Trump introducing Executive Order regarding Twitter and Section 230

The attack on Section 230 will backfire

Donald Trump is attacking Section 230 of the Communications Decency Act. This is a really bad move. He doesn’t understand it at all, and unfortunately, neither do many Republicans who’ve become vocal about this lately. This will likely make things worse for conservatives (and everyone) on the internet, not better.

It’s hard to find a non-partisan take, but The Guardian does well here. The narrative is mostly conservatives complaining about censorship (which is not always ideologically motivated, but often just the impossibility of content moderation at scale), or liberals complaining about conservatives (ignoring real problems with deplatforming stifling debate, even among progressives, as though only nazis are being censored). Missing from the discussion is an objective analysis of this key piece of tech policy for the internet.

Before Section 230, internet platforms had to choose – either no moderation and no legal liability (like a phone company), or if they were moderating they could face legal liability for the speech of their users that they didn’t moderate. Section 230 protects the platforms so they can’t be held responsible for misconduct of their users. So if someone makes a death threat online, you can’t go after Facebook as the platform, even if they moderate some posts and didn’t delete that one – you have to go after the actual party responsible, the person who made the death threat. It’s common sense law.

There are two huge misunderstandings:

Myth #1: Section 230 is what allows platforms moderate speech.

Nope. The first amendment does. Social media companies are private entities, so their right to free speech forbids the government from restricting their speech. Repealing Section 230 doesn’t affect a platform’s ability to moderate.

Users have no free speech rights on social media because it’s not government property, it’s private like a shopping mall. That’s a separate problem – that the online public square is a private square. This has nothing to do with Section 230.

Myth #2: Removing the Section 230 liability shield will hold platforms accountable for unfair moderation practices.

Nope. The first amendment protects that right. There’s no obligation to be “fair” when exercising your first amendment rights (though it’s important to note that Twitter also used the mechanism that Trump is angry about to defend Mike Pence). Rather, 230 protects platforms for being held legally responsible or facing nuisance lawsuits for the actions of their users, if the platform engages in moderation. It’s an incentive to moderate without a heavy hand.

Without 230, things will get worse. Think it about: if platforms can be sued for the speech of their users, do you think platforms will become more tolerant and leave more posts up? Or do you think they’ll be more risk averse and be more heavy handed in taking content down that they might get sued over?

Removing Section 230 protections means platforms can be held legally liable for the speech of their users. It means they’ll be more likely to censor and delete it. Rather than putting links beside Trump’s posts and risk being sued over what they believe contains misinformation, they’ll just exercise their constitutional first amendment right to delete the posts and avoid legal liability. The first amendment protects their right to take stuff down. Without 230, they can get punished for leaving stuff up! They’re gonna take more stuff down without 230. (And the notion that 230 could be amended to ensure “fairness” ignores the first amendment, and the history of Republican opposition to the FCC fairness doctrine…)

The fight against Section 230 from conservatives (and liberals) is very misguided, and if successful, will likely backfire. What’s needed is a more nuanced discussion about the challenges of content moderation and free speech on a corporate internet.

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