Shielding Big Tech
Terry H. Schwadron
Feb. 21, 2023
We’re going to be hearing a lot again about just how far government will go — or not — to shield social media companies from litigation.
Cases are coming up for argument before the Supreme Court today and tomorrow that will involve the question of whether to wipe away “Section 230” of the 1996 Communications Decency Act to make the big social media companies responsible for what they publish as posts.
The issue has become a hot potato between the tech companies and Congress. Tech companies see their digital rights at issue and huge business headaches ahead over expected lawsuits from all sides. Tech companies argue that they should not have to face lawsuits alleging they gave knowing, substantial assistance to terrorist acts, for example, by hosting or algorithmically recommending terrorist content. They don’t want responsibility for posts picked up from other social media. They want to continue encouraging posts and counter-posts through machine-generated algorithms based on usage, not legally defensible decisions.
Members of Congress are in uproar over an array of reactions — either to posts seen as spreading misinformation about elections, covid, abortion and other public issues or over conservative voices being shut down in the name of company-determined rules about perceived falsehoods.
Curiously, Democrats and Republicans seem aligned on the idea that the current shield needs to be eliminated, but so far have not agreed on how to do so. As in so many other public issues, that failure of Congress to set a bipartisan conclusion to feuding parties is landing the issue before the nine Supreme Court justices.
Other courts of appeal have ruled on these matters in contradictory ways, requiring resolution through appeal to the top court.
The two cases differ in other respects, but share the arguments about Section 230, which will be offered in oral arguments. A central issue is liability altogether. No decision is expected immediately.
Change for the Internet?
With more such cases at lower courts ready to build on whatever conclusions are reached in this pair, the Section 230 issue has the potential to change use of the internet substantially. Since so many people now say these sites are how they consume news and views, the rules that govern access to posts take on wider importance.
It’s not the neighbor-to-neighbor information about food, children and pets that dominate the debate, but recommendations for protest, social anger and mobilization for elections or vaccine revolts based on sketchy science.
Rulings that lessen the Section 230 protections could expose social media to lawsuits or even prosecutions — or could extend the companies’ legal responsibilities to civil actions in which a post could be seen as evidence.
Social media companies might face what journalistic businesses face with libel laws and be forced to set up much more elaborate content reviews with more understandable rules and standards. Those standards themselves, as we have seen, continue to set off huge political debates over what is seen as misinformation or disinformation and what is seen as free speech.
Billionaire Elon Musk decided to buy Twitter entirely, he said, to ensure a kind of free speech that is returning Donald Trump to its postings after having found him in such violation of company standards that he was banned from the privately owned platform.
Congress have expressed renewed enthusiasm for rolling back the law’s protections involving websites, for example. Joe Biden has agreed in a recent op-ed.
But generally, Congress does not agree about what would replace Section 230.
Why the Law?
In 1996, at the beginning for the World Wide Web, Congress determined that the government should nurture startups and recognize that lawsuits over content could choke development of the internet. Sen. Ron Wyden (D-Ore) defended the decision by noting that without protections, lawsuits would kill out any users but “the powerful.”
As CNN explains, under Section 230, websites enjoy immunity for moderating content in the ways they see fit — not according to others’ preferences — although the government can still sue platforms for violating criminal or intellectual property laws. Social media do not need to be politically or ideologically neutral to qualify for the shield from litigation.
Basically, the law says the social media companies and their users cannot be treated legally as the publishers or speakers of other people’s content. If you have a problem with what someone says, they said you need to go to the poster.
That power to publish anything has grown so substantially that challengers argue that it is out of balance. Conservatives who say that the law lets social media platforms suppress right-leaning views for political reasons, while left-leaning types see a vast growth in conspiratorial posts without regard to truth and want them stopped. The tech companies think they are a utility like the phone company, which does not take responsibility for the content of the calls it carries.
“The result is a bipartisan hatred for Section 230, even if the two parties cannot agree on why Section 230 is flawed or what policies might appropriately take it’s place,” CNN reported.
Actually, the hatred is for the posting abuses that require that we talk about it at all.
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