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Section 230

Greene, Paul Social Media Developments Resurface Section 230 Debate

Five days into the new year and two developments bring Section 230 protections back into focus.

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Georgia Republican Representative Marjorie Taylor Greene

WASHINGTON, January 5, 2022 – The departure of Republican Kentucky Senator Rand Paul from YouTube and the banning of Georgia Republican Representative Marjorie Taylor Greene from Twitter at the beginning of a new year has rekindled a still lit flame of what lawmakers will do about Section 230 protections for Big Tech.

Paul removed himself Monday from the video-sharing platform after getting two strikes on his channel for violating the platform’s rules on Covid-19 misinformation, saying he is “[denying] my content to Big Tech…About half of the public leans right. If we all took our messaging to outlets of free exchange, we could cripple Big Tech in a heartbeat.”

Meanwhile, Greene has been permanently suspended from Twitter following repeated violations of Twitter’s terms of service. She has previously been rebuked by both her political opponents and allies for spreading fake news and mis/disinformation since she was elected in 2020. Her rap sheet includes being accused of spreading conspiracy theories promoting white supremacy and antisemitism.

It was ultimately the spreading of Covid-19 misinformation that got Greene permanently banned from Twitter on Sunday. She had received at least three previous “strikes” related to Covid-19 misinformation, according to New York Times. Greene received a fifth strike on Sunday, which resulted in her account’s permanent suspension.

Just five days into the new year, Greene’s situation – and the quickly-followed move by Paul – has reignited the tinderbox that is Section 230 of the Communications Decency Act, which shields big technology platforms from any liability from posts by their users.

As it stands now, Twitter is well within its rights to delete or suspend the accounts of any person who violates its terms of service. The right to free speech that is protected by the First Amendment does not prevent a private corporation, such as Twitter, from enforcing their rules.

In response to her Tweets, Texas Republican Congressman Dan Crenshaw called Greene a “liar and an idiot.” His comments notwithstanding, Crenshaw, like many conservative legislators, has argued that social media companies have become an integral part of the public forum and thus should not have the authority to unilaterally ban or censor voices on their platforms.

Some states, such as Texas and Florida, have gone as far as making it illegal for companies to ban political figures. Though Florida’s bill was quickly halted in the courts, that did not stop Texas from trying to enact similar laws (though they were met with similar results).

Crenshaw himself has proposed federal amendments to Section 230 for any “interactive computer service” that generates $3 billion or more in annual revenue or has 300 million or more monthly users.

The bill – which is still being drafted and does not have an official designation – would allow users to sue social media platforms for the removal of legal content based on political views, gender, ethnicity, and race. It would also make it illegal for these companies to remove any legal, user generated content from their website.

Under Crenshaw’s bill, a company such as Facebook or Twitter could be compelled to host any legal speech – objectionable or otherwise – at the risk of being sued. This includes overtly racist, sexist, or xenophobic slurs and rhetoric. While a hosting website might be morally opposed to being party to such kinds of speech, if said speech is not explicitly illegal, it would thus be protected from removal.

While Crenshaw would amend Section 230, other conservatives have advocated for its wholesale repeal. Sen. Lindsey Graham, R-South Carolina, put forward Senate Bill 2972 which would do just that. If passed, the law would go into effect on the first day of 2024, with no replacement or protections in place to replace it.

Consequences of such legislation

This is a nightmare scenario for every company with an online presence that can host user generate content. If a repeal bill were to pass with no replacement legislation in place, every online company would suddenly become directly responsible for all user content hosted on their platforms.

With the repeal of Section 230, websites would default to being treated as publishers. If users upload illegal content to a website, it would be as if the company published the illegal content themselves.

This would likely exacerbate the issue of alleged censorship that Republicans are concerned about. The sheer volume of content generated on platforms like Reddit and YouTube would be too massive for a human moderating team to play a role in.

Companies would likely be forced to rely on heavier handed algorithms and bots to censor anything that could open them to legal liability.

Democratic views

Republicans are not alone in their criticism of Section 230, however. Democrats have also flirted with amending or abolishing Section 230, albeit for very different reasons.

Many Democrats believe that Big Tech uses Section 230 to deflect responsibility, and that if they are afforded protections by it, they will not adjust their content moderation policies to mitigate allegedly dangerous or hateful speech posted online by users with real-world consequences.

Some Democrats have written bills that would carve out numerous exemptions to Section 230. Some seek to address the sale of firearms online, others focus on the spread of Covid-19 misinformation.

Some Democrats have also introduced the Safe Tech Act, which would hold companies accountable for failing to “remove, restrict access to or availability of, or prevent dissemination of material that is likely to cause irreparable harm.”

The reality right now is that two parties are diametrically opposed on the issue of Section 230.

While Republicans believe there is unfair content moderation that disproportionately censors conservative voices, Democrats believe that Big Tech is not doing enough to moderate their content and keep users safe.

Section 230

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.

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Caricature of Samuel Alito by Donkey Hotey used with permission

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.

Watch Broadband Breakfast Live Online on Wednesday, June 1, 2022

Broadband Breakfast on June 1, 2022 — The Supreme Court, Social Media and the Culture Wars

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.

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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

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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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