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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.

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 Shuts Down Conversation on First Amendment, Panel Hears

The law prevents discussion on how the first amendment should be applied in a new age of technology, says expert.

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Photo of Ron Yokubaitis of Texas.net, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

WASHINGTON, March 9, 2023 – Section 230 as it is written shuts down the conversation about the first amendment, claimed experts in a debate at Broadband Breakfast’s Big Tech & Speech Summit Thursday.  

Matthew Bergman, founder of the Social Media Victims Law Center, suggested that section 230 avoids discussion on the appropriate weighing of costs and benefits that exist in allowing big tech companies litigation immunity in moderation decisions on their platforms. 

We need to talk about what level of the first amendment is necessary in a new world of technology, said Bergman. This discussion happens primarily in an open litigation process, he said, which is not now available for those that are caused harm by these products. 

Photo of Ron Yokubaitis of Texas.net, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

All companies must have reasonable care, Bergman argued. Opening litigation doesn’t mean that all claims are necessarily viable, only that the process should work itself out in the courts of law, he said. 

Eliminating section 230 could lead to online services being “over correct” in moderating speech which could lead to suffocating social reform movements organized on those platforms, argued Ashley Johnson of research institution, Information Technology and Innovation Foundation. 

Furthermore, the burden of litigation would fall disproportionally on the companies that have fewer resources to defend themselves, she continued. 

Bergman responded, “if a social media platform is facing a lot of lawsuits because there are a lot of kids who have been hurt through the negligent design of that platform, why is that a bad thing?” People who are injured have the right by law to seek redress against the entity that caused that injury, Bergman said. 

Emma Llanso of the Center for Democracy and Technology suggested that platforms would change the way they fundamentally operate to avoid threat of litigation if section 230 were reformed or abolished, which could threaten freedom of speech for its users. 

It is necessary for the protection of the first amendment that the internet consists of many platforms with different content moderation policies to ensure that all people have a voice, she said. 

To this, Bergman argued that there is a distinction between algorithms that suggest content that users do not want to see – even that content that exists unbeknownst to the seeker of that information – and ensuring speech is not censored.  

It is a question concerning the faulty design of a product and protecting speech, and courts are where this balancing act should take place, said Bergman. 

This comes days after law professionals urged Congress to amend the statue to specify that it applies only to free speech, rather than the negligible design of product features that promote harmful speech. The discussion followed a Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube.   

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Section 230

Congress Should Amend Section 230, Senate Subcommittee Hears

Experts urged Congress to amend tech protection law to limit protection for the promotion of harmful information.

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Photo of Hany Farid, professor at University of California, Berkley

WASHINGTON, March 8, 2023 – Law professionals at a Senate Subcommittee on Privacy, Technology and the Law hearing on Wednesday urged Congress to amend Section 230 to specify that it applies only to free speech, rather than the promotion of misinformation.

Section 230 protects platforms from being treated as a publisher or speaker of information originating from a third party, thus shielding it from liability for the posts of the latter. Mary Anne Franks, professor of law at the University of Miami School of Law, argued that there is a difference between protecting free speech and protecting information and the harmful dissemination of that information.

Hany Farid, professor at University of California, Berkley, argued that there should be a distinction between a negligently designed product feature and a core component to the platform’s business. For example, YouTube’s video recommendations is a product feature rather than an essential function as it is designed solely to maximize advertising revenue by keeping users on the platform, he said.

YouTube claims that the algorithm to recommend videos is unable to distinguish between two different videos. This, argued Farid, should be considered a negligently designed feature as YouTube knew or should have reasonably known that the feature could lead to harm.

Section 230, said Farid, was written to immunize tech companies from defamation litigation, not to immunize tech companies from any wrongdoing, including negligible design of its features.

“At a minimum,” said Franks, returning the statue to its original intention “would require amending the statute to make clear that the law’s protections only apply to speech and to make clear that platforms that knowingly promote harmful content are ineligible for immunity.”

In an State of the Net conference earlier this month, Frank emphasized the “good Samaritan” aspect of the law, claiming that it is supposed to “provide incentives at platforms to actually do the right thing.” Instead, the law does not incentivize platforms to moderate its content, she argued.

Jennifer Bennett of national litigation boutique Gupta Wessler suggested that Congress uphold what is known as the Henderson framework, which would hold a company liable if it materially contributes to what makes content unlawful, including the recommendation and dissemination of the content.

Unfortunately, lamented Eric Schnapper, professor of law at University of Washington School of Law, Section 230 has barred the right of Americans to get redress if they’ve been harmed by big tech. “Absolute immunity breeds absolute irresponsibility,” he said.

Senator Richard Blumenthal, R-Connecticut, warned tech companies that “reform is coming” at the onset of the hearing.

This comes weeks after the Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube. The case saw industry dissention on whether section 230 protects algorithmic recommendations. Justice Brett Kavanaugh claimed that YouTube forfeited its protection by using recommendation algorithms but was overturned in the court ruling.

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Content Moderation, Section 230 and the Future of Online Speech

Our comprehensive report examines the extremely timely issue of content moderation and Section 230 from multiple angles.

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In the 27 years since the so-called “26 words that created the internet” became law, rapid technological developments and sharp partisan divides have fueled increasingly complex content moderation dilemmas.

Earlier this year, the Supreme Court tackled Section 230 for the first time through a pair of cases regarding platform liability for hosting and promoting terrorist content. In addition to the court’s ongoing deliberations, Section 230—which protects online intermediaries from liability for third-party content—has recently come under attack from Congress, the White House and multiple state legislatures.

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