Section 230 and Free Speech

The spread of false claims, conspiracy theories, and organization for events at which people have shown up armed at state houses and the U.S. Capital, has led to a lot of commentary about section 230 of the 1996 copyright revisions. That section reads:

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.

Print publishers, radio and television stations, had been held to “publish” what was printed, seen or spoken on their systems. In turn, publishers have been held responsible for publishing libel or slander since the birth of the nation and further back in England. But section 230 absolved publishers and speakers of liability for what they put on their internet services. Although the Court changed the general standard of liability for false statements, it has never removed the joint responsibility of papers, magazines, broadcasters or other publishers for defamation. Section 230 did that, but nothing in section 230 is constitutionally required and the First Amendment is no obstacle to its repeal.

Before section 230 was passed in 1996, much of the scurrilous content advanced by QAnon, white extremists, Proud Boys and other groups would have been confined largely to word-of-mouth chatter, with relatively little impact on national politics.

Some of the stories blaming Hillary for the death of Vincent Foster, the death of American diplomats at Benghazi, or for “sexually abusing children in satanic rituals … in the basement of a Washington, D.C., pizza restaurant” could have subjected any publisher to litigation for defamation and resulted in a significant judgment and the embarrassment of defeat in court, as would similar claims against other Democrats. In light of what we know from the publicity and the investigations of those charges, it is unlikely that any of those allegations would have satisfied a court, any more than the repeated charges that the 2020 election was rigged by the Democrats.

Unable to sustain the claims, the defense would likely have collapsed in such cases. Not surprisingly, papers, magazines and broadcasters would have been cautious about such claims absent protection such as by section 230. Even the congressional investigations of some of those charges wouldn’t have protected all the allegations being thrown around and many of those stories would have been rewritten to avoid liability before they hit our screens. Ironically, the efforts to gerrymander the legislative races and to disqualify Democratic-leaning voters did strongly suggest election rigging but by the Republicans, by taking advantage of gaps in the law and in favor of Donald Trump and his allies.

Publishers are targets but anonymous and individual speakers are rarely sued. Going after small-time speakers is a game of whack-a-mole, never ending, expensive, resulting in negligible damages collected and therefore frustrating for plaintiffs. Going after publishers, however, is big news, makes substantial damages for false claims reasonably likely, and could well shut much of the nonsense down.

Section 230 was included in the 1996 Copyright Act to provide some cover for the emerging internet chat-boards. But it has become the source of outrageous garbage. Scurrilous attacks on candidates aren’t new. But the spread, the currency and the way they have convinced so many Americans to trust that nonsense, should make every American ashamed. Repealing section 230 and restoring liability for libel and slander is consistent with the First Amendment. Although more will need to be done, repealing it is essential to the very purpose of freedom of speech – getting at the truth instead of smothering it in a smokescreen of lies.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on February 2, 2021.

Zuckerberg, Facebook and the Responsibility of Publishers

This post is about law and social media.

Zuckerberg has not been willing to take responsibility for the lies distributed on Facebook. And by now everybody but Donald is aware that social media are the major repositories of fake news. And that’s not an accident.

Broadcasting stations, newpapers and other publishers must carefully avoid publishing libel and defamation on their media. That requires them to make real effort to prevent publication of scurrilous material.

Until the 90s, those rules arguably applied to the internet. But then communications law removed publisher liability entirely for “interactive computer service[s]”:

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.

As Dan Solove comments, courts interpreted the statute:

to immunize any ISP [internet service provider] or website for comments made by their users – even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

Some of the results have been outrageous. The statute removed liability even when internet providers knew stories were false. In one infamous case, an anonymous source posted messages falsely linking a small businessman to the Oklahoma City bombing. A crushing barrage of angry callers made it impossible for him to do business.  AOL removed the posts when notified, but variations were reposted immediately and the victim couldn’t get AOL to block them, post retractions or even act more quickly. The courts sided with AOL. And Congress moved in only to protect copyright owners.

In this wild west of unsubstantiated internet allegations, who’s responsible? It’s generally worth suing only corporate defendants who can pay for the damage, which usually means the ISP.  And immunizing fraud on social media makes it harder to hold other media responsible. Once a story is “out there,” other news organizations are stuck. Without a good way to hold companies responsible for checking facts, gossip, lying and fake news dominate the industry.

Recent hearings made clear that Americans find it outrageous that Zuckerberg and his company have no responsibility for the garbage they “share”. It’s time to change. There is no reason for giving huge internet companies, vastly wealthier than print media, advantages that print doesn’t share. But Facebook won’t accept responsibility for most of the lies it distributes.

Radio and television stations, newspapers and other publishers are legally responsible. The very famous case of New York Times v. Sullivan came to the Supreme Court because the Times published an ad taken out by leaders of the Civil Rights Movement that had some inaccuracies. Those who placed the ad in the Times and the Times itself shared liability to anyone injured. The law at the time violated the First Amendment in other ways, which the Supreme Court corrected in that and subsequent cases. But if constitutional requirements were satisfied, publishers were and are responsible.

The deeper meaning, however, is that this problem illustrates that there is no such thing as purely private action. Law always either allows, forbids, or empowers some people over others. One cannot get to the bottom of our economic or social problems without looking at the interplay between public and private decisions, no matter what free market ideologues try to tell you.

— This commentary was broadcast on WAMC Northeast Report on December 3, 2019.