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Part II: Senators Josh Hawley and Ted Cruz Want to Repeal Section 230 and Break the Internet

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Photo of Reddit Director of Policy Jessica Ashooh courtesy of Misk Global Forum

WASHINGTON, August 20, 2019 — Section 230 of the Communications Decency Act has been termed one of the most important and most misunderstood laws governing the internet.

In recent months, prominent critics from both sides of the aisle have called for the statute to either be repealed or altered so significantly that, if enacted, it would no longer serve its original purpose.

Sen Josh Hawley, R-Mo., introduced a bill that would eliminate Section 230 protections for big tech platforms unless they could prove their political neutrality to the Federal Trade Commission every two years. Sen. Ted Cruz, R-Texas, has called for the statute to be repealed altogether.

But any such proposal should first carefully consider Section 230’s unique role in the digital ecosystem.

The concept behind Section 230 has its origins in the First Amendment

The statute’s basic premise — protecting the rights of speakers by limiting the liability of third parties who enable them to reach an audience — is hardly new; the First Amendment has served that purpose for decades.

In the 1959 case Smith v. California, the Supreme Court ruled that booksellers could not be held liable for obscene content in the books being sold, because the resulting confusion and caution would lead to over-enforcement, or “censorship affecting the whole public.”

Five years later, the court ruled in New York Times Co v. Sullivan that failing to protect newspapers from liability for third party advertisements would discourage them from doing so, and therefore shut off “an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities.”

“In theory, the First Amendment — the global bellwether protection for free speech — should partially or substantially backfill any reductions in Section 230’s coverage,” wrote Eric Goldman, a law professor at Santa Clara University, in an April blog post. “In practice, the First Amendment does no such thing.”

In a paper titled “Why Section 230 Is Better Than the First Amendment,” Goldman explained some of the “significant and irreplaceable substantive and procedural benefits” that are unique to the controversial statute.

Section 230 has pragmatic applications for a range of legal claims

For one, Section 230 has pragmatic applications for defamation, negligence, deceptive trade practices, false advertising, intentional infliction of emotional distress, and dozens of other legal doctrines, some of which have little or no First Amendment defense.

In addition, Section 230 offers more procedural protections and greater legal certainty for defendants. It enables early dismissals, which can save smaller services from financial ruin. It is more predictable than the First Amendment for litigants. It preempts conflicting state laws and facilitates constitutional avoidance.

Most major tech platforms support Section 230, and experts widely agree that the internet would not have been able to develop without the protection of such a law.

“If we were held liable for everything that the users potentially posted…we fundamentally would not be able to exist,” said Jessica Ashooh, Reddit’s director of policy, at a July forum.

But also in July, one prominent tech company broke with the others to support a “reasonable care” standard like that proposed by Danielle Citron and Benjamin Wittes, law professors at the University of Maryland.  IBM Executive Ryan Hagemann wrote in a blog post that this “would provide strong incentives for companies to limit illegal and illicit behavior online, while also being flexible enough to promote continued online innovation.”

Should online platforms be responsible for deleting objectively harmful content?

Companies should be held legally responsible for quickly identifying and deleting content such as child pornography or the promotion of mass violence or suicide, Hagemann continued. Adding this standard to Section 230 “would add a measure of legal responsibility to what many platforms are already doing voluntarily.”

But Goldman took a different tack. He strongly cautioned against proposals offering Section 230 protections only to defendants who were acting in so-called good faith, warning that “such amorphous eligibility standards would negate or completely eliminate Section 230’s procedural benefits.”

Hagemann, on the other hand, has defended the importance of a compromise-oriented middle ground. Current rhetoric from Congress suggests that changes to the statue are imminent, he said at a panel two weeks after IBM’s statement, and finding a compromise will prevent an extreme knee-jerk reaction from lawmakers who may not view the digital economy with the necessary nuance.

Senators Cruz and Hawley are gunning for effective repeal of Section 230

And as feared, members of Congress such as Cruz and Hawley have skipped right over compromise and started calling for the complete evisceration of Section 230.

Few would claim that Section 230 is perfect; it was written for a digital landscape that has since evolved in previously unimaginable ways. But allowing a body of five commissioners to determine the vague standard of “politically neutral” every two years would almost certainly lead to extreme inconsistency and partisanship.

Moreover, some fear that — contrary to Hawley’s stated intent — his bill might actually be the one thing that cements the major tech giants in their current place of power.

“Even if its initial application were limited to websites above a certain size threshold, that threshold would be inherently arbitrary and calls to lower it to cover more websites would be inevitable,” said TechFreedom President Berin Szóka.

Rather than keeping tech giants like Facebook and Google in check, conditioning Section 230 protections on perceived neutrality could actually benefit them by stifling any potential competition.

“At a time when we’re talking about antitrust investigations and we’re wondering if the biggest players are too big, the last thing we want to do is make a law that makes it harder for smaller companies to compete,” said Ashooh of Reddit.

“Admittedly, it feels strange to tout Section 230’s pro-competitive effect in light of the dominant marketplace positions of the current Internet giants, who acquired their dominant position in part due to Section 230 immunity,” wrote Goldman. “At the same time, it’s likely short-sighted to assume that the Internet industry has reached an immutable configuration of incumbents.”

Other articles in this series:

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

Reporter Em McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for the student newspaper. In addition to agency and freelance marketing experience, she has reported extensively on Section 230, big tech, and rural broadband access. She is a founding board member of Code Open Sesame, an organization that teaches computer programming skills to underprivileged children.

Free Speech

Noted Classical Liberal Legal Scholar Countenances Regulation of Social Media

Georgetown University professor Randy Barnett said that the ability to post on social media might be a civil right.

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Photo of Randy E. Barnett, a legal scholar and constitutional law professor at Georgetown University, obtained from Flickr.

WASHINGTON, October 21, 2022 – Classical liberal political theory should acknowledge the need for government to regulate certain privately owned businesses that operate in the public sphere, said Randy Barnett, a legal scholar and constitutional law professor at Georgetown University.

Barnet’s argument, made at a Federalist Society web panel discussing on the regulation of social media platforms Thursday, is significant in that even a well-known libertarian scholar is putting forth a plausible case to regulate speech on such technology platforms.

Between fully public and fully private entities, there is a middle category of privately-owned entities that operate in the public sphere, such as public accommodations and common carriers, Barnett said.

The Civil Rights Act of 1875, for instance, regulated “privately owned, public institutions such as railroads, inns, and even places of public amusement such as opera halls,” he explained. Barnett suggested that regulation of public accommodations can protect an individual’s “civil rights.”

“Civil rights are the rights that one gets when one leaves the state of nature and enters into civil society, and these are the rights that are basically the government protections of our preexisting natural rights, but they’re also more than, they are privileges you have as citizens,” Barnett argued. “You also have a civil right to be able to travel throughout the country and to enter into places of public accommodation as an equal to your fellow citizens,” he added.

Barnett said he wasn’t sure if social-media platforms should be considered public accommodations, however. “Are Facebook and Twitter in or are they out” of the public-accommodations category, he mused. “That’s the thing about which I think reasonable people can still disagree,” he said.

Whether social media companies have First Amendment right to moderate content on their platforms had been seen as a well-established view about free speech in the United States. With increasing criticism of the tech sector from the Trump-infused element of the political right, the issue has now become a more open question.

In 2021, to combat alleged discrimination against speech by conservatives, Texas and Florida have each passed laws barring platforms from engaging in various kinds of viewpoint-based content-moderation.

The 11th U.S. Circuit Court of Appeals largely struck down Florida’s law in May, but the Fifth Circuit upheld the Texas statute in September. The Fifth Circuit has stayed the decision pending a likely Supreme Court review.

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Free Speech

Panel Hears Opposing Views on Content Moderation Debate

Some agreed there is egregious information that should be downranked on search platforms.

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Screenshot of Renee DiResta, research manager at Stanford Internet Observatory.

WASHINGTON, September 14, 2022 – Panelists wrangled over how technology platforms should handle content moderation at an event hosted by the Lincoln Network Friday, with one arguing that search engines should neutralize misinformation that cause direct, “tangible” harms and another advocating an online content moderation standard that doesn’t discriminate on viewpoints.

Debate about what to do with certain content on technology platforms has picked up steam since former President Donald Trump was removed last year from platforms including Facebook and Twitter for allegedly inciting the January 6, 2021, storming of the Capitol.

Search engines generally moderate content algorithmically, prioritizing certain results over others. Most engines, like Google, prioritize results from institutions generally considered to be credible, such as universities and government agencies.

That can be a good thing, said Renee DiResta, research manager at Stanford Internet Observatory. If search engines allow scams or medical misinformation to headline search results, she argued, “tangible” material or physical harms will result.

The internet pioneered communications from “one-to-many” broadcast media – e.g., television and radio – to a “many-to-many” model, said DiResta. She argued that “many-to-many” interactions create social frictions and make possible the formation of social media mobs.

At the beginning of the year, Georgia Republic representative Marjorie Taylor Greene was permanently removed from Twitter for allegedly spreading Covid-19 misinformation, the same reason Kentucky Senator Rand Paul was removed from Alphabet Inc.’s YouTube.

Lincoln Network senior fellow Antonio Martinez endorsed a more permissive content moderation strategy that – excluding content that incites imminent, lawless action – is tolerant of heterodox speech. “To think that we can epistemologically or even technically go in and establish capital-T Truth at scale is impossible,” he said.

Trump has said to be committed to a platform of open speech with the creation of his social media website Truth Social. Other platforms, such as social media site Parler and video-sharing website Rumble, have purported to allow more speech than the incumbents. SpaceX CEO Elon Musk previously committed to buying Twitter because of its policies prohibiting certain speech, though he now wants out of that commitment.

Alex Feerst, CEO of digital content curator Murmuration Labs, said that free-speech aphorisms – such as, “The cure for bad speech is more speech” – may no longer hold true given the volume of speech enabled by the internet.

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Free Speech

Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill

Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.

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Parler CPO Amy Peikoff

WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of  the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.

The decision keeps the law from taking affect until a full determination is made by a lower court.

Parler CPO Amy Peikoff

During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.

“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”

Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.

“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”

Different perspectives

Principal at McCollough Law Firm Scott McCollough said Wednesday  that he believed the law should have been allowed to stand.

“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”

McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.

“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”

Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”

Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”

Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.

“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars

The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.

Panelists:

  • Scott McCollough, Attorney, McCollough Law Firm
  • Amy Peikoff, Chief Policy Officer, Parler
  • Ari Cohn, Free Speech Counsel, TechFreedom
  • Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
  • Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast

Panelist resources:

W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry.  Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.

Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.

Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.

Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Photo of the Supreme Court from September 2020 by Aiva.

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

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