody wants that, and Section 230 prevents that.

Leave Section 230 alone. If you don’t like Twitter’s rules, it’s crazy to change the rules of the game for every publisher in the country just to bend one company to one party’s political will.

Give your business to challenger platforms like Gab, Minds, Bitchute, Parler, or LBRY instead.

Image courtesy of the EFF.