from the important-questions dept
Imagine if you could be sued for blocking other users on Twitter, or limiting who could see your Facebook posts. Or if every website were full of racial slurs, conspiracy theories, and fake accounts. Parental control tools could no longer prevent your kids from seeing such heinous content. If that sounds like the Internet you’ve always wanted, then you’ll love Republicans’ new “Online Freedom and Viewpoint Diversity Act” and “Online Content Policy Modernization Act!”
In 1996, Congress agreed, almost unanimously, that users, websites, and filtering tool developers shouldn’t face such legal risks and that it was imperative “to remove disincentives for the development and utilization of blocking and filtering technologies.” That’s why Congress enacted Section 230 of the Communications Decency Act. But a few weeks ago, after yet another Trump tweet raging about “biased Big Tech,” three Republican Senators rushed to introduce legislation that would turn the law on its head. Sen. Lindsay Graham followed suit with his own bill that would do essentially the same thing. Trump’s Department of Justice has proposed to gut Section 230. Never mind that Section 230 was authored by a Republican congressman who still defends the law.
Today, Section 230 broadly protects users, websites, and developers of filtering tools (built into operating systems, search engines, or services like YouTube — or that you can install yourself) when they exercise their First Amendment rights to decide what content or users to block or “restrict access” to. This new bill would sharply curtail such content moderation. To avoid liability, a defendant would have to prove the content was “obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful.” That covers only a fraction of the Internet’s awfulness. Even the vilest statements could not be removed or filtered unless tied to the harassment of specific users or the clear glorification of violence. The bill doesn’t cover spam, fake accounts, clear hate speech, or clear misinformation. That last exclusion is intentional: it was Twitter’s timid moves in May to put warning labels on Trump’s tweets about mail-in voting that quickly led the White House to issue an executive order calling for legislation to “reform” Section 230.
Republicans aim to stop content moderation for “political” reasons. But it would invite litigation over even truly neutral restrictions. Nextdoor.com limits discussion of national political issues to special “groups,” so that the site can focus on hyper-local issues. But the bill would no longer protect such segmentation. If a medical school wanted to keep its students focused on studying science rather than arguing about politics, enforcing that rule wouldn’t be protected either.
Republicans complain about “Big Tech,” but their bill would expose everyone to lawsuits. Trump himself has invoked Section 230 to avoid liability for retweeting allegedly defamatory material. FoxNews.com reserves the right to block “offensive” comments on its site, as Breitbart.com does for “inappropriate” content. Even Parler, the conservative “free speech” alternative to Facebook reserves broad discretion to remove any content that they consider “disruptive” or that creates “risk” (not just legal risk) for Parler.
Section 230 protects not just the providers but users engaged in content moderation — such as those who manage Facebook pages and groups. Reddit relies on users to moderate its 130,000 “subreddit” communities, while the English Wikipedia depends on 1,131 volunteer administrators to resolve conflicts. Would you volunteer if you knew you could be sued by disgruntled users?
Republican proposals would open the door to creative plaintiffs’ lawyers to sue anyone who feels aggrieved for being “censored.” Yet it won’t do what Republicans want most: allow the FTC, Republican state attorneys general, and MAGA activists to sue “Big Tech” for “deceiving” consumers by not delivering political “neutrality” as (supposedly) promised. The reason consumer protection agencies have never brought such suits, and courts have tossed out private lawsuits, isn’t Section 230. Back in 2004, left-wing activists petitioned the FTC to sanction Fox News for not delivering on its “Fair and Balanced” slogan. The Republican FTC Chairman dismissed the petition pithily: “There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.” Offline or online, the courts simply won’t adjudicate questions of media bias because they’re inherently subjective.
Section 230’s protections are vital to the Internet, where both users and providers make editorial decisions about content created by third parties at a scale and speed that are simply unfathomable in the world of traditional publishing. This new bill attempts to use Section 230’s indispensability to coerce the surrender of First Amendment rights. That violates the “unconstitutional conditions” doctrine. In 1969, the Supreme Court upheld imposing special “Fairness Doctrine” conditions on broadcast licenses only because it denied broadcasters full First Amendment protection. But the Court has repeatedly said that new media providers enjoy the same free speech rights as traditional publishers — and has struck down fairness mandates on newspapers as unconstitutional.
Republicans fought the Fairness Doctrine for decades. Their 2016 platform demanded “free-market approaches to free speech unregulated by government.” Yet now they want an even more arbitrary Fairness Doctrine for the Internet. They should remember what President Reagan said when he ended the original Fairness Doctrine in 1987: “the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.”
If, despite a lack of any solid evidence, conservatives persist in believing that social media are biased against them, they should vote against it with their clicks and dollars. Switch to Parler, if you like. Just don’t be surprised when you find content like this on the site:
By comparison, #Section230 has 262 “parleys” (posts) — roughly 20% as many as #JEWS). And this is just the tip of a very large iceberg that includes “parleys” like this (note the gruesomely pro-Holocaust account name:
Parler has chosen not to remove such content — but Section 230 would protect the site if it did. Not so if Republicans got their way.
Let that sink in. When Republicans complain about “hate speech” being used as an excuse for censoring conservatives, this is among the content they’re saying should stay up. Because… “bias.”
Ironically, Parler has engaged in selective moderation of hate speech to make the site seem just respectable enough to attract Republican politicians like Sens. Ted Cruz, Sen. Rand Paul, and Rep. Devin Nunes. The site clearly blocks any variant of the n-word in hashtags — which are wildly popular on Gab, which Parler has rapidly eclipsed as the “free speech” network. Gab offers a clear picture of what social media would look like if Republicans succeeded in narrowing Section 230’s protections. This is what an “uncensored” Internet looks like:
If anything, it’s difficult to appreciate how widespread such content is on both Parler and Gab because, unlike Facebook and Twitter, they only allow users to search hashtags (and names of users and groups), not the contents of posts. But one thing’s clear: while Parler blocks the n-word in hashtags, they definitely don’t block it in posts.
Is this really what Sens. Wicker, Blackburn and Hawley really want the Internet to look like? Do they really believe Section 230 shouldn’t protect websites when they remove such heinous content? Or do they believe that that removing such content would still be covered by Section 230 because it would fall into the category of “harassing” content already explicitly protected by Section 230.
The NTIA’s petition to have the FCC rewrite Section 230 defines “harassing” content as having the “subjective intent to abuse, threaten, or harass any specific person.” You don’t have to be a lawyer to see how narrow that definition is. If a neo-Nazi posts something like one of the above hashtags as a reply to a black or Jewish user, yes, that might qualify as “harassing,” but simply ranting about both in his own posts would not be directed at any specific person — so websites wouldn’t be protected for removing it. Republican lawmakers might claim they take a broader view of what should qualify as “harassing,” but it’s hard to see why any court would agree. In any event, what Members or their staff say they intend is irrelevant; what matters is the plain text of the statute. If they want to make their intention clear, they need to pick other words and put them in the statute.
More importantly, hate speech is just one category of noxious content that websites could be sued for removing, hiding or labeling if Republicans have their way. The same goes for conspiracy theories, misinformation about COVID, vaccines, and voting, etc. For example:
Could moderating anti-vaccination misinformation be covered by the term “promoting self-harm?” Again, that’s a huge legal stretch — especially because the “harm” at issue here is primarily not to the “self” but to the children of parents duped by anti-vax content, and to those in society who get infected because vaccination rates fall below levels needed to achieve herd immunity. Even if a court decided that the term might cover some anti-vax content, websites would have to fight it out in court, and courts might rule differently in different cases.
If you want those things for yourself and your children, go to Gab or Parler. Just, please, stop trying to turn the rest of social media into those sites. And don’t complain when those sites fail to attract advertising. What respectable brand in America would want to advertise its products next to such content?
President Reagan’s answer would have been clear: private companies should be free to make their own decisions, especially when the alternative is a true cesspool of everything that is worst about humanity. Sadly, today’s Republicans don’t seem to care about anything beyond making political hay out of repeating the same baseless claims that they’re being persecuted.
Filed Under: 1st amendment, case act, content moderation, doj, lindsey graham, online content policy modernization act, online freedom and viewpoint diversity act, section 230
Companies: facebook, gab, parler, twitter