Eliminating social media’s legal protection would end Facebook and Twitter ‘as we know it,’ legal experts say
President Trump’s executive order aimed at revoking a law that protects Facebook and Twitter from being sued for what their users post recently gained the support of four Republican senators. But some legal experts say if the law is changed, social media would become unrecognizable.
The executive order, which Trump signed two weeks ago, calls for federal regulators to review whether part of the Communications Decency Act known as Section 230 should be revised or completely abolished. On Tuesday, Republican Sens. Marco Rubio, Kelly Loeffler, Kevin Cramer, and Josh Hawley backed the order and pushed federal regulators to act.
The law allows social media companies to provide a forum for users without being held liable for what they post. Experts and businesses often credit the protection, passed in 1996, as one of the major reasons behind the rise of the Internet economy.
But three legal experts say that removing those protections, and putting web services in legal jeopardy, would radically change how they operate. The companies would either have to vet user content before it’s posted or allow only non-controversial topics to be discussed—possibly obliterating their business models in the process.
“I can’t imagine how Facebook and Twitter can operate without Section 230,” said Ken Paulson, director of Free Speech Center at Middle Tennessee State University (MTSU). “You eliminate Section 230, and you eliminate social media as we know it.”
In recent years, both political parties have put social media companies under increased scrutiny. Republicans accuse the companies of unfairly censoring their posts while Democrats complain that the companies fail to do enough to block misinformation, violent content, and hate speech.
President Trump signed his executive order related to Section 230 shortly after Twitter flagged one of his tweets about mail-in ballots, saying it included misinformation. This marked a huge escalation in a long-simmering feud between Twitter and Trump.
Twitter declined to comment about the executive order. But a day after the order was signed, the company expanded its crackdown on Trump by obscuring another of his tweets for violating a policy that prohibits “glorifying violence.”
Facebook, which has taken a hands-off approach to political speech, chose to leave Trump’s comments untouched, upsetting many of the company’s employees. Nevertheless, in response to the executive order, the company said repealing Section 230 would harm people’s freedom of expression on its service.
“It will restrict more speech online, not less,” a Facebook spokesperson said in a statement. “By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone.”
Many experts think the executive order, in the end, is unlikely to prevail, because it will face major First Amendment challenges in court. Trump, they point out, issued the order explicitly in response to the policing of his own tweets.
But some experts worry that, if nothing else, it could prompt members of Congress to introduce separate bills that undermine Section 230’s protections.
U.S. Attorney General William Barr, for example, last year took aim at Section 230 and said that the Department of Justice was looking into whether companies had abused the protection. Then in March, he said that his department was considering proposing changes to the law that could result in an amendment.
But changing Section 230 would not only affect companies like Facebook and Twitter. It would also apply to any Internet company that publishes user content, including comments on news articles and reviews of products, restaurants, and hotels.
“You would have much less ability to post views, or controversial views on any entity,” said Floyd Abrams, a First Amendment lawyer who defended the New York Times in a landmark case in 1964 for publishing an ad that allegedly defamed an Alabama public safety commissioner. “It would be a major step, which would likely lead to less speech rather than more.”
Ashkhen Kazaryan, director of civil liberties at technology think tank TechFreedom, said social media has enabled activists to create movements like #MeToo, which fought against sexual harassment and abuse, and #BlackLivesMatter, which targets racial justice.
If social media companies were liable for what their users posted, they may not allow discussion of controversial topics or provide any opportunity for users to comment.
“If these platforms were not there to provide that reach, who knows if [the movements] ever would’ve had the same magnitude as they do,” Kazaryan said.
Abrams said that social media has given everyday people the ability to share ideas in ways that they never would be able to otherwise. That ability has been an important tool for improving society. “Social media is one of the most extraordinary democratic developments in history,” he said. “Even if social media entities could reinvent themselves, significant sections of the public would be denied the opportunity that exists now to speak out in a robust and uninhibited manner and be heard.”
While social media companies often rely on a mix of artificial intelligence and human reviewers to moderate what their users publish, they still struggle with policing their services because of the volume of posts. Paulson of MTSU said that without Section 230, it’s “inconceivable” that these companies would be able to review each post to avoid potential lawsuits. Additionally, careful reviews would require Facebook and Twitter to make even more decisions about what content is appropriate, causing more people to claim the companies were biased against certain views.
And even if the companies somehow manage to successfully police their posts, and remain profitable in the process, Paulson said users would likely think twice about using the services.
“Who in the world do you know who would prefer to lose their right to post freely on Facebook so that Facebook would be held more financially accountable?” he said. “It’s not a trade most consumers would make.”
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