Democrats in Congress want tech companies to censor online speech that they don’t like and allow speech that helps them get elected. Republicans want to regulate online speech with complicated new laws that setup government bodies to determine ‘rules’ for moderation and transparency. And the Citizens? All we want is our free speech rights guaranteed under the First Amendment that everybody in Congress and the tech companies want to stifle when it doesn’t match their ideologies.
So what is the solution?
Section 230 of the Communications Decency Act says that “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.” This means that online intermediaries such as Facebook, Twitter, Reddit, Google and many others that host or republish speech online are protected against lawsuits that might otherwise be used to hold them legally responsible for what others say and do on their platforms.
For example, Section 230 allows me to write whatever I want in this article and be held personally liable for what I say without creating liability for the online platform where I posted it. Content providers such as publishers of books, newspapers and TV do not have this protection. If a publisher or individual posts a story with a link to their branded website on Twitter, under Section 230, Twitter cannot be held legally responsible for any of the content. But the individual and the company that published the tweet can be sued.
This means that the people who post comments on Twitter or Facebook can be sued for the content posted on the platforms, but Twitter and Facebook cannot be sued. They are protected under Section 230 to allow free speech. The publisher is responsible, not the platform. The platforms are not supposed to moderate content like publishers do as ‘truthful’ or make any other judgements – or they become publishers. For example, if decency was a standard, you would not be able to search and find any child porn on any online platforms today. The reason you can is because of Section 230. It was originally intended to protect all speech.
Now here is the problem. The tech companies, for this example let’s call it Twitter, that have Section 230 protections are now engaging in blatant discretionary moderation, censoring and restricting content that they – the online platforms – deem objectionable and users are powerless to challenge them. The tech companies are collaborating – a recent NY Post story about Biden Family corruption is an example where Twitter and Facebook blocked content from an established publisher. This conduct by Twitter and Facebook is the behavior of a publisher and so technically they should have to forfeit their protections under Section 230. But they don’t have to forfeit those protections, and that is the problem with the current law.
The current law under Section 230 does not contain any provisions for when online platforms, such as Twitter or Facebook, choose to restrict access to certain types of content that they deem objectionable. Here is an analogy to illustrate the law as it exists today.
Let’s say you are a bounty hunter and you work for a bail bond company. When a person receives bail, they sign a contract with the bail bond company that allows them to be arrested and handcuffed by a bounty hunter if they fail to show up for their court date – aka skip bail. The bounty hunter has full authority under the signed contract to conduct business which is the apprehension of the criminal under the law. For this example, let’s call the tech companies “bounty hunters.” They have specific authority and protections to apprehend criminals and deliver them to the courts under the law.
Now the courts, let’s call them publishers. They have responsibilities under the law and Constitution that are separate from the bounty hunter’s contract. Courts have authority to hold trial and sentence criminals that are found guilty. But what if the bounty hunter decided one day that he will now act as the court and start punishing the criminals he apprehends? He will effectively have taken on the role of the courts and that is illegal. It is prohibited under the laws that govern bounty hunters. So the tech company – bounty hunter – is restricted from exercising the authority of the courts and if he doesn’t respect that restriction, he loses his protections under the bounty hunter law.
The problem with Section 230 is this… Tech companies have the protections of the bounty hunter and that protection does not prohibit them from acting like publishers… in my example, acting like they are the courts.
So there are two choices here. Either we allow Section 230 to remain unchanged which will inevitably result in the situation we have today where tech companies are censoring information that they determine is harmful to Joe Biden and Kamala Harris, and users of their platforms have no way to hold them accountable.
Or, Congress can rewrite Section 230 of the law to say, “If online intermediaries such as Facebook, Twitter, Reddit, Google and many others that host or republish speech online behave like a publisher by engaging in blatant discretionary moderation, censoring and restricting content that they – the online platforms – deem objectionable, then they forfeit all Section 230 protections and can be sued just like publishers can be sued today. They can be held accountable just like publishers for the content on their platforms.”
It’s really that simple. The consequences of changing Section 230 of the law means that social media companies will have to make a choice. Either they return to being a free speech platform that doesn’t moderate content beyond a reasonable standard such as blocking posts soliciting children for prostitution, or they become a publisher of content and held accountable under the same law as everyone else in the United States.
The solution is clear. Citizens want the free speech rights guaranteed under the First Amendment that everybody in Congress and the tech companies want to stifle when it doesn’t match their ideologies.
Removing Section 230 protections for online platforms that behave like a publisher is a simple legislative fix that will open up free speech and prevent ideological censorship because violations by tech companies will impact their bottom line.
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