Section 230: The Law That Shields Social Media From Lawsuits

    In Brief:

  • Section 230 has been around since 1996 when the Communications Decency Act was passed.

  • Section 230 protects tech companies like Facebook and Twitter from legal liability, leading to an unfair balance of power.

  • Under Section 230, social media companies can choose what posts to promote and which to hide or even ban from their platforms altogether.

  • The problem is that this unilateral, monopolistic power granted by Section 230 contradicts citizens First Amendment rights to freedom of speech, expression, and press.

So What Are The Problems With Section 230?  

Section 230 of the Communications Decency Act, a 1996 federal law, was meant to encourage usage of the internet. It did so by waiving internet companies from defamation and tort liability.

In the United States, citizens are free to speak, but you are not free of responsibility for what you say. If your speech is defamatory you can be sued. If you are a publisher, you also can be sued. But online internet companies such as Facebook and Twitter can post almost any statement or data, with no legal accountability. Section 230 provides social media sites immunity from tort liability. Legal experts have lamented this loophole since Section 230’s inception.

Why Section 230 Unfairly Empowers Social Media Giants

Section 230 reshaped our world. Facebook, Twitter, and YouTube get to decide what users will see. They can widely circulate some posts and ads, and they can limit or even suppress others. And their users are surveilled, so ads and statements can be targeted. The law provides social media sweeping protections that let them choose what content and positions are seen, restricted, or eliminated.

When the law was enacted in 1996, the possibility that monopolies could emerge on the internet was not considered. But the fact is that social media have in fact become monopolies.

Section 230 offers Facebook, Twitter, Google/YouTube, and Apple – and their founders including Mark Zuckerberg and Jack Dorsey, incredible legally protected power. They alone get to decide the news – they get to decide what content and positions are seen, restricted, or eliminated.

The problem is that this unilateral, monopolistic power granted by Section 230 contradicts citizens First Amendment rights to freedom of speech, expression and press.

A recent article from the American Bar Association:

.”…When powerful private entities—particularly …news.. social networking sites such as Facebook, Twitter, …[and tech companies who control apps and sources of data such as Apple and Google], engage in censorship, individuals don’t get to participate in the marketplace of ideas and are not allowed the liberty to engage or participate— just like when a governmental entity such as a dictatorship engages in censorship. These powerful private [entities and individuals then possess unlimited power and] control, as much or more than governmental entities… and…private censorship can be as harmful as governmental censorship….

The Rancor Around Those Decisions Has Prompted Some Politicians To Call For A Repeal Of Section 230.

President Joe Biden argued in January 2020 that social media companies don’t deserve protection because they knowingly allow false information on their platforms. In an interview with The New York Times editorial board, Biden called for Section 230 to be “immediately” revoked. “It is propagating falsehoods they know to be false.”  For Zuckerberg and other platforms,” Biden said. Section 230 “should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false. It gets to control what users see and don’t see, without any potential recourse.

First Amendment rights to freedom of speech, expression and press – requires defense against censorship.

Some argue that although the censorship is improper, the First Amendment limits governmental actions, not private party actions. The fact is that there should be no validity to this argument defending social media censorship, as the social media companies would not exist were it not for Section 230. The social media companies could not defend themselves against massive tortuous claims resulting from public postings. The fact is that SOCIAL MEDIA WOULD NOT EXIST IF NOT FOR FEDERAL LAW SECTION 230.

A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that exist because of government protection, and have ushered in a revolution in terms of communication capabilities.