Here is the law:
"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."
The person who uploads content -- not the social media platform -- is responsible for that content.
That section of the law makes possible sites like Facebook, YouTube, X, Instagram, TikTok, Next Door, Reddit, Threads, Truth Social, and all the others.
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| Fortune Magazine, 1996. Senators Ron Wyden and Christopher Cox at a press conference explaining why they wrote the Section 230 provision. |
We think of Facebook and the many other platforms as spaces for anyone to share information on politics, how to prune peach trees, and a grandchild's birthday party. Section 230 allows free speech, but "free speech" is complicated. Citizens have free speech most clearly in public places, for example parks, public plazas, and sidewalks.
Private businesses are a gray area. Some businesses are considered "common carriers," i.e. natural monopoly utilities where all customers must be treated equally. A telephone company or garbage service cannot refuse to serve Democrats, even if its owner is a Republican. The gray gets darker in the arena of privately-owned shopping malls and parking lots in front of grocery stores. They are quasi-public squares. Property owners have more control over what and how political activity is conducted.
The world is feeling its way as regards social media platforms.
Both Florida and Texas passed laws prohibiting social media companies that do business in their state from censoring political content. They asserted that conservative voices are discriminated against by social media companies. This grievance comes out of the decision by Facebook and Twitter (in its pre-Musk ownership days) to ban Trump after the January 6 insurrection. The companies found he was inciting violence. Then, during the height of the Covid pandemic, the sites banned posts of what they considered dangerous misinformation on vaccinations. These bans fit a GOP/Fox narrative of victimhood and outrage: The liberal media is ganging up with the liberal social media.
A case wound its way through the courts and was argued in front of the U.S. Supreme Court yesterday.
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| SCOTUS blog |
Social media companies are not unmanaged free-for-alls of content. They block posts they consider dangerous or offensive. They also shape the content any one viewer sees. Their advertising models are so powerful because they personalize ads. If you idly search for a local carpet-cleaning service, for the next days or weeks you get ads from carpet cleaning services, oriental rug re-sellers, and realtors inquiring if you wish to list your home. (Realtors apparently learned that homeowners decide to clean their carpets professionally before putting their homes up for sale. The social media company realizes you are going to sell your home before you do.)
Social media companies are arguably public gathering spaces with monopoly power, and should be treated like a common carrier. Since they are absolved of liability for what is uploaded, they should take all comers. That is the Texas and Florida argument.
Questions from Supreme Court justices in the four hours of oral argument suggest that the justices are skeptical of that argument. The justices' questions made the distinction between private and public and they seemed to validate social media companies' desire to curate their own spaces.
I am happy to read that.
I curate the comment section of my blog. Were I to leave it unmoderated it would fill with spam links to malware and obscene troll posts. Social media platforms found that there is a form of "Gresham's Law" at work. Bad content drives out good content. Left alone, social media sites are prey to Russia malware and propaganda, conspiracy theories, and offensive content. Who decides what is offensive? The people who own the site. They are the ones creating an overall experience that will draw people to their businesses.
There is a free-enterprise remedy for people who think themselves unfairly censored. Trump tried it. He started his own site, Truth Social, where he is free TO WRITE MANIC THINGS AND THREATEN VIOLENCE using capital letters. Another remedy is the one taken by Elon Musk. He bought Twitter and changed its policies and renamed it X. Trump is back in, and now liberal tweets are sometimes blocked. X is now more snarky, hostile, and toxic than ever, but there is an audience for that.
Sites that allow the public to upload material need to be able to protect themselves. There are a lot of crazy, dangerous, and malicious people out there.
6 comments:
So, Texas and Florida allege that by banning dangerous disinformation, social media companies are discriminating against conservatives. You’d think they’d be embarrassed to make such an admission, but today’s so-called conservatives can’t be embarrassed because they have no shame.
The problem is not as simple as Peter says.
Social media companies occupy an ambiguous space somewhere between “the public square” and a personal blog. The public Square aspect has historically been particularly true of Twitter/X. Due to something known as a “network effect“, once a social media company becomes dominant in a particular sphere, it effectively becomes a monopoly; competition becomes next to impossible.
Who should control the limits of discourse in a digital “public square?“ Some random CEO of a particular tech company?
Liberals were reasonably happy when conservative discourse on Twitter was limited/censored by the Orwellian-titled “trust and safety” bureaucracy under then-CEO Jack Dorsey. Now that Elon Musk has control, liberals are not so happy. But the principle is still the same: total control by corporate management.
Social media companies are a new category, and the Supreme Court is going to have serious work to do figuring out how the First Amendment applies to them here in the 21st Century.
Even in the public square, freedom of speech can only go so far. People aren't allowed to incite riots or spread lies that result in physical harm. Besides, the First Amendment only applies to the government. Private entities are under no requirement to publish everything that's submitted to them.
Free speech absolutists are in a quandary with today’s technology. A conservative friend sent me a book by social critic Os Guinness, both extolling Freedom and warning the threat to America’s legacy of Freedom. Two things he wrote struck me as true: “The paradox… that the enemy of freedom is freedom” and “rightly understood, freedom is not the permission to do what we like, but the power to do what we ought”. JFK’s “Ask not…” speech had those “oughts” implied. But those “oughts” are tricky because they require a common moral framework - which is fluid today. We can’t even collectively agree what “good” is.
Why wouldn't the owner of the "public square" be able to control the limits of discourse?
The owners of the Rogue Valley mall can certainly limit activity/speech on the premises they own, which are essentially public squares.
Maybe Michael needs to read the Bill of Rights. It doesn't apply to private businesses.
Maybe I already read the Bill of Rights. The question before the Supreme Court is more complicated. It has to do with the interpretation of Section 230. Maybe Mc needs to read Section 230.
If a social media company “curates“ its content, it can possibly be held liable for what it allows to be posted. If it does not curate, then the responsibility for things like libel and defamation falls to the users who posted those items.
Section 230 absolves social media companies that curate of that liability. If the supreme court decides that social media companies that curate are liable for the posts they allow, it could conceivably lead to the end of the financial viability of those companies.
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