Breaking Facebook and Twitter’s Legal Immunity from Toxic Content

On May 28, 2020 President Trump signed an executive order to break the immunity shield behind Section 230 of the Communications Decency Act (CDA). Described as “the twenty-six words that created the internet,” Section 230 of the CDA protects social media giants such as Twitter and Facebook from liability for any content posted on their websites:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.

In a recent paper by Danielle Citron and Mary Frank, the authors describe the origins of the Section 230 and the misconceptions that complicate a potential change in the legislation. They argue that distortions such as assuming all internet activity is protected speech or thinking that more regulation will result in less speech are preventing policy reform. In the end, they recommend changing language of Section 230 (e.g., “speech” instead of “information”) and regulating the filtering mechanisms as ways to renovate the legislation.

Section 230 was created to incentivize private companies to protect internet users from illegal and offensive material. In the lead-up to the CDA, as part of the Telecommunications Act of 1996, Congress realized federal agencies could not monitor all internet content and that the legislation would have to rely on “Good Samaritans” of the private sector to act as their own censors. Hence, the CDA included an amendment called “Protection for Private Blocking and Screening of Offensive Material” and Section 230 was born.

By releasing companies from liability for content posted by users, the amendment provides figurative immunity to internet companies that do their best to filter objectionable content. The hall pass doesn’t apply to violations of federal criminal law, intellectual property law, or the facilitation of sex trafficking. It does, however, apply to content such as President Trump’s tweets, which include posts such as “when the looting starts, the shooting starts,” his response to looting in the aftermath of George Floyd’s murder by Minneapolis police. This violated Twitter’s own policies against glorifying violence and the social media platform responded by adding a content warning to the tweet before allowing it to be viewable. In this case, Twitter doesn’t face any legal liability for moderating Trump’s tweet based on Section 230. If it does its best to filter content, then it has a legal shield.

The authors show that despite the existence of the rule, internet users still suffer from damaging content. A 2017 study from the Pew Research Center finds that at least one in five people who uses the internet has been the victim of hurtful comments, or worse, inflammatory pictures or videos posted without their consent. Minorities, such as Latinos, African Americans, and the LGBTQ community, historically have suffered the most from these attacks.

Section 230 is complicated due to the many misconceptions within it: is the debate about freedom of speech or is it about who does the censoring? Technology has historically been a hard issue to regulate because of the technical knowledge required to grasp it. As seen during Mark Zuckerberg’s Senate hearing questions: If Facebook is free, how do you make money?

Citron and Franks call for Section 230’s reform to further incentivize internet companies to protect users from harmful content. Addressing concerns that this would impede free speech, the authors argue that the First Amendment’s freedom of speech requirement only applies to government actors, not to private ones. Many believe that to keep immunity, internet companies must be “neutral public forums.” In fact, Section 230 does not require this—in Section 230(b)(4) it urges companies to develop blocking and filtering technology.

Citron and Franks offer three solutions to ensure Section 230 protects both internet users and freedom of speech.

The first solution would be to replace the word “information” in Section 230 with the word “speech.” That is:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any speech provided by another information content provider.

This is important because as it stands now, Section 230 assumes everything on the internet is speech, including buying, selling, dating, job hunting, and more. With this fix, platforms would have to distinguish speech from conduct. If a platform cannot prove that what users are posting is speech, then it should not be protected by Section 230’s immunity shield.

The second solution is to exclude “bad Samaritans,” which University of Chicago Law Professor Geoffrey Stone defines as platforms that “deliberately leave up unambiguously unlawful content that clearly creates serious harm to others.” This change would preserve the immunity of platforms that do their best to control unlawful content while holding accountable companies that take advantage of the law.

The final solution is to provide the legal shield to platforms based on “good enough” content moderation. This requires first defining what “good enough” is. Prosecutors would then need to examine how platforms filter information, requiring technical expertise and time. This solution, however, wouldn’t provide enough coverage for most cases.

While Section 230 is hailed as the bedrock of the internet, it has had its fair share of controversy and misconceptions. According to Citrons and Frank, reforming Section 230 is “long overdue.” While Congress has sought to provide incentives for companies to moderate content, it has not done enough. The authors argue that Section 230 should be amended to condition the immunity on reasonable moderation rather than the free pass that exists today.

---

Citron, Danielle Keats and Mary Anne Franks. 2020. “The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform.” University of Chicago Legal Forum, Forthcoming. https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=1833&context=faculty_scholarship.