In an odd if not entirely unexpected act in the waning days of his presidency, Donald Trump plans to veto a bill providing more than $740 billion in military funding because of his opposition to Section 230 of the Communication Decency Act, a nearly 25-year-old law regarding liability protections on the internet.
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” reads the text of Section 230(c), which provides liability protection “for 'Good Samaritan' blocking and screening of offensive material.”
Trump’s beef with Section 230 stems from a number of misunderstandings about the statute and a belief that political neutrality should be a requirement for liability protections -- after Twitter fact-checked one of his many false claims about voting by mail, Trump issued an executive order about “preventing online censorship” in May. This incorrect understanding of the provision as a shield for Big Tech’s supposed anti-conservative bias is disturbingly common among politicians, especially those on the right like Sens. Josh Hawley (R-MO) and Ted Cruz (R-TX). To hear them speak on it, eliminating Section 230 protections for social media companies would force those companies to stop “censoring” conservative views.
Much as these claims of conservative censorship aren’t backed up by evidence, the understanding of Section 230 being pushed by the right is just wildly, fundamentally, dangerously wrong. Sen. Ron Wyden (D-OR) and former Rep. Chris Cox (R-CA), the two authors of Section 230, even weighed in earlier this year to try to clarify what they actually meant when drafting it.
Far from authorizing censorship, the law provides the legal certainty and protection from open-ended liability that permits websites large and small to host the free expression of individuals, making it available to a worldwide audience. Section 230 is a bulwark of free speech and civil discourse that is more important now than ever, especially in the current political climate that is increasingly hostile to both.
Section 230 protects websites and internet service providers from being held liable for actions taken by their users, and eliminating it would almost certainly increase the amount of restricted content.
To understand the controversy around the law, it helps to understand how it works in practice and what might happen if it were repealed.
Hundreds of millions of tweets are sent each day. When a user clicks “send” on their draft, the tweet instantly goes live for the entire world to see. While it’s generally against Twitter’s rules to post illegal material such as content promoting child sexual exploitation, Twitter usually enforces its policies in reaction to something after it’s been posted to the site rather than trying to adopt a proactive approach that reviews tweets for violations before being publicly viewable.
If Section 230 was to be repealed, Twitter could become legally responsible for every single tweet from every single user on the site. In all likelihood, Twitter would be forced to limit the range of what can be posted to the social network, erring on the side of taking down questionable content. Section 230 is what holds the person who posted the illegal content legally liable for what they posted rather than Twitter as a company. Wholesale elimination of Section 230 would dramatically increase the amount of censorship on the internet.
Conservatives have tried to argue that because social media companies restrict what they allow on their sites, these companies are no longer operating platforms but instead acting as publishers, which should cause them to lose their liability protections under Section 230. For one, the “platform versus publisher” argument is odd because there’s no legal distinction between the two. Secondly, Section 230 applies to virtually anything on the internet. If a newspaper has a comment section below its articles, Section 230 is what protects that paper from being held legally responsible for everything that’s said there. Section 230 is also what protects internet providers like Xfinity or CenturyLink from being held responsible for everything their customers do on the internet. When Section 230 says that providers and users of services should not be “treated as the publisher or speaker of any information provided by another information content provider,” it means exactly that: People are responsible for what they post.
Additionally, as Section 230 is most frequently invoked in relation to conservative claims of censorship, it’s worth noting that the law doesn’t actually have anything to do with censorship or free speech. While it’s been repeatedly demonstrated that social media companies do not discriminate against conservatives, the First Amendment allows websites to develop their own rules about what content they’re willing to host.
None of this is to say that Section 230 is perfect or that reforms to it would be bad. In fact, this isn’t even to necessarily say that Section 230 should remain in effect at all. Rather, my point is that the rationale being used by conservative politicians and people in right-wing media to argue for its repeal is based on a completely fictitious reading of the law.
Fox News has hyped Trump’s effort to undermine Section 230, echoing misinformation rather than correcting it.
The overwhelming majority of misinformation regarding Section 230 seems to be based around hangups over differences between “platforms” and “publishers,” as well as an incorrect belief that these protections should only apply if sites either eliminate or drastically alter how they moderate content.
Just this week, Fox News personalities Harris Faulkner, Maria Bartiromo, Steve Doocy, Tucker Carlson, Sean Hannity and Laura Ingraham have all mentioned Section 230 on air.
“It’s not appropriate for these companies to be shielded from lawsuits and have this liability protection, which is Section 230,” Bartiromo said during the December 16 edition of Fox Business’ Mornings with Maria. “They are not a bulletin board. They have suppressed news against anything that is against their guy.”
“Section 230 certainly does not consider it, you know, deserving to be protected if, in fact, you’re going to break the rules and the laws of free speech in the process,” Faulker confusingly said during the December 15 edition of Fox News’ Outnumbered. “They’ve got to give something up. You can’t have your cake and eat it, too.”
“Trump was talking about revoking their protections under Section 230, which they should,” said Tucker Carlson Tonight guest Candace Owens. “By the way, I am not against Facebook having opinions or having a position as long as they are willing to admit that they are, in fact, a publisher. You are a publisher. You are pulling down information that you don't like because you are a publisher. They should be afforded no protections under 230, and that’s exactly what Trump was trying to do.”
Ingraham and Hannity both had Sen. Lindsey Graham (R-SC) on their Fox News shows this week to discuss his bill that would sunset Section 230 by 2023. On Hannity, Graham incorrectly described Section 230 as something that “allows the big tech companies to take down content and make decisions without being sued.”
As recent history has illustrated, it’s really hard to fight back against misinformation. Even so, it’s worth doing.
TechDirt writer Mike Masnick’s Sisyphean effort to correct Section 230 misinformation on Twitter eventually led him to create one of the single best resources to share with someone who insists that the law requires political neutrality or gets hung up on whether something is a “platform” or a “publisher.”
“Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act,” reads the headline of Masnick’s June 23 blog post, which is itself paying homage to the 2016 Popehat blog, “Hello! You've Been Referred Here Because You're Wrong About The First Amendment.” Masnick’s TechDirt post addresses 13 common misconceptions about Section 230. It’s helpful, only takes a few minutes to read, and can save people from making fools of themselves on the internet, on TV, or in the halls of Congress.
I reached out to Masnick earlier this week to ask why he thinks Congress has put so much focus on this law. He thinks the issue isn’t necessarily one of malicious intent, but the result of misinterpretations that just kept getting repeated.
“My only guess is that something [got] lost in translation, after many praised Section 230's proper application of liability as being 'the law that created the open internet,'” he said. “From there, they then thought it could be blamed for people doing stuff they don't like on the internet.”
Indeed, many of the problems people have with Section 230 could more accurately be described as problems people have with the First Amendment. This is all, of course, dependent on how much one is really willing to believe that the rage against Section 230 is all the result of an elaborate misunderstanding and not something a bit more nefarious -- part of a long-running conservative strategy to work the refs in their favor.
Republicans have made clear that their objection to Section 230 has entirely to do with the false idea that conservatives are being censored on social media.
Media professor David Carroll was able to pinpoint how the more recent fight against Section 230 on the basis of content got started: Ted Cruz.
During an April 10, 2018, Senate hearing about data privacy and protection, Cruz used his time to steer the overall topic of discussion away from Facebook’s Cambridge Analytica scandal, which didn’t necessarily reflect well on him, and to instead grill Facebook CEO Mark Zuckerberg about censorship. Carroll recently recapped how Cruz derailed that hearing in a blog post:
Instead of sticking to the hearing’s agenda and holding Facebook to account over Cambridge Analytica, Cruz deftly unveiled the shiny object of Section 230 to distract from the thorny issues of data rights and democracy posed by his own campaign vendor. Cruz’s first question to Zuckerberg was: “Does Facebook consider itself a neutral public forum?”
Until that moment, Zuckerberg was fielding questions from the joint committees about data privacy and protection, the slated topic of the hearing. Parrying Cruz’s pivot, Zuckerberg attempted to draw the junior senator from Texas into a nuanced explanation of how certain categories of content are prohibited, such as “hate speech, terrorist content, nudity, anything that makes people feel unsafe” as a way of making room for what the company likes to refer as a “platform for all ideas” (except the harmful ones). Cruz sternly interjected Zuckerberg, inserting the admonition that “the predicate for Section 230 immunity under the Communications Decency Act is that you’re a neutral public forum.” The boyish, pallid executive dodged by saying “Well, Senator, our goal is certainly not to engage in political speech. I’m not that familiar with the specific legal language of the law that you speak to, so I would need to follow up with you on that.”
Section 230 is also commonly known as “twenty-six words that created the internet” and so it strains credulity that Mr. Zuckerberg claimed not to be that familiar with it. But without an assertive response to Senator Ted Cruz, Zuckerberg all but ensured that other lawmakers would jump on the paddy wagon and stir up trouble around Section 230 instead of worrying about a new national privacy act. Scoring partisan points trumps solving privacy problems.
Cruz went on to rattle off a list of grievances that included supposed “censorship” of Fox Nation stars Diamond & Silk and an event page for “Chick-fil-A Appreciation Day,” before ceding his time. Since then, Section 230 has been a hot topic of political debate in the context of supposed anti-conservative bias.
As a Harvard Law graduate, it’s probably fair to assume that Cruz is well aware that Section 230 doesn’t have anything to do with being a “neutral platform.” Rather, it’s much more likely that he knows just how devastating it would be for tech companies if Section 230 were to be repealed outright.
Zuckerberg, for his part, has recently come around on some manner of Section 230 reform during an October Senate hearing. Twitter CEO Jack Dorsey and Alphabet CEO Sundar Pichai, who also participated, offered defenses of the existing Section 230 framework. None of the three would welcome a full repeal as companies, even ones as big as Facebook or Google, simply don’t have the resources to moderate on a scale that would keep them legally in the clear in a post-230 world.
As Republicans are about to lose Big Tech Ref-Worker-in-Chief Donald Trump from the White House, they’re clinging to Section 230 repeal as a detonator and threatening to blow the entire internet to smithereens.
Republicans have said repeatedly that this is actually about content and perceived bias. For years, they’ve been pushing tech companies to give them preferential treatment, and they’ve been pretty successful at getting what they wanted (especially from Facebook). It’s also possible that they’ll try to make Section 230 protections contingent on some measure of fairness, as impossible as that would be to implement and enforce. But no matter what, they will still claim they’re being treated unfairly. This is what happens when companies give in to bad-faith criticisms: They get asked for even more concessions. It never ends.
Congress will override Trump’s veto, should he follow through on it. But Republicans will hold tight to the detonator, forcing tech companies to continue their campaigns of appeasement. Luckily for conservatives, they’ll always have the right-wing media apparatus to amplify whatever dishonest grievance comes next.