The Twitter "platform vs publisher" battle rages on

As the debate over Twitter’s decision to begin “fact checking” and editing President Trump’s tweets continues, particularly on social media, a lot of rhetorical hay is being made over whether or not these actions place more of a burden on Jack Dorsey in terms of the company’s responsibilities (and potential liabilities) for material posted by users. Considering what an obscure and seemingly dry subject this is, it’s been a bit surprising to see how many people have been engaging in this kerfuffle. I’ve been fairly clear on my own views in this battle, but I remain surprised at the wide range of opinions that keep popping up. For example, one tweet I tossed out a few days ago wound up generating quite a bit of feedback, though it seemed a rather obvious point to make.

When I wrote about this issue recently, I focused on the idea that Twitter was continuing to shift its role on the internet from one of being a platform for users to publish their own content to that of a publisher. I wrote that article in response to a piece at National Review from David Harsanyi. At the time, he was arguing over the merits of Twitter deciding to edit the President’s content in that fashion. But now he’s back with a new piece on the same topic. In this edition, David leads off with a rather contrarian position, saying that it doesn’t matter if Twitter is a publisher or a platform.

A number of conservatives seem wedded to the false idea that if social-media sites like Twitter act like “publishers” rather than “platforms,” they can be stripped of liability protections. Take my friend John Daniel Davidson, who writes in The Federalist: “If Twitter wants to editorialize and ‘factcheck’ President Trump’s tweets with disclaimers, then it should be treated like any other publisher.”

But it is. John makes numerous solid points about the transparently partisan and hypocritical way in which Jack Dorsey runs his business. And perhaps John believes there should be new legislation governing Internet liability. Right now, though, there’s no legal distinction between a “platform” and a “publisher” in Section 230. Twitter is already treated like every publisher.

The Wall Street Journal and New York Times are both publishers, and yet they also enjoy Section 230 protections for third-party content. The law encourages moderation of third-party users.

David focuses on Section 230 of the Communications Decency Act, noting that whether Twitter performs editing like a publisher or not, it shouldn’t matter because they remain protected under Section 230. Like David, I’m not a lawyer either, but the point here is that there’s more to consider here than just the nuts and bolts of the law when it comes to responsibilities.

It may be true that you can’t sue Twitter over perceived “damages” from what someone else tweets from their account. But the company can be held accountable in other ways, primarily through its success or failure in the eyes of its users. My whole point from the beginning of this mess is that Twitter is now taking a beating over a self-inflicted wound. And this is particularly true when you consider David’s point about Section 230.

If Jack Dorsey simply allowed everyone to tweet what they like without the company commenting on it, they would be entirely in the clear. Yes, law enforcement could push them to delete user tweets that contained illegal content such as child pornography or credible threats of physical violence and terminate those accounts. But that’s not the same level of responsibility that binds actual publishers. If someone posts an offensive comment at the Washington Post website, the editors aren’t liable for that content. But if one of their journalists published something in the same category, the editors have control over whether the material sees the light of day. In that sense, they are “responsible” for everything that shows up in the paper.

Looking at the question in this fashion, we’re faced with asking whether Twitter’s users are creating content on the platform or whether they should be treated more like the comment section on a blog or other website. Replies to tweets could be thought of as comments I suppose, but in the broader view, the billions of tweets that go out every day are the entire body of the content on Twitter. Nobody is going to sit there and stare at an empty Twitter page all day any more than they would pay for a copy of the Washington Post that had only the top banner followed by blank, white pages devoid of articles.

So contra Harsanyi, there is actually a significant difference between being a publisher and a platform. A platform is a technical service, acting much like the internet era version of a corkboard (as I pointed out in my previous article). The corkboard manufacturer isn’t responsible for the notes that wind up being pinned to their product. But by editing Trump’s tweets, Twitter is acting as a publisher.. And they should be held to the same standards.

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