I’m something of a free speech purist. I think that the ability to speak is important. That it doesn’t matter if the speech is factually correct, morally or ethically repugnant, childish or otherwise lame, it’s important to be able to speak, it’s important to be able to rebut bad ideas, that eventually good ideas tend to rise to the top, and bad ideas get ditched. It doesn’t have a 100% track record, but on a long enough scale, it’s pretty damn good.
“Free Speech” is one of the most poorly understood ideas in modern discourse. It’s not simple, it’s constantly confused with America’s First Amendment, It’s misrepresented for a myriad of reasons ranging from purposeful partisanship to a fundamental lack of understanding, and it’s a principle, which means that it can mean different things to different people, and people’s opinions on how it should be applied will be on a spectrum.
Why Are We Talking About This?
Mostly because Justice Thomas recently filed a concurring opinion on Trump v. Knight First Amendment Institute that considered how technology and speech rights interact. Because 2021 politics are what they are, people who like what the Big Tech Companies are doing are, unsurprisingly, misrepresenting what Thomas wrote.
What is Section 230?
Generally, The ultimate culmination of the absurdity of a body of legislators that don’t really understand the internet attempting to create legislation that regulates the internet.
Specifically, Section 230 is part of the 1996 Communications Decency Act, and the part we’re generally talking about is Section 230(c)2. from Wikipedia:
The statute in Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the removal or moderation of third-party material they deem obscene or offensive, even of constitutionally protected speech, as long as it is done in good faith.
Section 230 was developed in response to a pair of lawsuits against Internet service providers (ISPs) in the early 1990s that had different interpretations of whether the service providers should be treated as publishers or distributors of content created by its users. After passage of the Telecommunications Act, the CDA was challenged in courts and ruled by the Supreme Court in Reno v. American Civil Liberties Union (1997) to be unconstitutional, though Section 230 was determined to be severable from the rest of the legislation and remained in place.
Basically, it offers protections to ISPs and domains that host content they did not create themselves. If, as an example, someone posted a video containing something slanderous, the slanderee couldn’t sue the site that the video was posted on, they’d have to go after the slanderer. That’s critically necessary for platforms like YouTube, Facebook or Twitter, because almost all the content of their websites is user-generated. Without the protections of section 230, their platforms would almost certainly collapse under the weight of litigation. Because of that, while the exact text of section 230 doesn’t exist in other countries, the protections generally exist.
Why is that Objectionable?
Really…. It isn’t. The argument is that free speech is necessary for a functioning society, and when you have large corporations controlling the public dialogue by banning the dissemination of certain information, free speech becomes much harder, and because of that, something ought to be done to rein in Big Tech’s control of the narrative, and one thing that might be effective is leveraging some of the language in Section 230 to that effect.
Meaning…. What?
Specifically, some lawmakers are suggesting that in order to have Section 230 protections, platforms have to be politically neutral. Honestly… I don’t see the case for that and I can’t figure out what language they’d be using to make that case, specifically. If you know, dear reader, let me know. More generally, they might be able to make a case that the protections were meant for content that platforms didn’t control, and the more curated the platform is, the more responsible for it you are.
How is that going to Play Out?
No. Effing. Clue.
In the wake of the 2016 Presidential Election, much scrutiny was placed on James Comey and the FBI for announcing to the world that they found what might have been classified information on Anthony Weiner’s laptop to the world, which was almost certainly a factor in her surprise loss to Donald Trump (I was surprised, anyway). I think it’s important to say “factor”, because really… If HRC hadn’t set up her own personal Email server to foil FOIA, we wouldn’t have spent two years talking about it, and none of that chatter helped.
Coming up to the 2020 election, stories were breaking about Hunter Biden’s laptop. With the benefit of 20/20 hindsight and some recent developments, I think it’s fair to say that the laptop was really Hunter’s, it was not stolen, the pictures on it were legitimate, and the messages/emails beg some pretty big questions about Hunter acting as Joe Biden’s bagman to pick up bundles of cash around the world. This, at the time, was probably making Democrats nervous and giving them Weinergate flashbacks, the election was really tight, and who knows what would happen if that story was allowed to spin?
We’ll never know though, because it was suppressed. Twitter deleted the tweets, banned the publisher, and cited their “hacked materials policy”, which was…. Amazing…. Because no one was actually even suggesting the materials were hacked. Despite the newsworthiness of both the laptop and Twitter’s actions, media were loathe to report on it at all, and when they did, it was in the context of “Russian Disinformation”.
Let’s be real…. That’s not good.
What do we Do?
I don’t think it’s a good idea to leverage Section 230. Attempting to game the system to force an outcome would be messy, it would be exactly the kind of rules lawyering I loathe in politics, and it would have unintended consequences.
What Else is There?
Well, I have a couple of ideas.
First, Justice Thomas wrote in his opinion:
The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google's algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.
To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.
This is self evidently true, and maybe this is more of an anti-trust or monopoly problem. If something can be done to lower barriers for entry to the markets, or if these corporations were broken up a little, perhaps we’d have a more diverse landscape. It pays to remember that despite the obvious right-wing bent to Fox, it’s owned by a left-of-center family. But a left-of-center family that really like money, and there is a market for right of center content. If the entire world must be split on partisan lines like it seems hellbent on doing, perhaps giving the right a space of their own is necessary.
Second, it might be interesting to treat platforms as utilities.
Somewhere out there, there’s an actual, honest to god, walking abortion that believes some genuinely harmful shit. That person still gets to walk into MTS and get a phone. They can use that phone to say all kinds of egregious garbage, and there’s not a damn you can do about it. That’s not a suicide pact, if they call you on their phone, what they say might be illegal, it might be harassment, there might be consequences. But if two Nazis want to Seig Heil at each other until they shrivel up and die, let them.
Twitter, Facebook, and YouTube, despite being public, all have block buttons. Nothing forces your attention on any person or topic. If the Platform’s algorithm sends you something you don’t want to see… Don’t click it. You have that ability, you have that agency.
The Platform-As-Utilities model has it’s own First Amendment ramifications, because the government would be compelling these platforms to host speech they might not like, but rights aren’t a suicide pact, and if the speech of fully half of America is abridged because a couple dozen people in offices control the platforms that are used to speak, that hits me as a bigger issue, and sometimes the solutions for problems aren’t perfect.
It’s Friday, I’m about to go play poker and drink beer. I know I should have about 100 citations more than I do. I’ll Hook some of that up over the weekend, if you’re really interested: JFGI. (Edited: Now with 73.4% more citations…. But I’m not exactly a credited journalismer. If you think something else should be cited, let me know, and I’ll try to hook up a link.)