Before I take on politicians trying to gut Section 230, I need to revisit my prediction of how Facebook and other social media giants would react if its immunity didn’t exist. In my previous post, I claimed that if social media companies could be held liable for third party content, they “would vanish, because all they are is third-party content.”
On second thought, I realized that Facebook makes so much money that Zuck would probably never shut it down. Instead, without Section 230 immunity, Facebook might eliminate moderation altogether. Facebook could still obtain immunity by arguing that it is a mere “distributor” of material created by others, and like a bookseller, it can be held liable for defamation or other torts only if it is notified of the offending content and fails to act.[1] This was the approach taken in Cubby v. Compuserve, Inc.,[2] a 1991 federal district court decision — but it’s hardly certain that Cubby would be applied nationwide.
We know for sure that if Joe Biden is elected and follows up on his campaign-trail rhetoric, Facebook will have to take its chances. Despite heavy criticism from supporters of free speech online, Vice President Biden has repeatedly called not merely to reform Section 230, but to “revoke” it. (What that means is unclear; the President doesn’t have the power to “revoke” statutes. But there is a long tradition of Presidents overlooking legal technicalities like separation of powers and Constitutional rights, so Biden fits right in.) Most recently, in late May, Biden – through a campaign spokesperson – reiterated for the third time “his position that the law should be revoked and that he would seek to propose legislation that would hold social media companies accountable for knowingly platforming falsehoods.”[3] Whether Facebook is in fact knowingly publishing lies, of course, often depends on who’s asking and what the “lies” are.
“Biden’s desire to “revoke” Section 230 would destroy statutory immunity for all “interactive computer services,” not just Facebook. It’s gross overkill.”
And that is the heart of the problem. Defamation law as it exists now allows recovery by public officials and public figures only if they can prove that the allegedly defamatory statement was published either with knowledge of its falsity, or a high degree of awareness that it was false.[4] Despite this high barrier to recovery, politicians and public figures bring groundless defamation suits all the time, hoping to intimidate other critics, impose high costs on opponents, or rally their supporters—but rarely to restore their reputations. The chilling effect of these cases is real, especially without a federal Anti-SLAPP law in place. Finally, although you might respond “so what, Zuck can afford it,” remember that Biden’s desire to “revoke” Section 230 would destroy statutory immunity for all “interactive computer services,” not just Facebook. It’s gross overkill.
You will probably be unsurprised to learn that re-electing the current occupant of the White House will not be much better for online speech. To President Trump’s credit, his “Executive Order on Preventing Online Censorship”[5] does not seek to “revoke” Section 230, or even to amend it. This makes sense, because presidential executive orders cannot repeal or amend federal statutes.[6]
Substantively, the order does not do much – and most of what it seeks to do is unconstitutional. For example, the order seeks to support regulation of social media by declaring in the “Policy” section that popular social media platforms “function in many ways as a 21st century equivalent of the public square.” The reason for this is obvious: the First Amendment applies in full force to any public forum, so if Facebook, Twitter, and other large social media sites are operating public forums, they are subject to the First Amendment’s prohibitions – including the prohibition against censorship of expression based on its content. As public forums, Facebook and Twitter could not remove posts based on their content unless they could meet the exacting “strict scrutiny” test, which very few regulations of speech can satisfy.
Leave aside for the moment that asserting control over private companies’ property is not what you’d necessarily expect to see from a Republican President. More important, last summer the Supreme Court, with both Trump appointees voting with the five-Justice majority, ruled that “merely hosting speech by others is not a traditional, exclusive public function and does not transform private entities into state actors subject to First Amendment constraints.”[7 ] Under such a rule, property owners “would face the unappetizing choice of allowing all comers or closing the platform altogether,” and that result is fundamentally inconsistent with the Constitution.[8 ] So President Trump’s effort to analogize social media to the “public square” runs right into contrary Supreme Court precedent barely one year old.
The executive order also directs the Federal Communications Commission to make administrative rules governing Section 230, specifically addressing whether Section 230(c)(1) immunizes moderation and defining the standard for “good faith” moderation under Section 230(c)(2)(A).[9 ] But more than 20 years ago, Reno v. ACLU[10 ] held that the FCC has no power to regulate the Internet, so the order imposes another legally empty directive that will cost taxpayers money to litigate and serve only to whip up the President’s base.
There are plenty of other politicians who want to mess with Section 230. As usual, the hostility to free speech comes from both the right and the left. Senator Josh Hawley, Republican of Kansas, proposes amending the law to allow consumers to sue large social media sites for $5,000 plus attorney fees for any “design” or “operation” of the site that is not in “good faith,”[11 ] which would be great for lawyers but horrible for free speech, and violates the First Amendment by inserting the government into the design and operation of social media sites – including their editorial and moderation decisions. Not to be outdone, unsuccessful contender for the Democratic Presidential nomination Senator Bernie Sanders advocates legal changes that will ensure “tech giants and online platforms . . . are held responsible when dangerous activity occurs on their watch, while protecting the fundamental right of free speech in this country and making sure right-wing groups don’t abuse regulation to advance their agenda.”[12 ] Like Hawley’s proposal, Sanders’s idea envisions viewpoint discrimination flagrantly inconsistent with First Amendment requirements.
After reviewing the proposals floated by Biden, Hawley, and Sanders, and the Trump executive order, it’s clear to me that the safest approach to any Section 230 “reform” is to assume that the cure is worse than the disease, and work from there. The question isn’t whether you like how Facebook and Twitter moderate, ban users, and flag dubious posts; it’s whether you would rather have the government do those things. As bad as Facebook and Twitter might be, I’ll pick them over self-interested politicians all day long, especially when the proposals for “reform” are as partisan as the ones that are now on offer.
____________________________________
[1] Janklow v. Viking Press, Inc., 378 N.W.2d 875, 881-82 (S.D. 1985); see also Restatement (Second) of Torts §581 (1977), comment a (“the [news] dealer is under no duty to examine the various publications that he offers for sale to ascertain whether they contain defamatory items. Unless there are special circumstances that should warn a dealer that a certain publication is defamatory, he is under no duty to ascertain its innocent or defamatory character.”) (return) [2] 776 F. Supp. 135, 139-41 (S.D.N.Y. 1991). (return) [3] https://www.theverge.com/2020/5/29/21274812/joe-biden-donald-trump-twitter-facebook-section-230-moderation-revoke (return) [4] I previously walked you through these rules: https://llgmke.com/vehement-caustic-and-unpleasantly-sharp-attacks-on-public-officials-its-the-american-way/ (return) [5] https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/ (return) [6] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-36 (1952) (Jackson, J., concurring). (return) [7] Manhattan Community Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019). (return) [8] Id. at 1931. (return) [9] Secs. 2.b. (i) and (ii). (return) [10] 521 U.S. 844 (1997). (return) [11] https://www.documentcloud.org/documents/6950261-Limiting-Section-230-Immunity-to-Good-Samaritans.html (return) [12] https://pen.org/bernie-sanders-on-free-expression-in-america/ (return)
