January 2, 2021 — When the Senate reconvenes on Sunday at 11:45 a.m., the body will gavel in for the first session of the 117th Congress. All bills not passed as of Friday, January 1, 2021 – the last day Congress was in session – will die.
One of those bills is the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, or EARN IT Act, S. 3368, introduced in March by Senate Judiciary Committee Chairman Lindsey Graham, R-South Carolina. Among other provisions, the measure would have restricted the liability protection of Section 230 of the Communications Decency Act.
Somewhat obscured amidst the controversy surrounding President Donald Trump veto’s of the Defense Department’s budget over Section 230 were Graham’s maneuverings. He attempted to water down protections for social media companies through the EARN IT Act and through another measure, the Online Content Policy Modernization Act, S. 4632. Bill will die on Sunday.
Last-minute efforts to gut or scale back Section 230
Graham’s measures were more tactical, and in addition to Trump’s unsuccessful broadside. Trump’s veto of the Defense bill was over-riden by the Senate on Friday. The over-ride was one of the last actions of the 116th Congress. It was also the first time a Trump veto had been overturned.
On Thursday, December 7, during an executive session of the Judiciary Committee, Graham nixed a vote on the Online Content Policy Modernization Act., S. 4632, that would have scaled back Section 230 protections even more than the EARN IT Act.
Indeed, online services would be exposed to liability if they remove content outside a limited set of categories.
Graham’s S. 4632 would have removed from Section 230’s liability protections the catch-all phrase “otherwise objectionable content.” He said this phrase has become “a hole in the bill,” which allows social media platforms to censor conservative sources and content.
“If you took that phrase out, it would limit their ability to censor and edit,” said Graham. “That’s what this effort is, to take that out that phrase and replace it with some guidance.”
Criticism and support — but mostly support — for slamming social media
Critics of the EARN IT Act argue it is a misguided attack on internet speech, which would make it harder for online platforms to take common-sense moderation measures and shield only those which agree to confine their moderation policies to a narrowly tailored set of rules, agreed upon by legislators.
“The result of this Amendment would be to disincentivize platforms from removing filth online,” said
Ranking Member Dianne Feinstein, D-California, “Congress should not make it more difficult for social media services to fight disinformation.”
Feinstein said the Graham’s proposed EARN IT Act was premature as it had not had an adequate hearing before the Committee and that regulating Section 230 may be “more complicated” than any of the members suspected.
During the meeting, Sen. Josh Hawley, R-Missouri, introduced an amendment to the Act which would guarantee third-party users implied private rights of action, allowing private parties to bring a lawsuit to court, even though no remedy is explicitly provided in the law.
While Hawley’s proposed amendment did not pass, many agreed guaranteeing third-party users’ private rights of action will be critical to a final congressional revision of Section 230 that may well happen in the 117th Congress.
The majority of committee members maintained that many more hearings will be necessary before proposing reforms to Section 230. At the close of the meeting, Graham withdrew the bill, saying the mission of the legislation was accomplished, in the sense that it got the committee to talk about changes to Section 230.
“There will be work going forward,” said Sen. Richard Blumenthal, D-Connecticut, “but there is a message in this conversation: the days of Section 230 are numbered. There will be reform.”
“The days of non-responsibility of big tech are over” Blumenthal said, adding that “this should not be a partisan issue.”
Debate flares over what constitutes ‘filth’ online
Section 230 grants platforms liability protections for the decisions they make to moderate and remove online speech; platforms are free to decide their own moderation policies however they see fit. Yet there is widespread disagreement about what types of content are worthy of being removed from social media platforms..
“This bill urges tech companies to not sensor ‘inflammatory conservative social media content’”, said Senator Dick Durbin, D-Illinois. “The questions is: How do you define this?”
“What line will be drawn, and where?,” questioned Durbin. “Lawful but awful content, such as that put forth by the proud boys, which is white supremacist, misogynistic, and could incite violence, by nature — are we including this?”
While Durbin strictly opposed the idea of a Section 230 reform allowing hate speech to flourish online, Sen. Ted Cruz, R-Texas, said although he despises “Nazi ideology”, that he does not “want to silence them online.”
What Cruz referred to as an attempt by big tech to silence conservative voices, Sen. Sheldon Whitehouse, D-Rhode Island, called the effort of private companies to intervene in “powerful fraudulent disinformation campaigns” being employed by corporate interests against American citizens.
“To say you have to be fair” to all content, “misstates the question that we’re faced with,” said Whitehouse.
“In certain areas of public debate, there are very wealthy, very powerful special interests that have decided that the way to power in the United States of America is to run deliberate disinformation campaigns against and in their own country,” said Whitehouse, saying that the best example of this is the fossil fuel industry’s politicization of the issue of climate change.
“Now we see a similar disinformation operation run by the billionaires in right-wing media,” he said. “It is provenly false. For a company to be in a position to be able to say, ‘your crooked disinformation campaign has no platform here,’ I think is a legitimate decision on their part.”
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.
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.
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.
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.
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.
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.”
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.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
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.
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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