Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight

May 25, 2021 – Republican Florida Governor Ron DeSantis on Monday signed a bill that would allow for fines against social media companies for suspending or banning political candidates in the state.

The move, which is expected to face constitutional questions, marks the latest apex of an issue that can be traced back to what some Republicans called social media’s targeting of its members, but specifically against their leader Donald Trump.

Because in the waning days of the Trump presidency, as unfounded allegations of election theft gripped the Republican Party, a bombshell dropped: Twitter had banned the president for tweets the company said could be read as an incitement of the riots at the capitol just days prior on January 6.

By then, Twitter had already made it a regular practice of labelling Trump’s tweets with links to information about the subject about which he commented. For more egregious violations, the social media company used words like “disputed” next to some of his claims.

Join the Broadband Breakfast Live Online Oxford-style debate on “Unpacking Section 230 Controversies” on Wednesday, May 26, 2021. The moderated debate will feature two proponents of Section 230, and two critics. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.

The president, who by then had lost the election, and his allies were already clamoring for reforms to a decades-old law known as Section 230 of the Communications Decency Act, which shields social media and other platforms from legal liability for posts by their users. For example, if a user posts something libelous about a person or business, the platform on which it is posted enjoys full immunity.

But critics of the law have argued that immunity vanishes when the platform gets involved in moderating those posts. The reasoning is that the platform moves from mere facilitator to editorial or publisher of what can and cannot be seen by its users.

Officials in Australia, for example, have been calling for social media companies to be categorized as “publishers” for the sake of holding them accountable for things their users post.

With proposed Section 230 reform legislation being proposed, Broadband Breakfast has selected this topic for its third in a series of explainers.

A short history of the legislation and the First Amendment

Section 230 of the Communications Decency Act of 1996 protects websites from lawsuits if they contain illegal material. However, there are exceptions for copyright violations, sexually explicit material, and violations of federal laws.

Congressman Ron Wyden, D-Oregon, crafted Section 230 to ensure website owners could manage their sites without fear of legal repercussions. The law is crucial for social media sites – allowing companies like Facebook to become the giant it is — but it also covers newspapers as well. Some lawmakers wrongly claim it only protects “neutral platforms,” while critics claim it lets powerful companies ignore users’ actual harm.

According to the First Amendment in the United States, most speech forms are protected, including many proposals to force technology companies to moderate their content.

The First Amendment protects private companies as well when this comes to regulating speech. For example, Facebook and Twitter both prohibit hate speech, even though hate speech is legal in the United States. The First Amendment protects these moderation rules.

Although it often gets regarded as part of Section 230 discussions, this issue stands on its own.

The politicization of Section 230

The move by Twitter to ban Trump has cascaded into bans and restrictions on other social media accounts, including Facebook. Most recently, the Oversight Board, an arms-length independent group that determines whether actions by the social media giant are justified or not, said Trump’s ban from the platform would remain, but has ordered the platform to define the penalty – currently indefinite — and provide justification for it.

Before all that came to pass, then-President Donald Trump issued an executive order in May 2020 targeting Section 230 and social media. Congress and the courts have no authority to override or modify Section 230. The order also pushed agencies to collect complaints that could justify revoking sites’ legal protections.

Trump has generally endorsed Republican legislation to change the law in Congress. After Joe Biden’s election, Trump has gone further and advocated for the abolition of Section 230, packaging that proposal in the ongoing push for $2,000 direct stimulus payments.

Biden is less vocal about the Section 230 law than Trump, but he’s also not a fan of it. In the first month of his administration, Biden recommended repealing Section 230 entirely.

Watch our 2:27 minute preview view on Section 230

“For [Facebook CEO Mark] Zuckerberg and other platforms, it should be revoked because it is not a purely Internet company. They are spreading falsehoods they know to be false.” Facebook has historically defended itself by suggesting its human and algorithmic monitors actively take-down groups and accounts that cause harm.

Since the election, Biden has not put forward a specific plan to revise Section 230. In December 2020, however, an advisor to Vice President Kamala Harris suggested that Section 230 be “thrown out” and a new program crafted to protect children from disturbing material online.

Section 230 modifications

The Stop Enabling Sex Traffickers Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA), which were signed into law by President Trump in April 2018, reducs the protections afforded to online platforms for the purposes of counteracting sex trafficking. To distinguish between civil and criminal sex trafficking and conduct that promotes or facilitates sex services, FOSTA extends Section 230 to cover this section’s violations retroactively.

Because of the new law, some websites initially censored their forums to protect people from the vague possibility that a third party could run prostitution ads in the future. Now, sex workers say they are mostly forced offline, which makes their work far less safe.

• Broadband Breakfast Explainer 1 (Net Neutrality): On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate
• Broadband Breakfast Explainer 2 (Spectrum): Is Spectrum Sharing a Key to Broader Connectivity Goals?
• Broadband Breakfast Explainer 3 (Section 230): With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight
• Broadband Breakfast Explainer 4 (Antitrust): Antitrust Heats Up as Biden Selects Tech Critic Jonathan Kanter for Top Enforcement Spot

Democrats have called for an investigation of the adverse effects the law has on sex workers. There is little-to-no evidence of a decrease in online sex trafficking since the law has been in place.

During a workshop conducted by the US Department of Justice in February, the department examined cases in which platform providers allowed users to distribute non-consensual pornography, harassing images of children, and abuse images of children.

Proposals are generally in two categories: Removing specific kinds of content from protection — as FOSTA-SESTA did for works of a sexual nature. The proposed EARN IT Act would require sites to demonstrate that they are fighting child sex abuse, but it would likely also loosen encryption for private messaging, some say.

A separate guide offers more information on this approach, which tends to be bundled with privacy and technology proposals. The EARN IT Act has been the only one to pass out of committee so far, which was amendable before advancing.

Democratic proposals

The Democratic Party’s primary goal is to get online platforms to remove hate speech, terrorism, and harassment. As a result, they have introduced several bipartisan proposals meant to curtail and erode full Section 230 protections.

Richard Blumenthal, D-Connecticut, sponsored the EARN IT Act and criticized the protections in Section 230. He proposed a different solution, the PACT Act, which strives to ensure that website operators know how they moderate the content.

Sen. Amy Klobuchar, D-Minnesota, with Sen. Chuck Grassley, R-Iowa, have pushed their own proposal, called the Safe Tech Act, which would keep many of the protections of Section 230, but exempt from liability protections content on platforms that those platforms are getting paid for.

Republican proposals

Based on a series of workshops in early 2020, then-Attorney General William Barr released recommendations for Section 230 reform in June 2020. In addition to new measures to penalize arbitrary or discriminatory moderation, the proposals include new restrictions against cyberstalking and terrorism.

Barr’s proposal applies immunity to moderation decisions that follow “plain and particular terms of service and are accompanied by detailed justifications” — a narrower scope than the current law.

If Congress approves Barr’s recommendations, they will have legal force, but so far, they are the best blueprint conservatives have for mainline 230 reform. A smaller group of Republicans has been dedicated to limiting the immunity that moderates enjoy, penalizing parties that act with bias or discrimination.

Senator Josh Hawley, R-Missouri, has also introduced a bill that would require platforms to abide by a “duty of good faith,” resulting in significant monetary damages to their users if they can demonstrate in court that the platform violated the duty.

With the introduction of the Ending Support for Internet Censorship Act in 2019, Hawley would have required platforms that moderate content to certify their content as politically “neutral” to stay protected from lawsuits. No formal progress has been made in either proposal thus far.

Big Tech response

Facebook’s Zuckerberg said his company is leading the charge on calls for more regulation. In February 2020, Facebook released a white paper outlining the approach regulators ought to take.

There are several assumptions attached to this approach: that platforms should be global and thus subject to different laws and cultures, act more like a platform for speech than traditional publishers, and constantly change for competitive reasons.

According to Facebook, it is possible to hold tech companies accountable for specific metrics, such as limiting the number of views posted to a prohibited level or setting a mandatory response time for removing posts.

However, they point out that any effort to enforce a 24-hour removal requirement will likely result in platforms ignoring older posts in favor of positions within the 24-hour window.

After a couple of months in power and with the virus more under control, Biden might add some focus on Section 230 and propose some new amendments, changing the bill’s course. Still, it’s likely to remain on the table, and Republicans will likely continue to push for their own changes.

Join the Broadband Breakfast Live Online Oxford-style debate on “Unpacking Section 230 Controversies” on Wednesday, May 26, 2021. The moderated debate will feature two proponents of Section 230, and two critics. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.