Section 230 of the Communications Decency Act protects internet service providers and online media hosts from legal liability for user comments. Donald Trump is trying to undermine that.
While Trump’s executive order of 28 May 2020 was sold as a shield to protect freedom of speech, it does just the opposite. The unintended consequences of the restrictions on Section 230 could hurt Trump himself and radical conspiracy theorists more than anyone else.
The internet, which provides users with the ability to post comments on third-party websites, changed the media landscape and the way in which speech is disseminated. In the print era, writers would have to get a book, pamphlet or newspaper article to a publisher, who would print it on paper. Anything published in the New York Times, for example, must be approved by multiple editors, who have been hired and authorized by the company and its board. Everything in the newspaper has been approved by those employees. Hence, the company can face legal liability (civil defamation law, in the US) for anything it publishes, or allows to be published.
Online message boards, blogs, microblogging and other forms of social media have decreased the barriers to public broadcasting of speech and opened the political debate up to new voices.
Early on, American courts had a hard time applying old laws to the new kinds of speech on the internet. Congress, concerned that the development of the free and open internet would be stifled if ISPs were held responsible for user speech, wrote Section 230 into the 1996 Communications Decency Act. That section states, “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.”
That is, if someone posts a defamatory comment on a blog, tweet, or YouTube video, the blog’s publisher, Twitter, YouTube or any other third-party website that publishes user speech cannot be held liable for defamation and sued for such comments. With over 260 million users on Twitter and 48 million active monthly users, it would be difficult for Twitter to review everything before it is published.
Furthermore, subsection c (2) of 230 clarifies that protection is also provided for platforms that engage in content policing:
No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken 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, whether or not such material is constitutionally protected.
That would apply in the case of Twitter’s fact checking of Trump’s claims about voter fraud and its removal of hate speech and other speech that violates its terms of service. Twitter shall not be held liable for restricting access to such objectionable content.
Whether the expansion of speech on social media has been good or bad is up for debate. The movement to limit police brutality against African-Americans was aided by the online channels over which citizens could share videos like that of the killing of George Floyd, without which the four officers would probably have got away with it, without punishment. Protesters say that social media is a great tool through which to organize movements that can change the world—though Malcolm Gladwell has disputed that narrative. But social media also creates information bubbles, simplifies complex ideas and allows the proliferation of fake news and online troll brigades.
Donald Trump’s 2016 presidential campaign might not have been possible without Section 230 and social media as it exists today. During that campaign, Trump frequently tweeted and retweeted false claims and incendiary racial messages, content which, were it not for 230, could have left Twitter subject to the threat of large-scale damages in civil court.
Trump often retweets memes created by trolls and white supremacists, such as the fake crime stats he shared in 2015, which claimed that 81% of murders of white people were committed by black people. In 2016, he retweeted a white supremacist called “WhiteGenocideTM,” and, in 2017, he shared Britain First videos. If Twitter faced the threat of legal liability for what its users tweet, it would have to employ a much larger team of moderators, and it might have to engage in pre-publishing moderation. Ironically, many of the tweets Trump likes to retweet would never have been published without 230.
Many of Trump’s own tweets are so defamatory that Twitter would not allow them to be published in a world without 230. His latest tweets accuse MSNBC host Joe Scarborough of murder. It’s not the first time he has accused someone of murder. Trump’s constant attacks on private citizens almost certainly include a number of lies. (He makes identical claims, using identical language, against many different people.) Whatever the outcome of any of those hypothetical cases would be, contesting the cases would cost Twitter a fortune, even if they won, and they might choose to remove the tweets in the first place, rather than risk a legal fight.
Twitter currently has policies on, among other things, “hateful conduct,” “sensitive media,” “non-consensual nudity,” “impersonation,” “violent threats,” “terrorism and violent extremism,” “glorifying self-harm” and other varieties of speech. If they were to face legal liability, they would certainly add even more categories and more restrictive rules.
Trump’s executive order includes multiple misreadings of Section 230. It falsely accuses Twitter of “censor[ing] content and silenc[ing] viewpoints that they dislike” and claims that protections do not extend to platforms that engage in such “censorship.” It is ludicrous to claims that Twitter and other social networks, in enforcing their policies against speech that violates their terms of service, are engaging in “censorship.” Private companies and private citizens can decide to express or not express any message they want. Adding a warning label over a tweet is Twitter’s right.
Twitter has banned or suspended many liberal and leftist users for violating its terms of service, including the Krassenstein Brothers, Ken “Popehat” White, Louis Farrakhan, atheist and Trump critic Phil Mason, Splinter News, Smash Racism DC, Antifa activist Daniel Sieradski, Victoria Fierce and dozens of Occupy Wall Street organizers.
But even if judges considered Twitter to be politically biased, it would still have the freedom to ban users and delete tweets. Section 230 c (2)’s protections from liability for “restrict[ing] access to or availability of material” apply “whether or not such material is constitutionally protected.”
Removing a tweet (which, so far, Twitter has not done to Trump) is also Twitter’s right. If it were not, then anyone and everyone should be able to demand Twitter, or the New York Times, or any other media outlet, place their own speech on the front page. To say that a company or platform cannot control what speech it disseminates is to say that they do not have freedom of speech and that random people can force private companies to say or do things they do not want to do. The First Amendment only protects against government-imposed restrictions on speech. It does not protect social media users from website rules and judgments. Nor does it permit the government to demand a company allow certain content to be published.
It would violate the First Amendment if the government used its coercive power to pressure a platform into refraining from exercising its constitutionally protected right to publish a fact check. That is exactly what Trump is trying to do.
In the executive order itself, Trump specifically cites the fact check-cum-warning label Twitter put on his tweet as the cause of his ire: “Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias,” the order reads.
His executive order is inevitably going to be challenged in court, and many legal analysts and groups think it will probably be overturned. The author of Section 230 himself has expressed the opinion that Trump’s EO is “illegal.”
Courts have already heard similar arguments to Trump’s and rejected them. Chuck C. Johnson, for example, sued Twitter after being banned in 2015, arguing that Section 230’s protections relied on the “good faith” of the platform (a word Trump’s EO also used). His case was thrown out of court—in part because “neutral content provider” is “not the standard for immunity under the CDA [Communications Decency Act].”
In both the text of the order and at the signing ceremony, Trump himself did something that violates the spirit of freedom of speech. He held up a New York Times cover page featuring Twitter employee Yoel Roth and attacked Roth for his speech. Trump’s executive order singles out Roth: “Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.”
Roth was critical of Trump and some Republican politicians during the 2016 election and Trump’s first months in office, calling the president a “racist tangerine.” Such comments might outrage thin-skinned Trump (who is so offended by being fact checked that he has written an executive order in response). But they are protected speech. However, publicly attacking a private citizen and trying to influence his employer is bound to cause some employees to think twice before expressing their political opinions.
For an executive order to attack an individual American on account of his political views is perhaps unprecedented, but it might technically be protected speech (though taking action to punish on account of speech, which repealing 230 would do, would not be protected). Whether such an order would be constitutional or not, it is further evidence of the authoritarian tendency that has been on display over the past three years. Previously, Trump has attacked or threatened Saturday Night Live, the Broadway production of Hamilton, CNN, NBC, Fox News, the publisher of the Washington Post and the entire press (“enemies of the people”).
Congress considered Section 230 necessary for the development of the internet. It must not be unilaterally repealed by a president angry about a personal slight. If he really were able to damage or diminish 230, Trump might well end up regretting it.