Republicans: stop begging the government to protect you from internet censorship

Lately there has been a veritable litany of stupidity emanating from Republicans and “conservatives” of all stripes who claim they are being censored by mainstream “big tech” companies like Twitter and Facebook.

Global social media companies face an almost impossible task with their moderation practices. In most cases, these companies have global operations. As a consequence, the companies tend to adhere to global standards.

Speaking as one admitted to practice law in the U.S. and in Europe, the United States has the most expansive speech laws in the entire world. Speech which is protected in the United States is, very often, illegal overseas. As a consequence, tech companies have had to adapt to overseas legal norms. In terms of crafting a company-wide policy which can be uniformly applied across its business, this usually means that they adhere to the lowest common denominator.

Facebook, e.g., has had to cave to requests to censor seditious libel from Pakistan. See e.g.

Upon a routine review of our actions, we determined that we restricted access to 17 items in error during this period, including 11 items that should have been deleted for violating the Community Standards and six items on which we should have taken no action. We have corrected these mistakes.

Twitter, for its part, has banned “offensive” accounts in Germany and the UK, and deleted Tweets at the behest of the French government:

Meanwhile, NPR’s Eleanor Beardsley reports from Paris that Twitter “has agreed to remove French-language anti-Semitic tweets that have flooded the micro-blogging site in recent days. The union of French Jewish students had said it would seek an injunction against Twitter if it did not remove offensive, anti-Jewish messages and photos that have proliferated since October 10.”

Apple, similarly, has restricted access to apps that are used by pro-democracy protestors in Hong Kong, including that of online news company Quartz:

News organization Quartz tells The Verge that Apple has removed its mobile app from the Chinese version of its App Store after complaints from the Chinese government. According to Quartz, this is due to the publication’s ongoing coverage of the Hong Kong protests, and the company says its entire website has also been blocked from being accessed in mainland China.

All of this speech – no matter how distasteful or offensive – is legal in the United States. So, Republicans, take note – this is not (necessarily) about you. Facebook and Twitter take sides all over the world. These companies censor anyone, anywhere. They have to do this by virtue of the fact that they have global operations and local staff.

Back at home, there is another dimension that these companies must consider: although the American government is legally barred from interfering with speech, and American litigants are precluded from suing companies for the speech expressed by their users, American activist groups which have significant influence in Silicon Valley, which shall remain nameless for the purposes of this exercise but which, suffice it to say, have been very successful in ensuring that individuals and companies on the right are denied access to mainstream technology platforms, exert considerable pressure on these companies in furtherance of their agendas. And companies respond. By way of example, the group Sleeping Giants successfully mounted an ad boycott campaign against Breitbart News; companies like Check My Ads offer services to companies who don’t want ad budgets being funnelled to groups and organizations they do not support.

When Twitter or Facebook bans a user or adopts a content policy as a result of public criticism – for example, Facebook’s platformwide ban on content pertaining to a particularly popular “conspiracy theory” which will also go nameless in this post – they are responding to public pressure, and revenue pressure, much in the same way that any other company would.

Wargaming the commercial response to a legislative amendment of Section 230

In the time it takes to repeal Section 230 or win an antitrust suit the GOP could lose three Presidential elections. If the President and everyone else opened accounts on newer technology platforms that expressly place free speech front and center in their moderation policies tomorrow, he would kneecap Twitter and Facebook forever.

There are three potential pathways for the future of this statute.

The first, most often tweeted by the President of the United States, is the repeal of Section 230.

This is, in my view, the least realistic and would likely result in the end of social media as a business. This is not an exaggeration; if platforms became liable for the speech of their speakers (as platforms are publishers in the plain and ordinary meaning of the word) any tortious speech by any person would expose the platform to liability as a principal. This is currently the situation in the UK which, I note, has a notice-and-takedown procedure similar to the U.S.’ DMCA notice-and-takedown procedure in Section 5 of that country’s Defamation Act 2013. The provision reads:

It is a defence for the operator to show that it was not the operator who posted the statement on the website.

(3)The defence is defeated if the claimant shows that—

(a)it was not possible for the claimant to identify the person who posted the statement,

(b)the claimant gave the operator a notice of complaint in relation to the statement, and

(c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

Failure to respond to a notice of complaint in one of the prescribed methods results in the website operator becoming liable for defamation under UK law. I note the UK is not the home of any large social media companies and suggest for the purposes of this discussion that the absence of a Section 230-style safe harbor may be part of the reason.

A second pathway involves some kind of statutory reform. There are various proposals. Let’s just play it out to see what hurdles those proposals have to overcome in order to achieve the result that the whiny Republicans want.

Current situation is as follows: Twitter censors Alice. Alice sues Twitter. Twitter moves to dismiss on Section 230(c)(2). Case ends.

Now let’s say Section 230 is repealed: Twitter updates terms and conditions. Alice grants Twitter right to censor her. Twitter censors Alice. Alice sues Twitter. Twitter files motion to dismiss. Alice loses. Case ends.

Now let’s say Section 230 is reformed: Senator Josh Hawley passes reform bill that says Twitter must be “neutral,” whatever that means. Twitter updates terms stating that users consent to its non-neutrality. Twitter censors Alice. Alice sues Twitter.

Twitter moves to dismiss on the basis that “Hawley’s Law” is an unconstitutional prior restraint, a content based restriction on speech that is subject to strict scrutiny (default result: government loses) because it prevents Twitter from publishing what it chooses to publish on its publishing platform.

Yes, Twitter is a publisher. No, it doesn’t matter one whit for the purposes of Section 230.

In the alternative Twitter points to the updated contract.

Twitter might win on the constitutional claim. In terms of the breach of contract claim, no proposals for Section 230 that I have seen prevent the parties from contracting out or (in the alternative) indemnifying the website for liability arising from user speech (so e.g. if Joe Bloggs tweets a defamatory statement, and Twitter is sued, Twitter would then be able to recover its costs in defending the action from Joe Bloggs).

Under this scenario, where there were any possibility of Twitter becoming liable for user speech, Twitter would be very unlikely to permit users to create anonymous accounts, because it would want users to know (a) that it knows who they are and (b) that it knows where to find them in the event that Twitter finds itself on the receiving end of a defamation claim arising from that user’s speech.

Anonymity, lest we forget, is among the core rights protected by the First Amendment – see the EFF’s victory In Re: DMCA Complaint to Reddit.

This is the point where legally savvy Internet commenters are keen to remind us the First Amendment doesn’t bind Twitter. It binds the state. In my view it likely binds the American state in such a manner as to prohibit the American state’s interference with Twitter’s moderation rules, although if Section 230 “reform” proposals eventually led to that it would be an issue of first impression for the courts. But in terms of the extent to which web services’ moderation policies are coextensive with the First Amendment right, 230 reform – making platforms liable for speech – creates commercial and legal pressures on companies like Twitter which incentivize them to restrain the scope of permitted expression on their platforms, instead of expanding it.

The third pathway is to leave Section 230 alone.

Before proceeding with a reform proposal, the key question for anyone who would pass a law and believes in free speech should be this:

Does the proposal expand the scope of free expression on the Internet, or does it restrict it?

On balance, 230 reform that withdraws protections for technology companies probably winds up restricting free expression more than it expands it, because it will create commercial pressures to eliminate anonymous speech and expand the scope of moderation to remove more speech, speech which is less objectionable than that which is currently removed.

It also will act to increase compliance burdens, much as the European Union’s passage of the GDPR did, which will have the effect of “pulling up the ladder” behind existing Web behemoths to the detriment of smaller, newer competitors with moderation and content display policies more in line with the First and Fourth Amendment’s intentions (companies like Bitchute, LBRY, Minds, Gab, Parler, DuckDuckGo and Protonmail immediately come to mind as the credible challengers to the existing social, search and e-mail stacks).

“Section 230 reform” – government intervention – will be stymied by contract and First Amendment lawsuits. It will not make the Internet safer. It will not promote competition. It will not make the Internet freer. Reform proposals that fail to understand the commercial and foreign legal pressures that have led these companies to adopt the policies that they have are doomed to failure.

What is not doomed to failure – the one thing which has always worked when there is market demand for a service – is competition and innovation. That’s how we do things in America.

Facebook felled MySpace. One day, sooner or later, another company will take down Facebook. The best thing you can all do if you want to promote Internet freedom is to stop using Big Tech’s services and to use the services of American companies whose values align with your own.

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