Connect with us

Section 230

Trump’s Section 230 Order is Direct Regulation of Speech Long Feared by GOP



Screenshot of panelists from the webcast

June 23, 2020 — Section 230 of the Communications Decency Act has played an important role in the shifting center of power on the internet, but where that center of power should reside going forward is a hotly contested topic.

“The story of whether 230 is deregulatory is … a complicated story, because it’s been invoked by the agency to do different things, pro-regulatory and less regulatory,” said Fordham University Law Professor Olivier Sylvain, speaking at a Tuesday panel hosted by Yale Law School.

Proponents of Section 230 often tell “the story that the internet has thrived in the absence of regulation and because of the absence of regulation,” Berkeley Law Professor Tejas Narechania said.

But statute has also been used by the Federal Communications Commission (under former chairman Kevin Martin) as a way to punish discriminatory behavior regarding net neutrality by Comcast.

Blake Reid, professor at the University of Colorado Law School, proposed looking at the agency’s approach to the internet by dividing it into different layers: the physical layer, the network layer, the application layer and the content layer.

“This is a question about where power is concentrated in the layer stack of the internet,” he said. “The conception that Section 230 had back in 1996 was really worried about internet service providers having a lot of power.”

In the years since, Reid said, the power has completely shifted to platforms such as Twitter and Facebook.

“There’s a way you can view 230 as intermediating the relationship between ISPs and platforms,” he said.

The Republican Trump administration is proposing ‘direct regulation of speech’ long feared from Democrats

Panelists also discussed President Donald Trump’s recent executive order attempting to curb Section 230 protections, which Narechania called “direct regulation of speech in a way that telecommunication regulation has tried to avoid for a very long time.”

“It’s lunacy to have the White House through an executive order make the Commerce Department through the NTIA make a recommendation to the FCC, an independent agency, to intervene in an area that most people think the FCC has not had historical authority over,” Sylvain said.

The FCC is not required to actually take any action based on the NTIA’s petition, he added.

“If you look at Republican Party orthodoxy in terms of the FCC regulating the internet, that was a fear of what the Democrats were going to do,” Reid said. “That was the worst nightmare of every Republican telecom consultant for 20 years, so to suddenly see a Republican president on the other side of it is just wild.”

Echos of net neutrality in the call for political nondiscrimination

Reid compared Trump’s call for political nondiscrimination mandates on platforms such as Twitter to the fight over net neutrality.

“If you’re accessing some particular kind of content — maybe you’re looking up websites that have a lot of political content that’s favorable to Republicans, but not Democrats — the ISP cannot block that,” he said. “We’ve had this very pitched battle for the better part of the last 20 years about whether the FCC has the authority to do that.”

While he disagreed with the interpretation that Section 230 is just a statutory implementation of what the First Amendment already requires, Reid emphasized the importance of examining the overlap between the constitutional amendment and the statute.

Getting rid of Section 230 might not have the catastrophic impact on content moderation that some have suggested, he said.

In that way, Section 230 “has stalled the development of First Amendment doctrine in this area,” he said.

Other efforts to curb or change Section 230 beyond Donald Trump

In addition to Trump’s executive order, there have been several other recent proposals to curtail Section 230’s reach, including new reform recommendations from the Justice Department and a bill introduced by Sen. Josh Hawley, R-Mo., who has long been one of the statute’s fiercest opponents.

“I don’t know what the world looks like if these policy interventions get any wind behind their sails,” Sylvain said. “I am skeptical about the Hawley bill, [but] there’s another one that will emerge very soon that is addressed more to the business model of these companies, and that’s something that I’m far more interested in seeing.”

Reid was dismissive about the realistic potential of such efforts.

“It’s really effective politics because it ties up the machinery of the bureaucracy in dealing with all of this nonsense, but it’s not designed to get passed, just like I think most of Hawley’s bills are not really designed to pass,” Reid said. “I think Hawley would be quite unhappy if suddenly the Democratic caucus came around and said, ‘Oh yes, we would love to pass this bill of yours.’”

However, Narechania expressed more concern about the future implications of the various proposals.

“I agree [the executive order] is political theater, but it seems like political theater that has the potential to make a whole lot of administrative law and telecommunications law,” he said. “And that makes me sort of nervous — it makes me really nervous.”

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.



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 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.

Continue Reading

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.



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.

Continue Reading

Section 230

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

Government is ‘worst person’ to manage content moderation.



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.

Continue Reading


Signup for Broadband Breakfast

Get twice-weekly Breakfast Media news alerts.
* = required field