Stop Lying About Section 230! It Has Nothing To Do With Trump Getting Kicked Off Twitter.

There are problems with Big Tech, but Section 230 isn't one of them.

The right-wing argument against Section 230 of the 1996 Communications Decency Act remains as dumb as ever. With Trump and some of his acolytes receiving permabans from social media platforms and Parler losing its host based upon repeated term of service breaches, talking heads are lining up to decry “Section 230” for legalizing the suppression of political speech.

Except it doesn’t say any of that.

Here is the entirety of Section 230(c)(1), which is the crux of what Section 230 does (47 U.S.C. § 230):

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In a system known for drafting reams of awkward, contradictory regulations for every simple proposition, Section 230 stands out in its simplicity. If you host a website and a commenter shows up and says something defamatory or criminal, that’s the commenter’s problem, not the website’s.

That’s it. That’s all it says.

And it exists because, as attorneys, we’re professionally obligated to go after the biggest pocket available in any lawsuit and if we could get Mark Zuckerberg to pay for Hotstuff69 posting that you massacre puppies for sport then we’d do it. Instead, we all agree that tech billionaires aren’t on the hook for what 58-year-old incels type in their parents’ basement. And it’s a protection the internet needed because unlike newspapers or TV, the instantaneous nature of the internet would render mass real-time moderation impossible.

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Not that it’s good business to become known as a platform for bad behavior. That’s why these companies still maintain terms of service and employ moderation algorithms. But that’s a matter of brand protection, not a legal issue. And that’s where Section 230(c)(2) comes in, which just protects platforms for doing what newspapers and TV do every single day without facing legal liability: deploy basic standards.

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Internet companies aren’t liable for what commenters put up… but they have the right to enforce terms of service and develop “parental control” filters for what’s put on their private platforms.

Unfortunately, the nonsense going around about Section 230 gets the occasional injection of “credibility” when it’s repeated by disgraced law professors trying to reclaim relevance. Take, for example, a recent op-ed from Yale Law’s Jed Rubenfeld. Rubenfeld partnered with Roivant Sciences CEO Vikram Ramaswamy (who appears to be writing a book called Woke, Inc. to cash in on the snowflakes who blame “wokeness” when their feelings get hurt) to write a Wall Street Journal op-ed that is, frankly, comically bad. I’d say dragging Yale’s gravitas into this atrocious 0L level argument would warrant Rubenfeld’s suspension from Yale’s faculty but he’s already in the midst of a two-year suspension following a sexual harassment investigation.

It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

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Tech companies are permitted to “censor” people who post on their platform in the exact same way newspaper editors can — and in this case probably should have — when they refuse to publish every crackpot letter to the editor. Imagine being so dense as to think Twitter not allowing someone to post 280 characters is a greater roadblock to getting a message out than Fox News refusing to give Rachel Maddow four hours of their primetime window. And, yes, I get that all of the bad faith Section 230 arguments rely on that sort of editorial control being a perk of “publisher” status — it’s a bankrupt “with rights come responsibilities” claim that exercising any moderation at all requires taking on the full responsibility of being sued over every shitpost someone puts up — but it all rests on the emotional appeal that Twitter being able to moderate like every other media outlet is a unique threat to protected speech.

Far from vesting social media with powers that the government is “constitutionally forbidden to accomplish,” Section 230 reiterated that tech companies could do what any other publisher can already constitutionally accomplish.

If anything, in enacting Section 230, Congress reduced the amount of censorship online by relieving companies of the threat of lawsuits. A “publisher” would have banned some of these maniacs, including the then-president, years ago. But because social media platforms didn’t have to fear civil liability for, say, Trump defaming someone via Tweet, they bent their own terms of service into a pretzel.

Section 230 is the carrot, and there’s also a stick: Congressional Democrats have repeatedly made explicit threats to social-media giants if they failed to censor speech those lawmakers disfavored.

Yeah, government threats are not good, and yet that seems to be exactly what this editorial demands. We’ll remove your carrot if you don’t let OUR people use your company to amplify our false, libelous nonsense.

Liberals should worry too. If big tech can shut down the president, what stops them from doing the same to Joe Biden if he backs antitrust suits against social-media companies?

NOTHING! That’s the whole point. It’s just that Biden wouldn’t throw a pity party about it and would just slap on a pair of aviators and stroll to the White House Press Briefing Room to talk to the entire assembled global media.

It’s telling that the only time the editorial comes asymptotically close to a point is in the glib aside about antitrust. I’ve said before that it’s perfectly acceptable to think big tech enjoys outsized influence and simultaneously recognize that they can permaban whomever they want. Facebook has bought up rival social media platforms and absorbed them into their umbrella while slowly building a stranglehold over online advertising — that’s something that antitrust enforcement should look into! And maybe if there were a bunch of “Baby Facebooks” one of them would decide that letting Lin Wood call for the execution of Mike Pence is an acceptable post.

But that would still be that company’s choice.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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