President Donald Trump took the fight directly to the social media giants when he signed an executive order regarding Section 230 — the part of the law that gives tech companies the ability to remove or block content on their platforms without being held liable for it.
The “Executive Order on Preventing Online Censorship” directs federal agencies to re-examine the protections of Sec. 230 to ensure they are not being abused by “platforms that — far from acting in ‘good faith’ to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.”
Trump’s action immediately drew condemnation on the right from conservatives and libertarians, who said it was government overreach, regulating a private company and burning down free speech on the internet.
There is a lot of hyperbole and straw man arguments surrounding this debate, as well as legitimate concerns about free speech online. Here are a few things to consider.
First, since the passage of Sec. 230 in 1996, the government has been well entangled with the tech industry. In fact, the provision of law is central to their business model. The Sec. 230 debate generates so much light and heat not only because it governs speech online; it is the billion-dollar provision of law that has grown these companies from basement start-ups to industry giants. As one pro-Sec. 230 law professor put it, it amounts to an “implicit financial subsidy” to internet companies. (RELATED: Twitter Censors White House Account For Quoting Trump’s Flagged ‘THUGS’ Tweet)
These are private companies, yes, but their success or failure is built on the back of specific treatment by the government.
Second, that treatment is in some ways necessary. The immunity provided by Sec. 230 prevents these companies from being sued into oblivion for taking down smutty content, child pornography or other content the law defines as “obscene, lewd, lascivious” and so on. It applies broadly not just to tech companies (though those are its most famous beneficiaries), but to the comments sections of online newspapers and sites across the web.
As described by former Republican California Rep. Chris Cox, one of the provision’s authors, the provision was intended to “help clean up the internet” by protecting companies who wanted to engage in good-faith removal of the nastiness that can flourish online.
But the modern application of Sec. 230 today is not what it was in 1996. Over the past 24 years, aggressive litigation has contorted the statute, broadening the immunity well beyond efforts to “clean up the internet.” For example, thanks to Sec. 230, the 2nd Circuit Court of Appeals did not hold the dating app Grindr liable for failing to respond to repeated requests to remove fake posts that resulted in the harassment and harm of a user.
Sec. 230 also gives social media companies tremendous power to remove, block and filter user content based on their own policies — including, as we recently saw, tweets from both the White House and the president of the United States.
This gets to the crux of the issue: the power of private tech companies to control speech in the public square — not to mention their tremendous power over your data, privacy, behavior and elections.
The text, reach and application of Trump’s executive order is less about the technical merits of Sec. 230 than it is a proxy for that question. The arrogance of tech companies in blatantly imposing political viewpoints, crushing small business, serially violating user privacy and acknowledging their power over election outcomes has come home to roost.
Seventy-two percent of the public thinks it’s likely that social media platforms actively censor political views that those companies find objectionable. Seventy-seven percent of Americans think big tech has too much power.
Sec. 230 expert Jeff Kossof recently remarked that the tech companies have “proceeded for years basically treating Section 230 like it’s a right that’s enshrined in the Constitution … and now what you’re seeing is a backlash to that arrogance.”
The amount of Sec. 230 reform proposals proliferating in Congress demonstrates that it’s not just Trump who thinks the law might need some updates. As recently as 2018, Congress amended Sec. 230 to remove liability protections for sites that knowingly assisted in sex trafficking. (Some tech groups even fought that law on the basis of its potential harm to free speech.)
Ultimately, it is Congress that has the power to change the law, though it will be up to the courts to decide if Trump can interpret its application, as the executive order attempts to do. (RELATED: ORTNER: The First Amendment Will Be The Only Casualty In Trump’s War With Twitter)
Everyone wants to ensure free speech online — indeed, much of the frustration from the president and his allies comes from a belief that free speech is being curtailed. Sec. 230 presents both opportunities and hazards to that end, and is just one of a handful of policy options lawmakers are considering, in addition to robust antitrust enforcement and privacy legislation.
As much as the tech industry and its advocates might not think this debate should happen, it’s clear that both lawmakers and a plurality of Americans do. Trump’s executive order is a clear sign that this debate is only just beginning.
Rachel Bovard is the senior director of policy for the Conservative Partnership Institute.
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