Trump may have demanded the repeal of Section 230 of the Communications Decency Act as part of the defense spending bill, but that was just Trump being self-serving Trump, his twits labeled as false and his ridiculous claims being rejected for being ridiculous. Not that progressives disagree, except that they want Section 230 repealed so they can dictate their own flavor of censorship. Bipartisanship at its best, everybody wants to control people’s speech.
But while the First Amendment doesn’t apply to private entities, and Section 230 enables those entities to both publish and moderate as they see fit, there is an unpleasant fact that remains: the normal channels of communication, newspapers, broadcast television and radio, have been supplanted by social media and search engines. No, Zuck isn’t a government official. Yes, Zuck has a lot to say about what others get to say. No, we don’t want or trust government to decide what ideas are permissible. But let’s be real. Do you trust Facebook, Google or Twitter to decide either?
The congressional committee that drafted the 1996 act’s final language knew that Section 230 was a critical law at the dawn of the internet, and we passed it for a specific reason: to protect the internet’s role as a free marketplace of ideas. What went wrong? We succeeded too well.
Much of what we enjoy on the interwebs exists because of the freedom from liability platforms enjoy. I’m liable for defamation for whatever I write, but not for what you write. Yet I can still moderate comments so you don’t have to suffer the hundreds of exceptionally false ones I endure regularly. I keep this place mopped up so people aren’t misled by wildly misguided legal claims. I can do that because of Section 230 without fear, despite some regularly claiming that I have violated their rights or might be liable to the aggrieved because some commenter hurt their feelings. But you already know this.
Nearly a quarter century ago, we couldn’t have anticipated today’s internet, where one private company, Facebook, controls most of the public forums that Americans use to express their views, and another, Google, controls most of the information Americans receive when they search the internet.
We need to re-evaluate Section 230 in light of today’s very different internet. But there’s one thing we shouldn’t re-evaluate: the provision’s role in supporting and nurturing an open and free marketplace of ideas.
Is there a problem? Many think so, mostly having to do with what others are allowed to do, because they, of course, offer only gems of truth, wisdom and goodness. If Section 230 were to be repealed, it would wreak havoc with platforms large and small. Forget FB and Twitter, which would be sued a few million times daily, and there isn’t a chance in hell I would let anyone except Judge Kopf comment here, plus my senior cultural advisers, Guitar Dave and Howl. I’m not getting sued for your deepest thoughts.
Another option that won’t work is the public-utility model. In this scenario, once a platform reaches a certain size, it would be subject to regulation by a public commission, which would decide whether the platform is allowing a free and fair flow of content. Americans don’t want the government acting as an arbiter of truth, deciding what speech is fair or not. This is precisely what the First Amendment is designed to prevent.
Want Trump deciding what content is true? Want Biden either? Some will, and you’re wrong. You might not realize it now, but when you get canceled from social media for the heinous crime of misgendering some rando or questioning how it’s possible Hugo Chavez isn’t a zombie, the message will sink in.
There are better ways to fix Section 230. Normally, the First Amendment doesn’t protect against speech restraints imposed by private entities, but if two or three companies own the entire marketplace of ideas, they should be held liable for failing to post speech that citizens have a constitutional right to express. We have lots of experience and case law about what speech is protected in public parks, state universities and other public places. We may need to modify the rules to a small extent, as we have done for radio and television broadcasting, but they present a good framework.
There’s a certain superficial attraction to this proposal, both because it seems at first blush to have worked for radio and television, and because it relies on First Amendment guarantees. How could anyone not believe in the First Amendment’s right to free speech?
Neither TV nor radio let you comment. They decide what stories air and what’s said about them, and so they’re responsible just as I’m responsible for my posts. You don’t get a vote or a chance to put in your two cents. Plus, they are constrained to avoid using the seven words (which, if some have their way, would be a slightly longer list of evil words that must not be spoken).
Among the most significant lessons learned from social media is how many people out there know so little and say so much (to the delight of their fellow travelers), are dedicated to lying to you and, sadly, are crazy. The promise of offering a broad spectrum of ideas to the marketplace was a wonderful one, and one that I’ve long supported very strongly. The hope is that people would be smart enough to distinguish between sound ideas and bad ones, which may be a bit unrealistic.
So would harm befall the major players, assuming small guys like me were left out of the mix, on the internet if they were constrained by Free Speech requirements like the government? There would be lawsuits, of course, but after the first few million, which Zuck could afford to defend out of pocket change, lawyers would stop wasting their time on nuisance suits because a third of nothing is nothing.
Would this work? Bear in mind, we got to this point with Section 230 because it existed, and what would happen if we tinkered with it remains something of a mystery. There are always unintended consequences, but is the problem bad enough that a tweak is needed and consequences be damned?