Tag: Ted Cruz

Sen. Cruz Brief Wrongly Portrays Section 230 as a Neutrality Law

Among the briefs filed in Gonzalez v. Google asking the Supreme Court to properly read Section 230 of the Communications Decency Act is one filed by Sen. Ted Cruz, Rep. Mike Johnson, and fifteen other Republican Members of Congress. Presenting similar textual arguments as the brief filed by Cyber Civil Rights Initiative (CCRI), highlighted here in a recent post, Sen. Cruz et al. petition the Court to address a matter that has nothing to do with Section 230—a politically motivated complaint summarized as follows:

Confident in their ability to dodge liability, platforms have not been shy about restricting access and removing content based on the politics of the speaker, an issue that has persistently arisen as Big Tech companies censor and remove content espousing conservative political views, despite the lack of immunity for such actions in the text of §230.

Allegations of viewpoint bias are inaptly raised in Gonzalez, or indeed any case addressing Section 230. Even if it could be shown that a social platform actively engages in true political bias (i.e., moderating ideas and speakers rather than extremism), this is not a Section 230 issue because neither political nor any other form of bias necessarily implicates civil liability for an online platform any more than it does for a newspaper or TV network.

The First Amendment protects bias, and Section 230 does not alter this fact. Hence, the Cruz brief strays far from the purpose of the Court’s review in Gonzalez by erroneously implying that bias is inherently grounds for litigation when it alleges that the overbroad interpretation of Section 230 immunity causes or sustains politically motivated censorship. But Section 230 is not and never has been a viewpoint neutrality law. Cruz et al. are asking the Court for a misreading that has lived in the PR of the platforms and the rhetoric of tech-utopianism, but is nowhere in the statute.

Specifically, the Cruz brief alleges that the platforms have been shielded in censorious conduct by a poor statutory reading of their right to “good faith” removal of material that is “otherwise objectionable.” The amici argue that those words must be read in balance with the preceding words in the statute providing immunity where platforms remove or restrict access to third-party content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The brief then asserts (a bit wryly) that “…conservative viewpoints on social and political matters do not rise to the level of being ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’”

Notably, the brief both elides a definition of “conservative” in context to its argument and asks the Court to read Section 230 as a mandate that platforms leave all material online that does not meet a very narrow, statutory definition of “objectionable.” This is false. Section 230 was written to encourage platforms to adopt and enforce their own community standards (i.e., decide what is objectionable), which does not disturb the general right to host a platform which may be politically biased in any direction. A proper reading of 230 simply means that platforms shall not be unconditionally immunized against potential liability for hosting content that results in some form of harm which may be remedied through civil litigation.

The Cruz brief does not distinguish between amici’s political bona fides and the broad spectrum of hate-speech and violence-inciting material that some Americans now call “conservative,” and which is indeed problematic for platforms. For instance, as the Alex Jones verdicts or the January 6th convictions make clear, material that certain people are willing to label “conservative” may, as a matter of law, be libel, defamation, or disinformation that results in individuals being harassed and threatened, or which leads to violence—or even an insurrection. And it is precisely in this context (i.e., blurring the line between political views and actionable conduct) that the complaint in the Cruz brief is so inaptly raised in Gonzalez.

Petitioner Gonzalez alleges that Google’s “recommendation” algorithms contributed to fostering terrorist activity by promoting ISIS recruiting videos in a manner that predictably roused a latent terrorist, who then acted on those emotional triggers. Regardless of whether that complaint prevails in context to the anti-terrorism statutes at issue, the general allegation about the platform’s role in Gonzalez is indistinguishable from an algorithm detecting that a user likes InfoWars and, therefore, “recommends” QAnon videos or some other tinfoil-hat material with the foreseeable result that some domestic terrorist will assault a family in Sandy Hook, ransack the Capitol, conspire to kidnap a sitting governor, etc.

Thus, if the Court agrees that Google is not shielded from litigation in Gonzalez, the allegations of liability presented, even if they do not prevail in that instance, are directly analogous to an Alex Jones or an election-denier issue for a platform moderation team. Even if Google is ultimately not found to be liable for the ISIS-related killing of Nohemi Gonzalez, allowing the case to proceed past the Section 230 veil will demonstrate that there is a plausible, common-sense nexus between amplification of certain material and harmful conduct.

Under a correct reading of 230 (i.e., no unconditional immunity for platforms), the platforms may be more effective in addressing inciting material—a goal that should have bipartisan support from lawmakers interested in both a proper reading of the statute and the general welfare of the nation. Unfortunately, this political monkey wrench in the Section 230 issue is part of a broader narrative in which social platforms have allegedly tilted the scales—but in favor of extreme right-wing material calling itself “conservative.” For instance, in February 2021, BuzzFeed reported:

Internal documents obtained by BuzzFeed News and interviews with 14 current and former employees show how the company’s policy team — guided by [Republican lobbyist and conspiracy promoter] Joel Kaplan, the vice president of global public policy, and Zuckerberg’s whims — has exerted outsize influence while obstructing content moderation decisions, stymieing product rollouts, and intervening on behalf of popular conservative figures who have violated Facebook’s rules.

This and other reports, including testimony before Congress, reveal a pattern of (if anything) pro right-wing bias at Facebook and other platforms, including evidence that the “anti-conservative” story itself is a fiction promoted by individuals like Kaplan. More specifically, Zuckerberg’s apparent resistance to remove Alex Jones from the platform demonstrates how the chronic misreading of Section 230 would only benefit a Trumpianized GOP that embraces every extremist willing to wear a red hat.

A correct reading of 230 opens the possibility that Facebook could be liable for hosting or “recommending” InfoWars, while an incorrect reading forecloses that possibility at summary judgment. Only one of these interpretations benefits those elements of the GOP who choose to align themselves more closely with that brand of “conservatism.” Thus, consistent with the Trumpian tactic of weaponizing alleged victimhood, the comparatively mild complaint of viewpoint bias in the Cruz brief is political theater—blaming social media platforms for actions that a) they have not taken; b) they have a constitutional right to take, if they want to; c) are unrelated to Section 230 immunity; and d) detract from an important legal question for real victims barred from pursuing relief by misreading the statute.

Cruz and his fellow amici have heard or read testimony from witnesses like whistleblower Frances Haugen, who explained to the Senate Commerce Committee how Facebook consistently put profits ahead of safety, adding, “The result has been a system that amplifies division, extremism, and polarization — and undermining societies around the world. In some cases, this dangerous online talk has led to actual violence that harms and even kills people.” Specifically, Haugen and other former insiders have repeated the theme that extremism has been good for social platforms—that angry users are active users, and active users translates to profit for these companies.

A proper reading of Section 230 will not solve every problem fostered by social platforms, but it can have the effect of forcing platform operators to identify when speech is reasonably linked to harmful conduct and to acknowledge a nexus between addictive algorithm design and illegal activity—from terrorism to “revenge porn.” Very real harms have been shielded and exacerbated by misreading Section 230, and it is this error of law which the Court should resolve. In the process, it should decline to address the subject of viewpoint neutrality as the inappropriate, political side show it is.

Cruz Asks Zuckerberg the Section 230 Question

During Tuesday’s Joint Senate Committee hearing, as Mark Zuckerberg kept promising to take better control over content on Facebook, Senator Ted Cruz (R-TX) asked the CEO point blank if the site is a neutral platform or a publisher. Cruz acknowledged the company’s right to act as a publisher but also alluded to the fact that its liability protection under Section 230 of the Communications Decency Act is based on the fact that, as a host of user-generated content, Facebook is presumed to be a neutral platform.

It was a little surprising when Zuckerberg said he’s not familiar with the statute that universally shields his company from most forms of liability, but Section 230 of the CDA is just that. As explained in an older post, this statute broadly immunizes websites that host user-generated content against civil and criminal liabilities that may arise from users’ online conduct. It is in fact so universally applied as a defense that on Wednesday, FOSTA (Fight Online Sex Trafficking Act) was passed in order to clarify that Section 230 was not meant to shield site owners from liabilities stemming from sex-trafficking minors.

But the real bee in Cruz’s bonnet provoking his question is his general belief that social media platforms censor “conservative” content while favoring “liberal” content. I have no idea whether there’s any data to support that allegation, but I doubt the senator has the data himself, or he probably would have alluded to more than anecdotal evidence during the hearing.

Regardless, Cruz’s line of inquiry, without necessarily meaning to, gets to the heart of just how complicated Facebook’s current challenges may be—that is if they really intend to address them. It’s hard enough to define “liberal” and “conservative” these days, but that seems like child’s play compared to expecting Facebook to draw lines for appropriate censorship that a majority of users will agree are the right lines, independent of our political opinions.

I’m inclined to believe Zuckerberg when he says he wants Facebook to be an engine of social good, but for most organizations, striving for that goal usually requires making a decision about what is and is not good and then earning the support of those who agree and accepting the opprobrium of those who do not. This is a fundamental problem with being a so-called neutral platform for social good: there’s nothing neutral about our diverse opinions about goodness. Plus, it’s the nature of politics to cross lines of decorum and truth; and social media is a very cost-effective means of provoking emotional responses to messaging on just about any topic.

So, it’s easy for senators to allude rhetorically to a consensus about where the lines are for internal, corporate censorship, but I am skeptical that such a consensus actually exists for us Americans, let alone Facebook’s majority non-American users. And the hotter the issue, the more jagged the lines are going to be. Plus, social media algorithms respond to popularity; so an issue like guns, for instance, may naturally trend in opposition to a guy like Cruz if in fact most Americans favor regulation.

On that topic, if a friend takes and posts a photo of a billboard in Louisville that says “Kill the NRA,” will that be that someone’s (or some AI’s) definition of inciting violence? Probably. According to USA Today, when that billboard appeared in February, the NRA’s Facebook page posted a photo of it, saying the billboard was, “a wakeup call. They’re coming after us.”

From a First Amendment standpoint, neither the photos of the billboard nor the NRA’s response warrants censorship, and perhaps this would be true of Facebook policy as well. Or Facebook could make a decision that both the billboard photo and the NRA response cross some line in the violence category, although it seems very hard to completely remove the rhetoric of violence when the issue itself is weapons.

Throughout the hearing, Zuckerberg consistently reiterated plans to eventually deploy AI to help weed out toxic content; and although this may address the manpower challenge of moderation, it doesn’t help answer the more nuanced problem that we as a society do not have a common definition of what content would qualify as toxic. Does this mean we would cede that ethical calculus to the AI, which is eerie on a whole other level?

Predictably, the EFF published a post arguing that reliance on AI for content filtering will only result in over-censorship, and I have to say (rare though it is) that I tend to agree with the organization that it seems almost impossible to distinguish between, for instance, “hate speech” and a discussion about “hate speech.” Where the EFF and I part on this subject is that they’ve already concluded that Facebook has an obligation to free speech, while I view this current dust-up as a catalyst for, perhaps, finally addressing that unresolved assumption.

Still, it seems damn difficult to reconcile the fact that social media adds an especially volatile fuel to the political tinderbox while Zuckerberg sincerely hopes that Facebook will be an “engine of good.” Maybe Facebook will ultimately have to answer Cruz’s question by saying that it is a publisher, and that it has both a right and a responsibility to cultivate whatever community its leadership deems to be a “social good.”

Yes, this would obliterate the liability protections established by both the CDA and the DMCA, but maybe there are remedies other than a blanket shield for platforms that achieve the size, scope, and influence of a Facebook or a YouTube. After all, if Congress is actually trying to achieve anything in this investigation—if this isn’t just political theater—their questions imply a new paradigm for public/private cooperation in cyberspace. As described in a recent post, we have yet to attempt the unprecedented balancing act between the kind of public commons/private community that a Facebook truly is.