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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.”

Section 230

Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms

The decision resulted in an unusual court split. Justice Kagan sided with Justice Alito but refused to sign his dissent.

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Caricature of Samuel Alito by Donkey Hotey used with permission

WASHINGTON, May 31, 2022 – On a narrow 5-4 vote, the Supreme Court of the United States on Tuesday blocked a Texas law that Republicans had argued would address the “censorship” of conservative voices on social media platforms.

Texas H.B. 20 was written by Texas Republicans to combat perceived bias against conservative viewpoints voiced on Facebook, Twitter, and other social media platforms with at least 50 million active monthly users.

Watch Broadband Breakfast Live Online on Wednesday, June 1, 2022

Broadband Breakfast on June 1, 2022 — The Supreme Court, Social Media and the Culture Wars

The bill was drafted at least in part as a reaction to President Donald Trump’s ban from social media. Immediately following the January 6 riots at the United States Capitol, Trump was simultaneously banned on several platforms and online retailers, including Amazon, Facebook, Twitter, Reddit, and myriad other websites.

See also Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021

Close decision on First Amendment principles

A brief six-page dissent on the matter was released on Tuesday. Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the law should have been allowed to stand. Justice Elena Kagan also agreed that the law should be allowed to stand, though she did not join Alito’s penned dissent and did not elaborate further.

The decision was on an emergency action to vacate a one-sentence decision of the Fifth Circuit Court of Appeals. The appeals court had reversed a prior stay by a federal district court. In other words, the, the law passed by the Texas legislature and signed by Gov. Greg Abbott is precluded from going into effect.

Tech lobbying group NetChoice – in addition to many entities in Silicon Valley – argued that the law would prevent social media platforms from moderating and addressing hateful and potentially inflammatory content.

In a statement, Computer & Communications Industry Association President Matt Schruers said, “We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute.”

“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.”

In a statement, Public Knowledge Legal Director John Bergmayer said, “It is good that the Supreme Court blocked HB 20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”

In his dissent, Alito pointed out that the plaintiffs argued “HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”

“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he said, referencing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.

“But we have rejected such claims in other circumstances,” he continued, pointing to PruneYard Shopping Center v. Robins.

Will Section 230 be revamped on a full hearing by the Supreme Court?

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito said.

Alito argued that there is a distinction between compelling a platform to host a message and refraining from discriminating against a user’s speech “on the basis of viewpoint.” He said that H.B. 20 adopted the latter approach.

Alito went on, arguing that the bill only applied to “platforms that hold themselves out as ‘open to the public,’” and “neutral forums for the speech of others,” and thus, the targeting platforms are not spreading messages they endorse.

Alito added that because the bill only targets platforms with more than 50 million users, it only targets entities with “some measure of common carrier-like market power and that this power gives them an ‘opportunity to shut out [disfavored] speakers.’”

Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett all voted affirmatively – siding with NetChoice LLC’s emergency application – to block H.B. 20 from being enforced.

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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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