Online Free Speech

BLOCKED!

As high-profile social media suspensions hit the headlines, we ask: What counts as “censorship” on our online platforms?

Communications Decency Act of 1996, Section 230

• The federal law protects – in *most* circumstances – online platforms (*regardless* of their size) from legal liability for user-posted content *and* allows them to regulate that content.
• It predates the social media sites that are now a part of our everyday lives.
• There’s bipartisan support for reviewing and/or updating it, but little agreement on how to do that.

BACKGROUND

• The law was passed when the internet (as we know it today) was in its infancy.
• It was authored by a Republican and a Democrat in response to courts issuing opposite rulings in defamation suits against online companies.
• The goal was to fuel the “technological revolution” with limited gov’t intrusion and protect private online companies that “screen indecency and offensive material for their customers.”

THE SHIELD

• Under Sec. 230, online platforms that allow users to post content aren’t considered “publishers” of that content when it comes to *civil* liability.
• “Publishers” (like print and TV media companies) don’t get those protections.
• EX: If a user posts something defamatory about you on Facebook, you can sue the user, but not Facebook. If they say the same defamatory words on CNN, you could also sue CNN.

THE SWORD

• Under 230, online platforms moderate user content mostly as they see fit.
• It allows them to take “good faith” actions to restrict access to content they deem obscene, excessively violent, or “otherwise objectionable, whether or not such material is constitutionally protected.“
• REMEMBER: The First Amendment protects us from censorship by the government – not private companies.

What It Looks Like

• Online platforms set their own rules to which users agree when they sign up.
• What a platform deems harmful often extends beyond racist language or offensive images, and may also include prohibitions against posting false or misleading information.
• Ex: Twitter suspends a user who it says posts misleading info about COVID-19. The user has no legal basis to sue b/c they agreed to abide by Twitter’s rules.

Former Pres. Trump called on Congress to repeal Section 230 and even signed an executive order aimed at minimizing its reach. Speaking last year, President Biden also called for Section 230 protections to be revoked for social media sites, such as Facebook, but he’s yet to present any formal plan since taking office last week.