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Section 230

Section 230 is Essential and Broadly Misunderstood, Say Panelists at Broadband Breakfast Live Online Event

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July 8, 2020 — Despite the hate that big tech companies receive, social media platforms are essential in enabling online speech at the level seen today, with the help of Section 230, said Cathy Gellis, an attorney who specializes in internet intermediary law.

Gellis made her remarks at the second event in a Broadband Breakfast Live Online series examining facts and fictions about Section 230, sponsored by the Computer & Communications Industry Association.

“If people had to be afraid of what you expressed, then they would have to jump in and possibly not let you express it,” she said. “So if we’re going to have this ideal that people can speak freely, we need to protect the people who enable this expression, or else it’ll be death by duck nibbles and we’ll get sued out of existence.”

TechFreedom Senior Fellow Berin Szóka compared Section 230 to anti-SLAPP laws, which aim to prevent people from using the court system to intimidate others who are exercising their First Amendment rights. The acronym stands for “Strategic Lawsuit Against Public Participation.”

Although the speech in question is already protected by the First Amendment, Szóka explained, anti-SLAPP laws and Section 230 both curb the threat of costly litigation and criminal prosecution.

Szóka also emphasized the limitations of Section 230’s protection pointing out that it only protects interactive computer service providers from content that they are not responsible for creating, even in part.

“If you’re Backpage.com, and you hire a company to draft sex trafficking ads, you’re not protected by Section 230,” he explained. “If you’re Roommates.com, and you solicit racially discriminatory preferences for housing, you’re not protected by Section 230. If you’re Twitter, and you add your own content next to someone else’s content — like labels on the President’s tweets — those aren’t protected by Section 230.”

Section 230 plays a major role in explaining why social media companies have flourished almost exclusively within the United States, Szóka said.

Certain other countries instead use the “innocent dissemination defense,” which protects platforms only if they are entirely unaware of the content in question.

“That’s exactly what Congress was trying to avoid [by creating Section 230], because if that’s the only safe harbor you have from liability, you have a perverse incentive not to monitor your service and not to try to moderate content to protect users from harmful content,” Szóka said.

Screenshot of Broadband Breakfast Live Online panelists

Tech journalist Rob Pegoraro pointed out the irony in so-called conservatives calling for increased government regulation of private companies.

“[They’ve] decided it’s worthwhile to say, ‘Look at how unfair Twitter and Facebook are, they’re censoring us, they’re shadow banning,’” he said. “It’s just crazy when you look at how well President Trump has used Facebook and Twitter as platforms.”

One of the most common misconceptions about Section 230, according to Pegoraro, is that it requires platforms to be politically neutral.

“There is no way you get that from a reading of the law,” he said. “But I have seen politicians [like] Senator Josh Hawley of Missouri, who has a degree from Yale — I hear they’re pretty good at teaching law — who has said you must be politically neutral or you don’t get these protections, which is bananas.”

In addition, “bad faith” behavior is hard to define, Pegoraro said. While many have claimed that social media platforms discriminate against Republicans, Pegoraro said he saw no evidence of that.

On the other side of the aisle, “it could be the issue that Facebook says it doesn’t want to be an arbiter of truth, but in fact, it is quite happy to kick people off of Facebook if they happen to be activists in Tunisia or Palestine, which I think is a legit complaint,” he said.

Democratic Presidential Nominee Joe Biden has previously expressed support for the repeal of Section 230, citing the rampant spread of potentially dangerous misinformation online.

“The way in which blatant falsehood is spreading on the internet is a real problem,” Szóka said. “But I have yet to see a legal solution to that problem, because at the end of the day, these services, whatever their role is in moderating content, they’re not courts, they’re not grand juries, they don’t have the capacity to investigate.”

“Forcing them by law to make decisions about taking down certain content or certain users not only raises obvious First Amendment problems, but is hopelessly impossible,” he added.

Gellis described Section 230 as being “all carrot, no stick,” arguing that this was important in order to empower companies to balance leaving the most good stuff up and taking the most bad stuff down.

In spite of the law’s essential role, she said, politicians have begun pointing to it as a scapegoat for all online problems, when they should instead be focusing on creating more support for the regulatory ecosystem as a whole.

“The problem is [that Section 230 is] kind of the only good law we really have in the internet world,” she said.

Szóka pointed out that much of the controversy over Section 230 is relatively recent.

“2016 is probably the tipping point [of] when it went from being pretty clear among anybody who was in internet policy that we just wouldn’t have the user centric internet without Section 230 to Section 230 becoming the political football that it is today,” he said.

Broadband Breakfast’s series on Section 230 will conclude next Wednesday with a discussion on public input on platform algorithms, considering the role of transparency and feedback in information technology.

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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