For 25 years, one of the greatest protections of free speech survived within a law largely created to limit free speech on the Internet. Three years after the Internet became public, the Communications Decency Act of 1996 was passed to prevent certain indecent distributions of material on the Internet. Section 230 was a 26-word provision within this niche law that stated Internet Service Providers enjoyed immunity from what their users published with the only exceptions being sex trafficking, copyright, child sex abuse, and terrorism related activities. These providers, however, are free to set their own standards of editorial judgement and remove anything they feel offensive or irrelevant to their site’s purpose. While other portions of the CDA have been struck down, Section 230 remains and has been referred to as “The Twenty-Six Words that Created the Internet” (Kosseff 2019). Now, this provision is under attack by both major American political parties, though for different reasons. The possible benefits from reform are far overshadowed by the potential damage to the free speech rights enjoyed by members of the public, and by extension the entire US democracy.
Some may underestimate the importance of Section 230. The clear boundary created by the Section gives the providers incentive to only focus on moderating severe federal crimes. However, this provision also protects the 1ST Amendment rights of the consumers as their providers have no legal incentive to censor much else they say. By leaving this up to the discretion of the providers themselves and what they may find irrelevant or offensive enough to get involved, widespread innovation of the Internet has been allowed to flourish. If this provision is stricken, providers suddenly become responsible for every little post from millions of citizens on their sites. This incentivizes large-scale intervention and censorship. There are two problems with this. First, the algorithms and manpower required to comb through vast amounts of data would be expensive and subject to mistakes, which would lead to sweeping generalizations for the sake of time and money. Large established institutions would survive such requirements, but this would place an undue burden on new or smaller providers by increasing the barrier to entry, thus promoting illegal anti-competition practices and undermining our free market as a democracy. Secondly, the new and highly censored Internet would be a mere shadow of the bastion for free speech rights it once was.
If this is the case, why do both major political parties still strive to reform this provision?
Well, Republican politicians (most notably former President Donald Trump) feel that the provision protects social media sites that unfairly censor them based off mere political views. Whether or not you agree with Donald Trump’s removal from Twitter, Facebook, or YouTube following the events of January 6th, this does create an alarming dilemma. Should social media sites have the power to silence a sitting President? Does this silencing of a political actor’s free speech lie within the corporation’s own rights of free speech? In Citizens United v. Federal Election Commission, the Supreme Court affirmed corporate personhood and established that First Amendment protections do apply to corporations. Even if political discrimination by corporate actors on their websites is legal by precedent, maybe this should be reconsidered given the substantial influence Internet service provider’s hold over mass communications, news, and political debate. The Internet has grown far larger than the lawmakers who drafted Section 230 possibly could have dreamed of. It is due to these concerns that Republicans are pushing to repeal Section 230 and replace it with legislation further guaranteeing freedom of speech on social media sites.
The Democrats, on the other hand, wish to expand the areas in which providers are expected to moderate speech, specifically as it pertains to hate speech and misinformation. In addition to the potential anti-competition ramifications if not handled carefully, this expansion of government outreach not only limits the free speech rights of providers but also of their consumers. The goal is safety, yes, and much of what they strive to censor is indeed unpleasant material, but this would constitute a massive undertaking of censorship the likes of which this country has never seen.
As usual, the Democrats and Republicans have two entirely different remedies to two entirely different perceptions of the issue at hand. Therefore, I feel that a reform of Section 230 would endanger the democratic balance. Even discussions alone have led to increasingly polarized arguments. Polarization is widely accepted as a precursor/cause of democratic erosion as it decreases trust in the legitimacy and effectiveness of the opposition party, and further the democratic institutions in place themselves. If either reform proposition was passed, this would simply escalate the situation.
If a more laissez-faire approach to speech on social media sites is adopted, Internet users will have free reign over a wide array of hate speech, violent organizations, and potentially endangers many citizens of the United States both emotionally and physically. Social media sites could even be used for voter oppression, intimidation, and other tactics that could threaten the integrity of America’s elections. On the other hand, if a more substantial law is levelled at Internet providers to curb and censor all offensive/inciteful speech, this gives the government extreme power to censor citizens and businesses. Though the initial intentions may be pure, once this censorship is put into practice the government always has an avenue to prevent the essential right to express oneself politically. The law may be democratically passed but could later be corrupted through stealth authoritarianism and used to stifle lively citizen participation that is essential to American democracy. One needs look no further than the increased censorship in Myanmar, Belarus, and China and the negative relationship it had with their freedom score in the Freedom House Index. A large reason censorship is so successful in undermining democratic values is because it removes a tool the citizens have to hold their politicians accountable. According to political experts Lust and Waldner, accountability is one of the three core ideals of democracy; once this safeguard against corruption is removed, any democracy will experience significant backsliding.
My solution to solve the problem whilst not endangering any democratic ideals is to reorganize the Federal Communications Commission. Congress should pass a law giving them jurisdiction over the Internet, which is not an untested method or far stretch given that they already monitor national and international TV, radio, satellite, cable, and wire communications. Their power to fine individuals over obscenities should be extended to fining those who incite violence, purposefully spread misinformation, and other troublesome communications on the Internet. This increased cost should deter many individuals from participating in these actions, while also gathering funds for my next proposition. Grants should be given to up-and-coming internet providers of various backgrounds and political leanings to establish a diverse free speech market. This way, each corporate actor is still able to adhere to their own guidelines, thus mitigating the gatekeeping of ideas and potential for hypocrisy seen when very few Internet providers are making all the rules.
First of all, I just want to start by saying, I really admire how this article successfully captures the feelings and concerns of both sides of the political aisle without glorifying one over the other. I think that is really uncommon in today’s media, especially in regard to internal politics. So, I admire that.
Secondly, I genuinely have an extremely hard time wrapping my head around how anyone could believe there needs to be more censoring in America. I personally believe that there is an immense attack on free speech going on in America. Personally, it has made me very quiet or excessively careful with my words when regarding anything political because saying one thing slightly wrong can be seen as me being intolerant, when I personally believe I am fairly centric on most issues, or at least able to see the other side with a decent level of understanding. But in our current sphere, the center has gotten moved. So, now things that used to be middle ground can make me appear intolerant, simply because I ask questions.
The reason I am focusing on this so much, is because I have seen such excessive censoring not only of the moderate right, but of centrists who are only asking mere questions to make people genuinely think about whether or not the information they are taking in is true. An example of this is when a creator I follow, the man who runs the Instagram account 1924us was recently demonetized for “spreading anti-vaccine rhetoric and misinformation” which was entirely ironic because he has in no way spoke of the vaccine. He is actually pro-vaccine. Rather, he presented questions that needed to be asked in order for people to really consider why they believe what they believe (never making known his own stance) and for that, he was demonetized.
The fact that having uncommon opinions or asking deep questions has become something that is so terrifying to the social media powers that be that it is seen as being worth censoring or demonetizing is unnerving. I can’t imagine what would happen to our democracy were there to be more laws protecting this excessive censorship.
Hi Frances, nice post. While I certainly don’t agree with everything you propose, I do think you raise plenty of good points and are reasonably worried about how repealing section 230 could potentially impact free speech. That being said, I have to disagree with your conclusion on section 230. The reality of the situation is that in the present day the internet is critical infrastructure, and massive social media platforms like Facebook and Twitter are a major part of that infrastructure. Given this, I think it is reasonable to hold these platforms to the same level of scrutiny and regulation as any other piece of critical infrastructure. If someone or some company is put in charge of the construction of a bridge, and that bridge collapses and kills people, someone is going to be held responsible. The same can not be said of holding the developers of internet infrastructure accountable for when their platforms directly contribute to violence and death (such as in Myanmar, Ethiopia, and even the U.S.), and section 230 is these platforms’ shield from such accountability.
I agree that maintaining free speech on the internet is a top priority, but I think this can be done while still repealing section 230. I do not think we have to choose between free speech and accountability for these social media giants.
I do agree that increased in-house moderation via algorithm or manual moderation is not a worthwhile approach, and your idea for the FEC I also find somewhat intriguing, but I think more needs to be done. I personally would like to see some regulation in how these websites are allowed to be designed in the first place. After-all, construction companies have to follow very specific guidelines in the building of roads and bridges, so why shouldn’t such design-centric regulations exist for online infrastructure?
Finally, I find the point about repealing section 230 potentially causing polarization to be quite weak, especially when it is well documented that many of these social media giants are some of the biggest and most significant sources of polarization around the globe. Sure, there may be a bit of a brief and temporary gain in polarization while deliberation occurs, but I think such a policy (if executed correctly) would clearly lead to less polarization in the long run.
Hi Frances, I’d first like to say that I thought you provided an incredibly robust perspective on this issue and raised some very critical questions regarding the future of the internet. While I do not agree with your opinion on Section 230, I definitely think you are onto something with regard to a reorganization/updating of the Federal Communications Commission.
From the surface, the regulation of Section 230 sounds like a scary attack on free speech and should raise concern about the state of democracy. But it is important to look beyond the title and focus on specific policy details. The logistics of regulatory proposals like The Justice Against Malicious Algorithms Act that you cited, limit the scope of accountability to the reckless or intentional use of algorithms (specifically those that use user data to create personalized content recommendations) to promote content that creates material harm. In order for accountability to be established, a correlation between the content an individual viewed on a platform, algorithmic promotion, and a material harm would need to be established. Based on this multi-factor authentication approach, it seems highly unlikely that these accountability measures will contribute to the widescale censorship and death of free media that you fear. Your fear about the application of these censorship laws to the entirety of the internet is also a tad misleading. This proposal and others like it limit its scope to platforms with over 5 million monthly users and makes exceptions for critical internet-infrastructure like cloud storage. These details would help avoid the anti-competition practices and free-market undermining that you were concerned about.
From what we’ve seen over the past 5 years, the US’s current hands-off digital regulatory approach is not working. The increase in polarization that you fear Section 230 regulation might exacerbate is a direct result of letting AI-driven technologies go widely unregulated for the past decade. Additionally, media coverage of Section 230 has turned this issue into another battle in the culture wars. Repealing Section 230 is about achieving algorithmic accountability, not censorship of political speech.
Rather than the reactionary approach of updating old laws to fit new problems, the US needs a department specifically focused on handling the next generation of digital problems. This department would be focused on digital governance and algorithmic regulation. On a global scale, European Union has found a way to get ahead of these problems. The EU’s digital strategy commission has spent years crafting regulatory frameworks for the development and implementation of AI, like social media algorithms. Their recent proposal looks to use regulatory policies as a way to establish trust and excellence in AI products, therefore allowing the digital market to grow in a safe and impactful way. It is this broad, forward-thinking approach to digital policy that the US must embody if it seeks to make substantive change in the digital space.