Why Content Moderation Codes Are More Guidelines Than Rules

from the and-that-will-change-without-cda-230 dept

Also, following on my last post: since the First Amendment protects site moderation and curation decisions, why all the calls to get rid of CDA 230’s content moderation immunity?

Having listened carefully and at length to the GOP Senators and law professors pitching this, the position seems to be a mix of bad faith soapboxing (“look at us take on these tech libs!”) and the idea that sites could be better held to account -- contractually, via their moderation codes -- if the immunity wasn’t there.

This is because the First Amendment doesn’t necessarily bar claims that various forms of “deplatforming” -- like taking down a piece of content, or suspending a user account -- violate a site’s Terms of Use, Acceptable Use Policy, or the like. That’s the power of CDA 230(c)(2): it lets sites be flexible, experiment, and treat their moderation policies more as guidelines than rules.

Putting aside the modesty of this argument (rallying cry: “let’s juice breach-of-contract lawsuits against tech companies”) and the irony of “conservatives” arguing for fuller employment of trial attorneys, I’ll make two observations:

First of all, giving people a slightly-easier way to sue over a given content moderation decision isn’t going to lead to sites implementing a “First Amendment standard.” Doing so -- which would entail allowing posts containing all manner of lies, propaganda, hate speech, and terrorist content — would make any such site choosing this route an utter cesspool.

Secondly, what sites WOULD do in response to losing immunity for content moderation decisions is adopt much more rigid content moderation policies. These policies would have less play in them, less room for exceptions, for change, for context.

Don’t like our content moderation decision? Too bad; it complies with our policy.

You want an exception? Sorry; we don’t make exceptions to the policy.

Why not? Because some asshole will sue us for doing that, that’s why not.

Have a nice day.

CDA 230’s content moderation immunity was intended to give online forums the freedom to curate content without worrying about this kind of claim. In this way, it operates somewhat like an anti-SLAPP law, by providing the means for quickly disposing of meritless claims.

Though unlike a strong anti-SLAPP law, CDA 230(c)(2) doesn’t require that those bringing such claims pay the defendant’s attorney fees.

Hey, now THERE’s an idea for an amendment to CDA 230 I could get behind!

Reposted from the Socially Awkward blog.

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Filed Under: 1st amendment, anti-slapp, cda 230, content moderation, curation, free speech, guidelines, section 230, slapp, terms of service