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Section 230

Section 230 Under Attack From the Right and the Left

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Screenshot of panelists from the Yale Law School webinar

June 26, 2020 — The debate over Section 230 of the Communications Decency Act spans a broad range of views, with some arguing that it essentially plays the same role as the First Amendment and others claiming that it wrongfully enables significant abuse.

Speaking at a Yale Law School webinar on Thursday, Attorney Cathy Gellis said she was surprised by the speed at which public opinion had turned against the statute.

“Section 230 worked — we got an internet, and the internet has allowed, for the first time in history, all seven billion of us on earth to interact with each other,” she said. “The downside is all seven billion people on earth can now interact with each other, and we don’t really know how to do it very well.”

New tools and norms to better deal with various forms of online speech are likely to develop, but the process will take time, Gellis said.

“I think we can get there, as long as we don’t throw out the baby with the bathwater and revert back artificially to a time before we had this technology that would enable these connections,” she added.

Much of the opposition to Section 230 has come from Republicans such as Sen. Josh Hawley, R-Mo., who argue that it allows platforms to unfairly discriminate against conservative ideas.

David French, attorney and senior editor of conservative political magazine The Dispatch, said he could understand this fear, but argued that it was not the government’s role to prevent such alleged discrimination from happening.

“You better be sure that you’re going to be in charge of the government indefinitely, if you’re going to place the government in that much control,” he said. “As a matter of constitutional principle, I reject that appeal to the government, and as a matter of pragmatics, I think it’s shortsighted.”

Section 230 repeal or modification should be renamed the “Bring Porn to Facebook Act,” French joked, because of the all-or-nothing approach it would force.

“A version of Section 230 would lock in through the First Amendment, which is something that I think a lot of critics of Section 230 are completely overlooking,” French said. “But the getting from A to B would be messy — there would be a blizzard of litigation.”

Big tech platforms, which are the primary target of proposed Section 230 modifications, would likely be able to muscle through this litigation, French predicted. But smaller platforms, he warned, might not have the resources to survive it.

“I don’t think that scaling back the immunity for tech companies is going to suddenly flood the world with litigation,” argued Carrie Goldberg, attorney and founding partner at C.A. Goldberg PLLC.

Section 230 has been in place for the entire history of the internet as it exists today, she added, making it difficult to accurately predict what might happen in its absence.

Section 230 is also criticized for protecting platforms that enable abuse

Platforms being held liable for users’ abuses is comparable to schools being held liable for Title IX violations and landlords being held liable for dangerous conditions on their properties, Goldberg suggested.

“It’s not unusual for third parties to be held responsible when they are being deliberately indifferent, or when their head is in the sand and they’re refusing to see or hear things that happen on their watch,” she said.

Goldberg also rejected the idea that giving individuals the ability to sue companies for harms caused or furthered by their platforms went against the First Amendment.

“Demanding that companies share responsibility for the really extreme abuses that happen on platforms is not attacking speech,” she said.

Many of the platforms currently being protected by Section 230 have expanded far beyond the bulletin-board nature of the earliest interactive internet services, pointed out St. John’s University Law Professor Kate Klonick.

“In 1996, when [Section 230] was drafted, the things that it was really speaking to were message boards and things that were very clearly speech, and now we have all of these apps and all of these types of things that are really performing more services and conduct,” she said.

Section 230 has allowed big tech companies to grow “without any of the pressure that we see in other industries to be creating safe products or to be thinking about how their clients and their users and their customers could be injured if they make bad decisions,” Goldberg said.

As a result, she added, her law firm has been flooded with cases of harm enabled by social media, such as a man who used Tinder to arrange a meeting with a young girl who he then murdered, or rampant child sexual abuse on Instagram.

“I’m not talking about defamation or a bunch of Twitter trolls,” she said.

French agreed that these serious violations complicated the issue, but maintained that it still came down to free speech.

“We have this incredibly difficult challenge that I think is never going to be fully solved,” he said. “And I think we just have to get comfortable with [the idea that] we’ll never fully solve it, because we’re dealing with human beings.”

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

Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform

Parler’s Amy Peikoff said she wishes Twitter can follow in her social media company’s footsteps.

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Screenshot of Amy Peikoff

WASHINGTON, May 16, 2022 – A representative from a growing conservative social media platform said last week that she hopes Twitter, under new leadership, will emerge as a “sustainable” platform for free speech.

Amy Peikoff, chief policy officer of social media platform Parler, said as much during a Broadband Breakfast Live Online event Wednesday, in which she wondered about the implications of platforms banning accounts for views deemed controversial.

The social media world has been captivated by the lingering possibility that SpaceX and Tesla CEO Elon Musk could buy Twitter, which the billionaire has criticized for making decisions he said infringe on free speech.

Before Musk’s decision to go in on the company, Parler saw a surge in member sign-ups after former President Donald Trump was banned from Twitter for comments he made that the platform saw as encouraging the Capitol riots on January 6, 2021, a move Peikoff criticized. (Trump also criticized the move.)

Peikoff said she believes Twitter should be a free speech platform just like Parler and hopes for “sustainable” change with Musk’s promise.

“At Parler, we expect you to think for yourself and curate your own feed,” Peikoff told Broadband Breakfast Editor and Publisher Drew Clark. “The difference between Twitter and Parler is that on Parler the content is controlled by individuals; Twitter takes it upon itself to moderate by itself.”

She recommended “tools in the hands of the individual users to reward productive discourse and exercise freedom of association.”

Peikoff criticized Twitter for permanently banning Donald Trump following the insurrection at the U.S. Capitol on January 6, and recounted the struggle Parler had in obtaining access to hosting services on AWS, Amazon’s web services platform.

Screenshot of Amy Peikoff

While she defended the role of Section 230 of the Telecom Act for Parler and others, Peikoff criticized what she described as Twitter’s collusion with the government. Section 230 provides immunity from civil suits for comments posted by others on a social media network.

For example, Peikoff cited a July 2021 statement by former White House Press Secretary Jen Psaki raising concerns with “misinformation” on social media. When Twitter takes action to stifle anti-vaccination speech at the behest of the White House, that crosses the line into a form of censorship by social media giants that is, in effect, a form of “state action.”

Conservatives censored by Twitter or other social media networks that are undertaking such “state action” are wrongfully being deprived of their First Amendment rights, she said.

“I would not like to see more of this entanglement of government and platforms going forward,” she said Peikoff and instead to “leave human beings free to information and speech.”

Screenshot of Drew Clark and Amy Peikoff during Wednesday’s Broadband Breakfast’s Online Event

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, May 11, 2022, 12 Noon ET – Mr. Musk Goes to Washington: Will Twitter’s New Owner Change the Debate About Social Media?

The acquisition of social media powerhouse Twitter by Elon Musk, the world’s richest man, raises a host of issues about social media, free speech, and the power of persuasion in our digital age. Twitter already serves as the world’s de facto public square. But it hasn’t been without controversy, including the platform’s decision to ban former President Donald Trump in the wake of his tweets during the January 6 attack on the U.S. Capitol. Under new management, will Twitter become more hospitable to Trump and his allies? Does Twitter have a free speech problem? How will Mr. Musk’s acquisition change the debate about social media and Section 230 of the Telecommunications Act?

Guests for this Broadband Breakfast for Lunch session:

  • Amy Peikoff, Chief Policy Officer, Parler
  • Drew Clark (host), Editor and Publisher, Broadband Breakfast

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.

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.

Illustration by Mohamed Hassan used with permission

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

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Section 230

Leave Section 230 Alone, Panelists Urge Government

The debate on what government should — or shouldn’t — do with respect to liability protections for platforms continues.

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Photo of Josh Hammer, Paul Larken and Niam Yaraghi by Douglas Blair via Twitter

WASHINGTON, May 10, 2022 – A panelist at a Heritage Foundation event on Thursday said that the government should not make changes to Section 230, which protects online platforms from being liable for the content their users post.

However, the other panelist, Newsweek Opinion Editor Josh Hammer, said technology companies have been colluding with the government to stifle speech. Hammer said that Section 230 should be interpreted and applied more vigorously against tech platforms.

Countering this view was Niam Yaraghi, senior fellow at the Brookings Institution’s Center for Technology Innovation.

“While I do agree with the notion that what these platforms are doing is not right, I am much more optimistic” than Hammer, Yaraghi said. “I do not really like the government to come in and do anything about it, because I believe that a capitalist market, an open market, would solve the issue in the long run.”

Addressing a question from the moderator about whether antitrust legislation or stricter interpretation of Section 230 should be the tool to require more free speech on big tech platforms, Hammer said that “Section 230 is the better way to go here.”

Yaraghi, by contrast, said that it was incumbent on big technology platforms to address content moderation, not the government.

In March, Vint Cerf, a vice president and chief internet evangelist at Google, and the president of tech lobbyist TechFreedom warned against government moderation of content on the internet as Washington focuses on addressing the power of big tech platforms.

While some say Section 230 only protects “neutral platforms”, others claim it allows powerful companies to ignore user harm. Legislation from the likes of Amy Klobuchar, D-Minn., would exempt 230 protections for platforms that fail to address Covid mis- and disinformation.

Correction: A previous version of this story said Sen. Ron Wyden, D-Ore., agreed that Section 230 only protected “neutral platforms,” or that it allowed tech companies to ignore user harm. Wyden, one of the authors of the provision in the 1996 Telecom Act, instead believes that the law is a “sword and shield” to protect against small companies, organizations and movements against legal liability for what users post on their websites.

Additional correction: A previous version of this story misattributed a statement by Niam Yaraghi to Josh Hammer. The story has been corrected, and additional context added.

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Section 230

Reforming Section 230 Won’t Help With Content Moderation, Event Hears

Government is ‘worst person’ to manage content moderation.

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Photo of Chris Cox at the event.
Photo of Chris Cox at Monday's AEI event

WASHINGTON, April 11, 2022 — Reforming Section 230 won’t help with content moderation on online platforms, observers said Monday.

“If we’re going to have some content moderation standards, the government is going to be, usually, the worst person to do it,” said Chris Cox, a member of the board of directors at tech lobbyist Net Choice and a former Congressman.

These comments came during a panel discussion during an online event hosted by the American Enterprise Institute that focused on speech regulation and Section 230, a provision in the Communications Decency Act that protects technology platforms from being liable for posts by their users.

“Content moderation needs to be handled platform by platform and rules need to be established by online communities according to their community standards,” Cox said. “The government is not very competent at figuring out the answers to political questions.”

There was also discussion about the role of the first amendment in content moderation on platforms. Jeffrey Rosen, a nonresident fellow at AEI, questioned if the first amendment provides protection for content moderation by a platform.

“The concept is that the platform is not a publisher,” he said. “If it’s not [a publisher], then there’s a whole set of questions as to what first amendment interests are at stake…I don’t think that it’s a given that the platform is the decider of those content decisions. I think that it’s a much harder question that needs to be addressed.”

Late last year, experts said that it is not possible for platforms to remove from their site all content that people may believe to be dangerous during a Broadband Breakfast Live Online event. However some, like Alex Feerst, the co-founder of the Digital Trust and Safety Partnership, believe that platforms should hold some degree of liability for the content of their sites as harm mitigation with regards to dangerous speech is necessary where possible.

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