This week, as Twitter CEO Jack Dorsey emerges a champion of truth in a world of truthiness, we must not lose sight of the fact that the folly of conflating the speech right with social media platforms has played a major role in leading us to this absurd moment of conflict between Trump and Twitter.
By now, almost everyone is aware that Dorsey took responsibility for Twitter fact-checking a couple of Trump’s tweets about mail-in ballots. The tweets were not taken down, mind you, but flagged as untrue because, well, they’re not true. In response, the president cried “censorship,” echoed accusations of “liberal bias” in Silicon Valley, and by end of business yesterday, signed an Executive Order putting platforms on notice that their liability shield under Section 230 of the Communications Decency Act (1996) may be vitiated due to their alleged partisan nepotism.
I’ll get to the EO in a moment. But what I fear Trump may have just done is to give Big Tech an effective talking point to use in opposition to legitimate and measured proposals to amend Section 230—proposals that have been in discussion since before the election of 2016. Suffice to say, the internet industry likes its liability shields (both 230 of the CDA and 512 of the DMCA) just the way they are, and the major platforms will fight for the status quo with everything they’ve got. Now, one thing they’ve got is an opportunity to run headlines and memes shouting Don’t Let Trump Destroy the Internet! Or variations on same.
I figured it might come to this. About five minutes after the election of 2016, one could imagine that the already complicated debate about platform responsibility was going to be further muddied by fact that the president uses platforms like Twitter to make false statements and to commit acts of libel and harassment. Trump’s complete disregard for statesmanship, the truth, or the rule of law are all assets in the wilds of social media, where doxing, mob-harassment, and threats have silenced the speech of individuals with far less armor than a President of the United States.
Platform operators, who have historically been oriented toward leaving everything online, today find themselves in the unprecedented position of hosting some pretty crazy shit written by the highest elected official in the nation. At a certain point, it has to feel irresponsible not to put a warning label on an official announcement that happens to be false. At the same time, we might just as reasonably shrug at Twitter’s decision as give Dorsey a high five for it. As a practical matter, the majority of Americans do not believe anything Trump says, and only some portion of his secure voting base believes everything he says. So, Twitter’s decision may be somewhat moot, as it is a relatively small gesture in the scheme of things.
The Executive Order signed yesterday is political theater with an ironic twist. On the one hand, the order’s animating principle (i.e. threat) is predicated on a misstatement of how Section 230 actually works. It alleges that in order to remain shielded from civil liabilities stemming from users’ content, the service provider must be a neutral party—i.e. keep mitts off all user content. But that’s exactly the opposite of what Section 230 says. The section known as the “Good Samaritan Clause” was written expressly to encourage sites to engage in…
“… 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;”
Note how broad that language is. The provider is urged to make judgment calls and to decide, for instance, what content is “otherwise objectionable.” And of course this is how 230 would have to work because the First Amendment prohibits the government from determining what community standards a platform may establish for its use. The EO erroneously alleges that because social sites are biased against “conservative” politics, and engage in muting one party’s viewpoints, this invalidates their “neutrality,” which abrogates the 230 protection.
The problems with the EO are that the bias allegation itself is without merit, and the legal theory is a misrepresentation of Section 230. In addition to the sane person’s observation that misstatements of fact should not be called “conservative” just because they come from Donald Trump, “there is no empirical basis for the claim that conservative viewpoints are being suppressed on social media,” according to a recent paper by scholars Mary Anne Franks and Danielle Keats Citron. As part of their discussion about improperly conflating the speech right with Section 230, Franks and Citron note that an independent audit was led by former Senator Jon Kyl and found no evidence supporting this allegation.
What we do as a nation with the fact that “conservatism” has devolved to the circus of Trumpism is an existential problem; but as a cyber-policy matter, what this little bruhaha may have done is to further complicate a fledgling discussion (and a bipartisan one) about meaningful Section 230 reform. Because the ironic twist I mentioned above is that the misread of Section 230 applied in the EO echoes the same rhetoric that has been used for years by the internet industry in order to justify its laissez-faire approach to platform stewardship.
The major internet platforms, with substantial help from “digital rights” organizations like the EFF, have done an exceptional PR job—invoking both Section 230 and the First Amendment (and improperly conflating the two)—in order to sell the message that social platforms are like steroids for the speech right. And until 2016, most people across the political spectrum seemed to buy that claim, even though it was legally and constitutionally unfounded.
It would be impossible to calculate the number of editorials and amicus briefs written to denounce the removal or demotion of so much as a syllable of “speech” online, and the platforms have generally supported this view because it’s good for business. More content means more traffic and more data to mine. It is only in recent years that some members of Silicon Valley’s leadership have revealed a moral reluctance to host everything—even if it’s harmful—under the bogus claim that they are defending speech.
Meanwhile the victims of some of the worst conduct online, like non-consensual pornography and other forms of harassment, have seen the courts overbroadly interpret Section 230 in ways anathema to anything Congress intended in 1996. The internet industry, along with briefs filed by organizations like EFF and ACLU, has invoked 230 as grounds to avoid removing even non-consensual pornography, which could not be more absurd given the anti-obscenity origins of the legislation. Thus, it is only recently, thanks in large part to women like Franks, Citron, and attorney Carrie Goldberg, that both parties in Congress have finally undertaken review of Section 230 for possible legislative fixes to address these unintended consequences.
As such, it does not strike me as very helpful to the purpose of sober review that Section 230 has been brought into the foreground by this latest presidential outburst. The EO itself may be a worthless piece of paper Trump signed to make himself and a few of his fans feel good, but now that he’s stamped his brand of partisanship on this narrative, one can imagine any number of ways this non-partisan discussion can become needlessly mired in the muck. As mentioned, I can certainly imagine the industry using this story as leverage to stymie legitimate review.
Of course, the maddening irony of this dustup is that all the speech extremism of the last 10-15 years, combined with misrepresentations of Section 230, is a big part of how we managed to raze the landscape of reality so that someone with absolutely no moral compass could become President of the United States. It may have taken this shock to the system for people to finally want platform stewardship like fact-checking and enforcement of community standards, but the dark irony of the EO is that it isn’t all that different from the rhetoric tech-utopians have been using for years.
