The censors have been busy of late. President Trump is now banned either permanently or temporarily from the most recognizable social media sites. After the Capitol riot, conservatives on Twitter reported that they were hemorrhaging followers. These events have led to an inundation of work from the commentariat.
The much-maligned Section 230 of the Communications Decency Act of 1996 is a frequent casualty in this flood. This particular section provides liability protections to online platforms. Unlike publishers, platforms host content posted by others. Facebook is not liable for copyright violations when Karen posts a video of her favorite song.
The left wants to remove these protections because they want control. The right wants to do so because they think social media sites are abusing their immunity. With both sides gunning for them, why would social media giants make such an inflammatory move?
I am inclined to be charitable to the Jack Dorsey’s of the world and grant that the technological oligarchy is afraid. The fact is that the political party most interested in abolishing free speech in the name of what Wesley Yang calls ‘successor ideology’ just gained a supermajority. The ever-shifting standards of arbitrary government intervention are much worse than Twitter’s rules, and they are backed by the point of a gun.
None of this means that the social media giants have not caused havoc. Jack Dorsey and Mark Zuckerberg (even Pinterest CEO Ben Silberman) have failed to demonstrate fortitude and defend the very thing they claim their platforms were founded to promote. Men are often weak creatures. Such is life.
However, Section 230 has done an enormous amount of good. Even with all the chaos and the never-ending debates about whether or not the first amendment prevents social media censors from removing content, sites like Twitter have fostered conversation. It would be a shame to lose a baby in an effort to remove some tepid water.
A Brief History of 230
Before online platforms had immunity, there were only a handful of internet companies, such as AOL. They offered internet access and other services like real-time chats and forums. One company called Prodigy carved out its niche by marketing itself as family-friendly because it moderated content by removing offensive material.
The now-defunct investment firm Stratton Oakmont—yes, the one from The Wolf of Wall Street—sued Prodigy for defamation due to comments made on one of its message boards. The courts ruled that Prodigy had exercised editorial discretion and was therefore liable.
That kind of environment kills the open forum. A couple of particularly prescient congressmen saw the problem and proposed Section 230 as an addition to the Communications Decency Act, which was passed as part of the larger Telecommunications Act. The text is incredibly general and gives sprawling protections:
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.
There are no exceptions or qualifications. That is the law. The amount of freedom it gives is breathtaking, but it has created some uncomfortable situations. This is why Mark Zuckerberg has asked for government regulations to guide Facebook’s decisions.
More Speech Is Better
The proper solution to this problem is greater diversity in the online world, not merely in terms of social media sites but in terms of infrastructure as well. We saw recently that the free speech app Parler was removed from existence when Amazon declined to continue hosting it on its servers. There needs to be a diversity of ways to exist in the online world, and that can only happen with the development of both culturally significant (social media sites and the like) and technologically significant (hosting and processing services such as Amazon’s cloud) infrastructure.
Given recent events, there is an enormous incentive to create such diversity. And I do not think that we should discount how quickly things can shift, especially in the online world. At its zenith, Myspace boasted more than 100 million unique visitors per month. Such success fell rather quickly as new products entered the market. History is replete with similar stories.
Unlike others, I do not endorse the removal or alteration of Section 230 because I believe that where there is demand, supply with rise to meet it. As Allen Farrington pointed out in a Quillette article on just this topic, Jack Dorsey himself advocates a more decentralized internet. I cannot help but believe that the real trouble here is the unending government threats of regulation that radically shift the scales.
It is also worth noting Russian opposition leader Alexey Navalny’s condemnation of Twitter’s actions. He makes an excellent point that the threat of government coercion is enough to make large companies do the will of a particular political party. For my money, we should tie the government’s hands rather than Twitter’s.
Any solution that is pursued, though, must make clear what the relevant distinctions are. What exactly counts as a publisher, and what counts as a platform? What is political speech, and what isn’t? Solutions must also only place the restrictions strictly necessary to overcome this problem.
Law often trails the events it addresses. The tendency among politicians and pundits is to view this as a failure of some kind. Though it is representative of a limitation of human nature, it is also a reminder that good law must take the basic principles of human action into account. Good law is based on experience. When new challenges emerge, the law can and should be updated.
Experience has taught us that widespread freedom in this area leads to the emergence of the Internet Age, and it can lead to the decentralization of technology by natural forces if we do not step in their way.
If the great concern is the one presented by Navalny—that government can act through private companies—then let us protect political speech on platforms. We can provide processes by which a person can seek redress for suppression of such speech, and this will help return social media sites back to their original roles rather than the political footballs that they have become.
Be wary, though, of giving the government the power to regulate online speech. Today, we may get what we want. Tomorrow, someone else will, and we do not know if that person will be friend or foe.
