Section 230 Continues To Not Mean Whatever You Want It To – Above the Law

In the annals of Section 230 crackpottery, the publisher or platformcanardreigns supreme. Like the worst (or perhaps best) game of Broken Telephone ever, it has morphed into a series of increasingly bizarre theories about a law that is actually fairly short and straightforward.

Last week, this fanciful yarn took an even more absurd turn. It began on Friday, when Facebookbegan to roll out test warningsabout extremism as part of its anti-radicalization efforts and in response to theChristchurch Call for Action campaign. There appears to be two iterations of the warnings:one asks the userwhether they are concerned that someone they know is becoming an extremist,a second warns the userthat they may have been exposed to extremist content (allegedly appearing while users were viewing specific types of content). Both warnings provide a link to support resources to combat extremism.

As it is wont to do, the Internet quickly erupted into an indiscriminate furor. Talking heads and politicians raged about the Orwellian environment and snitch squads that Facebook is creating, and the conservative mediaeagerlylappeditup(ignoring, of course, that nobody is forced to use Facebook or to pay any credence to their warnings). Thats not to say there is no valid criticism to be lodgedsurely the propriety of the warnings and definition of extremist are matters on which people can reasonably disagree, and those are conversationsworth having in a reasoned fashion.

But then someonewent there. It was inevitable, really, given that Section 230 has become a proxy for things social media platforms do that I dont like. And Section 230 Truthersnevermiss an opportunity to make something wrongly about the target of their eternal ire.

Notorious COVID (and all-around) crank Alex Berenson led the charge, boosted by the usual media crowd,tweeting:

Yeah, Im becoming an extremist. An anti-@Facebook extremist. Confidential help is available? Who do they think they are?

Either theyre a publisher and a political platform legally liable for every bit of content they host, or they need to STAY OUT OF THE WAY. Zucks choice.

That is, to be diplomatic, deeply stupid.

Like decent toilet paper, the inanity of this tweet is two-ply. First (setting aside the question of what exactly political platform means) is the mundane reality, explainedad nauseum, that Facebook needs notin factmake any such choice. It bears repeating:Section 230provides that websites are not liable as the publishers of content provided by others. There are no conditions or requirements. Period. End of story. The law would make no sense otherwise; the entire point of Section 230 was to facilitate the ability for websites to engage in publisher activities (including deciding what content to carry or not carry) without the threat of innumerable lawsuits over every piece of content on their sites.

Of course, thats exactly what grinds 230 Truthers gears: they dont like that platforms can choose which content to permit or prohibit. But social media platforms would have a First Amendment right to do that even without Section 230, and thus what the anti-230 crowdreallywants is to punish platforms for exercising their own First Amendment rights.

Which leads us to the second ply, where Berenson gives up this game in spectacular fashionbecause Section 230 isnt even relevant. Facebooks warnings are its own content, which is not immunized under Section 230 in the first place. Facebook is liable as the publisher of content it creates; always has been, always will be. If Facebooks extremism warnings were somehow actionable (as rather nonspecific opinions, they arent) it would be forced to defend a lawsuit on the merits.

It simply makes no sense at all. Even if you (very wrongly) believe that Section 230 requires platforms to host all content without picking and choosing, that is entirely unrelated to a platforms right to use its own speech to criticize or distance itself from certain content. And thats all Facebook did. It didnt remove or restrict access to content; Facebook simply added its own additional speech. If theres a more explicit admission that the real goal is to curtail platforms own expression, its difficult to think of.

Punishing speakers for their expression is, of course, anathema to the First Amendment. Inhalting enforcement of Floridas new social media law, U.S. District Judge Robert Hinkle noted that Florida would prohibit platforms from appending their own speech to users posts, compounding the statutes constitutional infirmities. Conditioning Section 230 immunity on a platforms forfeiture of its completely separate First Amendment right to useits own voicewould fare no better.

Suppose Democrats introduced a bill that conditioned the immunity provided to the firearms industry by thePLCAAon industry members refraining from speaking out out or lobbying against gun control legislation. Inevitably, and without a hint of irony,manyof thepeopleurging fundamentally the same thing for social media platforms would find newfound outrage at the brazen attack on First Amendment rights.

At the end of the day, despite all their protestations, what people like Berenson want is not freedom of speech. Quite the opposite. They want to dragoon private websites into service as their free publishing house and silence any criticism by those websites with the threat of financial ruin. Its hard to think of anythinglessfree speech-y, or intellectually honest, than that.

Ari Cohn is Free Speech Counsel at TechFreedom

Section 230 Continues To Not Mean Whatever You Want It To

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Section 230 Continues To Not Mean Whatever You Want It To - Above the Law