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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.

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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