The Section 230 Wars

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On October 14, 2020, Twitter provoked a furor by doing something it had never done before in its 14-year history. For the first time, it blocked the ability of users to share a news article from a mainstream news outlet. Any user who tried to tweet the article was prevented from doing so, faced with a pop-up dialog box that identified the link as “potentially harmful.”

The bombshell article in question was an unverified report from the New York Post which alleged that Hunter Biden, the son of Democratic presidential candidate Joe Biden, once tried to introduce his father to an executive at Burisma, a Ukrainian energy company, while the elder Biden was Vice President of the United States (Morris). The “smoking gun” email that substantiated the report, dated April 2015, was allegedly taken from a laptop brought to a Wilmington, Delaware repair shop in 2019. (There is no evidence of a meeting between Joe Biden and the Burisma executive having taken place, and a spokesman from Biden’s campaign has denied that any such meeting ever occurred [Al Ali]. However, both the campaign and Hunter Biden did not deny the email’s authenticity.)

Soon after the censorship of the article began, Twitter was roundly criticized. “This is a Big Tech information coup,” tweeted New York Post op-ed editor Sohrab Ahmari. “This is digital civil war.” The New York Post’s Twitter account was suspended; journalists who had posted the article on Twitter prior to the restriction even saw their own accounts temporarily suspended. Facing growing pressure, Twitter executive Vijaya Gadde announced changes to an obscure “hacked materials” policy originally used to justify the ban. Still banned under the policy, Gadde wrote, were hacked materials “directly shared by hackers or those acting in concert with them.” But news reports on hacked materials, like the Post article, were now exempted. Users were now free to share the article’s link without restrictions. Twitter finally reinstated The New York Post’s account over two weeks later, on October 30.

The suppression of the Hunter Biden story wasn’t limited to Twitter. Facebook also received criticism for temporarily limiting distribution of the article in order to fact-check claims made in the article (Glueck).

In the aftermath of this ordeal, the broader, years-long controversy over “Big Tech censorship” in the US seems to have reached its boiling point. On October 23, Texas Senator Ted Cruz, after accusing Dorsey of “behaving as Joe Biden’s press secretary,” released an ominous video calling on “Silicon Valley Oligarchs” to testify on Capitol Hill against allegations of election interference (Parke) (Cruz). On October 28, the majority-Republican Senate Commerce Committee interrogated Dorsey, Facebook CEO Mark Zuckerberg, and Alphabet Inc. CEO Sundar Pichai for nearly four hours with regard to protections afforded by Section 230 (Wong). In the “highly partisan” hearing, all three executives denied that their companies harbored anti-conservative bias (Romm). Dorsey and Zuckerberg were also separately subpoenaed by the Senate Judiciary Committee to answer questions about their companies’ suppression of the New York Post article (Browning). On December 29, Senate Majority Leader Mitch McConnell tied a request to repeal Section 230 with a stimulus bill, introduced to the House of Representatives, that would increase direct stimulus payments to Americans from $600 to $2000 (Sonnemaker). In the midst of these events, the repeal of Section 230 seems possible, if not likely, during Joe Biden’s presidency, because the law faces bipartisan opposition. This raises several red flags regarding the future of online speech.

What is Section 230, and why is it being criticized?

Republicans in Congress act with the goal of repealing an obscure piece of legislation called Section 230, part of the Communications Decency Act of 1996. The law is composed of two portions: a shield and sword. The shield defends Internet companies from liability for the content posted on their platforms. The sword allows such companies to moderate their services however they would like, permitting them to remove pornography, spam, and other posts that would hamper the user experience. These protections have allowed the Internet to flourish, such that Section 230 was dubbed “the law that created the Internet.” With recent events, however, Section 230 has come under fire by politicians on both sides of the aisle.

Because of allegations of anti-conservative censorship by Twitter and Facebook, Republicans have opposed the sword portion in particular. President Donald Trump railed against Section 230 on Twitter after signing an executive order on May 28 that opened the door to modifying the law (Dwoskin). Trump’s FCC Chair, Ajit Pai, announced on October 15 that he planned to clarify Section 230’s ambiguities with a rulemaking. “Social media companies have a First Amendment right to free speech,” Pai’s statement read. “But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.” Indeed, Section 230 ensures that websites such as Facebook, Twitter, and Yelp are not treated as publishers under the law, but rather as open platforms. When Joe Biden became President-elect of the United States, however, Pai gave up on his attempt to clarify Section 230, as he had little time left to do so before resigning on January 20 when Trump left office (Hollister).

Democrats like Joe Biden, on the other hand, oppose Section 230 because of the shield portion, which protects social media companies from accountability. Biden has endorsed revoking Section 230 “immediately,” but for a different purpose than Trump: to force social media companies into removing harmful misinformation — “fake news” and the like — by holding them legally responsible for it (Kelly).

Both sides certainly have cause for their grievances. A recent national survey from the COVID-19 Consortium confirms social media’s contribution to misinformation about coronavirus conspiracies, risk factors, and preventative treatments (Kulke). The much hated far-right conspiracy QAnon has also gone mainstream on several platforms (Roose). No doubt, moreover, that perceived anti-conservative bias in content moderation would seem to challenge the cherished principle of free speech. (There’s currently little evidence that this bias is illegal, though [see Robertson].) But repealing Section 230 as a solution to these problems would be highly problematic. Anyone seriously concerned about misinformation and the illiberal suppression of speech should oppose this measure. It would worsen the previously mentioned issues rather than fix them.

What are the consequences of repealing Section 230?

For one, due to a looming threat of lawsuits, repealing Section 230 could actually clamp down on free speech within private forums like Facebook and Twitter. If companies became liable for content posted on their platforms, they would probably see a flood of frivolous suits. To avoid being sued into oblivion, platforms might start taking down anything even slightly controversial — including the controversial content that the Republican Party is trying to defend from censorship. As policy analyst Billy Easley has written in Slate, “If I were a lawyer for Facebook or Reddit and Section 230 was revoked, I’d urge them to remove all content that had a hint of controversy to protect us from legal liability—even if it meant removing legitimate, constructive speech” (Easley). Thus, repealing Section 230 would likely lead to the unintended consequence of more censorship.

There is also a near-impossibility of enforcing liability for content posted by users. The sheer scale of the data on platforms like Twitter — half a billion new tweets each day — means algorithms, or automated software programs, often have to moderate content (Internet Live Stats). And as we know, algorithms often fail, or simply have a limited scope (Vincent). Suppose, for example, that someone posts a defamatory tweet at 2am EST on a Wednesday. If not flagged by an algorithm, there is virtually no way that a social media platform could instantaneously remove the tweet. Imagine how much libelous or false content is posted to social media every day. A deluge of lawsuits would lead to tech companies going out of business, which in turn would put thousands of Americans out of work.

Repealing Section 230 would also decrease competition, only allowing huge corporations to thrive in the Internet’s communications ecosystem. Research has already shown that Section 230 has a positive impact on investment and innovation (Masnick) — what would the world look like without it? In the absence of the law, only the biggest companies with the most resources to fight off frivolous lawsuits — Google, Facebook, Twitter — would be able to maintain themselves. Smaller companies would shut down after being overwhelmed by legal fees. Some people already fear that Google, Twitter and Facebook are becoming monopolies; repealing Section 230 would only exacerbate these fears. Alternatively, the tech giants might even charge an admissions fee for their websites to make up for revenue losses caused by these lawsuits, which would exclude people with less income and worsen the digital divide. 

Furthermore, users have access to other private forums on which to speak freely. Everyone is free to try Parler, Locals, or Rumble, flawed as they may be, all of which market themselves as platforms defending free speech. If enough people end up migrating to one or more of these platforms, it is possible that Twitter or Facebook could lose revenue and be incentivized to stop censoring posts. A version of this incentive was seen recently: after Twitter was denounced by both the left and the right for its censorship of the New York Post article on Hunter Biden, the company gave into its users’ demands and reinstated access to the link. The government need not interpose itself in the moderation of private forums — public opinion is already in favor of free speech on private forums. Companies will have to either give into the public’s will, or else face bad PR and a hit to their bottom line.

It is important to note that Section 230 does not disincentivize moderation. Websites can still moderate themselves, and are often encouraged to do so by their users and advertisers. Further, Section 230 does not grant sites immunity from all possible legal challenges. Cases such as Roomates and Doe v. Internet Brands have demonstrated where the law does not apply. Importantly, federal criminal laws (sex trafficking, opiate sales, etc.) and intellectual property laws are exempted from Section 230 protections. Section 230 only shields companies from a subset of nuisance lawsuits, and companies are of course still liable for the content they create themselves.

This list of consequences is far from complete. More downstream consequences could crop up in the future. These examples, however, make one thing clear: Section 230 should be defended, and vigorously so. Free information exchange is a vital tenet of a democratic society, and Section 230 facilitates free exchange. If these “twenty-six words that created the Internet” are revoked, then the Internet as we know it could see its undoing.

Works Cited

Al Ali, Nour. Bloomberg.com. Bloomberg, October 14, 2020. https://www.bloomberg.com/news/articles/2020-10-14/biden-s-son-introduced-him-to-ukraine-energy-official-post-says.

Browning, Kellen. “Zuckerberg and Dorsey Face Harsh Questioning From Lawmakers.” The New York Times. The New York Times, January 7, 2021. https://www.nytimes.com/live/2020/11/17/technology/twitter-facebook-hearings.

Cruz, Ted. Time for Silicon Valley Oligarchs To Answer to the American People. YouTube. YouTube, 2020. https://www.youtube.com/watch?v=mzkxcf2konk.

Dwoskin, Elizabeth, and Tony Romm. “Trump Signs Order That Could Punish Social Media Companies for How They Police Content, Drawing Criticism and Doubts of Legality.” The Washington Post. WP Company, May 29, 2020. https://www.washingtonpost.com/technology/2020/05/28/trump-social-media-executive-order/.

Easley, Billy. “Revising the Law That Lets Platforms Moderate Content Will Silence Marginalized Voices.” Slate Magazine. Slate, October 29, 2020. https://slate.com/technology/2020/10/section-230-marignalized-groups-speech.html.

Glueck, Katie, Michael S. Schmidt, and Mike Isaac. “Allegation on Biden Prompts Pushback From Social Media Companies.” The New York Times. The New York Times, October 14, 2020. https://www.nytimes.com/2020/10/14/us/politics/hunter-biden-ukraine-facebook-twitter.html.

Hollister, Sean. “FCC Chairman Ajit Pai Gave up on His Legally Dicey Attempt to 'Clarify' Internet Law.” The Verge. The Verge, January 8, 2021. https://www.theverge.com/2021/1/7/22219677/fcc-ajit-pai-section-230-its-over.

Kelly, Makena. “Joe Biden Wants to Revoke Section 230.” The Verge. The Verge, January 17, 2020. https://www.theverge.com/2020/1/17/21070403/joe-biden-president-election-section-230-communications-decency-act-revoke.

Kulke, Stephanie. “Social Media Contributes to Misinformation about COVID-19.” Northwestern University, September 23, 2020. https://news.northwestern.edu/stories/2020/09/social-media-contributes-to-misinformation-about-covid-19/.

Masnick, Michael. “Don't Shoot the Message Board.” The Copia Institute, June 2019. http://netchoice.org/wp-content/uploads/Dont-Shoot-the-Message-Board-Clean-Copia.pdf.

Morris, Emma-Jo, and Gabrielle Fonrouge. “Smoking-Gun Email Reveals How Hunter Biden Introduced Ukrainian Businessman to VP Dad.” New York Post. New York Post, October 14, 2020. https://nypost.com/2020/10/14/email-reveals-how-hunter-biden-introduced-ukrainian-biz-man-to-dad/.

Parke, Caleb. “Ted Cruz Slams Twitter CEO: Jack Dorsey 'Behaving as Joe Biden's Press Secretary'.” Fox News. FOX News Network, October 15, 2020. https://www.foxnews.com/politics/twitter-biden-story-censor-facebook-senate-ted-cruz-subpoena.

Robertson, Adi. “Social Media Bias Lawsuits Keep Failing in Court.” The Verge. The Verge, May 27, 2020. https://www.theverge.com/2020/5/27/21272066/social-media-bias-laura-loomer-larry-klayman-twitter-google-facebook-loss.

Romm, Tony, Rachel Lerman, Cat Zakrzewski, Heather Kelly, and Elizabeth Dwoskin. “Facebook, Google, Twitter CEOs Clash with Congress in Pre-Election Showdown.” The Washington Post. WP Company, October 28, 2020. https://www.washingtonpost.com/technology/2020/10/28/twitter-facebook-google-senate-hearing-live-updates/.

Roose, Kevin. “What Is QAnon, the Viral Pro-Trump Conspiracy Theory?” The New York Times. The New York Times, August 18, 2020. https://www.nytimes.com/article/what-is-qanon.html.

Sonnemaker, Tyler. “McConnell Ties $2,000 Stimulus Checks to Trump-Proposed Poison Pills on Section 230 and Election Fraud, Likely Sinking Push for Additional COVID-19 Relief.” Business Insider. Business Insider, December 29, 2020. https://www.businessinsider.com/mcconnell-ties-stimulus-checks-section-230-repeal-election-fraud-2020-12.

“Twitter Usage Statistics.” Internet Live Stats. Accessed March 7, 2021. https://www.internetlivestats.com/twitter-statistics/.

Vincent, James. “YouTube Brings Back More Human Moderators after AI Systems over-Censor.” The Verge. The Verge, September 21, 2020. https://www.theverge.com/2020/9/21/21448916/youtube-automated-moderation-ai-machine-learning-increased-errors-takedowns.

Wong, Queenie, and Richard Nieva. “Zuckerberg, Dorsey and Pichai Face off with Congress over Section 230, Free Speech.” CNET. CNET, October 29, 2020. https://www.cnet.com/news/zuckerberg-dorsey-and-pichai-face-off-with-congress-over-section-230-free-speech/.