Stemler is an associate professor of business law and ethics at Indiana University and a faculty associate at Harvard University's Berkman Klein Center for Internet and Society.
Almost any article you read about Section 230 reminds you that it contains the most important 26 words in tech and that it is the law that made the modern internet. This is all true, but Section 230 is also the most significant obstacle to stopping misinformation online.
Section 230 is part of the Communications Decency Act, a 1996 law passed while the internet was still embryonic and downright terrifying to some lawmakers for what it could unleash, particularly with regard to pornography.
Section 230 states that internet platforms — dubbed "interactive computer services" in the statute — cannot be treated as publishers or speakers of content provided by their users. This means that just about anything a user posts on a platform's website will not create legal liability for the platform, even if the post is defamatory, dangerous, abhorrent or otherwise unlawful. This includes encouraging terrorism, promoting dangerous medical misinformation and engaging in revenge porn.
Platforms, including today's social media giants Facebook, Twitter and Google, therefore have complete control over what information Americans see.
How Section 230 came to be
The Communications Decency Act was the brainchild of Sen. James Exon, Democrat of Nebraska, who wanted to remove and prevent "filth" on the internet. Because of its overreaching nature, much of the law was struck down on First Amendment grounds shortly after the act's passage. Ironically, what remains is the provision that allowed filth and other truly damaging content to metastasize on the internet.
Section 230's inclusion in the CDA was a last-ditch effort by then Rep. Ron Wyden, Democrat of Oregon, and Rep. Chris Cox, Republican of California, to save the nascent internet and its economic potential. They were deeply concerned by a 1995 case that found Prodigy, an online bulletin board operator, liable for a defamatory post by one of its users because Prodigy lightly moderated user content. Wyden and Cox wanted to preempt the court's decision with Section 230. Without it, platforms would face a Hobson's choice: If they did anything to moderate user content, they would be held liable for that content, and if they did nothing, who knew what unchecked horrors would be released.
What lies ahead for social media reform
When Section 230 was enacted, less than 8% of Americans had access to the internet, and those who did went online for an average of just 30 minutes a month. The law's anachronistic nature and brevity left it wide open for interpretation. Case by case, courts have used its words to give platforms broad rather than narrow immunity.
As a result, Section 230 is disliked on both sides of the aisle. Democrats argue that Section 230 allows platforms to get away with too much, particularly with regard to misinformation that threatens public health and democracy. Republicans, by contrast, argue that platforms censor user content to Republicans' political disadvantage. Former President Donald Trump even attempted to pressure Congress into repealing Section 230 completely by threatening to veto the unrelated annual defense spending bill.
As criticisms of Section 230 and technology platforms mount, it is possible Congress could reform Section 230 in the near future. Already, Democrats and Republicans have proposed over 20 reforms – from piecemeal changes to complete repeal. However, free speech and innovation advocates are worried that any of the proposed changes could be harmful.
Facebook has suggested changes, and Google similarly advocates for some Section 230 reform. It remains to be seen how much influence the tech giants will be able to exert on the reform process. It also remains to be seen what if any reform can emerge from a sharply divided Congress.
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Former President Donald Trump on Wednesday filed class-action lawsuits against Facebook, Twitter and YouTube arguing his suspension from those platforms violates the First Amendment.
However, legal experts say that argument has little chance of succeeding in court since the First Amendment constrains only the government, and not private entities.
The First Amendment specifically says "Congress shall make no law ... abridging the freedom of speech, or of the press," and the Supreme Court has extended that protection against all government agencies and officials — executive, legislative and judicial, as well as federal, state and local, per the National Constitution Center.
This protection does not include private individuals or organizations, such as Facebook, Twitter and Google, which owns YouTube. But Trump is arguing that certain private businesses have become "state actors" and therefore are required to abide by the First Amendment. Trump claims:
Defendant Facebook has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Decency Act ... and willful participation in joint activity with federal actors. Defendant Facebook's status thus rises beyond that of a private company to that of a state actor, and as such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes regarding its Users.
But the Supreme Court, in an opinion authored by Trump-appointed Justice Brett Kavanaugh, declared in 2019 that media platforms are not state actors.
Trump and his supporters have long lambasted social media companies for so-called "cancel culture" and their disparate treatment of conservative voices. The former president's removal from Facebook, Twitter and YouTube for inciting the Jan. 6 insurrection at the Capitol fueled this outcry.
"We're demanding an end to the shadowbanning, a stop to the silencing, and a stop to the blacklisting, banishing and canceling that you know so well," Trump said at a press conference Wednesday.
In addition to arguing a First Amendment violation, Trump's lawsuits are also seeking a ruling that declares unconstitutional the so-called Section 230, a decades-old federal law that protects online platforms from lawsuits regarding content moderation decisions.
Evan Greer, director of Fight For the Future, whose organization advocates for Internet freedom and privacy, said that from a legal perspective this lawsuit is likely to go nowhere.
"While it's silly to pretend that the moderation decisions of Big Tech don't have a significant impact on free expression, the First Amendment enables private platforms to make exactly the kind of moderation decisions they wish to make as non-government entities," she said.
Greer and other critics of the lawsuits also pointed out the legal action was likely a fundraising tactic for Trump, who is considering another presidential run in 2024.
Shortly after announcing the lawsuits, Trump's joint fundraising committee sent a text saying, "Pres Trump: I am SUING Facebook & Twitter for UNCONSTITUTIONAL CENSORSHIP. For a short time, 5x-IMPACT on all gifts! Donate NOW."
At the press conference, Trump also encouraged his supporters to go to a website where they could join the class-action lawsuits. However, that site redirects users to one for the America First Policy Institution that only includes a promotional video and links to donate.
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After the police killing of George Floyd last year, the nation erupted in protest with renewed demands for justice and reform. But now that right to assembly is under attack.
In the year since Floyd's death, GOP lawmakers have been pushing measures to deter protesting and toughen penalties for offenders. Nearly 100 such anti-protesting bills have been proposed across 35 states — four times the numbers introduced in the year prior.
This wave of bills parallels another effort by Republicans to roll back voting rights and access following the 2020 election. Opponents claim both legislative trends disproportionately impact communities of color who have been actively involved in protests over the last year and are more likely to face barriers to the ballot box.
The International Center for Not-for-Profit Law has been tracking federal and state initiatives aimed at restricting the right to peaceably assemble since 2016. In the last year, nine new measures have been signed into law across seven states. While this is a slight uptick from the year before, the sheer volume of anti-protesting bills being considered in state legislatures is much higher than the usual amount.
"These bills are part of a broader trend over the past four years of state legislatures moving to repress peaceful demonstrations," the ICNL said in a January report. The trend began around 2017 when fossil fuel companies encouraged legislation that deterred environmental protests against oil pipelines. Now, anti-protesting bills have a new target: racial justice advocates.
Of the recently enacted laws, Florida's is among the most broad and severe. It expands the definition of riot to include "imminent danger" of property or persons so individuals could be charged with a felony without having committed any actual damage or injury. Peaceful protesters in the vicinity of those considered to be inciting a riot could be lumped together and all charged with a felony offense. If the group is 25 or more people, it's automatically considered an "aggravated riot" and participants could face up to 15 years in prison.
Florida's new law also makes it easier for anyone who injures a protester, such as by driving through a crowd, to avoid civil liability. Another provision of the law toughens penalties for people who deface, take down or otherwise damage a monument or memorial, including Confederate ones.
Oklahoma also recently enacted a law that grants immunity to drivers who "unintentionally" strike and injure protestors on public streets, while also imposing stricter penalties for people who obstruct traffic while participating in a "riot."
The measure was prompted in part by an incident last June when a man drove his pickup truck through a crowd of Black Lives Matter protesters, injuring several and leaving one person paralyzed from the waist down. Ultimately, the driver was not charged because he said he feared for the safety of his family, who was in the truck with him.
Many of the proposed and enacted measures use broad definitions that appear to conflate largely peaceful protests with instances of violent rioting and looting. However, an analysis by The Washington Post last October found that 96 percent of the Black Lives Matter protests over the summer were peaceful, and when violence did occur, it was often police officers who instigated it.
There's also concern the laws could infringe on First Amendment rights to freedom of speech and peaceful assembly. Clément Voule, United Nations special rapporteur on the rights to freedom of peaceful assembly and of association, released a statement last month expressing concern that these new rules may violate the U.S. Constitution as well as international law.
"Vague definitions of 'riot,' 'mob intimidation' and 'obstruction' as set out in these laws provide excessive discretion to law enforcement authorities to intimidate and criminalize legitimate protest activities," Voule said. "Any restrictions on this fundamental freedom must be narrowly and clearly defined."
Over the last decade, American democracy has been in a steady decline, according to studies by the nonpartisan research organization Freedom House. In March, the group pinpointed three main issues that have driven this long-term decline: unequal treatment of people of color, special-interest influence in politics and partisan polarization.
Despite these concerning trends, there is still evidence of the resiliency of democracy, said Shannon Hiller, co-director of the nonpartisan Bridging Divides Initiative at Princeton University.
"The widespread demonstrations in support of racial justice last year are also a really incredible story about the willingness of so many Americans to go out and use their First Amendment rights to stand up together on issues that they care about," said Hiller, whose organization works to track and mitigate instances of political violence in the United States.
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