Elon Musk’s purchase of Twitter has many on the political right hopeful that, once under his control, the site will take down less conservative content than in the past. But to make that a reality, Musk will need the liability shield known as Section 230.
The law (more precisely, Section 230 of the Communications Decency Act of 1996) clarifies that it’s the creators of third-party content, not their digital hosts, that are legally responsible for user content. So it’s the person tweeting, not Twitter, who is liable for the speech. Section 230 explicitly states that the liability shield holds even if the host curates its platform, which wasn’t certain back in 1996, when the law was passed.
But the law has also become a lightning rod for both political parties’ frustrations over content moderation. Democrats complain that because Section 230 shields platforms such as Facebook, Twitter, and YouTube from litigation over controversial content, those corporations aren’t aggressive enough in policing misinformation. Republicans complain that the law protects platforms that remove conservative content for political reasons. This has produced dozens of bills, authored by politicians from both sides of the aisle, to curtail, condition or repeal Section 230. The sweeping protections conferred by the section made the explosion of third-party speech on social media possible and saved countless dollars by sparing companies the costs of bad-faith litigation. The part of Section 230 that 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,” has been called the “26 words that created the Internet” by cybersecurity law professor and author Jeff Kosseff.
It’s the First Amendment that ensures platforms’ right to refuse to carry content and to remove it. A social-media user has no free-speech “right” to speak on a private platform’s property. That’s little comfort to those who are understandably frustrated, disappointed, and often genuinely confused about having their content removed or being banned or demonetized. But Musk-cheering conservatives need to reconsider Section 230 in light of a more sympathetic social-media mogul taking the helm at one of the big boys. This law is what allows social-media companies to leave up third-party content without fear of being sued. Like a male lead in a John Hughes movie, Republicans will soon see the beauty in what they’ve so far mostly derided.
But it’s the platforms themselves that cannot have their free-speech rights violated by being forced to carry others’ speech against their will.
So when some conservatives complain about Section 230, what they are really complaining about is the way that the First Amendment (which Congress is in no position to weaken or ignore) works in this case. That’s not a good look. What’s more, they ought to appreciate the way that Section 230 reduces the potential legal consequences and costs of carrying what some on the left might, fairly or unfairly, deem “dangerous misinformation.”
In the absence of Section 230’s legal liability shield, it would be a safer bet for platforms to just take down anything that even hints at the threat of provoking legal action. Conservatives can guess that climate-change skepticism, push-back on green-energy mandates, and traditional religious opinions on abortion, sexual activities, and gender issues will be first to go.
Opponents of those opinions are often outspoken and motivated to take legal action. The associated costs of litigating every one of those cases might cripple even midsized platforms, such as Twitter, to say nothing of smaller competitors like Truth Social, the new platform of Twitter super-user turned super-critic, former president Donald Trump.
Just as in every movie where the girl foolishly thought to be unappealing is revealed to be a beauty, conservatives are about to fall in love with Section 230.
Read the full piece at National Review.