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Section 230

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

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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.”

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.

Section 230

Section 230 Interpretation Debate Heats Up Ahead of Landmark Supreme Court Case

Panelists disagreed over the merits of Section 230’s protections and the extent to which they apply.

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Screenshot of speakers at the Federalist Society webinar

WASHINGTON, January 25, 2023 — With less than a month to go before the Supreme Court hears a case that could dramatically alter internet platform liability protections, speakers at a Federalist Society webinar on Tuesday were sharply divided over the merits and proper interpretation of Section 230 of the Communications Decency Act.

Gonzalez v. Google, which will go before the Supreme Court on Feb. 21, asks if Section 230 protects Google from liability for hosting terrorist content — and promoting that content via algorithmic recommendations.

If the Supreme Court agrees that “Section 230 does not protect targeted algorithmic recommendations, I don’t see a lot of the current social media platforms and the way they operate surviving,” said Ashkhen Kazaryan, a senior fellow at Stand Together.

Joel Thayer, president of the Digital Progress Institute, argued that the bare text of Section 230(c)(1) does not include any mention of the “immunities” often attributed to the statute, echoing an argument made by several Republican members of Congress.

“All the statute says is that we cannot treat interactive computer service providers or users — in this case, Google’s YouTube — as the publisher or speaker of a third-party post, such as a YouTube video,” Thayer said. “That is all. Warped interpretations from courts… have drastically moved away from the text of the statute to find Section 230(c)(1) as providing broad immunity to civil actions.”

Kazaryan disagreed with this claim, noting that the original co-authors of Section 230 — Sen. Ron Wyden, D-OR, and former Rep. Chris Cox, R-CA — have repeatedly said that Section 230 does provide immunity from civil liability under specific circumstances.

Wyden and Cox reiterated this point in a brief filed Thursday in support of Google, explaining that whether a platform is entitled to immunity under Section 230 relies on two prerequisite conditions. First, the platform must not be “responsible, in whole or in part, for the creation or development of” the content in question, as laid out in Section 230(f)(3). Second, the case must be seeking to treat the platform “as the publisher or speaker” of that content, per Section 230(c)(1).

The statute co-authors argued that Google satisfied these conditions and was therefore entitled to immunity, even if their recommendation algorithms made it easier for users to find and consume terrorist content. “Section 230 protects targeted recommendations to the same extent that it protects other forms of content presentation,” they wrote.

Despite the support of Wyden and Cox, Randolph May, president of the Free State Foundation, predicted that the case was “not going to be a clean victory for Google.” And in addition to the upcoming Supreme Court cases, both Congress and President Joe Biden could potentially attempt to reform or repeal Section 230 in the near future, May added.

May advocated for substantial reforms to Section 230 that would narrow online platforms’ immunity. He also proposed that a new rule should rely on a “reasonable duty of care” that would both preserve the interests of online platforms and also recognize the harms that fall under their control.

To establish a good replacement for Section 230, policymakers must determine whether there is “a difference between exercising editorial control over content on the one hand, and engaging in conduct relating to the distribution of content on the other hand… and if so, how you would treat those different differently in terms of establishing liability,” May said.

No matter the Supreme Court’s decision in Gonzalez v. Google, the discussion is already “shifting the Overton window on how we think about social media platforms,” Kazaryan said. “And we already see proposed regulation legislation on state and federal levels that addresses algorithms in many different ways and forms.”

Texas and Florida have already passed laws that would significantly limit social media platforms’ ability to moderate content, although both have been temporarily blocked pending litigation. Tech companies have asked the Supreme Court to take up the cases, arguing that the laws violate their First Amendment rights by forcing them to host certain speech.

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Section 230

Supreme Court Seeks Biden Administration’s Input on Texas and Florida Social Media Laws

The court has not yet agreed to hear the cases, but multiple justices have commented on their importance.

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Photo of Solicitor General Elizabeth Prelogar courtesy of the U.S. Department of Justice

WASHINGTON, January 24, 2023 — The Supreme Court on Monday asked for the Joe Biden administration’s input on a pair of state laws that would prevent social media platforms from moderating content based on viewpoint.

The Republican-backed laws in Texas and Florida both stem from allegations that tech companies are censoring conservative speech. The Texas law would restrict platforms with at least 50 million users from removing or demonetizing content based on “viewpoint.” The Florida law places significant restrictions on platforms’ ability to remove any content posted by members of certain groups, including politicians.

Two trade groups — NetChoice and the Computer & Communications Industry Association — jointly challenged both laws, meeting with mixed results in appeals courts. They, alongside many tech companies, argue that the law would violate platforms’ First Amendment right to decide what speech to host.

Tech companies also warn that the laws would force them to disseminate objectionable and even dangerous content. In an emergency application to block the Texas law from going into effect in May, the trade groups wrote that such content could include “Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders,”

The Supreme Court has not yet agreed to hear the cases, but multiple justices have commented on the importance of the issue.

In response to the emergency application in May, Justice Samuel Alito wrote that the case involved “issues of great importance that will plainly merit this Court’s review.” However, he disagreed with the court’s decision to block the law pending review, writing that “whether applicants are likely to succeed under existing law is quite unclear.”

Monday’s request asking Solicitor General Elizabeth Prelogar to weigh in on the cases allows the court to put off the decision for another few months.

“It is crucial that the Supreme Court ultimately resolve this matter: it would be a dangerous precedent to let government insert itself into the decisions private companies make on what material to publish or disseminate online,” CCIA President Matt Schruers said in a statement. “The First Amendment protects both the right to speak and the right not to be compelled to speak, and we should not underestimate the consequences of giving government control over online speech in a democracy.”

The Supreme Court is still scheduled to hear two other major content moderation cases next month, which will decide whether Google and Twitter can be held liable for terrorist content hosted on their respective platforms.

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Section 230

Google Defends Section 230 in Supreme Court Terror Case

‘Section 230 is critical to enabling the digital sector’s efforts to respond to extremist[s],’ said a tech industry supporter.

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Photo of ISIS supporter by HatabKhurasani from Wikipedia

WASHINGTON, January 13, 2023 – The Supreme Court could trigger a cascade of internet-altering effects that will encourage the proliferation of offensive speech and the suppression of speech and create a “litigation minefield” if it decides Google is liable for the results of terrorist attacks by entities publishing on its YouTube platform, the search engine company argued Thursday.

The high court will hear the case of an America family whose daughter Reynaldo Gonzalez was killed in an ISIS terrorist attack in Paris in 2015. The family sued Google under the AntiTerrorism Act for the death, alleging YouTube participated as a publisher of ISIS recruitment videos when it hosted them and its algorithm shared them on the video platform.

But in a brief to the court on Thursday, Google said it is not liable for the content published by third parties on its website according to Section 230 of the Communications Decency Act, and that deciding otherwise would effectively gut platform protection provision and “upend the internet.”

Denying the provision’s protections for platforms “could have devastating spillover effects,” Google argued in the brief. “Websites like Google and Etsy depend on algorithms to sift through mountains of user-created content and display content likely relevant to each user. If plaintiffs could evade Section 230(c)(1) by targeting how websites sort content or trying to hold users liable for liking or sharing articles, the internet would devolve into a disorganized mess and a litigation minefield.”

It would also “perversely encourage both wide-ranging suppression of speech and the proliferation of more offensive speech,” it added in the brief. “Sites with the resources to take down objectionable content could become beholden to heckler’s vetoes, removing anything anyone found objectionable.

“Other sites, by contrast, could take the see-no-evil approach, disabling all filtering to avoid any inference of constructive knowledge of third-party content,” Google added. “Still other sites could vanish altogether.”

Google rejected the argument that recommendations by its algorithms conveys an “implicit message,” arguing that in such a world, “any organized display [as algorithms do] of content ‘implicitly’ recommends that content and could be actionable.”

The Supreme Court is also hearing a similar case simultaneously in Twitter v. Taamneh.

The Section 230 scrutiny has loomed large since former President Donald Trump was banned from social media platforms for allegedly inciting the Capitol Hill riots in January 2021. Trump and conservatives called for rules limited that protection in light of the suspensions and bans, while the Democrats have not shied away from introducing legislation limited the provision if certain content continued to flourish on those platforms.

Supreme Court Justice Clarence Thomas early last year issued a statement calling for a reexamination of tech platform immunity protections following a Texas Supreme Court decision that said Facebook was shielded from liability in a trafficking case.

Meanwhile, startups and internet associations have argued for the preservation of the provision.

“These cases underscore how important it is that digital services have the resources and the legal certainty to deal with dangerous content online,” Matt Schruers, president of the Computer and Communications Industry Association, said in a statement when the Supreme Court decided in October to hear the Gonzalez case.

“Section 230 is critical to enabling the digital sector’s efforts to respond to extremist and violent rhetoric online,” he added, “and these cases illustrate why it is essential that those efforts continue.”

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