While the discussion around Section 230 never leaves us entirely, it was revived this week by Trump’s demand that a repeal of the law is included in the NDAA or else he will veto the bill. In response to this threat, Senator Jim Inhofe wrote an op-ed for the New York Times that reiterates some of the most misinformed yet pernicious talking points surrounding Section 230.
Before I get into Inhofe’s op-ed, let’s take a look at the verbiage of Section 230 and break down what its intent was. The text itself is short and fairly self-explanatory
(1)Treatment of publisher or speaker
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.
(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)
The purpose of section 230 was to resolve an issue with the case law that governed the practice of content moderation. Prior to Section 230, the verdicts in the cases of Cubby Inc. v. CompuServe Inc. and Stratton Oakmont Inc. v. Prodigy Services Co. set up an unfair dilemma for online platforms - either engage in no content moderation and avoid legal liability for anything posted to the platform, or engage in content moderation and be held legally liable for any content they left up. Reps. Christopher Cox and Ron Wyden noted the difficult position that platforms like Prodigy, which moderated content to provide a family-friendly internet service, were put in and crafted Section 230 to solve the legal liability issue.
With that in mind, let’s get into Inhofe’s piece. He starts by highlighting the controversy surrounding Twitter’s decision to stop the circulation of the New York Post story on Hunter Biden’s laptop
“Just a few weeks before the election, Twitter did what was once unthinkable: It censored a story published by this newspaper, the nation’s oldest continuously published daily. Users were barred from sharing The Post’s reportage on their newsfeeds and via direct messages.
No one failed to notice that the story was deemed unfavorable to presidential candidate Joe Biden. Adding insult to injury, Twitter suspended The Post’s Twitter account for several days. While Facebook also reduced circulation on the story, Twitter went further than any Big Tech entity, even telling users that sharing the article could be ‘potentially harmful.’”
I wrote about this story extensively for Arc Digital but to sum up my thoughts here - Twitter’s decision to stop the spread of the story was wrong and backfired horribly to boot. Instead of a discussion about the merits of the story - a story that didn’t have much support within the NYP newsroom - the discussion focused on Twitter and “censorship.” The bizarre faceoff between Twitter and the NYP over unlocking the Post’s Twitter account was another misstep, albeit one that the NYP encouraged by not deleting and reposting the original tweet once Twitter lifted the ban on the story. Overall, it was a dumb decision that Twitter and Jack Dorsey have been paying for ever since.
Moving on, Inhofe brings up the Twitter account for Ayatollah Khamenei as a contrast to what Twitter deems acceptable.
“Contrast that to their refusal to moderate any comments made by Iran’s supreme leader, the Ayatollah Khamenei, who has called Israel a “cancerous growth” to be “uprooted and destroyed.” Khamenei has also used his Twitter account to advocate for the “elimination of the Zionist regime” through “firm, armed resistance.” Apparently, such rhetoric doesn’t violate Twitter’s standards.”
I understand Inhofe’s complaint but in coming up with a solution to this one runs into a tricky roadblock, especially if Section 230 is repealed. In a post Section 230 world both the NYP story and Khamenei’s tweets carry equal weight and, according to the pre-Section 230 case law, either both would have to be allowed to stay or both would be forced to go. Twitter would no longer have the option to pick and choose between the two and even if you think they chose incorrectly here (as I do) I don’t see that as a reason to strip away their ability to make that choice.
Now we start getting into the tropes about Section 230 and Big Tech
“All this proves that President Trump has been right about social media: It is past time to make sure Twitter and other social-media platforms are held accountable for engaging in censorship by repealing Section 230 of the 1996 Communications Decency Act.
For 24 years, social-media platforms have benefited from protectionism unprecedented in the modern era. They have been allowed to moderate (or censor) the content posted by their users, thus acting as publishers, even as they have been shielded from a publisher’s liabilities.
There is no one to check the partisan censorship of these platforms. Instead, they are coddled by Section 230’s “Good Samaritan” provision, which allows for “good-faith” efforts to restrict objectionable material.”
Let me tackle the publisher vs. platform argument first since this is the one most people get wrong. I’ll use my piece here as an example; I am posting this on Substack, a platform that does not engage in any sort of editorial process with me. Their allowing me to post this to their platform does not mean they have read this piece or endorse anything I say in it. Let me contrast that to writing this for Arc Digital or any other curated site; in that process I submit my draft to an editor, he or she makes revisions and send the draft back to me, and so on until we are both happy with the piece and then it is posted to the site. It is the editing process, and the implicit endorsement that comes out of it, that separates a platform from a publisher.
The goal of Section 230 was to grant a platform the legal ability to remove content without being held responsible for the content it does not remove. I’ll also refer you back to the verbiage of the law, which explicitly answers the publisher vs platform question.
As for there not being any “check” on the “partisan censorship”, no there isn’t. Why would there be? The point of Section 230 wasn’t to ensure neutrality, it was to ensure that platforms could moderate content. Yet I see this line of attack pop up frequently and honestly, I’m not sure where anyone got the idea that it is a good one.
Inhofe makes another inaccurate claim about the purpose of Section 230
“Section 230 was intended to make sure that Twitter could flag and remove unquestionably harmful content: things like ISIS propaganda videos. But instead of focusing on moderation to protect users from death threats or harassment and to prevent criminal behavior, Twitter is allowed to determine what is “otherwise objectionable” and censor it from the platform with no right to appeal or transparency into the decision.”
Again, I’ll refer back to the text of Section 230 (see why I put it at the beginning of this post?) to show that Inhofe is misconstruing what the law says. Nowhere is it stated that content has to be “unquestionably harmful” or even mildly harmful to be removed. Inhofe’s issue here seems to be with insufficient content moderation which a) I could do a whole 1,500-word post on the topic of content moderation and b) is certainly not a problem that will be solved by eliminating Section 230.
Inhofe makes an interesting claim in the next paragraph
“Case in point: Last year, the firm kowtowed to the Chinese Communist Party by removing the accounts of more than 100 dissidents ahead of the 30th anniversary of the Tiananmen Square Massacre.”
There is no evidence that Twitter took any action at the best of the Chinese government and Twitter’s explanation is that the accounts got caught in a bot filter.
Now we get to the real gripe Republicans have with Twitter and Section 230
“Twitter’s censorship and actions over the past few years make clear it has decided that Trump, the elected leader of the Free World, is objectionable, which is unsurprising when you look at their employee culture.
And here’s the problem with Section 230. According to a strict interpretation of the 1996 law, partisan censorship is allowed. Sen. Ron Wyden even admitted that, when written, Section 230 wasn’t about neutrality or protecting the free marketplace of ideas on platforms.”
Let me put this as bluntly as possible - Donald Trump gets the most preferential treatment of anyone on Twitter and this “oh poor Donald” act is horseshit. If any one of us violated Twitter’s TOS a fraction of the times Trump has we would be permanently kicked off the platform. In response to Trump’s increasing lies about the results of the election Twitter has opted to...put a milquetoast “this election claim is disputed” note below his tweets. What Trump posts is objectionable, Twitter has every right to ban him, and that they haven’t and likely won’t even after Trump leaves office is proof of how far backward Twitter is willing to bend for him.
And again no, there is nothing in Section 230 that requires neutrality or “protecting the free marketplace of ideas”, stop reading things into the law that aren’t there.
Of course, instead of actually reading the law and understanding what will happen if it is repealed, Inhofe calls for a repeal and replacement of Section 230. Much like the calls for repeal and replacement of the ACA however, nobody seems to have a plan for what the “replace” portion would look like. Given the state of chaos the internet would be thrown into with a repeal of Section 230, the replacement should be decided on before deciding to repeal the law.
Inhofe isn’t done though
“Defenders of the status quo tell conservatives to create their own social-media platforms, since they increasingly aren’t welcome on the existing ones. The problem with that argument is that Twitter and the others have a de facto monopoly on social media. House Democrats agree: They wrote a 400-plus page report arguing that Big Tech constitutes a monopoly.”
Remember that week when Parler gained 3.5M users? How does that work in a “de facto monopoly”? Also, aligning yourself with a group of people who think a monopoly is five separate companies directly competing with each other is not the best idea.
No list of silly complaints about Section 230 is complete without this one
“The reality is that Section 230 is simply outdated for today’s usage and is a strong case for why all laws should sunset, forcing Congress to reauthorize them or update them at regular intervals. Otherwise we’ll find ourselves here time and time again, forced to rectify decades-old laws used to regulate modern technology.”
Really? We need to examine and reauthorize all the old laws? That will be splendid news to the progressives who make that very argument about the First and Second Amendments!
There’s nothing outdated about Section 230, it performs the same function today that it did in 1993. The whole fight about the law, from both Republicans and Democrats, is a purely political one.
To his credit, Inhofe ends his op-ed by explaining that while he supports a repeal of Section 230 he does not support making that part of the NDAA. That is the correct stance; there is nothing about Section 230 that has anything to do with defense spending or national security. If Congress wants to repeal the law it can make a bill to do so and defend it on its merits, not sneak it into a necessary budget bill.
The fight to save Section 230 is going to be the first big showdown between the Biden administration and civil libertarians. Sadly, it seems we won’t have many allies in either the Democrat or Republican parties.