By Ian McDowell

 

Even though modern social media companies such as Facebook, Twitter and others did not exist at the time of passage, the 1996 Communications Decency Act (and specifically, Section 230 of the Act) is properly considered a landmark law in the history of the internet because it allows social media companies to be shielded from liability for what their users post on their platforms, and allows them to remove user-uploaded content, largely at their own discretion. [1]

 

Section 230 has even been referred to as the “twenty-six words that created the Internet”, and was enacted in response to two notable court rulings regarding the internet- in one, a federal court ruled that a host was not liable because it had not moderated user-generated content at all; in the other, a state court had ruled that a tech company could be liable because it had regulated some user content/posts. [2]

 

Under 47 U.S.C. § 230(c)(1), “[n]o provider or user of an interactive computer device shall be treated as the publisher or speaker of any information provided by another information content provider.”  Under § 230(c)(2), the entity is free to “in good faith” restrict access to material that it deems inappropriate, even if that material is constitutionally protected.

 

Because Section 230 provides a total shield from liability (except in special circumstances involving intellectual property issues and involving criminal investigations, etc.) to technology companies such as Facebook or Twitter for the potentially harmful effects of third-party content posted on their respective domains, it could be argued that Section 230 provides greater levels of speech protection to technology companies than the 1st Amendment provides to traditional media outlets, considering that they may still be sued for defamation or libel in response to content that they publish. [3]

 

In the polarized environment of post-2016 American politics, Section 230 has cultivated renewed public scrutiny.  The safeguard provided by Section 230 has created a situation where tech companies such as Twitter or Facebook will inevitably be criticized for either inaction or taking action in response to specific controversial user-uploaded content.  For example, some prominent members of the Democratic Party feel that Section 230 has been a “gift” to the tech industry, or that it gives them an excuse to not get rid of “slime” that is propagated on their website. [4]  By contrast, conservative politicians accuse the same companies of using Section 230 as a means to stifle conservative voices or outlets if they decide to remove or otherwise censor certain content, depending on the uploader or account. [5]

 

Even though the criticism of companies such as Twitter and Facebook on the issue of perceived censorship (or, conversely, the lack of providing any real safeguards against misinformation disseminated on their respective platforms) is extensive, and has at times been done in formal settings such as Senate hearings, some observers feel that criticism that is ostensibly focused on Section 230, may not really about Section 230 at all in certain circumstances.  Rather, Section 230 may be seen just a verbal tool that politicians can use at times in hearings to criticize figures such as Jack Dorsey and try to achieve headlines. [6]

 

However, even if criticism of Section 230 may in turn be critiqued for its sincerity in certain circumstances, the fact remains that both President Trump and President-elect Biden supported its’ repeal (or at least extensive changes) during the 2020 campaign. [7]  While it is unclear what will be achieved by the incoming Biden Administration as it relates to Section 230, President-elect Biden has the overarching goal of requiring that companies such as Facebook or Twitter moderate more content than they are presently doing, which certainly implicates the Act. [8]  Further, changes to how Section 230 is applied may not solely come from an Act of Congress, Justice Thomas for one has urged the Supreme Court to take a case to determine the meaning of Section 230 and what specifically constitutes a distributor vs. a publisher.  [9]

 

[1] Anshu Siripurapu, Trump’s Executive Order: What to Know About Section 230, council on foreign relations (Jun. 4, 2020),  https://www.cfr.org/in-brief/trumps-executive-order-what-know-about-section-230.

[2] Id. 

[3] See Eric Goldman, Why Section 230 is Better Than the First Amendment, 95 Notre Dame L. Rev. Reflection 33, 36-37 (2019).

[4] Siripurapu, supra.

[5] See id.

[6] See Gilad Edelman, Surprise!  The Section 230 Hearing Wasn’t About Section 230, wired (Oct. 28, 2020) https://www.wired.com/story/section-230-hearing-wasnt-about-section-230/.

[7] Matt Perault, Section 230: A Reform Agenda for the Next Administration, day one project , 1(Oct. 26, 2020), https://www.dayoneproject.org/post/section-230-reform

[8] See id. 

[9] See id., see also Mike Godwin, Clarence Thomas is Begging Someone to sue Over Conservatives’ Most Hated Internet Law, slate (Oct. 16, 2020), https://slate.com/technology/2020/10/clarence-thomas-section-230-cda-content-moderation.html.

Image Source: https://www.bloomberg.com/news/articles/2020-08-11/section-230-is-hated-by-both-democrats-and-republicans-for-different-reasons

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