Another day, another terrible take on Section 230 from politicians with law degrees who should know better.
Section 230 of the Communications Decency Act – 47 U.S.C. § 230 – is a law that, arguably, is the reason that the modern Internet exists.
Politicians keep misrepresenting what the statute is for and how it works.
Section 230 has two main operative provisions.
The first, Section 230(c)(1), says that providers or users of interactive computer services aren’t liable for what other people say on those services. So, if
- Alice and Bob use Twitter, and
- Bob threatens and says nasty and untrue things about Carol on Twitter,
- and Carol sues Alice, Bob, and Twitter for harassment and defamation, then
- Carol will prevail against Bob but lose (likely in pretrial motions) against Alice and Twitter.
The second, Section 230(c)(2), says that if a provider of an interactive computer service moves to block objectionable content in good faith, the provider of that service will not be liable for that good faith content moderation.
So, returning to our example of Alice, Bob, and Carol,
- Alice and Bob use Twitter, and
- Bob threatens and says nasty and untrue things about Carol on Twitter, and
- irrespective of whether Carol sues Bob, Twitter decides Bob is anathema and moderates Bob’s content off the platform or bans him, then
- Bob cannot sue Twitter for moderating that content. (Properly, he can sue Twitter, but he will lose.)
- Note that Alice now has a blue check mark and has joined the ranks of the technomenklatura.
Josh Hawley’s proposal screws all this up. The proposal says that neither (1) nor (2) shall apply to an online communications platform unless the Federal Trade Commission gives a company a certification that the company does not moderate information in a “manner that is biased against a political party, political candidate, or political viewpoint.” It says this rule will only apply to large companies with more than 30 million U.S. users, more than 300 million international users, or more than $500,000,000 in global annual revenue.
Meaning, if such a company exhibits the slightest bit of bias which draws the ire of the bureaucrats at the FTC, and its immunities are lost, the lawsuit matrix over a “Bob says bad things about Carol” situation turns into this:
- Alice and Bob use Twitter, and
- Bob threatens and says nasty and untrue things about Carol on Twitter,
- Carol sues Alice, Bob, and Twitter for harassment and defamation;
- some other Carol nobody has heard of before decides to get in on the fun and sues Bob and Twitter; and
- Bob sues Twitter and Alice;
- all because Bob said something about Carol and Twitter moderated the content off of the platform.
Mind you, poor Alice didn’t do anything wrong here. She simply had a blue check mark and enjoyed the privileges that come with it of greater engagement, prestige and invitations to better parties. But being innocent – and having a blue check mark – does not immunize Alice from being on the receiving end of a lawsuit.
The reason I have Alice getting sued is because the bill says “Paragraphs (1) and (2) shall not apply in the case of a covered company which…” and the said “Paragraph 1” (being 230(c)(1)) is an exemption for both “providers and users” of online publishing platforms. Meaning that if this became law as-written a clever lawyer might argue that when a platform loses the immunity, all of its users (retweeters, etc) do, too. Instead of Alice invoking Section 230 immunity as an affirmative defense, telling all comers to get lost and, if required, moving for summary dismissal, now Alice has to try to get the (now, not facially invalid) claims dismissed on the basis not that the claims are legally invalid as they would be if the Section 230 immunity applied, but that Alice is not a necessary or even proper party to the suit. Which involves more legal work, and more expense, for Alice.
The real victims of Section 230 reform proposals – those who stand to lose the most – are American tech companies large and small. Senator Hawley’s bill – which has the support of other conservative senators and, latterly, the Trump Administration – is a stupid piece of legislation. It would wreck the Internet. Maybe the Internet deserves to get wrecked in the age of social media moral panics, and maybe not, but we should be aware that that’s what passing this law will do.
In practice, there are millions of yahoos all over the planet – running states, municipalities, and companies, but also on their own account – who view social media companies as cash-rich targets for litigation. Section 230 doesn’t prevent these people from getting their day in court – if someone says something stupid about you on the Internet and they’re an anonymous troll, go file a John Doe lawsuit and serve a third party subpoena on the Internet company. After a couple of subpoenas you’ll get your guy and then you can ruin him.
The problems with this proposal are legion. Chief among them is that it would create the ultimate heckler’s veto; any company that doesn’t toe the FTC line will have to treat every petty complaint by anyone with an e-mail address with the seriousness of the DMCA notice and takedown procedure (not fun). Helpfully the proposal is presumptively unconstitutional on its face (it requires platforms to get the FTC to sign off that they are politically neutral in order to benefit from a state privilege, a content-based restriction on speech which is presumptively unconstitutional and is unlikely to survive the strict scrutiny review that applies to any infringement of the core the First Amendment right). Put simply, we have a First Amendment right to be biased, the government cannot tell us not to exhibit bias in public, and the government can’t discriminate against us based on those biases.
Speaking of “bias,” there’s also a very good argument to be made that this is a subjective term which renders Hawley’s proposed law unconstitutionally vague; virtually any statement other than reporting of the weather will contain the author’s bias, so it’s likely that categorical content bans in Twitter, Facebook, etc. terms of service on, for example, so-called “hate speech” would likely offend the proposed law, if not intentionally then in effect. Note, however, that Hawley’s proposed rule doesn’t appear to care whether bias is intentional or not – bias in effect, even if accidental, if found by the FTC, would be enough for a tech provider to lose its immunity.
It would be a mistake to enact this bill. It would be a mistake to touch Section 230 at all. It would put the government in control of the Internet, flagrantly violate Americans’ free speech rights and open up tech platforms and users to lawsuits from petty litigants which would have the effect of suppressing freedom of expression even more.
All of which is to say, if conservatives would stop complaining about platforms that clearly hate them and their politics, stop proposing stupid, unconstitutional laws, and start using free-speech-supporting rival platforms like Gab, Minds, Bitchute, or LBRY, none of this would be a problem and no lawmaking would be required, because these sites all respect the First Amendment, are worthy of your business, and are the best hope to supplant Big Tech.
Thank you for your time.
So, to sum up: In the name of fixing the problem, legislators will exacerbate it enormously AND give people that are already working against First Amendment freedom the ability to destroy it entirely.
Sounds about right.
Essentially, yes.
If you moderate comments as a service proper, you should be liable. Either it’s an all comers platform or it is not. The only exceptions would be for posting porn or making threats of bodily harm or property damage. Otherwise the moderators working for revive providers end up banning political beliefs and positions the moderators (Or service provider) deems “hurtful” or politically incorrect. Fuck that. It’s a ‘sticks and stones, but words will never hurt me’ standard.