The long knives remain out within government circles for Section 230, the portion of the Communications Decency Act of 1996 exempting information service providers from liability when it comes to content posted by third parties.
“Section 230, which is a liability shielding gift from the U.S. to “Big Tech” (the only companies in America that have it – corporate welfare!), is a serious threat to our National Security & Election Integrity,” outgoing President Donald Trump howled December 1st on Twitter. “Our Country can never be safe & secure if we allow it to stand. Therefore, if the very dangerous & unfair Section 230 is not completely terminated as part of the National Defense Authorization Act (NDAA), I will be forced to unequivocally VETO the Bill when sent to the very beautiful Resolute desk. Take back America NOW. Thank you!”
The “national security” angle appears to be Trump’s latest line of attack on Section 230 having raised similar gripes around Thanksgiving. It’s doubtful Congress falls in line with the president’s edict and a veto override the likely outcome based on statements from Republicans and Democrats. Republican Oklahoma Senator Jim Inhofe told reporters he wanted to see Section 230 repealed but it “has nothing to do with the military.”
Section 230 defenders express plenty of skepticism on the “national security” claim.
“There is no way 230 is a national security issue at all,” R Street Institue Senior Manager of Digital Media, Fellow, and sloth enthusiast Shosana Weissmann emailed me in response to Trump’s tweets. “All 230 does is say each speaker is liable for his or her post. That’s it. But shortly after an unflattering hashtag about President Trump began trending, he tweeted this. It appeared as though his response to speech he doesn’t like was reducing speech online. If I’m correct, it would be anti-free speech principles and chilling. And it wouldn’t be the first time. ”
Indeed it’s not the first time Trump railed against those who disagree with him. He ran to FCC regulators for help while a presidential candidate in 2015 after criticism from National Review’s Rich Lowry. He threatened to strongly regulate social media companies “or shut them down” in May. Not exactly the words of someone who claims to believe in free speech.
The social media giants are far from pure in their methods. Twitter’s behavior towards New York Post over their Hunter Biden story reeked of poor judgment and skirted the line of censorship. The cross-platform banning of Alex Jones and InfoWars only gave him more publicity contrary to the desired goal. More voices, not less when it comes from public discourse!
“Big Tech has effectively imported European speech law into the United States,” Attorney Molly McCann wrote at American Mind in an analysis of social media companies. “Big Tech has created a massive internal framework that blankets the nation and imposes European-style standards in direct opposition to the robust, absolutist American rule.”
She fears Americans will no longer appreciate Free Speech as defined by the Constitution. “Big Tech censorship is also dangerous to the long-term stability of the First Amendment. Because digital interaction is so widespread, its European view of speech will slowly begin to chip away at Americans’ absolutist attitude toward speech. Big Tech’s speech codes are chilling and suppressing speech now, but ultimately, our collective attitude toward speech might change.”
This is where Trump, McCann, and other so-called ‘free speech advocates’ go wrong. It’s a misguided concern despite the aforementioned scurrilous, but not illegal, behavior by social media companies.
“The First Amendment protects people from having their speech censored or punished by the government, not by social media companies,” wrote First Amendment attorney Ari Cohn in an email on Section 230 and social media complaints. “The First Amendment protects the right of social media companies to moderate content as they see fit. Weakening Section 230 protections would very likely result in increased moderation to avoid liability, with the additional effect of making it very difficult for new services and websites to compete with the dominant players.”
There’s also misunderstanding, whether willful or accidental is up to interpretation, on the overall broadness regarding Section 230. It’s not, as Trump claimed, a cover for social media companies.
“[W]hile changes to 230 would impact Twitter, it would also have implications for AllTrails, StackOverflow, and the comments sections on publications and smaller blogs,” Weissmann explained to me. “Now, if 230 were to be repealed or modified in many of the proposed ways some have suggested, it would bring us back to the “moderator’s dilemma.” The moderator’s dilemma would make it so these websites are incentivized to moderate SO MUCH speech that relatively little gets through and so they can be sure they won’t be sued, or to moderate absolutely nothing so that they are liable for nothing.”
Rather disturbing when one considers it. No doubt moderators would go absolutely banana viewing content from the millions and millions of users posting everything from cat memes to sports and political commentary on social media. Think social media companies use too many algorithms already? Imagine how many more will be used to monitor content should Section 230 disappear from U.S. law. Smaller companies like Gab or Parler might eventually shut down due to the overly litigious.
“Giant corporations like Twitter and Facebook have the financial means to absorb the risks and costs,” Cohn observed. “Upstart competitors will find themselves staring down the barrel of enormous potential liability.”
Jonathan Rauch was correct while writing Kindly Inquisitors, his 1993 defense of free speech. “What is the right answer to the person who demands something because he is offended? Just this: ‘Too bad, but you’ll live.'”
Something for us all to remember before plunging the legislative blades into Section 230.