Section 230 critics are forgetting about the First Amendment

It is a recurring theme in political circles that giant digital platforms such as Facebook, Twitter, and YouTube engage in bad behavior—distributing disinformation, allowing hate speech, removing conservative opinions, and so on—in part because they are protected from legal liability by Section 230 of the Communications Decency Act, which says they aren’t responsible for content posted by their users.

Critics on both sides of the political aisle argue that this protection either needs to be removed or significantly amended. Former president Donald Trump signed an executive order in an attempt to get the Federal Trade Ccommission to do something about Section 230, although his efforts went nowhere. Section 230 also plays a role in his recent lawsuits against Facebook, Google, and Twitter. President Joe Biden hasn’t pushed anyone to do anything specific yet, but he has said that the clause should be “revoked immediately.”

One of the most recent attempts to change Section 230 comes from Democratic Senator Amy Klobuchar, who has proposed a bill that would carve out an exception for medical misinformation during a health crisis, making the platforms legally liable for distributing anything the government defines as untrue. While this may seem like a worthwhile goal, given the kind of rampant disinformation being spread about vaccines on platforms like Facebook and Google’s YouTube, some freedom of speech advocates argue that even well-intentioned laws like Klobuchar’s could backfire badly and have dangerous consequences. Similar concerns have been raised about a suite of proposed bills introduced by a group of Republican members of Congress, which involve a host of other carve-outs for Section 230, aimed at preventing platforms from removing certain kinds of content (mostly conservative speech), and forcing them to remove other kinds (cyber-bullying, doxxing, etc.).

To talk about these and related issues, we’ve been interviewing a series of experts in law and technology using CJR’s Galley discussion platform, including Makena Kelly, a policy reporter for The Verge covering topics like net neutrality, data privacy, antitrust, and internet culture; Jeff Kosseff, an assistant professor of cybersecurity law at the United States Naval Academy, and author of “The Twenty-Six Words That Created the Internet, a history of Section 230; Mike Masnick, who runs technology analysis site Techdirt and co-founded a think tank called the Copia Institute; Mary Anne Franks, professor of law at the University of Miami, and president of the Cyber Civil Rights Initiative; James Grimmelmann, a law professor at Cornell Tech; and Eric Goldman, a professor of law at Santa Clara University.

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“To the extent that people want to force social media companies to leave certain speech up, or to boost certain content, or ensure any individual’s continuing access to a platform, their problem isn’t Section 230—it’s the First Amendment,” said Mary Anne Franks. Grimmelmann agreed, arguing that the controversial CDA clause has become “the main battlefront in a new and confused proxy war over the First Amendment.” Kosseff said he doesn’t see any way that the Klobuchar bill would survive judicial scrutiny based on First Amendment principles. “Although it does not directly prohibit speech, it conditions a benefit (Section 230 protection) on a platform not using algorithms to promote what the Health and Homeland Security Secretary considers to be health misinformation,” he said. “For the bill to survive a legal challenge, the Courts would need to substantially expand the exceptions to the First Amendment, and I think that could have substantial negative consequences.”

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Most of the proposed bills aimed at altering Section 230, including Klobuchar’s, would also “undermine or eliminate the things that people love most about the Internet,” said Goldman. Masnick said while he thinks there’s value in trying to figure out ways to deal with widespread (and potentially dangerous) misinformation regarding COVID-19 and vaccines, “I think it’s dangerously misguided to think that modifying Section 230 will do anything towards that particular goal. Indeed, it seems highly likely to backfire in ways that will make things significantly worse.” Whether we like it or not, said Masnick, “nearly all misinformation is protected by the First Amendment. So even if Facebook weren’t protected by Section 230, what would people even sue over? Any lawsuit would fail—it would just be a lot more expensive and wasteful of the court’s time and resources in the process.”

At this point, the dissemination pathway for disinformation is quite clear, said Goldman. “Politicians lie => cable broadcasters like Fox News amplify the lie => social media discusses the lie and extends the amplification. Focusing on the social media activity without fixing the first two won’t solve anything.” In fact, he said, if the government can’t ban disinformation because of the First Amendment, but Internet services can remove it thanks to the protection of Section 230, “we get better results than if Internet services are inhibited from doing this work without any protection from Section 230.” Some have argued that weakening the shield that Section 230 provides could incentivize the platforms to take down too much speech. While that’s a concern, Franks said, there are costs to leaving up too much speech as well: “There’s always a lot of handwringing over slippery slopes when it comes to restricting speech, but what about the slippery slope of allowing billion-dollar corporations to profit from speech that literally gets people killed?”

Here’s more on Section 230:

  • Right to lie: The Biden administration should take the First Amendment as seriously as it does Facebook misinformation, writes Adi Robertson at The Verge, about the president’s attacks on Section 230 for protecting Facebook from liability. “The idea that Section 230 is holding back a crackdown on misinformation is… well, misinformation. Section 230 protects against lawsuits involving illegal content. With limited exceptions, the First Amendment allows people to lie and be wrong online.”
  • Vulnerable: In the battle of Washington versus Big Tech, “the giants are vulnerable,” writes Stephen Maher, a Harvard Nieman Fellow, in an opinion piece published by the Center for International Governance Innovation. “The tech giants have not demonstrated they can be trusted to responsibly handle the sword and shield Congress provided for them through the passing of Section 230 back in 1996,” he argues.
  • Do no harm: When it comes to Section 230 reform, “first, policymakers should do no harm,” writes Cameron Kerry, a former Obama administration official, in an opinion piece written for the Brookings Institution. “Ill-conceived changes to Section 230 actually could break the internet,” he said. “Many proposed solutions—such as mandating content moderation, imposing common carrier obligations, or outright repeal—present potential unintended consequences, including diminishing freedom of expression.”

 

Other notable stories:

  • According to a report from Business Insider, Google founder Larry Page pressured the authorities in Fiji—where he has reportedly been staying during the pandemic—to remove a news report. The state broadcaster had reported that Page had donated COVID-19 medical supplies to the country using his private jet. “Fijian health authorities asked the network to take the article down, saying the information should not be public, said a person familiar with the matter,” Business Insider reported. In 2020, a sailor named Lorenzo Cipriani wrote that locals told him Page bought the island of Namotu “and arrived there by private jet to spend three months on vacation with 30 of his staff. Whilst they are here, some local suppliers and tourism service agencies will work almost exclusively for them.”
  • Mainline, an independent news outlet published in Atlanta, says it is the only news source reporting accurately on the shooting of an unarmed Black man by a local police officer. “The local media are out for deadlines and ratings, not to serve communities,” editor and publisher Aja Arnold wrote. “Every major local news outlet is contributing to the egregious endangerment and oppression of Black and brown people in the city and state. At best, they fail to deliver the news with the appropriate context needed to fully inform the public. At worst, they operate as Atlanta police and city government’s own propaganda machine.”
  • Bustle Digital has launched the latest version of Gawker, the news site that was once part of Nick Denton’s Gawker Media, before the company was forced into bankruptcy following a nine-figure legal judgement in a privacy case launched by former wrestler Hulk Hogan (Bustle bought the site in 2018 for $1.3 million). When Bustle approached her to revive Gawker, “I said absolutely no way in hell,” writes new editor and former Gawker staffer Leah Finnegan. “Who in God’s name would want to edit a website that was cratered by an evil tech lord and sullied by a botched relaunch?” Bustle tried to launch a new version of Gawker in 2019, but that attempt failed after a number of staffers quit.
  • The Committee to Protect Journalists has published a special report on Myanmar, where the military junta that controls the government has been cracking down on journalism. The junta “has effectively criminalized independent journalism,” the organization says, “arresting and charging journalists, closing news outlets, restricting access for international reporters, and driving journalists underground or into exile. Within a few months of the February military coup, the country has become one of the world’s worst jailers of journalists.”
  • Members of the UNC-Chapel Hill journalism school faculty overwhelmingly reject the notion that a donor’s core values should be the official values of the school, according to a recent survey, as reported by NC Policy Watch. “The reason we had to have this survey was because our namesake donor was weaponizing his values and his newspapers’ values against a hire the faculty and the university clearly wanted to make,” said Daniel Kreiss, professor at the UNC Hussman School of Journalism and Media. The university’s board blocked an attempt to hire New York Times writer Nikole Hannah-Jones, who has since joined the journalism faculty at Howard University.
  • Politico is naming White House correspondent Anita Kumar to the newly-created position of “senior editor, standards and ethics” starting this fall, according to a newsroom note from editor-in-chief Matt Kaminski that was obtained by NYC Southpaw. The report also notes that Kumar came under fire in 2019 when she helped organize a farewell party for the Trump administration’s outgoing White House press secretary, Sarah Huckabee Sanders, while Kumar was serving as Politico‘s White House correspondent.
  • LinkedIn seems to be hoping that access to paywalled content from publishers will help convince people to sign up for its premium service. According to Digiday, the Microsoft-owned social network launched a pilot program last month called Premium News, which gives LinkedIn Premium members access to content published by sites that use paywall technology from a company called Piano, a group that includes Gannett and Germany’s Axel Springer. The program, which began with less than a dozen publishers, is still expanding, sources told Digiday, with more publishers expected to join in the coming weeks.
  • Joseph Curl, who covered the White House for the Washington Times and spent four years as an editor of The Drudge Report, has launched a conservative news aggregator called “Off the Press,” which went live on Tuesday. Curl told the Times he believes the marketplace is ready for “a premier news aggregator that consumers can trust” rather than one that is simply “an echo chamber for mainstream news.”

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Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.