What Does The Viral Afroman Trial Have to Do with Section 230?
from the because-i-got-section-230 dept
The internet has been rightfully enjoying videos from the defamation trial against Afroman, a musician known for his humorous songs including “Because I got high.” The lawsuit involves songs he wrote about a 2022 raid police conducted on his house, which was based on flimsy evidence. The songs justifiably mock the officers involved. Mike Masnick wrote a recap of the case here, which is worth reading for many reasons, but the songs and Afroman’s testimony are true highlights.
After the raid, Afroman released his songs on YouTube and they went viral initially on TikTok, both massive platforms for users to share their speech and that of other users. The officers who raided his home, seeking to silence someone making fun of them, sued Afroman for defamation, emotional distress, and other causes in 2023.
Spoiler: Afroman won. The songs are not defamatory. But we didn’t know that for sure until a jury told us so this week. For three years, from the moment the lawsuit was filed until the jury issued its verdict, the songs were allegedly defamatory. And their continued “publication” ran the risk of liability.
So why could we still see the songs on YouTube, TikTok, Bluesky, and whatever other online platforms where we first encountered them? One big reason is Section 230 of the Communications Decency Act.
Section 230 says that interactive computer service providers, like online platforms, cannot be treated as the publisher or speaker of information content provided by other information content providers. That means that YouTube could not be liable for the content of Afroman’s songs, even if they were defamatory. That’s the balance Section 230 strikes. Under 230, there is still accountability for the speaker, but online platforms are not liable for their users’ illegal speech.
By and large this balance has been incredibly beneficial to free expression online, supporting speech about everything from the profoundly consequential (#MeToo and Black Lives Matter) to the somewhat silly (a song about a cop who got distracted from a raid by a delicious looking “Lemon Pound Cake”). But now, members of Congress like Senator Lindsey Graham and Senator Dick Durbin want to repeal or replace Section 230 without much of a plan for what comes next.
On March 18, Daphne Keller, a professor of law at Stanford and expert in intermediary liability laws around the world, testified before the Senate Commerce Committee. She tried to explain to the Senators that Section 230 may not be perfect, but it’s still better than any of the options she has seen. To understand why Daphne’s right, let’s think about what Afroman’s case might have looked like without Section 230. The moment Afroman was allowed to distribute his songs about the raid on YouTube, the company could have been liable for any potentially illegal speech they contained. That means YouTube probably also would have been a co-defendant in the cops’ suit. At the scale many online platforms operate at, these kinds of accusations of defamation and lawsuits related to user posts would happen hundreds of thousands, if not millions, of times a day.
That’s a lot of litigation.
Staring down the barrel of that many potential lawsuits every day, no reasonable platform would have allowed Afroman’s speech to stay up. The moment an accusation of illegality surfaced, a platform acting reasonably would likely take the speech down. And to be clear, we have evidence that this is how they would react: That’s the incentive structure currently in place under the Digital Millenium Copyright Act (DMCA). The DMCA creates a notice and takedown system for alleged copyright violations and evidence suggests that improper takedown requests are common and, even with the safeguards for speech built into that law, result in over-censorship. Replicating a version of the DMCA for all content on the internet writ large would likely produce the same overcensorship result. At a minimum, the platforms certainly wouldn’t allow their algorithms to recommend posts linking to the defamatory songs, effectively “shadowbanning” them, which is probably one of the main ways many people came across the songs to begin with.
The upshot is: Section 230 created the conditions that allowed us to hear Afroman’s songs, and allowed platforms to recommend them, even while their status was in legal limbo.
There are millions of similar situations, large and small, every day where Section 230 ensures that online platforms do not have to try to make context-specific legal judgment calls. Section 230 may not be perfect. No law is. But it’s the best and most effective protection for free expression online we have, allowing online services to simply let their users speak. Congress should be very cautious about changing it, let alone eliminating it altogether.
Kate Ruane is the Director of the Free Expression Program and the Center for Democracy & Technology, where she advocates for the protection of free speech and human rights in the digital age.
Filed Under: afroman, defamation, intermiediaries, section 230
Comments on “What Does The Viral Afroman Trial Have to Do with Section 230?”
Viral - and...?
Something I’ve been meaning to ask for years:
Can someone please explain to me why in the everloving fuck something having gone viral is (A) noteworthy in any way, given all it means is ‘many eyeballs’, and (B) why every single journalist alive reports on incidents of sudden popularity online as though the popularity itself was at least as important as the subject matter. Maybe it actually is. Wouldn’t even surprise me, any more.
It’s always struck me as a sign of something fundamental – other than the extraction class owning it all – being extremely broken in modern journalism, but I’ve never been close enough to it to get a sense of whether I’m right or wrong or just stupid.
Re:
The “virality” of the songs is not the significant part about the case, other than to indicate a large number of people were able to view them and thus became aware of the actions taken by these police, which is the actual meat and potatoes of the case. Without 230, this platform for him to stand up for his rights would not have been available, and likewise far fewer people would have been made aware of their own rights when he won.
Re:
No, it’s the adjectival “viral” which is stupid and usually not at all helpfully descriptive. And which, like “meme”, was instantly abused upon its co-option into slang. (e.g., people labeling things as “viral”, including in the title, before even publishing them.)
In this case, while it is Pavlovianally annoying to see, i largely give it a pass as it is somewhat descriptive in that, yes, many people have seen it, which is a good thing. Probably. If they get the real point instead of being mildly amused. At least it somewhat colors the collective consciousness.
Re:
Well, “many eyeballs” on something that doesn’t pay for the privilege means that all those eyeballs found it interesting. So…the news is reporting on something of interest to many people…which is kinda their whole thing.
As to why, my theory is that, while outrage and disasters are what sells, most reporters don’t actually enjoy covering nothing but those…so when an already-popular story that isn’t that drops in their laps, they jump all over it.
My favourite line about the whole affair was hearing someone say “Afroman has managed to become the one and only successful sovereign citizen”.
What scares me the most is how exactly a police department can sue for defamation.
I don’t want officers to become lawyers so they can use a combination of force and legal know how to simultaneously arrest and sue people at the same time.
And giving the most vindictive lawyers access to guns, handcuffs, and truncheons is high octane nightmare fuel
Re:
Now I want to see Judge Dredd, but it’s all civil lawsuits that he decides himself. “You defamed me! Ten thousand dollars! Also, you’re going to jail.”
Re: Re:
Tell me about it.
I watched the unskippable “You Wouldn’t Steal A Car” ad before so many DVDs when I was back in high school and I made the connection that pirates, in risking theft accusations to show movies and songs, could be brazen thieves or concerned preservationists. It would just depend on the context. I also began to fear that law enforcement and our criminal justice system is too beholden to large private entities if they’re going to enforce corporate laws. Then again, the idea of corpo-cops is pretty common in dystopian fiction.
The problem is defamation law
Of course almost no one strikes at the root and favors abolishing evil defamation law, which is the real problem. All these patches can’t solve that. See Defamation as a Type of Intellectual Property.
And the other problem is the CDA is unconstitutional, since as bad as state defamation law is, the Constitution does not authorize federal law that overrides state law. (The same is not true of the DMCA since that limits copyright liability, which is based on evil copyright law–another law that people who whine about the abuses of copyright do not really oppose.)
All IP law, including especially patent and copyright (which is also unconstitutional as it violates the First Amendment (Copyright is Unconstitutional)), but also trademark (which is also unconstitutional because the copyright clause does not include it) and the reputation rights of defamation law should be abolished. Until we do, no patches and tinkering can prevent the harms that inevitable come from these laws. See The Problem with Intellectual Property and Intellectual Property Rights as Negative Servitudes.
I have never heard a more credible statement than when Afroman testifies in open court under oath “I got drunk, I got high.”
You can’t explain why something is the best option by cherrypicking exactly one alternative. At best that just tells you it’s better than that one option, and at worst is an intentional strawman.
It also allows us to hear them, even if he had definitively lost, as you mentioned. Left unsaid is why this needs to be the case even after the case was ruled on.
The DMCA obligates them to take it down in order to maintain safe harbor. That’s not the same incentive structure.
I mean, the best protection for speech would be to simply get rid of defamation entirely, if freespeechmaxxing is what you want.
Oh, they have a pretty solid plan for what comes next. The repeal alone functions, in effect, as a backdoor lèse-majesté law by stifling critique of the regime.