Social Media Faces the Supreme Court

 

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.

What is Section 230 and Why Should We Care?

Sometimes obscure legal matters turn out to play key roles in huge areas of life.  A case in point is a law I had not given any thought to recently:  Section 230 of the Communications Decency Act of 1996.  As it has been under attack lately from various quarters, it might be worth while to examine what it says and explore its ramifications for how the Internet is used, as the law also has defenders such as Charles C. W. Cooke of National Review, whose recent article about Section 230 brought my attention to it.

The law has to do with who should be sued for libel if someone gets libeled.  Not being a lawyer, I am no expert on libel, but my man-on-the-street understanding is that in the U. S., if someone knowingly and maliciously says something about you that is demonstrably false, you can sue them for libel.  If it's just a guy standing on a street corner shouting insults about you, identifying the party to sue is pretty simple.  But what if the alleged libel was carried by some sort of medium of communication?  Then it depends.

Let's take two extremes and then see how the Internet falls in between. 

Back in the glory days of newspapers, say the 1930s, the newspaper's publisher was responsible for pretty much anything that was said on the editorial pages of the paper.  That's because the editors (who worked for the publisher) actively selected and sometimes wrote the editorial material themselves.  So it's only reasonable to allow people who feel they've been libeled by a paper to sue that paper, because the paper was the effective speaker or publisher of the libel.

Now go to the other extreme:  the telephone system of the 1930s.  All that Ma Bell promised to do was to let two people talk with each other.  What they said was none of her concern.  If Mr. A called up Mr. B and said something libelous about Mr. C, no one in their right mind would think it was appropriate for the libeled Mr. C to sue Ma Bell for libel.  Mr. A was the person committing the libel, and the telephone company was a completely passive participant, simply serving as a messenger and having no part in or responsibility for the libel itself.

And then in the 1990s along came the Internet, and some clever inventors had the bright idea of "hosting" third-party content on websites, and letting users put up their own material.  But in certain lawsuits that arose around then, the courts couldn't make up their minds whether an internet service provider was more like a newspaper publisher—who could indeed be sued for libelous content in his paper—or like a telephone company, simply passively conveying messages for which the company bore no responsibility.  Congress decided, and President Bill Clinton signed, the Communications Decency Act of 1996, whose Section 230 contains these fateful words: 

"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."

So to use a germane example, when President Trump tweets something about, well, anything, it's not Twitter that is at fault if someone thinks the President is libeling him or her.  It's the President's sole responsibility, and so on all the way down to the lowliest user of the Internet, whoever that might be at the moment (yours truly excepted, I hope). 

There are exceptions, of course, for heinous stuff such as sex-trafficking and so on.  You can still go after Internet companies who harbor such things.  But as Charles C. W. Cooke points out, the immunity from libel lawsuits applies even if the service provider moderates or otherwise curates the content.  So if Twitter begins to run a spell-checker over President Trump's tweets and corrects his spelling, that still doesn't make Twitter the publisher of that content, as far as Section 230 is concerned.

Some people don't like the way that the large media companies selectively edit or suppress certain sites and types of speech, and Cooke cites Sen. Josh Hawley as wanting to repeal Section 230 altogether in something that would look a lot like revenge.  Repeal would mean that if some crank on Facebook called your mother an indecent word, for example, you could sue not only the guy who posted the insult but Facebook as well.

One thing we can be sure of:  if Section 230 was repealed, with the prospect of all that Internet-generated wealth in the offing we'd have huge flocks of lawyers descending on Google, Facebook, Twitter and company like buzzards after a dead deer.  While it might not kill the free-speech aspect of the Internet altogether, it would certainly cripple it severely.  The world needs a lot of things right now, but more lawyers filing more lawsuits is probably not one of them.

Are things just hunky-dory with regard to libelous and otherwise harmful internet content?  By no means.  Michael Cook, who edits MercatorNet.org (which carries this blog from time to time) recently drew my attention to one of the worst abuses of the sophisticated digital trickery known as deepfakes:  the practice of merging the faces of well-known people, or even unsuspecting female victims whose pictures are harvestable from the Internet, onto pornographic images that are then sold to whoever wants them.  Currently, the only recourse such victims have is to try to sue the parties responsible, but even finding them can be a difficult challenge and most people simply don't have the resources to do so.  In my opinion, pornographic deepfakery should be a criminal offense, like rape, as it is essentially a virtual digital version of that crime. 

As we mentioned, Section 230 doesn't prevent lawsuits that go after the originators of such content as pornographic deepfakes, so repealing it wouldn't help in that situation.  Overall, history seems to show that Section 230 has done more good than harm, and repealing or seriously modifying it would have effects that nearly everyone might regret later—except maybe lawyers. 

Sources:  Charles C. W. Cooke's article "Why We Need Section 230" appeared on National Review's website at https://www.nationalreview.com/magazine/2020/06/22/why-we-need-section-230/.  I also referred to the Wikipedia article on Section 230 of the Communications Decency Act. 

The Indecent Communications Decency Act

In George Orwell's dystopian novel 1984, the Ministry of Peace fights wars and the Ministry of Truth tells lies.  In the United States, internet service providers are currently immune from prosecution for sex trafficking carried out by third parties who use their services.  Why?  Because of the Communications Decency Act of 1996, or CDA.

To be fair to the drafters of the original legislation, they really did intend to clean up the Internet, which was a very different place in 1996 than it is today.  Congress passed and President Clinton signed the CDA with the intention of making obscene or indecent web content illegal.  But the following year, the U. S. Supreme Court agreed with the American Civil Liberties Union that the indecency restrictions violated the principle of free speech, and voided them.  But the court let stand a part of the law called Section 230.

Section 230 is a classic case of unintended consequences.  What it does is to make internet service providers (ISPs and other analogous enterprises such as Google and Facebook, neither of which existed in 1997) immune from liability when they carry material provided by third parties, such as for example sex traffickers.  The motivation for this section can be understood if we compare the Internet to an older form of communication, namely the newspaper.

Any newspaper that carries real estate ads must make sure that the ads do not discriminate in ways that restrict federal law that grants equal rights to housing.  Just to cite an egregious example, a person can't run an ad offering a house for rent to whites only, or to Sikhs only.  This is because newspaper organizations are legally the publishers of their content, and can be held liable for whatever they decide in their editorial wisdom to publish.

Without Section 230, ISPs would be treated like publishers of their content, whether they themselves originated it or whether it came from third parties.  Back in 1996, legislators worried that if the ISPs were liable for the third-party content on their sites, they would be reluctant to restrict it in accordance with the rest of the CDA because this action would make them look like publishers.  So, in its wisdom Congress granted legal immunity from liability to the ISPs, intending that this would free the ISPs to prohibit certain types of material without worrying about being sued for the material they didn't prohibit. 

If that sounds like tortuous reasoning, it is.  As the Internet grew more commercialized and sex traffickers in particular found what a boon it was to their business, concern mounted that Section 230 was providing a loophole for exactly the kinds of activity that the CDA was designed to prevent.  In 2013, for example, the attorneys general of 47 states wrote to Congress asking that the civil and criminal immunities provided by Section 230 be removed.  And just last month, a bill to do that was passed by the U. S. House, although it now awaits action in the Senate.

In the meantime, websites such as Backpage.com use the Internet to provide human beings for sale.  One study by the National Center for Missing and Exploited Children found that 73% of all child sex trafficking cases that they dealt with involved this website.  Because of the CDA, the high-level operators of these types of exploitative sites continue to do their evil work while making sure that the only people who get caught are usually the victims:  the women and children trapped in sex trafficking operations. 

You would think that Google, with its corporate motto of "Don't do evil," would be on the side of those who wish to amend Section 230 to allow prosecution of illegal and heinous activities such as sex trafficking.  But you would be wrong in this case.  Last August, members of Congress received an email from Google's public policy counsel with the headline "CDA 230 Issue," and asked them not to support changes to Section 230, which the email termed "one of the foundational statutes for the Internet." 

If we follow the money, it is clear that a good fraction of all advertising revenues gleaned from the Internet involve sex in one way or another.  Probably that iceberg is too big to tackle all at once, but its visible tip, one of the most horrendous aspects of it, is the exploitation of homeless and stray children by the sex industry.  There are not a lot of moral issues on which most people agree anymore, but certainly one of them is the fact that enticing a 12-year-old girl into prostitution is about as wrong as you can get.  And the Internet is now the preferred way of advertising for this kind of thing.  And Section 230 makes it very hard or impossible to prosecute the kingpins of sex trafficking on the web.

In this blog I generally try to avoid political advocacy, because it's a guaranteed way to turn off approximately half my audience, at least.  But I'm making an exception in this case.  The National Center on Sexual Exploitation operates a number of programs focused on ending various kinds of sexual wrongdoing.  At their website endsexualexploitation.org they have legislative updates about the progress of H. R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act, and S. 1693, the Stop Enabling Sex Traffickers Act, both of which bills would amend Section 230 to allow state and local prosecution of those who use the Internet to advertise their sex-trafficking activities.  If you want to do something about this problem, email your senator soon.  And just to let you know that I don't give advice I wouldn't take, I just emailed my two senators about this myself. 

Sources:  The Drew Mariani Show on Relevant Radio, a Catholic radio network, carried an interview with a representative of the National Center on Sexual Exploitation on Feb. 27, which is how I learned about this issue.  The Center's website at https://endsexualexploitation.org/cda/ has background information on the CDA and details of legislation to change it.  I also referred to Wikipedia articles on the Communications Decency Act and its Section 230.  The text of the email from a Google lobbyist can be found at http://endsexualexploitation.org/wp-content/uploads/Google-Lobbyist-Writing-Congressional-Staffers.pdf.