As has been widely reported, the law called Section 230 of the Communications Decency Act (1996) has featured in a political cacophony that has been becoming more ridiculous since the day Twitter first presumed to label Trump’s disinformation for what it was, and which has continued to exacerbate legislative dysfunction down to the final hours in this toxic year.
After vetoing the 2020 National Defense Authorization Act (NDAA) because the must-pass legislation did not contain a rider to repeal Section 230, Trump then pivoted to making the same proposal (along with another unfounded investigation into election fraud) a condition of passing a broader COVID relief package that is favored by Democrats but less so by most Republicans. As long as those riders are part of the spending increase bill in the Senate, Democrats cannot vote for it, which will presumably suit Leader McConnell and several other Republican senators just fine.
What any of this means with regard to Americans getting the financial assistance they need, or to Trump’s continued influence over the Republican party remains to be seen. But for sure, the president’s very fragile ego has elevated an arcane cyber law to prominence by grossly distorting its intent and meaning, and by injecting divisive partisanship on a policy matter where lawmakers might otherwise reach consensus.
Real Section 230 Problems
The ill effects of Section 230 have nothing to do with political speech bias and everything to do with harmful conduct like harassment, libel, sexual extortion, etc. that has too-often been shielded by the statute. These unintended consequences, akin to the DMCA Section 512 problem, are largely the result of the courts’ over-broad interpretations of Section 230, resulting in dismissals of civil claims that are incompatible with justice.
Nowhere in American life are parties that contribute to, or profit from, harmful conduct automatically immunized against civil liability, except for internet platforms. And automatic, wholesale immunity was never the intent of Section 230. As described in this post, 230 was written to encourage platform moderation, but over the years, the conditional immunity it was meant to provide was steadily asserted by platform owners as grounds to reject nearly all moderation altogether—even the basic courtesy of removing material that is known to be harmful.
So, whether a site intentionally or unintentionally hosts material that is harassing, libelous, nonconsensual pornography, or content that may be otherwise actionable in the real world, platforms have almost never been forced by court order to be so much as helpful to victims of these crimes. As attorney Carrie Goldberg can describe in detail, her client Matthew Herrick was unable enjoin the dating site Grindr simply to demand that it remove posts made by another user with the explicit intent to cause Herrick to be physically harassed and quite possibly raped. All Grindr had to do was remove the posts, but it refused to do so on claims of protecting speech—a constitutional fallacy that is only possible because the courts have held 230 to be too broadly immunizing.
Consequently, Trump’s rhetoric on Section 230—lashing out at platforms like Twitter for presuming to label disinformation for what it is—has muddied the waters on a legal framework that otherwise requires sensible and humane review. Although Trump likely could not explain 230 to save his life, his gibbering amplified one of the most popular misconceptions about it: that “viewpoint neutrality” is either the aim of the statute or a condition for maintaining a platform’s liability shield.
Neither of those premises is true, but it is worth remembering that it was the platforms themselves who promoted this false neutrality narrative long before the Trump administration put them in a moral bind of their own making. Every Big Tech PR message for the last 20 years has been one in which it is presumed to be axiomatic that internet platforms are enhancements to and defenders of the speech right. Neutrality and speech were the public rationales for laissez-faire moderation policies that just so happened to enable the big platforms to monetize all activity. Only when disinformation became the official word of a sitting president, and hate speech spilled over more prominently into hate crimes, did any of Silicon Valley’s leaders begin to wonder if they had made egregious errors in their systems or management practices.
Meanwhile, the outgoing president’s vindictive assault on Section 230 has largely been a PR gift to the companies he would like to hobble and to those ardent believers in the failed maxim that “more speech is the antidote to bad speech.” The Electronic Frontier Foundation published a post on December 9 entitled It’s Not Section 230 President Trump Hates, It’s the First Amendment. Naturally, it seized upon the Trump tantrum as an opportunity to incorrectly reiterate that 1) maintaining the status quo of 230 is synonymous with protecting speech online; and 2) all critics of 230 are hellbent on repeal as an assault on the First Amendment, just like Trump.
Real Section 230 Reform
On the contrary, while some reformers have advocated apolitical reasons for a repeal of Section 230, others recommend restoring the original intent through legal reform—a reform that begins by recognizing that the bad conduct shielded by 230 means that speech is not exactly protected as universal right on the internet in the first place. As scholars Mary Anne Franks and Danielle Citron, two of the most important thought leaders working on the 230 issue, describe in a paper published in February with the Boston University School of Law :
Marginalized groups in particular, including women and racial minorities, have long battled with private censorial forces as well as governmental ones. But the unregulated internet — or rather, the selectively regulated internet—is exacerbating, not ameliorating, this problem. The current state of Section 230 may ensure free speech for the privileged few; protecting free speech for all requires reform.
Franks and Citron have made major contribution to legislative reform, addressing harms like nonconsensual pornography, and to our understanding of how Section 230, combined with “speech fundamentalism,” results in conduct like online harassment without consequence for the perpetrators or the facilitators. So, the implication that the president, or any elected official, is having his speech chilled by means of fact-checking, is blatant, privileged hypocrisy in contrast to what really happens to people who do not sit in seats of power …
Failing to address online abuse does not just inflict economic, physical, and psychological harms on victims—it also jeopardizes their right to free speech. Online abuse silences victims. Targeted individuals often shut down social media profiles and e-mail accounts and withdraw from public discourse. Those with political ambitions are deterred from running for office. Journalists refrain from reporting on controversial topics. Sextortion victims are coerced into silence with threats of violence, insulating perpetrators from accountability.
Rather than a piecemeal approach to reforming Section 230, Franks and Citron propose two broad remedies—one statutory, the other judicial—to ameliorate the inadvertent shield the law presently provides to bad actors. The statutory remedy is to clarify that 230 only applies to protected speech and not to the broader term “information,” which is the word that currently animates the immunity enjoyed by platforms.
In theory, this focus on protected speech might rein in Big Tech’s rhetorical agenda to define everything posted online as “speech.” As Franks and Citron recommend, if the statute is more clearly defined, the courts can distinguish protected speech from tortious conduct posing as speech. In fact, most of us can make this commonsense distinction without law degrees; but having said that, the speech bar is not an easy one to overcome by amending the 230 statute accordingly. For better or worse, protected speech can encompass some very bad conduct, and the legal remedies tend to require narrowly tailored statutes, outside the scope of 230, to prohibit the conduct itself.
For instance, as I was writing this post, Dr. Franks happened to tweet the news that the Minnesota Supreme Court upheld that state’s nonconsensual pornography law as constitutional, but it is worth noting that the court rejected the state’s assertion that the conduct was a new form unprotected speech. Instead, it held that the law served a compelling interest and was narrowly tailored to serve that purpose (i.e. strict scrutiny). It is also worth mentioning that defenders of Section 230’s status quo have generally opposed statutes prohibiting nonconsensual pornography.
In addition to possible statutory amendment to Section 230, Franks and Citron’s paper describes a judicial approach that would apply precedent understanding of “reasonableness” on a case-by-case basis to examine whether a platform has taken “reasonable” steps to remove or mitigate unprotected, harmful content from its servers. In practical terms, then, Matthew Herrick’s conflict with Grindr would not arise because 1) the posts at issue were not protected speech; and 2) because Grindr’s refusal to remove the posts would likely not meet a “reasonableness” standard familiar to any court in comparable areas of law.
On that second point, Franks and Citron cite judicial principles sounding in, for instance, copyright law, which begs the question whether “reasonableness” could be more effectively applied under Section 230 than “knowledge” of infringement has been under Section 512. But I shall leave that question open for consideration in a future post.
In general, I would argue that a very compelling reason to close the Section 230 loopholes that allow site operators to shirk responsibility is the premise that opportunity becomes motive. If we ask, for instance, why there has been an increase in nonconsensual pornography, often perpetrated by some idiot ex-boyfriend with a gripe, we can blame the weak morals of the individual, misogyny in general, or a bottle of tequila and a bad day; but a key factor that cannot be ignored is that it is just too damned easy. The opportunity to cause someone harm—potentially much greater harm than might be contemplated or intended—with the tap of a few buttons only exists because certain platforms trade in misery while others simply practice depraved indifference to it. And that is the psychosis which needs to be addressed by legitimate Section 230 reform.
 Even worse, because the posts “spoofed” (i.e. pretended to be) Herrick, they were a form of coerced speech in addition to attempts to cause him physical harm.
© 2020 – 2021, David Newhoff. All rights reserved.