Section 230 Continues To Not Mean Whatever You Want It To

from the 230-truthers dept

In the annals of Section 230 crackpottery, the "publisher or platform" canard reigns supreme. Like the worst (or perhaps best) game of "Broken Telephone" ever, it has morphed into a series of increasingly bizarre theories about a law that is actually fairly short and straightforward.

Last week, this fanciful yarn took an even more absurd turn. It began on Friday, when Facebook began to roll out test warnings about extremism as part of its anti-radicalization efforts and in response to the Christchurch Call for Action campaign. There appears to be two iterations of the warnings: one asks the user whether they are concerned that someone they know is becoming an extremist, a second warns the user that they may have been exposed to extremist content (allegedly appearing while users were viewing specific types of content). Both warnings provide a link to support resources to combat extremism.

As it is wont to do, the Internet quickly erupted into an indiscriminate furor. Talking heads and politicians raged about the "Orwellian environment" and "snitch squads" that Facebook is creating, and the conservative media eagerly lapped it up (ignoring, of course, that nobody is forced to use Facebook or to pay any credence to their warnings). That's not to say there is no valid criticism to be lodged—surely the propriety of the warnings and definition of "extremist" are matters on which people can reasonably disagree, and those are conversations worth having in a reasoned fashion.

But then someone went there. It was inevitable, really, given that Section 230 has become a proxy for "things social media platforms do that I don't like." And Section 230 Truthers never miss an opportunity to make something wrongly about the target of their eternal ire.

Notorious COVID (and all-around) crank Alex Berenson led the charge, boosted by the usual media crowd, tweeting:

Yeah, I'm becoming an extremist. An anti-@Facebook extremist. "Confidential help is available?" Who do they think they are?

Either they're a publisher and a political platform legally liable for every bit of content they host, or they need to STAY OUT OF THE WAY. Zuck's choice.

That is, to be diplomatic, deeply stupid.

Like decent toilet paper, the inanity of this tweet is two-ply. First (setting aside the question of what exactly "political platform" means) is the mundane reality, explained ad nauseum, that Facebook needs not—in fact—make any such choice. It bears repeating: Section 230 provides that websites are not liable as the publishers of content provided by others. There are no conditions or requirements. Period. End of story. The law would make no sense otherwise; the entire point of Section 230 was to facilitate the ability for websites to engage in "publisher" activities (including deciding what content to carry or not carry) without the threat of innumerable lawsuits over every piece of content on their sites.

Of course, that's exactly what grinds 230 Truthers' gears: they don't like that platforms can choose which content to permit or prohibit. But social media platforms would have a First Amendment right to do that even without Section 230, and thus what the anti-230 crowd really wants is to punish platforms for exercising their own First Amendment rights.

Which leads us to the second ply, where Berenson gives up this game in spectacular fashion because Section 230 isn't even relevant. Facebook's warnings are its own content, which is not immunized under Section 230 in the first place. Facebook is liable as the publisher of content it creates; always has been, always will be. If Facebook's extremism warnings were somehow actionable (as rather nonspecific opinions, they aren't) it would be forced to defend a lawsuit on the merits.

It simply makes no sense at all. Even if you (very wrongly) believe that Section 230 requires platforms to host all content without picking and choosing, that is entirely unrelated to a platform's right to use its own speech to criticize or distance itself from certain content. And that's all Facebook did. It didn't remove or restrict access to content; Facebook simply added its own additional speech. If there's a more explicit admission that the real goal is to curtail platforms' own expression, it's difficult to think of.

Punishing speakers for their expression is, of course, anathema to the First Amendment. In halting enforcement of Florida's new social media law, U.S. District Judge Robert Hinkle noted that Florida would prohibit platforms from appending their own speech to users' posts, compounding the statute's constitutional infirmities. Conditioning Section 230 immunity on a platform's forfeiture of its completely separate First Amendment right to use its own voice would fare no better.

Suppose Democrats introduced a bill that conditioned the immunity provided to the firearms industry by the PLCAA on industry members refraining from speaking out out or lobbying against gun control legislation. Inevitably, and without a hint of irony, many of the people urging fundamentally the same thing for social media platforms would find newfound outrage at the brazen attack on First Amendment rights.

At the end of the day, despite all their protestations, what people like Berenson want is not freedom of speech. Quite the opposite. They want to dragoon private websites into service as their free publishing house and silence any criticism by those websites with the threat of financial ruin. It's hard to think of anything less free speech-y, or intellectually honest, than that.

Ari Cohn is Free Speech Counsel at TechFreedom

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Filed Under: 1st amendment, alex berenson, extremism, fact checking, free speech, section 230, speech
Companies: facebook


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  • identicon
    Glenn, 9 Jul 2021 @ 10:49am

    Combat extremism: get off social media (unless you're being social with someone you actually know [which was the real point of social media in the first place]).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Jul 2021 @ 11:41am

      Re:

      The big benefit of social media is that it allows you to connect with people with similar interests anywhere in the world. To some extent that is a bit of a curse, but don't let the media's focus on the problems of social media blind you to the greater good, that they never report on.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 9 Jul 2021 @ 10:55am

    DOOOOOOOOOOO SOMETHING!!!!!!!
    No not that thing, no not that other thing... keep doing shit until you happen on the thing we like, in the meantime we'll keep demanding you do more or less offering no useful input... nerd harder and solve societies problems!!!!!!!

    (waves at Ari. Pet the puppy for me, i miss seeing puppies)

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 9 Jul 2021 @ 11:43am

      Re:

      Love that idea.
      Tech to solve all mankind's, strangeness. Find a way to balance all the Rules and regs around the world into 1 that the net can handle.

      Ever cross a border and wonder if the Gun and knife laws changed?

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 9 Jul 2021 @ 12:57pm

        Re: Re:

        The problem is so very human...
        they think everything is just like this other thing they know about & assume they can just do the same old things to fix it.

        The internet is like nothing that has come before, while it does have societies problems we've not solved them in the real world why do they think we can solve it in cyberspace?

        People demand solutions without any concern for what goes into making it happen & are shocked just shocked when they discover that to fix A they also managed to screw up B C D E F G etc. because the world isn't binary & computers really really suck at solving problems where the best possible answer is shrug emoji Maybe?

        I know pornography when I see it!!!
        The problem is to some people seeing a womans ankle is pornographic, a classical great masters painting with nipples is pornographic, that poptart has been chewed into a phallic shape...

        People need to make more effort on their own behalf instead of demanding the world conform to their specific wants & desires.

        reply to this | link to this | view in chronology ]

        • icon
          ECA (profile), 9 Jul 2021 @ 4:44pm

          Re: Re: Re:

          Love the Ankle bit.
          But BEFORE that time it wasnt that bad.
          There are some great old Paintings of nudes, and statues that over time they have edited.
          1 Pope went threw the halls, and demanded all Exposed statues have the Penis Cut off.
          Still waiting for them to be Put back by another pope.
          Got any glue?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Jul 2021 @ 8:32am

          Re: Re: Re:

          Some people just can't handle disagreement, or the diversity of humanity on display on social media. It's so much easier to scream rage and demand someone else magically make everything and everyone they don't like go away, than to engage in civilised discussion and critical thought. Or to, you know, just not look at women's ankles if they're so bad.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Jul 2021 @ 5:48pm

      Re:

      Do All The Things!

      reply to this | link to this | view in chronology ]

  • icon
    Andrew (profile), 9 Jul 2021 @ 11:56am

    Like decent toilet paper, the inanity of this tweet is two-ply.

    The perfect double-entendre, since decent toilet paper is mostly what's needed to read Mr. Berenson's tweet.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Jay Dee, 9 Jul 2021 @ 1:07pm

    Same circus, different monkey

    The problem with Section 230 is the same problem with many other federal regulations; enforcement. The same people want gun safety but don't want to prosecute people who flout the law; especially if they're a protected minority. The ruling elites are quite satisfied with the way Big Social Media works so long as it supports them.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 9 Jul 2021 @ 1:23pm

      FYI: Section 230 doesn’t protect “Big Tech” from its own speech. If⁠—and that word does a lot of heavy lifting here⁠—what Facebook is doing with its “extremism” warnings is unlawful in some way, neither 230 nor the First Amendment would allow Facebook to have the lawsuit dismissed before it even gets off the ground. That said: Facebook’s speech isn’t unlawful, which means it’s still protected by the First Amendment.

      reply to this | link to this | view in chronology ]

      • icon
        Chozen (profile), 12 Jul 2021 @ 12:32pm

        Re: Wrong!

        "Section 230 doesn’t protect “Big Tech” from its own speech."

        Yes it does. That is the whole point. Curating is speech and abuse of its is subject to due process of law just like any other speech. In other words you can be sued for it.

        Section 230 immunizes Bit Tech from due process and legal recourse of their speech.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 13 Jul 2021 @ 3:19am

          Yes it does. That is the whole point.

          No, you’ve actually got it inverted. 230 protects “Big Tech” from liability for third-party speech⁠—i.e., speech that doesn’t come from “Big Tech”. Any speech that comes from “Big Tech” isn’t protected by 230 in any way, shape, or form; it’s the big reason why Backpage got in so much trouble.

          Granted, speech from “Big Tech” itself is still protected by the First Amendment (until it’s been ruled unlawful). Anyone filing a lawsuit against “Big Tech” over its own speech would still need to climb that steep 1A cliff for even the chance of seeing the summit that is a favorable judgment. But 230 wouldn’t be an obstacle before that climb because 230 doesn’t grant immunity to first-party speech.

          reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 12 Jul 2021 @ 9:24am

      Re: Same circus, different monkey

      The problem with Section 230 is the same problem with many other federal regulations; enforcement.

      Section 230 is being enforced just fine. It's gotten misguided lawsuits dismissed left and right.

      reply to this | link to this | view in chronology ]

  • icon
    David Sanger (profile), 9 Jul 2021 @ 1:57pm

    If conservative websites think Section 230 is so terrible let's see one of them voluntarily waive all their Section 230 protections and immunities.

    Still waiting….

    reply to this | link to this | view in chronology ]


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