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Part III: The GOP Wants to Kill the Fairness Doctrine, Then Applies It to the Internet

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Photo of Ted Cruz from February 2018 by Gage Skidmore used with permission

WASHINGTON, August 21, 2019 — Questions of political neutrality and social media bias have been at the forefront of the ongoing debate over the Communications Decency Act’s Section 230. Some of these claims are frequently compared to another controversial law: The Fairness Doctrine.

“The idea that government should police the ‘neutrality’ of websites is, in effect, a Fairness Doctrine for the Internet,” said TechFreedom President Berin Szóka.

The Republican Party has a long history of opposition to the Fairness Doctrine. Indeed, it was under President Ronald Reagan’s Federal Communications Commission, the principle was abjured in 1987.

Yet Republican opposition runs so deep, in fact, that the official GOP Platform still calls for “an end to the so-called Fairness Doctrine.”

Given the intensity of Republican opposition to the doctrine for generations, any similar proposal coming from the right would be ironic.

And yet, in a startling break from party history, recent months have seen several prominent Republican politicians do just that, claiming that legal protections for online platforms should be conditioned on their politically neutrality.

What was the Fairness Doctrine?

In the ongoing debate over Section 230, it is important to take into account the effects of similar measures throughout history.

First implemented by the FCC in 1949, the Fairness Doctrine required broadcast licensees to “adequately cover issues of public importance” and include coverage of all the “various positions taken by responsible groups.”

The doctrine was upheld by the Supreme Court two decades later in Red Lion Broadcasting Co. v. FCC, a decision based upon the premise that public airwaves were limited, and therefore scarce.

“A license permits broadcasting, but the licensee has no constitutional right to…monopolize a radio frequency to the exclusion of his fellow citizens,” Justice Byron White wrote. Without government regulation, he said, “the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.”

By contrast, in the 1984 case Miami Herald Publishing Co. v. Tornillo, the court created a clear demarcation between broadcast transmissions and the First Amendment rights of print publishers. It unanimously ruled that “government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.”

The FCC was also turning against the doctrine, releasing in 1985 a report identifying several of the law’s weaknesses. In spite of its original purpose to encourage diverse viewpoints, the agency wrote, “we fear that in operation it may have the paradoxical effect of actually inhibiting the expression of a wide spectrum of opinion on controversial issues of public importance.”

The requirement “inextricably involves the Commission in the dangerous task of evaluating the merits of particular viewpoints,” the report continued.

The Reagan administration put the Fairness Doctrine to sleep

The conservative-libertarian alliance used to be staunchly opposed to the Fairness Doctrine and anything that would smack of bringing it back. They voiced concerns that broadcasters would be discouraged from addressing any issues that could possibly be considered controversial for fear of saying something that would trigger the law’s right of reply.

After a series of decisions and court-challenges about the application of the doctrine to teletex, a proto-internet type of transmission of words through broadcasting, the a Republican-majority FCC officially abolished it under Chairman Dennis Patrick. Congress passed legislation in an attempt to reinstate the Fairness Doctrine, but it was vetoed by Reagan and therefore died.

“We must not ignore the obvious intent of the First Amendment, which is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet,” Reagan said.

“History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee,” he continued.

Indeed, conservative talk radio in the 1990s might not have arisen without the death of the Fairness Doctrine, as well as considerable fear-mongering about its potential — including another unsuccessful attempt to reinstate the doctrine by Congress in 1991.

Why is the 2016 GOP platform still calling for an end to the Fairness Doctrine?

Yet, in 2016, the official Republican Party platform calls for “an end to the so-called Fairness Doctrine.” In its place, the platform advocates for “free-market approaches to free speech unregulated by government” and supports the “repeal of federal restrictions…protecting political speech on the internet.”

But with seeming disregard for this position, multiple GOP senators have recently supported legislation that appears markedly similar to the doctrine.

In June, Sen. Josh Hawley, R-Mo., introduced a bill that would require major digital platforms to prove every two years to the Federal Trade Commission that their moderation practices were entirely neutral in order to receive Section 230 protections.

At a Senate Judiciary Subcommittee Hearing in July, Sen. Ted Cruz, R-Texas, claimed that if big tech could not provide “clear, compelling data and evidence” of their neutrality, “there’s no reason on earth why Congress should give them a special subsidy through Section 230.”

Applying a Fairness Doctrine to the internet would have severe consequences, said Szóka, in that platforms would likely respond to such a rule by simply “squelching all political discussion.”

“The fact that the current occupant of the White House has regularly threatened to use the courts against this critics, and in fact has used the courts to enforce non-disclosure agreements to silence those he does not want to speak, should give great pause to anyone considering empowering the government to force website operators to satisfy a standard so vague as ‘neutrality’ regarding ‘controversial’ matters (a category they cannot define in advance),” Szóka warned.

With the Fairness Doctrine dead, the First Amendment now covers almost all mediums of transmission

The Fairness Doctrine never would have survived First Amendment scrutiny were it not for the still-not-overturned holding in Red Lion. But the case is less and less relevant. Reno v. ACLU, the 1997 Supreme Court case overturning the underlying Communications Decency Act, made clear that the internet was not subject to the restrictive view of free speech that governed the broadcast media.

That precedent on free speech has been reaffirmed repeatedly by the Supreme Court, including again, including in Brown v. EMA.

In that 2010 case, the Supreme court noted that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”

Moreover, whether or not online platforms are politically neutral, courts have made it clear that the government cannot require speakers to give up First Amendment rights in exchange for a benefit, such as Section 230 protections.

In Perry v. Sindermann, the Supreme Court declared that “even though a person has no ‘right’ to a valuable government benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.”

These reasons include denying a person benefits “on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech.”

Section I: The Communications Decency Act is Born

Section II: How Section 230 Builds on and Supplements the First Amendment

Section III: What Does the Fairness Doctrine Have to Do With the Internet?

Section IV: As Hate Speech Proliferates Online, Critics Want to See and Control Social Media’s Algorithms

Development Associate Emily McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for campus publication Student Life. She is a founding board member of Code Open Sesame, an organization that teaches computer skills to underprivileged children in six cities across Southern California.

Section 230

Repealing Section 230 Would be Harmful to the Internet As We Know It, Experts Agree

While some advocate for a tightening of language, other experts believe Section 230 should not be touched.

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Rep. Ken Buck, R-Colo., speaking on the floor of the House

WASHINGTON, September 17, 2021—Republican representative from Colorado Ken Buck advocated for legislators to “tighten up” the language of Section 230 while preserving the “spirit of the internet” and enhancing competition.

There is common ground in supporting efforts to minimize speech advocating for imminent harm, said Buck, even though he noted that Republican and Democratic critics tend to approach the issue of changing Section 230 from vastly different directions

“Nobody wants a terrorist organization recruiting on the internet or an organization that is calling for violent actions to have access to Facebook,” Buck said. He followed up that statement, however, by stating that the most effective way to combat “bad speech is with good speech” and not by censoring “what one person considers bad speech.”

Antitrust not necessarily the best means to improve competition policy

For companies that are not technically in violation of antitrust policies, improving competition though other means would have to be the answer, said Buck. He pointed to Parler as a social media platform that is an appropriate alternative to Twitter.

Though some Twitter users did flock to Parler, particularly during and around the 2020 election, the newer social media company has a reputation for allowing objectionable content that would otherwise be unable to thrive on social media.

Buck also set himself apart from some of his fellow Republicans—including Donald Trump—by clarifying that he does not want to repeal Section 230.

“I think that repealing Section 230 is a mistake,” he said, “If you repeal section 230 there will be a slew of lawsuits.” Buck explained that without the protections afforded by Section 230, big companies will likely find a way to sufficiently address these lawsuits and the only entities that will be harmed will be the alternative platforms that were meant to serve as competition.

More content moderation needed

Daphne Keller of the Stanford Cyber Policy Center argued that it is in the best interest of social media platforms to enact various forms of content moderation, and address speech that may be legal but objectionable.

“If platforms just hosted everything that users wanted to say online, or even everything that’s legal to say—everything that the First Amendment permits—you would get this sort of cesspool or mosh pit of online speech that most people don’t actually want to see,” she said. “Users would run away and advertisers would run away and we wouldn’t have functioning platforms for civic discourse.”

Even companies like Parler and Gab—which pride themselves on being unyielding bastions of free speech—have begun to engage in content moderation.

“There’s not really a left right divide on whether that’s a good idea, because nobody actually wants nothing but porn and bullying and pro-anorexia content and other dangerous or garbage content all the time on the internet.”

She explained that this is a double-edged sword, because while consumers seem to value some level of moderation, companies moderating their platforms have a huge amount of influence over what their consumers see and say.

What problems do critics of Section 230 want addressed?

Internet Association President and CEO Dane Snowden stated that most of the problems surrounding the Section 230 discussion boil down to a fundamental disagreement over the problems that legislators are trying to solve.

Changing the language of Section 230 would impact not just the tech industry: “[Section 230] impacts ISPs, libraries, and universities,” he said, “Things like self-publishing, crowdsourcing, Wikipedia, how-to videos—all those things are impacted by any kind of significant neutering of Section 230.”

Section 230 was created to give users the ability and security to create content online without fear of legal reprisals, he said.

Another significant supporter of the status quo was Chamber of Progress CEO Adam Kovacevich.

“I don’t think Section 230 needs to be fixed. I think it needs [a better] publicist.” Kovacevich stated that policymakers need to gain a better appreciation for Section 230, “If you took away 230 You would have you’d give companies two bad options: either turn into Disneyland or turn into a wasteland.”

“Either turn into a very highly curated experience where only certain people have the ability to post content, or turn into a wasteland where essentially anything goes because a company fears legal liability,” Kovacevich said.

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Section 230

Judge Rules Exemption Exists in Section 230 for Twitter FOSTA Case

Latest lawsuit illustrates the increasing fragility of Section 230 legal protections.

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Twitter CEO Jack Dorsey.

August 24, 2021—A California court has allowed a lawsuit to commence against Twitter from two victims of sexual trafficking, who allege the social media company initially refused to remove content that exploited the underaged plaintiffs – and then went viral.

The anonymous plaintiffs allege that they were manipulated into making pornographic videos of themselves through another social media app, Snapchat, after which the videos were posted on Twitter. When the plaintiffs asked Twitter to take down the posts, it refused, and it was only after the Department of Homeland Security got involved that the social media company complied.

At issue in the case is whether Twitter had any obligation to remove the content at least “immediately” under Section 230 of the Communications Decency Act, which provides legal liability protections for the content the platforms’ users post.

Court’s finding

The court ruled Thursday that the case should proceed after finding that Twitter knowingly knew such content was on the site, had to have known it was sex trafficking, and refused to do something about it immediately.

“The Court finds that these allegations are sufficient to allege an ongoing pattern of conduct amounting to a tacit agreement with the perpetrators in this case to allow them to post videos and photographs it knew or should have known were related to sex trafficking without blocking their accounts or the Videos,” the decision read.

“In sum, the Court finds that Plaintiffs have stated a claim for civil liability under the [Trafficking Victims Protection Reauthorization Act] on the basis of beneficiary liability and that the claim falls within the exemption to Section 230 immunity created by FOSTA.”

The Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act that became the package law SESTA-FOSTA was passed in 2018 and amended immunity claims under Section 230 to exclude enforcement of federal or state sex trafficking laws from intermediary protections.

The court dismissed other claims against the company made by the plaintiffs, but met the relatively low bar to move the case forward.

The arguments

The plaintiffs allege that Twitter violated the TVPRA because it allegedly knew about the videos, benefitted from them and did nothing to address the problem before it went viral.

Twitter argued that FOSTA, as applied to the CDA, only narrowly applies to websites that are “knowingly assisting and profiting from reprehensible crimes;” the plaintiffs allegedly fail to show that the company “affirmatively participated” in such crimes; and the company cannot be held liable “simply because it did not take the videos down immediately.”

Experts asserted companies may hesitate to bring Section 230 defense in court

The case is yet another instance of U.S. courts increasingly poking holes in arguments brought by technology companies that suggests they cannot be liable for content on their platforms, per Section 230, which is currently the subject of hot debate in Washington about whether to reform it or completely abolish it.

A number of state judges have ruled against Amazon, for example, and its Section 230 defense in a number of case-specific instances in Texas and California. Experts on a panel in May said if courts keep ruling against the defense, there may be a deluge of lawsuits to come against companies.

And last month, citing some of these cases, lawyers argued that big tech companies may begin to shy away from bringing the 230 defense to court in fear of awakening lawmakers to changing legal views on the provision that could ignite its reform.

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Section 230

Facebook, Google, Twitter Register to Lobby Congress on Section 230

Companies also want to discuss cybersecurity, net neutrality, taxes and privacy.

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Facebook CEO Mark Zuckerberg

August 3, 2021 — The largest social media companies have registered to lobby Congress on Section 230, according to lobby records.

Facebook, Google, and Twitter filed new paperwork late last month to discuss the internet liability provision under the Communications Decency Act, which protects these companies from legal trouble for content their users post.

Facebook’s registration specifically mentions the Safe Tech Act, an amendment to the provision proposed earlier this year by Sens. Amy Klobuchar, D-Minnesota, Mark Warner, D-Virginia, and Mazie Hirono, D-Hawaii, which would largely keep the provision’s protections except for content the platforms are paid for.

A separate Facebook registration included discussion on the “repeal” of the provision.

Other issues included in the Menlo Park-based company’s registration are privacy, data security, online advertising, and general regulations on the social media industry.

Google also wants to discuss taxes and cybersecurity, as security issues take center stage following high-profile attacks and as international proposals for a new tax regime on tech companies emerge.

Notable additional subject matters Twitter includes in its registration are content moderation practices, data security, misinformation, and net neutrality, as the Federal Communications Commission is being urged to bring back Obama-era policies friendly to the principle that ensures content cannot be given preferential treatment on networks.

Section 230 has gripped Congress

Social media critics have been foaming at the mouth over possible retaliatory measures against the technology companies that have taken increasingly strong measures against those that violate its policies.

Those discussions picked up steam when, at the beginning of the year, former President Donald Trump was banned from Twitter, and then from Facebook and other platforms, for allegedly stoking the Capitol Hill riot on January 6. (Trump has since filed a lawsuit as a private citizen against the social media giants for his removal.)

Since the Capitol riot, a number of proposals have been put forward to amend — in some cases completely repeal — the provision to address what some Republicans are calling outright censorship by social media companies. Even Florida tried to take matters into its own hands when it made law rules that penalized social media companies that banned politicians. That law has since been put on hold by the courts.

The social media giants, and its allies in the industry, have pressed the importance of the provision, which they say have allowed once-fledgling companies like Facebook to be what it is today. And some representatives think reform of the law could lean more toward amendment than outright repeal. But lawyers have warned about a shift in attitude toward those liability protections, as more judges in courts across the country hold big technology companies accountable for harm caused by the platforms.

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