Section 230: The Idea of Communication Decency
October 2020 | Karlyn Carlisi, Staff Writer/Editor
In late May of 2020, President Donald Trump went on Twitter to air his thoughts about the current events of the day. He decided to focus on mail-in voting, which was a major topic of discussion as the country dealt with the peak of the COVID-19 pandemic. In his tweets, he claimed that mail-in ballots would be rife with fraud, with forged signatures and fake ballots being printed as examples of alleged fraudulent behavior.[1] However, President Trump made these claims about mail-in ballots without any kind of evidence. So, in order to stop disinformation from swaying the general public, Twitter placed a warning on those tweets, providing a link to facts about mail-in voting that stand in stark contrast to the president’s claims.[2] As a result, President Trump signed an executive order as retaliation regarding Section 230 and the safeguards social media companies receive under the provision. Section 230 itself has been a contentious section of the Communications Decency Act of 1996 for both parties, but different reasons exist behind their objections.
To begin, Section 230 is one of many sections within the Communications Decency Act. According to Brookings, a nonprofit public policy institution based in Washington D.C., Section 230 states that social media companies are not liable for the contents its users or third-party entities post.[3] This section has two major parts that stand as the source of the controversy: 230(c)(1) and 230(c)(2). 230(c)(1) states 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.”[4] This provision ensures that social media companies are immune to liability for the content that a user posts, as they do not take on the form of being the source of the post. 230(c)(2) shields social media companies from liability if A) action was taken “in good faith” to restrict obscene content and B) if other means of restricting information access, like filtering tools, are available.[5] Most of the objections to Section 230 exist in 230(c)(2)(A), as many feel social media companies either engage in too much or do not engage in enough content restriction.
One of the loudest opponents of Section 230 in 2020 has been the Republican Party. When President Trump signed his executive order, many Republican senators applauded the move as a strike against “censorship” towards their party. One of these senators was Missouri senator Josh Hawley, who introduced legislation that sought to end the legal protections tech companies had.[6] The repeal of Section 230 would mean that conservative, Republican views would be more plentiful on Twitter and other social media websites that Republicans believe are censoring them. Where this logic fails is their understanding of Section 230. The section does not require social media sites to be neutral, nor are they meant to regulate themselves as if they were a public space.[7] Many Republicans also claim that sites like Twitter violate their 1st Amendment rights to free speech, but where that claim falters is the application of the amendment. The right to free speech is a civil liberty possessed by the people, where the government cannot restrict any forms of speech they find objectionable. This standard does not apply to private entities, like social media companies, as they are not an extension of the government nor do they act on behalf of the government. If a social media company finds content posted by an individual to be obscene or offensive, and the user happens to be Republican or espouses Republican ideology, the company is well within their right to remove the content or the user under their terms of service.
For Democrats, their objections to Section 230 are more centered on hate speech. For Democratic politicians like Nancy Pelosi, the desire to repeal Section 230 stems from social media companies not doing enough to crack down on disinformation and harassment that users engage in on the platform. If Section 230 is repealed, it would motivate social media sites to regulate their content a lot more than they already do. However, “hate speech” is still protected by the First Amendment, as it is difficult to define, and regulating such content would be hard to do. Furthermore, if Section 230 were to be repealed, more censorship would occur on the sites. This is an outcome that numerous legal experts want to avoid, as the loss of Section 230 would cripple other websites and cause places like YouTube or Yelp to be less accepting of the different opinions through comments or reviews.[8]
Section 230 of the Communication Decency Act has been a topic of debate between Republicans and Democrats since the act was passed. While both sides agree that the section should be repealed, they disagree on the reason why. Section 230 itself provides a shield to social media companies against liability for the content that users post to their websites. Much of the issue with Section 230 revolves around one part, which is 230(c)(2)(A). This part allows social media sites to restrict content or users in an act of good faith should the posts be objectionable, and this is taken one of two ways by both parties. Republicans see this section as a tool for social media companies to take their voices off the platform for arbitrary reasons, ignoring the true meaning of the section and the First Amendment’s non-involvement. Democrats see this section as a bandaid over content like misinformation and harassment, where social media companies do not act until they are pressured to. This ignores the complexity of hate speech as well as how more regulation leads to more restrictions, which hurts everyone in the end. Repealing Section 230 would cause more problems than either side could have anticipated, and Section 230 should be left alone as it is. Lawmakers should come back to it when they fully and correctly understand what the section is trying to do. As of now, the debate will rage on between both sides of the political aisle until some kind of satisfying compromise is reached.
Sources
Allyn, Bobby, Twitter Places Fact-Checking Warning On Trump Tweet For 1st Time. NPR. May 2020.
Ibid.
Miers, Jess. A Primer on Section 230 and Trump’s Executive Order. Brookings. June 2020.
“47 U.S. Code § 230 - Protection for Private Blocking and Screening of Offensive Material.” Cornell Law School, n.d.
Ibid.
Allyn, Bobby, As Trump Targets Twitter's Legal Shield, Experts Have A Warning. NPR. May 2020.
Miers, Jess. A Primer on Section 230 and Trump’s Executive Order. Brookings. June 2020.
Allyn, Bobby, As Trump Targets Twitter's Legal Shield, Experts Have A Warning. NPR. May 2020.