In an insightful article in National Review, Dan McLaughlin lays out the spectrum of how discussion platforms, online video, search engines, and the whole social-media megillah are regulated by a 1994 law called Section 230 of the Communications Decency Act, and why the U. S. Supreme Court is probably going to weigh in soon on some apparently irreconcilable lower-court decisions. While at first glance this may seem to be an obscure matter for legal specialists, it has the potential to affect everything from childrens' mental health to the survival of democracy.
When the Act was passed in 1994, there was no Google, Facebook, or YouTube, and legislators felt that the infant web-based communications industry needed some special protections to keep it from being nipped in the bud by lawsuits. So they passed the two parts of Section 230 which now receive intense attention, because they do complementary things.
The first part protects providers of interactive computer services (e. g. Google, Facebook, etc.) from being treated as though they originated stuff that a third party came up with. This sharply distinguishes them from conventional print publishers, for example. National Review itself was the target of a costly lawsuit by climate scientist Michael Mann, who claimed the magazine and its writer Mark Steyn defamed him. If Steyn had instead posted his article as a blog in online-only form, it's possible that the magazine could have claimed Section 230 immunity.
The second part of Section 230 more or less exempts private companies operating interactive computer services from being liable for consequences of their own censorship actions. This almost makes it seem like the services can have their cake and eat it too. If someone objects to a third party's content on a company's site, the firm can claim they aren't publishers and they're protected under the first part of Section 230. But if the firm squashes a client organization's posts, as for example banning Donald Trump from Facebook after the Jan. 6, 2021 riots, the company can claim it can't be held liable because of its protection under the second part of Section 230.
In general, organizations such as Facebook have tried to steer a middle ground between the two extremes of letting absolutely anything show up (protected by the first part of Sec. 230) and being the Mrs. Grundy of the Internet (protected by the second part of Sec. 230). As there isn't much profit in censoring salacious material, the main abuses of censorship that have been most widely objected to concern political speech or postings on controversial topics such as abortion.
Compared to the pre-Internet days when anyone could print nearly anything they wanted, but distribution was a difficult and expensive proposition, the Internet has reduced the cost of distributing speech to nearly zero (or even negative numbers, if you consider monetizing). And a feature of social media which is not really addressed by Section 230 at all is the fact that in order to increase hits and thus advertising revenue, social media companies have developed sophisticated and exquisitely tuned algorithms to make using their platforms as habit-forming as possible.
As with other habit-forming enterprises such as alcohol and tobacco, users of social media form a spectrum. Some like me rarely deal with it, and others spend eight or ten hours a day on it. With the exception of Prohibition, now conceded by all hands to be a failure, society has chosen to deal with such habit-forming enterprises by restricting their use to adults and by taxation which is not prohibitive, but definitely inhibitory.
Most of the commerce in the form of advertising and data sales that goes on in social media avoids direct taxation, and although some voices have been raised in favor of restricting the use of social media to those over 18, it's hardly a groundswell of opinion. So for the time being, social media will continue on its merry way doing unknown but tremendous things to the democratic process and exerting incalculable powers to mold public opinion.
While it is probably a good thing that the Supreme Court will finally get to pass judgment on some issues regarding Section 230, the two extremes that the law regulates are more like guard rails than they are like lane markers. By the time someone is either kicked off a social-media platform or decides to sue one for something online, some pretty serious damage has been done, at least in the eyes of the person getting censored or suing. It's unlikely that the Court will turn the steering wheel violently toward one or the other guard rail. I don't think anybody wants to see a completely unrestricted social-media world, although the type of restrictions that are currently imposed have huge blind spots influenced by profits (I'm thinking especially of online porn). And it's just as obvious that we aren't likely to see companies clamping down on all sorts of questionable content, because it would cut into their revenues.
The problems caused by social media today are real. Teen suicides, the polarization of political speech and resultant paralysis of government functions, online bullying, and many other abuses cry out for some sort of solution, or at least a mollifying influence. Unfortunately, given the choices that the Court will face, its response will probably amount to tinkering with technical legal details, rather than making any wholesale revolutionary changes to Section 230 or how it is enforced.
In any event, the Court—or any court, for that matter—is not where we should look first for improvements in human behavior. As G. K. Chesterton responded to a question posed by a newspaper:
"The answer to the question, 'What is Wrong?' is, or should be, 'I am wrong.' Until a man can give that answer, his idealism is only a hobby. But this original sin belongs to all ages, and is the business of religion." (from The Daily News, Aug. 16, 1905)
Neither the Supreme Court nor Google nor Facebook can do anything about original sin. But they can make it easier for people to avoid sinning, and let's hope for some progress in that direction.
Sources: Dan McLaughlin's article "The Supreme Court Joins the Section 230 Fight—Halfway" appeared on the National Review website at https://www.nationalreview.com/corner/the-supreme-court-joins-the-section-230-fight-halfway/. I also referred to an article about the true origin of the Chesterton quote, which is often misquoted, at https://www.jordanmposs.com/blog/2019/2/27/whats-wrong-chesterton.
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