Social Media Platforms or Publishers? Rethinking Section 230
Chris Hughes, co-founder of Facebook, recently wrote a widely discussed critique of the company in The New York Times. He observes that Mark Zuckerberg once claimed that “Facebook was just a ‘social utility,’ a neutral platform for people to communicate what they wished.”
Hughes laments that Zuckerberg now considers Facebook to be both a platform and a publisher—claiming in court that it is “entitled to First Amendment protection” and that it is “inevitably making decisions about values.” Hughes sees this transformation from neutral platform to self-appointed arbiter of acceptable public discourse as a threat to free expression and political debate. He argues that Facebook should be broken up, or at the very least that “the government must hold Mark accountable.”
Hughes is right to point out that we underestimate social media’s power to dominate communications and control political speech. According to the Pew Research Center, 7 percent of American adults in 2005 used social networking sites. Today, more than two thirds receive news from social media, with almost half, according to Pew, getting news from social media “often” or “sometimes.”
What Hughes does not discuss, and what too often goes unremarked on in discussions of Big Tech’s power, is how a special government privilege, Section 230 of the Communications Decency Act, allowed for this growth. This provision protects internet platforms like Facebook and Google from liability for statements and content its users generate.
This legal protection—not accorded to newspapers or other fora—created the internet as we know it. Protection from liability for any false or injurious content their users post has permitted the social media giants to allow the incredibly freewheeling discussions and commentary that we have come to expect from the internet. Exemplary is Facebook’s response to the recently circulated doctored video of House Speaker Nancy Pelosi. In a statement to The Washington Post, Facebook said:“We don’t have a policy that stipulates that the information you post on Facebook must be true.” In addition, this legal protection has also helped create the lucrative tech behemoths and further their dominance in attracting advertisers. This dominance has gutted the advertising revenue streams of local, regional, and even national media outlets—outlets that do not enjoy the privileges of Section 230.
But what is particularly bizarre, ironic, and deeply destructive to public discourse is that, though Congress passed Section 230 to promote a free and open internet, Facebook, Twitter, and Google now use it to advocate for an open internet while at the same time justifying their censorship regimes.
On one hand, Twitter, Google, and the other internet platforms often advocate for an open and free internet with no restrictive gatekeepers who would block or throttle disfavored content—i.e., the policy generically known as “network neutrality.” However, they advocate for an open and free internet only when faced with broadband providers like Verizon and Comcast that could block their services. In 2017, Zuckerberg wrote that broadband providers should not be allowed to “block you from seeing certain content.” Similarly, Twitter’s lobbyists argued that Verizon and Comcast should not be permitted to “block content they don’t like” and/or relegate “certain content to the backwaters of the Internet in second or third-tier status.”
On the other hand, Facebook, Twitter, and Google seem to embrace a principle of “an open internet for thee but not for me” when it comes to their own platforms. And much of the country has yet to comprehend the power they seek to wield through discriminatory network practices. Twitter CEO Jack Dorsey explained to podcaster Sam Harris that Twitter does not “optimize for neutrality” when moderating speech, despite the company’s professed support for “net neutrality.” He didn’t specify which values Twitter does optimize, but Columbia University’s Richard Hanania found that over 95 percent of high-profile bans have targeted those on the Right. (In full disclosure, I have worked, pro bono, on lawsuits challenging Twitter’s censorship policies.)
Republican Senator Josh Hawley of Missouri has taken the lead in exposing Twitter’s bizarre, inconsistent, and biased censorship regime. Twitter’s deplatforming of Unplanned, a pro-life movie, prompted Hawley to question a Twitter representative at a Senate hearing. The senator’s trenchant questioning—and subsequent letter to Dorsey—exposed Twitter’s refusal to reveal, in a transparent way, how or why it censors.
Perhaps in an effort to place a fig leaf on all its unsavory censorship, Zuckerberg has floated a proposal to create a “Facebook Supreme Court.” His appointees would make decisions about acceptable content, obviating the need for judges appointed through a democratic process. In the 1990s, John Perry Barlow inspired a generation of programmers, innovators, and entrepreneurs with his “A Declaration of the Independence of Cyberspace” that foresaw the internet transcending government and ushering in a novum ordo of global freedom. Instead, we’ve gotten second-rate Silicon Valley satrapies.
Social media’s power stems in part from its unprecedented exemption from legal rules that govern other communications networks and virtually every other firm or person. For instance, telephone companies cannot kick customers off their platform on the basis of political views, nor can airlines. In contrast, the social media firms have the power—and have used the power—to kick off any user for any reason, in contravention of civil rights law. Similarly, cable companies retain legal liability for content the public creates on the public, educational, and government access channels, and newspapers retain legal liability for their paid advertising. But social media platforms face no liability for the libelous, or even criminal, statements their users publish.
How have we gotten to this legal anomaly where dominant internet platforms not only avoid antitrust scrutiny and run-of-the-mill legal duties, but also receive government giveaways? Section 230 of the Communications Decency Act is the culprit. Passed in 1996 as part of the Communications Decency Act, its primary purpose was, as its name suggests, to regulate pornography on the web. The Supreme Court struck down the anti-porn provisions on First Amendment grounds, but Section 230 was upheld and, until recently, remained obscure.
Congress passed Section 230 in 1996 to help the nascent internet platforms and encourage them to censor indecent and obscene content. They did so by altering traditional common law for publishers. In those days, the major internet firms were dial-up bulletin boards such as Prodigy, AOL, and CompuServe. Before passage of Section 230, they faced so-called “publisher” and “distributor” tort liability law, a body of legal rules developed over centuries to deal with newspapers and booksellers.
Courts had reasoned that these early platforms were not the publishers of statements made by third parties on their fora, but were instead distributors. Legal lingo aside, this meant that Prodigy and the other platforms typically could not be sued for libel or be held criminally liable based on comments posted by its users. Distributor liability requires direct knowledge of the illegal comments as well as a failure to act once made aware of them. Thus, a bookstore had no liability for libelous books on its shelves, but could become liable if it was credibly informed of the books’ content and nonetheless failed to act. On the other hand, if Prodigy were to communicate directly to its users or create content, it would be liable for that content.
This distinction between publishers and distributors rubbed Congress the wrong way, especially in the mid-1990s when legislators were trying to keep the internet wholesome and pornography-free. The legal result was this: when Prodigy promised to create a family-friendly environment, editing for indecent or profane comments, courts ruled that it had lost its distributor liability, and treated Prodigy as publisher of all content on its bulletin boards. Thus, Prodigy, because it took affirmative steps to police speech, became liable for all statements published in its curated bulletin boards. This was a powerful incentive not to curate the internet.
Congress considered this outcome undesirable. One of Section 230’s sponsors, Representative Chris Cox of California, thought this was “exactly the wrong result” because platforms exposed themselves to greater liability if they tried to keep their content clean. Thus, in order to keep things clean on the internet and to ensure the free flow of ideas, Congress passed Section 230.
Section 230(c)(1) ensures the free flow of ideas, exempting internet platforms from publisher and distributor liability posted by third parties. In this sense, Section 230(c)(1) provides common carrier protections. Just as telephone companies, broadband service providers, and even courier services like FedEx have no liability for the content of the messages and parcels they carry, neither does Facebook or Twitter.
Section 230(c)(2) was meant to keep things clean. It relieves carriers of liability for efforts to censor or curate content “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.” Thus, when Prodigy edits comments for decency, it can do so without becoming a publisher of the entire website.
Congress bestowed in Section 230 extraordinary gifts of liability immunity. Section 230(c)(1) essentially gives internet platforms the immunities of common carriers, such as telephone companies, delivery services, and airlines. And Section 230(c)(2) is simply unprecedented and sui generis. The ease of distributing pornography and other obscene materials on the internet—which in the 1990s was shocking—no doubt motivated this gift.
But what makes Section 230 truly unprecedented is that Congress gave these legal privileges without any public obligation in return. For centuries, common law has recognized that certain types of industries that exhibit market power have obligations to the public. These obligations include non-discrimination, service to all customers, as well as sometimes more burdensome regulation such as rate regulation. In short, they had to give up some pricing and marketing strategies associated with their extraordinary market power. But in return, they received certain benefits, such as liability exemption and other legal privileges like special property easement or even rights of condemnation.
Section 230 asks for nothing because the early internet platforms like Prodigy and CompuServe had nothing to give. They had no market power upon which to exercise control. Congress bestowed a gift on the nascent industry in Section 230(c)(1) and an incentive for creating family-friendly environments in Section 230(c)(2).
But times have changed. Facebook, Twitter, and Google now bestride the narrow world like a Colossus. They exercise market power like a telephone company or electrical utility, extracting huge rents from the economy. They receive liability relief for the messages they carry just like a telephone or electrical utility, but with none of the duties of nondiscrimination or service. The result is obvious. Insulated from market forces by their near monopoly power and facing diminished financial incentives given their Croesus-like wealth, the leaders of these private companies can indulge their personal preferences, imposing them on the country’s political discourse.
In short, the Section 230 “deal” should be up for renegotiation. Fortunately, Senators Hawley and Ted Cruz of Texas are leading the charge. On Wednesday, Hawley introduced legislation that would remove Section 230 protections for the social media giants unless they submit to an external audit that proves their censorship protocols are politically neutral.
Both Hawley and Cruz recognize the threats that the relatively new social media behemoths pose and are seeking ways to rein them in. Unfortunately, on the other side of the aisle, Democratic leaders want to make a different deal for Section 230. As Nancy Pelosi recently made clear, she sees section 230 as a “gift.” It takes little imagination to assume that if the social media giants want to retain Pelosi’s special gift, they must continue to beat down on conservatives.
The Section 230 debate is becoming the kind that the Founding Fathers intended the First Amendment to prevent. “Congress shall make no law…abridging the freedom of speech, or of the press” means not simply that the federal government should not regulate speech but that political gamesmanship should not allow a politically slanted marketplace of ideas.
The solution is easy. Just like telephone companies and FedEx, dominant internet platforms should not have the ability to block, discriminate, or prioritize against individuals on the basis of their political views. This status could be applied without special regulation—simply by tying their Section 230 immunity to viewpoint neutrality.
Greg Walden, the ranking Republican on the House Committee on Energy and Commerce, alluded to this when discussing net neutrality legislation by asking why tech monopolies that have “blocked, prioritized, or shadowbanned” content on their platforms receive “special protection under Section 230…as if they were a common carrier” without being “covered by the net neutrality rules.”
Indeed, advocates of applying common carrier rules to broadband service providers have explicitly tied Section 230 to this non-discrimination principle. The FCC cited Section 230’s findings that online platforms “offer a forum for a true diversity of political discourse,” when it enacted its “Protecting and Promoting the Open Internet” order in 2015, as did the state of Vermont when it enacted its own neutrality legislation.
This does not mean the platforms should not be able to regulate their platforms. As Section 230 intended, they can remove content that is violent, harassing, or obscene—even if it’s not illegal. However, this must be done so based on fair and neutral criteria. They should share their impressive technologies to track and monitor online content with their users to empower them to create online environments of their choosing—not arrogating that power to a central corporate authority.
There is nothing new here. The struggle for a free, democratic internet mirrors the struggle of the settlers, frontiersman, ranchers, and farmers against the railroads during the 19th century. Back then, a large network industry that was centered in the cities and coasts and that had significant market power pitted itself against a large swath of the American public, mostly in the nation’s interior. This led to common carriage regulation of railroads, grain elevators, and other industries affected with the public interest.
This regulation did not burden the nation with the unbearable weight of dirigisme. Instead, the 19th century witnessed an unparalleled burst of economic and civic energy. Similarly, guaranteeing free speech and non-discrimination on dominant internet platforms will not crush online innovation. It is more likely that such reasonable controls will protect free speech and allow our political culture to flourish.
Adam Candeub is a law professor at Michigan State University and directs its IP, Information, and Communications Law Program. He previously served as an attorney with the Federal Communications Commission and several Washington, D.C. law firms. This article was supported by the Ewing Marion Kauffman Foundation. The contents of this publication are solely the responsibility of the authors.