The right-wing argument against Section 230 of the Communications Decency Act 1996 remains stupid. With Trump and some of his acolytes receiving permabans from social media platforms and Parler losing his host due to repeated tenure violations, speakers line up to decipher Section 230 for legalizing the repression of political language.
Except that it doesn’t say anything about it.
Here is the entirety of Section 230 (c) (1), which is the gist of what Section 230 does (47 USC § 230):
No provider or user of an interactive computer service may be treated as the publisher or speaker of information provided by any other information content provider.
In a system known for creating tons of cumbersome, contradicting rules for any simple sentence, section 230 stands out for its simplicity. If you’re hosting a website and a commenter shows up and says something slanderous or criminal, that’s the commenter’s problem, not the website’s problem.
That’s it. That’s all it says
And it exists because we as lawyers are professionally committed to finding the largest bag available in a lawsuit, and if we could get Mark Zuckerberg to pay for the Hotstuff69 publication to have you massacre pups for sport, then we would do it. Instead, we all agree that tech billionaires are not on the lookout for what 58-year-old Incels are typing in their parents’ basement. And it is a protection that the internet needs because unlike newspapers or television, the immediate nature of the internet would make real-time mass moderation impossible.
(2) Civil Liability
No provider or user of an interactive computer service is liable for:
(A) any measure voluntarily taken in good faith to limit access to or availability of material which the provider or user deems obscene, indecent, lascivious, dirty, excessively violent, harassing or otherwise objectionable, regardless of whether this material is constitutionally protected or not; or
(B) all measures that are taken to enable or make available to providers of information content or others the technical means to restrict access to the material described in paragraph (1).
Unfortunately, the section 230 nonsense is sometimes referred to as “credibility” when repeated by ashamed law professors trying to regain relevance. Take, for example, a recent comment by Jed Rubenfeld of Yale Law. Rubenfeld has teamed up with Vikram Ramaswamy, CEO of Roivant Sciences (who appears to be writing a book called Woke, Inc. to take advantage of the snowflakes that accuse “wakefulness” when their emotions are hurt) for a Wall Street Journal to write, that means: to be honest, weirdly bad. I’d say dragging Yales Gravitas into this gruesome 0L-level argument would justify Rubenfeld’s suspension from Yales faculty, but he’s already in the middle of a two-year suspension following a sexual harassment investigation.
It is “axiomatic”, as the Supreme Court ruled in Norwood v Harrison (1973), that the government “must not induce, encourage, or encourage individuals to do what is constitutionally prohibited”. This is what Congress did with the passage of Section 230 of the Communications Decency Act of 1996, which not only allows tech companies to censor constitutionally protected language, but also exempts them from liability if they do so.
Tech companies are allowed to “censor” people who post on their platform in the same way that newspaper editors can – and, in this case, probably should – if they refuse to publish any weirdo to the editor. Imagine you’re so dense that you think Twitter, which doesn’t allow anyone to post 280 characters, is a bigger barrier to getting a message out than Fox News, which refuses to give Rachel Maddow four hours of prime time Window to give. And yes, I understand that all of the malice in section 230 is based on the fact that this type of editorial control is a benefit of publisher status – it’s a bankrupt claim that moderating at all requires taking full responsibility, over Being sued for every shitty post someone sets – but it all relies on the emotional appeal that Twitter, like any other media company, can moderate, is a unique threat to protected language.
Far from empowering social media to be “constitutionally prohibited” by the government, Section 230 affirmed that tech companies could do what any other publisher can constitutionally do.
Section 230 is the carrot, and there’s a whip too: Congressional Democrats have repeatedly and explicitly threatened social media giants for not censoring lawmakers’ speech.
Yes, government threats are no good, and yet that seems to be exactly what this editorial is asking. We’ll remove your carrot if you don’t allow OUR people to use your company to reinforce our false, defamatory nonsense.
Liberals should be concerned too. If Big Tech can shut down the president, what’s stopping them from doing the same to Joe Biden when he supports antitrust lawsuits against social media companies?
NOTHING! That’s the whole point. It’s just that Biden wouldn’t throw a shame party about it and just slap a pair of planes and stroll to the White House press briefing room to speak to the entire global media gathered.
It is significant that the editorial only comes asymptotically close to a point when it comes to antitrust law. I’ve said before that it’s perfectly acceptable to believe that Big Tech is oversized of influence while realizing that they can permabanate whoever they want. Facebook has bought out rival social media platforms and put them under their umbrella while slowly building a stranglehold over online advertising – that should be checking antitrust enforcement! And if there were a number of “baby facebooks” one of them would decide that having Lin Wood demand the execution of Mike Pence is an acceptable contribution.
But that would still be the company’s choice.
Joe Patrice is Senior Editor at Above the Law and co-moderator of Thinking Like A Lawyer. Feel free to email tips, questions, or comments. Follow him on Twitter for all the law, politics, and a healthy dose of college sports news. Joe is also the managing director of RPN Executive Search.