Columbia Law Professor Spews Blatantly False Information About Section 230 In The Wall Street Journal
from the make-it-stop-for-reals dept
Another day, another completely ridiculous, wrong, and painful op-ed in a major newspaper that gets all of the details about Section 230 wrong. And this one is particularly ridiculous because it’s coming from a law professor. Professor Philip Hamburger wrote an op-ed for the WSJ that is so bad, so wrong, so clueless, that if I handed it in in one of his classes, I’d deserve a failing grade. The only thing that this piece gets is that, while I’d thought I’d seen every style of bad Section 230 takes, this one is creatively bad in new and more ridiculous ways than I’d seen before. It’s titled: The Constitution Can Crack Section 230, which already seems like a weird way to kick off. Cracks… what?
Section numbers of federal statutes rarely stir the soul, but one of them, 230, stirs up much fear, for it has seemed to justify censorship. Relying on it, tech companies including Google and Twitter increasingly pull the plug on disfavored posts, websites and even people. Online moderation can be valuable, but this censorship is different. It harms Americans? livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves.
So, first of all, how is this moderation (the bad kind) different from that moderation (the good kind that you say is valuable)? Hamburger makes no effort, and seems to think that, like obscenity, he knows it when he sees it. But, even if we go by what little information he provides here, you might already notice the problem. He claims that this moderation “distorts political and cultural conversations” and “influences elections” but… that’s also the exact same argument that people who are mad about too little moderation make.
And, of course, you could easily say that Fox News. Or CNN. Or… the Wall Street Journal has been known to “distort political and cultural conversations” and “influence elections.” But I don’t see Prof. Hamburger flipping out about that.
But does the 1996 Communications Decency Act really justify Big Tech censorship? The key language, Section 230(c)(2), provides: ?No provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.? The companies take this as a license to censor with impunity.
That understanding is questionable. Law is rarely as clear-cut as a binary switch. To be sure, courts emphasize the breadth of Section 230?s immunity for website operators. But there is little if any federal appellate precedent upholding censorship by the big tech companies. The question therefore comes down to the statute itself. The answers should give pause to the companies and courage to those they?ve censored.
If I were grading this as a paper, I would circle this line in red ink: “But there is little if any federal appellate precedent upholding censorship by the big tech companies.” Professor, just because you failed to some fairly basic research, doesn’t mean it doesn’t exist. There are dozens of cases regarding content removal out there, and every one of them has been tossed out frequently on Section 230 grounds. While not many of them actually go up on appeal, the ones that have, have also been rejected. And here’s the thing, many of them have been rejected on 1st Amendment grounds, meaning that Section 230 isn’t even the issue here.
There was the PragerU case that made it clear that YouTube can restrict videos however it sees fit on 1st Amendment grounds, not even getting to the 230 issue:
PragerU?s claim that YouTube censored PragerU?s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government?not a private party?from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause ?prohibits only governmental abridgment of speech,? and ?does not prohibit private abridgment of speech?); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (?the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state?). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.
These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU?s approach, claiming that a private entity becomes a state actor through its ?operation? of the private property as ?a public forum for speech.? Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine?s distinction between government and private entities because ?all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.? Id. at 1930?31. Instead, the Court reaffirmed that ?merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.? Id. at 1930.
Importantly, private property does not ?lose its private character merely because the public is generally invited to use it for designated purposes.? Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is ?not transformed? into a state actor solely by ?provid[ing] a forum for speech.? Halleck, 129 S. Ct. at 1930, 1934.
Seems kind of important, but Prof. Hamburger has some fantasyland ideas about how the Commerce Clause means… that Section 230 cannot be used to take down content. It… makes no sense.
Originally, the Constitution?s broadest protection for free expression lay in Congress?s limited power. James Wilson reassured Americans in 1787?four years before the First Amendment?s ratification?that ?a power similar to that which has been granted for the regulation of commerce? was not ?granted to regulate literary publications,? and thus ?the proposed system possesses no influence whatever upon the press.?
The expansion of the commerce power to include regulation of speech is therefore worrisome. This is not to dispute whether communication and information are ?commerce,? but rather to recognize the constitutional reality of lost freedom. The expansion of the commerce power endangers Americans? liberty to speak and publish.
This is embarrassing. Nothing in Section 230 is “regulating commerce.” Nor is it “regulating speech.” It’s doing the opposite. It’s making sure that companies know that they and not the government get to decide what speech they host and associate with. And, no, nothing in 230 “endangers Americans’ liberty to speak and publish.” They can still express themselves, but they don’t have a right to demand that any private company host or promote that speech. Just like I can’t demand that the Wall Street Journal publish my op-ed about how Columbia Law students deserve a refund if they had to take classes from Prof. Hamburger. That’s not censorship. That’s the Wall Street Journal’s 1st Amendment editorial rights to reject my editorial (frankly, mine would have been better than Hamburger’s, so maybe they should have published mine instead).
That doesn?t necessarily mean Section 230 is unconstitutional. But when a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly.
IT DOESN’T REGULATE SPEECH. How hard is that to understand?
A second constitutional question arises from the First Amendment. The companies brush this aside because they are private and the amendment prohibits only government censorship. Yet one must worry that the government has privatized censorship. If that sounds too dramatic, read Section 230(c)(2) again. It protects tech companies from liability for restricting various material ?whether or not such material is constitutionally protected.? Congress makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them.
This is an embarrassingly amateurish reading of Section 230. It’s the type of analysis we normally see on Twitter from people who have just discovered the law and know nothing about how it actually works or what it actually says. In court, content takedowns have almost never relied on (c)(2). They rely on the 1st Amendment or (c)(1). Section (c)(2) is only used in very rare cases and the reason it says “whether or not such material is constitutionally protected” is not because of some sort of state action attempt to censor constitutionally protected speech, but because the law is properly recognizing that companies are not bound by the 1st Amendment and therefore, the companies, being private entities, are not bound by the 1st Amendment and get to decide for themselves which content to associate with.
Any lawyer who actually spent any amount of time understanding Section 230 would know this. I’d expect that a law professor publishing in the Wall Street Journal could take the time to figure it out himself.
Seventeenth-century censorship, which the First Amendment clearly prohibited, was also imposed largely through private entities, such as universities and the Stationers? Company, England?s printers trade guild. Whereas privatized censorship then was often mandatory, the contemporary version is voluntary. But the tech companies are protected for restricting Congress?s list of disfavored materials, and this means that the government still sets the censorship agenda.
No. It’s not. If the law required them to take down certain content — or even if it limited what the sites could take down — that would be setting the censorship agenda. But here, the whole point of 230 is to make it clear that websites, as private entities, have the freedom to decide for themselves.
Some of the material that can be restricted under Section 230 is clearly protected speech. Consider its enumeration of ?objectionable? material. The vagueness of this term would be enough to make the restriction unconstitutional if Congress directly imposed it. That doesn?t mean the companies are violating the First Amendment, but it does suggest that the government, in working through private companies, is abridging the freedom of speech.
Again, this is misreading and misunderstanding 230. It’s focusing on (c)(2) which is the part of the law that is almost never used. (c)(1) and the 1st Amendment have been more than enough to protect against liability for content moderation decisions. More importantly, the list in (c)(2) is not a definitive list. It is not ordering the companies to do anything. It’s just making it clear that they have the freedom to moderate however they see fit. That is not, as Hamburger seems to imply, the government “abridging freedom of speech” because no one’s free speech is “abridged.”
And then… he finally realizes that the 1st Amendment protects the “good” kind of moderation he wants, and tries to twist things around to explain why it doesn’t protect the kind of moderation he dislikes.
This constitutional concern doesn?t extend to ordinary websites that moderate commentary and comments; such controls are their right not only under Section 230 but also probably under the First Amendment. Instead, the danger lies in the statutory protection for massive companies that are akin to common carriers and that function as public forums. The First Amendment protects Americans even in privately owned public forums, such as company towns, and the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. Here, however, it is the reverse. Being unable to impose the full breadth of Section 230?s censorship, Congress protects the companies so they can do it.
But… they’re not common carriers. They’re not public forums. And, as was cited in the PragerU ruling above, which in turn cites the Supreme Court in 2019 in a ruling made by Brett Kavanaugh, social media websites do not even come close to meeting the criteria to be declared public forums. You’d think a law professor would be up on little things like that.
Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. Under the Constitution, government cannot immunize powerful private parties in the hope that they will voluntarily carry out unconstitutional policy.
If you think this is an apt analogy, you are not qualified to discuss this seriously. This is, in no way, analogous. I mean, holy shit, is this a messed up line of thinking. To compare social media companies applying their terms of service in a way to stop the spread of disinformation to… southern sheriffs urging the Klan to attack civil rights marchers? WHO WOULD EVER THINK THAT’S ANALOGOUS?
Perhaps judges can avoid the constitutional problem, but this will be more difficult if they read Section 230(c)(2) broadly. The tech companies can?t have it both ways. If the statute is constitutional, it can?t be as broad as they claim, and if it is that broad, it can?t be constitutional.
What? Again, (c)(2) barely even matters. (c)(1) and the 1st Amendment matter. And it is both constitutional and as broad as they claim. The problem you have, Professor, is that you’ve read into the law things that are not there.
And then, believe it or not, the op-ed shifts from just wrong, to crazy.
The statute itself also poses problems for Big Tech. The first question is what Section 230(c) means when it protects tech companies from being ?held liable? for restricting various sorts of speech. This is widely assumed to mean they can?t be sued. But the word ?liable? has two meanings.
What is this, I don’t even…
In a civil suit, a court must first consider whether the defendant has violated a legal duty or someone else?s right and is therefore legally responsible. If the answer is yes, the court must decide on a remedy, which can include damages, injunctive relief and so forth. The term ?held liable? as used in Section 230(c) can fall into either category. Thus, the protection of tech companies from being ?held liable? may merely mean they can?t be made to pay damages, not that they can?t be held responsible and subjected to other remedies. The former interpretation seems more plausible, if only because a mere ambiguity seems a weak basis for barring a vast class of plaintiffs from recourse to the courts on a matter as central as their speech.
After protecting tech companies from being held liable, the statute recites: ?No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.? This clause, Section 230(e), may seem to vindicate the companies, but it distinguishes between a ?cause of action? and ?liability? and thereby clarifies the ambiguity. Evidently, when Section 230(c) protects tech companies from being held liable, it does not generally immunize them from causes of action. It merely protects them from ?liability? in the sense of damages.
There are jokes about law professors who think up crazy wacky ideas with no basis in the reality. Those jokes are meant to be about paragraphs like the two above. Held liable means any liability. You can’t just say that other remedies don’t count as being held liable. That’s not how any of this works. And courts have ruled on this very thing, in cases like Hassell v. Bird, where no one was trying to force Yelp into monetary damages, but was about an injunction that would have forced Yelp into removing some content — and the court held that 230 barred such an injunction. Prof. Hamburger seems to have made up, whole cloth, the idea that “held liable” might only apply to monetary damages.
Honestly, those two paragraphs read like typical Sovereign Citizen rantings, in which they’ve found a loophole regarding whether or not a flag has a fringe. The arguments presented here are completely disconnected from the way any court has ever looked at these issues.
Another question concerns the ?material? that the companies can restrict without fear of being sued for damages. Section 230(c) protects them for ?any action voluntarily taken in good faith to restrict access to or availability of material? of various sorts. Even before getting to the enumerated categories of material, it is important to recognize that the statute refers only to ?material.? It says nothing about restricting persons or websites.
To be sure, the statute protects the companies for ?any action? restricting the relevant material, and if taken literally ?any action? could include various nuclear options, such as barring persons and demonetizing or shutting down websites. But the term ?any action? can?t be taken to include actions that restrict not only the pertinent material but also other things. ?Any action? has to be focused on such material.
Dude. Come on. Is this a joke?
The statute, moreover, requires that such action be taken ?in good faith.? At common law, that can mean not acting with the effect of destroying or injuring the rights of others and, more specifically, not acting disproportionately to terminate relations. The statute thus doesn?t protect the companies when they take disproportionate action against material, let alone when they unnecessarily restrict other things, such as websites and persons.
Again, the good faith part only matters for (c)(2) which doesn’t matter. (c)(1) and the 1st Amendment have been deemed to protect content moderation takedowns. Many times. Don’t you have law school student helpers who can look this stuff up for you?
What is in good faith for a website may be different from what is in good faith for a tech company that operates like a common carrier or public forum. But at least for such tech companies, the statute?s focus on ?material??combined with the requirement of ?good faith??stands in the way of any categorical protection for suppressing websites, let alone demonetizing them or barring persons.
What does this mean in practice? Even if a company technically can?t bar some material without taking down the entire website, it at least must give the operators an opportunity to remove the objectionable material before suppressing the website altogether. As for demonetizing sites or barring persons, such actions will rarely if ever be necessary for restricting material.
Again, the “good faith” part is meaningless. It’s in (c)(2). Almost no one uses (c)(2) but even if they somehow did rely on it, this interpretation that good faith requires giving a user another chance has no basis in reality. It also has no basis in how content moderation works. It is disconnected from reality.
Such is the statute?s text. If you nonetheless want large common-carrier-like companies to go beyond ?good faith? actions against ?material,? pause to consider a little history, if only as a reality check about the proportionality of your desires. Even the Inquisition gave heretics formal opportunities to recant. And even the Star Chamber required its private censors to bar offensive material, not authors.
Again… what? You’re quoting the wrong part of the statute, misunderstanding what it says, ignoring the key parts of the 1st Amendment’s role here, saying that they’re common carriers when they’re not, misstating what the word “material” means in context… and then talking about Star Chambers?
They let you teach? Like… actual students? Ones hoping to become lawyers? Those poor, poor students.
The next question is viewpoint discrimination. Section 230(c) specifies protection for restricting ?material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.? The companies understand this to include nearly anything to which they object.
But Section 230(c) enumerates only categories of content, not viewpoints. The distinction between content and viewpoint is crucial in free-speech law: Government can?t discriminate against disfavored viewpoints even when regulating unprotected speech such as ?fighting words.? It is therefore telling that the list focuses on content. One may protest that ?otherwise objectionable? could include objectionable viewpoints. But it is obviously a catchall, and following a list of types of content, it would seem to refer only to additional objectionable content.
Yes. The government cannot discriminate. But these platforms are not “the government.” Again, this has been covered. By the Supreme Court. Just recently.
The tech companies could argue that the catchall is still ambiguous. But at stake is viewpoint discrimination by vast companies that are akin to common carriers, whose operations function as public forums, and that are carrying out government speech policy. Are we really to believe that a mere ambiguity should be interpreted to mean something so extraordinary?
And, if my fairy godmother spun around on her toes three times quickly while sprinkling magic fairy dust in the air, maybe I could fly.
Section 230?s text offers the tech companies less shelter than they think. It protects them only from damage claims and not at all when they go beyond a constitutional reading of the statute.
Yes. If they relied on misreading (c)(2) and totally ignored (c)(1) as you did. But they don’t. So I don’t think they’re afraid.
The implications are far-reaching. As litigation comes before the courts, they will have to decide the limits of Section 230 and the lawfulness of privatized censorship. In the meantime, some state legislatures will probably adopt civil-rights statutes protecting freedom of speech from the tech companies. Recognizing that such legislation isn?t barred by Section 230, lawmakers in several states are already contemplating it. One way or another, Section 230 does not, and will not, bar remedies for government privatization of censorship.
The implications are not far reaching. Litigation has already come before the courts. And those state laws that are being proposed, should they ever become law will be tossed out as unconstitutional under the 1st Amendment.
Columbia Law students, I feel sorry for you.