Let's talk about Section 230 of the Communications Decency Act


A number of people seem wedded to the false idea that if social-media sites like Twitter act like “publishers” rather than “platforms,” they can be stripped of liability protections. Take John Daniel Davidson, who writes in The Federalist: “If Twitter wants to editorialize and ‘factcheck’ President Trump’s tweets with disclaimers, then it should be treated like any other publisher.”

But it is. John makes numerous solid points about the transparently partisan and hypocritical way in which Jack Dorsey runs his business. And perhaps John believes there should be new legislation governing Internet liability. Right now, though, there’s no legal distinction between a “platform” and a “publisher” in Section 230. Twitter is already treated like every publisher.

The Wall Street Journal and New York Times are both publishers, and yet they also enjoy Section 230 protections for third-party content.  The law encourages moderation of third-party users.

Here is the relevant bit:

No provider or user of an interactive computer service shall be held liable on account of 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.

Nowhere does Section 230 stipulate that this moderation needs to adhere to any ideological “neutrality” — a subjective, debatable and unconstitutional standard, even if it did.

If a commenter on The Daily Planet website defames someone by accusing them of criminality, The Daily Planet is not liable. If The Daily Planet commissions that commenter to defame someone on its site, The Daily Planet is liable. In the same way, if Twitter “factchecks” a user, its opinion should be considered published material that is no longer protected from liability. By offering one opinion, Twitter isn’t suddenly liable for the billions of other tweets that exist on its site, or for the opinion held in the tweet to which it is responding.

People keep telling me that Twitter was bestowed with some kind of special exemption, probably because they keep hearing it from politicians. “It’s pretty simple: if Twitter and Google and the rest are going to editorialize and censor and act like traditional publishers,” says populist Missouri senator Josh Hawley, “they should be treated like traditional publishers and stop receiving the special carve out from the federal government in Section 230.”

There is no special carve out for Twitter or Google in Section 230. When the law was written in 1996, politicians couldn’t conceive of the widespread democratization and interactivity of the 2020 Internet. Thankfully.

Now, I’m not a lawyer, and I concede that perhaps I don’t fully understand all the intricacies of Section 230 of the Communications Decency Act. What is certain, though, is that if Hawley passes a new bill that deprives tech companies of liable protections for third-party comments — and videos and memes and pictures they post — the Internet is going to be overwhelmed with lawsuits — often bankrolled by special-interest groups looking to shut down speech. Media companies will soon abandon open forums, because there will be no upside.

Right now, despite the position of Trump (and let’s not forget, Joe Biden), the Internet is a relatively open space. Entrepreneurs can create new interactive platforms. They can create sites that allow people to connect without worrying about being sued. The president can move to those sites — or to Facebook, where Mark Zuckerberg assures us he has no interest arbitrating political truths — and instantaneously take millions of users with him. What he can’t do, as I wrote yesterday, is override existing law.

Even if he could, all he’d be doing is destroying social media. Now, you might contend that’s a morally sound position. But it wouldn’t give conservatives more of a voice or make speech any freer.

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