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.

From Chaos to Monopoly – the End of Net-Neutrality

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.

Polarizing America

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).