from the oh-come-on dept
It appears that Senators Marco Rubio, Josh Hawley, Kelly Loeffler, and Kevin Cramer don't mind looking like total fools who don't understand some fairly basic concepts about the law, so long as they can perform for their ignorant base. The latest is that they have sent a letter to the FCC, picking up on President Trump's silly executive order and asking FCC chair Ajit Pai to reinterpret Section 230 at direct odds with the plain language of the law and the way that every single court to this day has interpreted it.
The thing is, these Senators know what a silly project this is, but because the Emperor demands fealty, and they know that their own base now depends on bowing down to insanity, they're playing it up. Everything about this letter is silly. But because some people might take it seriously, let's go through why it's silly.
Dear Chairman Pai:
We write regarding the role of the Federal Communication Commission (FCC) in the recently signed Executive Order on Preventing Online Censorship. The unequal treatment of different points of view across social media presents a mounting threat to free speech. This Executive Order is an important step in addressing this form of censorship.
Once again, there is literally no evidence that there is any "unequal treatment" of different points of view, but even if there was the 1st Amendment would protect it. There is no law, anywhere, that says that you have to treat all speech equally, and that if you don't it somehow leads to you facing liability. And, honestly, Republicans like these Senators should recognize that if that situation were to change, the first ones in trouble would be partisan organizations like Fox News.
But, thankfully, the 1st Amendment says that sites can moderate how they want.
Furthermore, Section 230 is not a "mounting threat to free speech." Taking it away, however, would very much be a threat to free speech. Again, without Section 230, websites will have strong incentives not to host third party content, because the risks of liability will be huge, meaning that many places that now enable people to speak out will likely scale that back significantly, and in some cases entirely. The threat to free speech is coming from these Senators, not Section 230.
Section 230 of the Communications Decency Act shields social media platforms from the liability imposed on publishers when they act in “good faith” to restrict access to or remove certain objectionable materials.
This is a blatant misreading of the law. The "good faith" part of the law covers just one part of 230 (Section (c)(2)(A)) and not to the other parts of the law, including (c)(1), which is the part that almost every court decision has depended on, regarding the rights of websites to moderate their content. (c)(1) is the part that says that no website can be held liable for third party content. And courts have (correctly) read that to mean that this also covers any moderation activity. And there is no "good faith" requirement for that.
Also, there is no "good faith" requirement in (c)(2)(B), which says there is no liability for any website for "any action taken to enable... the technical means to restrict access to material." In other words, the "good faith" requirement does not cover the parts of the law these Senators are pretending it does, and changing the interpretation of "good faith" wouldn't change the rights of any platform to moderate as they see fit.
Even if they were right in harping on the "good faith" requirement, they'd still be wrong, because forcing a court to determine whether or not a website's editorial policies were done in "good faith" would be a direct 1st Amendment violation itself. After all, if you could determine whether or not Twitter's moderation policies are "good faith" or not, you could do the same for the editorial decision making of a news organization like Fox News.
Once again, the only threat to free speech here is coming from Senators Rubio, Hawley, Loeffler, and Cramer.
However, the protections afforded by Section 230 are not absolute or unconditional
It is correct that 230's protections are not absolute. Which is why one of the most annoying things is that these Senators (Hawley in particular) keep pretending that 230 protections are absolute and that's why he wants to change them. I'd be happy that he's finally admitting they're not absolute if he were doing it in an intellectually honest manner, rather than using it here in a bullshit way to suggest this means it's okay to ignore the law and reinterpret it in Hawley's pro-censorship direction.
But the final word of the sentence is incorrect. Section 230 is an immunity that is based on who creates the content. It is not "conditional" like a safe harbor (like the DMCA's 512, which requires you to meet certain rules to qualify). Section 230 has no such conditions included in it and no court has read it to, because they do not exist. What's happening here is, again, the Senators want to shove this "good faith" thing into the conversation where it simply does not belong.
While social media companies enjoy their special status under Section 230, it is questionable that they are living up to their obligations when they blur the lines between distributor and publisher by favoring one political point of view over another.
This part is just utter nonsense. Section 230 does not have any "obligations." And there is no line for them to "blur" between distributor and publisher (and, again, there remains zero evidence of them favoring one political point over another -- that's just a made up concept by Republicans to work the refs and try to get more favorable moderation). Pretending that there are obligations built into Section 230 is dangerous. It's how you actually stifle free speech, by assuming every company needs to step into line to "get" the liability questions answered properly. It's literally the opposite of the "small government" line these four politicians have all spewed in the past. They are hypocrites.
The reinterpretation of the law they are pushing for here is literally about them being the speech police.
While the President has the means to push back on unfair treatment, we worry about everyday Americans who are sidelined, silenced, or otherwise censored by these corporations.
No you don't. This is gaslighting. There are still plenty of platforms out there that will host anyone's content. Indeed, plenty of platforms have sprung up, in part, because they disliked the way these companies have handled their content moderation. And of course, note that these four Senators don't explain just who it is they're talking about. Which "everyday Americans" have been "sidelined, silenced, or otherwise censored" by these platforms? I'd bet good money that there were perfectly normal reasons, not "anti-conservative bias".
Social media companies, whose protections come from their acting as distributors, not publishers, have increasingly engaged in partisan editorializing, censorship of Chinese dissidents, and a host of politically motivated speech policing.
This is simply laughable. If you took away 230 you'd get even less speech and more policing because of the risk of liability. This has been explained to Josh Hawley numerous times, yet he continues to trot out this nonsense.
While these actions speak for themselves, companies continue to enjoy Section 230 protections due to a lack of clear rules and judicial expansion of the statute.
No, the "rules" are quite clear. And all internet websites enjoy that protection because that's what the law says and what was intended by Congress when it passed. And it's simply wrong to say that courts have "expanded" the statute. They read what's in there, and recognized that it's silly to hold platforms responsible for the speech of others. These four Senators just don't like what the law says. And, as such, they have the right to try to pass legislation (including some nonsensical bills that Hawley has proposed). The idea that this is a job for the FCC makes no sense at all. Indeed, in Reno v. ACLU, the case that invalidated the rest of the Communications Decency Act, the Supreme Court made it clear that the FCC has no mandate to regulate speech on websites, because the internet is protected by the 1st Amendment. In that case, in trying to reject the argument that a former case involving the FCC regulating "indecent" speech on radio would make the regulation of such speech on the internet okay, the Supreme Court said "no, the internet is not radio" and thus the FCC has no regulatory power to police speech on it:
Finally, the Commission's order applied to a medium which as a matter of history had "received the most limited First Amendment protection," [i.e., radio] in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history.
[...]
In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that "[e]ach medium of expression ... may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).
Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as "invasive" as radio or television.
Indeed, as the case made clear, the FCC could regulate broadcast airwaves, because it was scarce spectrum that the government was handing out to broadcasters. That is not true of the internet:
Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.
In other words, the FCC has no authority to regulate the internet at all.
Back to the nonsense letter from the Senators.
Social media companies have become involved in a range of editorial and promotional activity; like publishers, they monetize, edit, and otherwise editorialize user content.
They make it sound like this is a new thing. Instead, this is exactly why Section 230 was written in the first place. A ruling in NY said that because the internet service Prodigy tried to create a "family friendly" service (i.e., it editorialized its forums, and monetized it), it suddenly faced liability for those moderation choices. Congress realized how dangerous that was to free speech online and passed 230. These Senators are simply ignoring the real history and trying to gaslight people into believing an entirely false one.
It is time to take a fresh look at Section 230 and to interpret the vague standard of “good faith” with specific guidelines and direction.
If it is time to take a fresh look at Section 230, then that is Congress' job, and not the FCC's. And, again, the good faith part only applies to a very limited segment of 230 (and one that is almost never used in court).
In addition, it appears that courts have granted companies immunity for editing and altering content even though the text of Section 230 prohibits immunity for any content that the company “in part … develop[s].” These interpretations also deserve a fresh look.
This is also misleading. The part that says "in part... develop[s]" is the definition of an internet content provider. They're trying to misinterpret this section to mislead people into believing that content moderation makes a service a "content provider" rather than an "interactive computer service." In other words, they're leaning very heavily on the "in part... develop[s]" to try to bring about the mythical "publisher" / "platform" split.
But the only way that can happen is if you take this obvious misread of the definitions of 230, and ignore the direct stated intention and words of the rest of the law. That's what these Senators are doing. No court has ever bought into this definition. The authors of 230 have said over and over again that this was never the intent or purpose of 230.
And here's the thing: courts have made it clear that sites that do develop their own content are liable for that content. The Roommates.com case made it clear that sites can be liable for the content they create "in part." But the content they create is different than the content that is moderated. So, for example, the actual text of Twitter's now-infamous "fact check" of President Trump's tweets is not protected by Section 230, because the fact check text itself is content created by Twitter. So it's not like 230 has any bearing there.
But that content is protected by the 1st Amendment. Because there's literally nothing at all illegal about saying "hey, check out more information that suggests the President is lying to you." It's quintessential 1st Amendment protected speech, responding to a public figure who was spewing propaganda.
If anything, taking away 230 would make Twitter potentially liable for whatever awful, defamatory things the President himself tweets.
We therefore request that the FCC clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.
There is no framework. The law requires no framework. The FCC has no authority to interpret the law here, and any interpretation they make is meaningless and would likely be ignored by courts who, at best, would wonder why the FCC is butting in here in the first place.
And here's the little secret Marco Rubio, Josh Hawley and the other Senators don't want you to realize: they know this. They're performing this kind of thing because the President wants this crew of no-spine Senators to back up his nonsense. And now we know which kind of spineless, hypocritical dolts hop to it when the Emperor orders them to make fools of themselves.
Filed Under: 1st amendment, ajit pai, bias, cda 230, fcc, free speech, josh hawley, kelly loeffler, kevin cramer, marco rubio, section 230
