Why we need Section 230 more than ever

The Republican platform, recycled from 2016, promises “free-market approaches to free speech unregulated by government.” Yet now many Republicans want the government to “do something” about “political censorship” by private tech companies.

Trumpists have this whole “free speech” thing exactly backwards: The First Amendment protects Twitter’s right to ban Trump just as protects newspapers’ right to reject op-eds, letters to the editor or ads. Nor will the First Amendment allow Parler to compel any private company to assist it in promoting the spread of content that they find abhorrent. “Free speech” means a shield against government meddling, not a sword to wield against private companies.

MAGA Republicans claim that websites have no First Amendment rights because “public fora” just like town squares, where the First Amendment guarantees everyone a right to speak. But the Supreme Court, led by Justice Brett Kavanaugh, emphatically rejected an equivalent argument in a 2019 case about public access cable channels: “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”

Many Republicans now demand, for the Internet, a far more draconian version of the Fairness Doctrine for broadcasting they fought for decades. The Supreme Court upheld the broadcast doctrine in 1969 only because the government licenses use of publicly owned airwaves. But no degree of consolidation of “the power to inform the American people and shape public opinion” could persuade the Court to uphold “fairness” mandates for newspapers in 1974. Since 1998, the Court has held that digital media enjoy the First Amendment rights as newspapers, led by Justice Antonin Scalia.

The First Amendment prohibits compelled speech and forced association — a point conservatives trumpeted when it was bakers refusing to make cakes for same-sex weddings. Republicans talk of “neutrality” and “fairness,” but evaluating each “is a task the First Amendment leaves to the American people, not a government agency,” as a former Republican FTC Chairman said when asked to sanction Fox News for not being “fair and balanced.”

What MAGA Republicans are really proposing is forcing private media companies to carry speech that helps them politically. They pretend that ordinary conservatives risk being banned for expressing ordinary conservative policy positions. When they cite “studies” of Twitter’s bias, they ignore exactly who was banned and why — even when those studies are about the removal of people like Richard Spencer and other white supremacists. Just consider what it took for Trump to finally be banned: five deaths after he incited an insurrection. The storming of the Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequences.

Compelling Google or Amazon to carry the Parler app, or Amazon to host Parler’s website would be even more grotesque. Open talk of murder isn’t even the worst thing on Parler. The site’s refusal to implement the kind of proactive content moderation system that all established tech services use has made “the site vulnerable to those who upload child pornography, which, despite being illegal, infiltrates social media platforms unless measures are put in place to detect and remove it,” as the computer scientist who helped develop such technology recently warned.

Trumpy Republicans blame Section 230 for online “censorship.” Trump even cited Congress’ refusal to repeal the 1996 law in his veto of defense spending (which Congress overrode). But when tech companies are sued for banning users, removing content, or refusing to carry an app or host a website, Section 230 merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment grounds — but with far less hassle, stress and expense. Multiply all those across the huge volume of online content, and tech companies could be deterred from trying to moderate content altogether. It’s not just the companies that would suffer; it’s the most vulnerable Internet users — and our overall discourse.

And that’s exactly what MAGA Republicans are trying to do: force tech companies to broadcast their speech, no matter how noxious or lethal. That’s why they’ve proposed ending 230’s liability shield for moderation of hate speech, misinformation, conspiracy theories, voter suppression, and most foreign election interference — all real threats to our democracy that the First Amendment bars the government from doing much, if anything, about.

It’s almost impossible to prosecute anyone for inciting violence online. Even Trump’s in-person speech before an angry mob may not qualify. And that speech was merely the last step after two months of misinformation about the election. But there’s little the government can do about misinformation. In 2012, the Supreme Court ruled that the First Amendment protects false speech, with only narrow exceptions. That decision might leave room to do something about certain patently false claims about election procedures, but it’s just not going to allow the government to ban the kind of misinformation that Trump has weaponized.

Even if certain forms of awful speech could be made unlawful, requiring tech sites to clean it up would be even more constitutionally difficult. It’s one thing to do that with child sexual exploitation material, which is generally readily identifiable. It’s quite another to make a website “both judge and jury” in cleaning up the speech of others. As an appeals court said in 1978, an FCC regulation holding cable operators responsible for obscenity created by public access channel users would have “subjected the cable user’s First Amendment rights to decision by an unqualified private citizen, whose personal interest in satisfying the Commission enlists him on the ‘safe’ side — the side of suppression.”

That’s why Section 230 is so vital: It removes disincentives not to moderate content that the government can’t require to be removed. For those who want to see less of the kind of content that led to the storming of the Capitol, Section 230 may be unsatisfying, but it’s the most the Constitution will permit. Section 230 enables private website operators to do what the First Amendment says the government may not: at least try to clean up the internet. Yes, we should pressure websites to do more, but without Section 230, that won’t work. Simply put, we need the law more than ever.

Berin Szóka (@BerinSzoka) is President of TechFreedom (@TechFreedom), a technology policy think tank in Washington, DC.