By Larry Magid
That expression, “one person’s junk is another person’s treasure” could certainly be applied to the internet. But when it comes to some controversial content, I’d go a step further to say “one person’s sewer is another person’s rose garden.” What some people consider to be legitimate political opinions, others call hate speech or disinformation.
Depending on where you sit, the internet, especially social media, is either awash with hate speech or is overly censored to protect against anything deemed ‘politically incorrect’ or, as some claim, offensive to the so-called liberal elite that run online services like Google and Facebook.
That law was the Communications Decency Act (CDA) of 1996, and the part being challenged by Trump and this pending bill is Section 230. There is a double irony here. The CDA was designed to ban material deemed “harmful to children” but was overturned by the Supreme Court mostly on first amendment grounds. Ironically, for a law intended to censor the internet, Section 230 protected companies from being forced to censor their users by declaring that ISPs are not publishers and not “legally responsible for what others say and do.” But there is another clause in CDA 230 that empowers online services (there was no social media at the time) to do what private companies have always done to keep their house in order by “protecting their right to any “action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
The other irony is that the law has been challenged from both sides. The House’s Fight Online Sex Trafficking Act (FOSTA), and the Senate bill, Stop Enabling Sex Traffickers Act (SESTA), signed into law by President Trump in 2018, requires services to police content having to do with possible sexual exploitation of children, including banning ads for consensual prostitution between adults on the theory that it could involve children. But a law proposed by the trio of Republican senators takes CDA 230 in the other direction, by requiring services not to censor what they might consider to be objectionable speech.
The new Online Freedom and Viewpoint Diversity Act from U.S. Senators Roger Wicker (R-Miss), Lindsey Graham, (R-S.C) and Marsha Blackburn, (R-Tenn) would “condition the content moderation liability shield on an objective reasonableness standard. In order to be protected from liability.” A company like Facebook or Twitter would only be allowed to restrict access to content on its platform where it has “an objectively reasonable belief” that the content falls within a certain, specified category.” Further, it would “remove ‘otherwise objectionable’ and replace it with concrete terms, including ‘promoting terrorism,’ content that is determined to be ‘unlawful,’ and content that promotes “self-harm.” The senator’s press release announcing the bill says nothing about hate speech, but even if you accept the wording of the bill as quoted, it could have justified decisions by social media companies to delete Trump posts advocating dangerous COVID-19 treatments as self-harm and his post “when the looting starts, the shooting starts,” as promoting terrorism.
The clause that the bill is challenging is the one designed by the creators of the Communications Decency Act to encourage services to police themselves, specifically, to remove a possible perceived need for government censorship. Frankly, I’m not sure such a clause was even necessary, because internet providers — unlike the government — are private companies and have always had the right to control the content on their service. And, by the way, the senator’s press release makes no mention of the word “harassing,” which is tantamount to the type of cyberbullying, which these platforms have allowed Trump to do, even though they could have removed it based on the wording in CDA 230 and their own terms of service.
In an interview, Santa Clara University Law professor Eric Goldman said the bill is “designed to protect people who produce awful but lawful content.” He said that the people who would be protected by this bill “dehumanize other individuals, call people cockroaches. It might be legal, but it’s terrible.” Of course, anyone who wants to post “lawful but awful” speech is free to set up their own website or find a venue willing to let them post it, but why should a private company like Facebook or Twitter be obligated to help them?
Trump and his allies are challenging this clause because they feel that it gives services like Facebook and Google the right to censor based on political speech. And ironically, one way that I know that is because I’ve seen posts from Trump and his allies on the very social media sites that they claim are not allowing them to speak. As should be obvious, conservatives, including President Trump and the three authors of this bill, are very active on social media, and, as far as I can tell, the only time posts have been removed is when they have violated stated terms of service. There is no shortage of conservative opinions on social media, including thousands of posts complaining about censorship of conservatives. New York Times columnist Kevin Roose maintains a Twitter list of the 10 top-performing link posts by U.S. Facebook pages every day, ranked by total interaction. When I checked on Wednesday, all 10 were conservatives led by Fox News, Donald J. Trump, Ben Shapiro, Dan Bongino and Blue Lives Matter. The “Blue” refers to police officers, not Democrats, who don’t seem to matter nearly as much as conservatives based on total engagement.
I understand the argument that social media services are different from other private entities because of their immense reach and power, and I do think it’s appropriate for lawmakers to consider ways to reign-in the monopoly powers of these organizations. But asking them to water down their terms of service to allow behavior that many consider to be reprehensible is not the solution. And be careful what you wish for. If the government does start to regulate, it could open the door to legislation to require tighter enforcement against posts with blatant lies and not-so-subtle racist innuendos, turning social media into the political punching bag of both parties, swinging in opposite directions.