Since Twitter banned former President Trump, you can’t watch or read the news without hearing about Big Tech, censorship, the First Amendment, and Section 230. There’s a lot to unpack here, but this is a topic that’s important for all of us to understand. We may differ in opinion (and that’s OK!) – my purpose is to help us all find and understand the facts.
First Amendment Rights: Violated?
My fellow conservatives seem to make up most of those citing fear of losing First Amendment rights – and I’m here to tell you that’s not currently happening. The reason why is quite simple – and for a party that prides itself on knowing the U.S. Constitution, it should be obvious. The First Amendment protects free speech from government control.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Twitter – or any social network for that matter – does not equal Congress.
If there’s no threat to the First Amendment, does that mean there’s no reason to worry? In my opinion, no – but it gets much more complicated from here.
Section 230: Background Information
One of the key differences between conservatives and liberals is their view of the economy. In simplest terms, conservatives prefer the government to take a more hands-off approach (market economic system, free enterprise, capitalism), and liberals prefer the government to have a more hands-on approach (command economic system, socialism, communism). As a result, the United States is a combination of the two, referred to as a mixed economic system – hands-on in some areas and hands-off in others (notably when it comes to business). Conservatives are in favor of a free enterprise system when it comes to businesses.
Free enterprise means:
Freedom of private business to organize and operate for profit in a competitive system without interference by government beyond regulation necessary to protect public interest and keep the national economy in balance (Merriam Webster).
An economic and political doctrine holding that a capitalist economy can regulate itself in a freely competitive market through the relationship of supply and demand with a minimum of governmental intervention and regulation (Dictionary.com).
We (conservatives) believe that a free and competitive market is best.
To understand the big picture, we have to have some background knowledge on business law. Let’s talk about a specific type of business, called a “publisher.” An example of a publisher would be a magazine – the magazine dictates content. It’s edited, revised, and screened by a legal team before it is printed and distributed to the public because that magazine company is liable for the content in it. What exactly does it mean to be liable? It means if I have a magazine and I publish a false story about you, you can sue my magazine for libel (false written statement damaging to your reputation), and you’ll likely win. The magazine is legally responsible for the content it prints. There is zero government regulation involved here; it’s simply legal consequences for your actions. (Tabloids are very familiar with this concept, as they often end up in court for this very reason.)
Now let’s talk about why a magazine company matters to censorship conversation. When the Internet began to take off, companies were creating platforms with interactive content – comments on published stories, chatrooms – and it became clear that even though these are “publishers,” there’s an interactive component that complicates things. This is no longer the traditional magazine flow of information – now others can interact, and I’m liable for their third-party commentary. Put yourself in their shoes – if I’m an internet company of any sort, I’m going to either have my legal team review every third-party comment (which would take forever!), or I’m not going to allow comments.
So what happened that enabled the Internet to explode into what it is today? In the Communications Decency Act of 1996, Congress included a clause known as “Section 230” that changed it all. In Section 230, Congress acknowledges the Internet has flourished until that point with a minimum of government regulation, and they don’t want to get in the way. So, they include the following:
(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)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; or
(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]
Gamechanger. From this point forward, online publishing would be different. (Please note, there are exceptions to this immunity – the most recent being the promotion of prostitution and sex trafficking in a bill passed by former President Trump.)
Section 230 says – even though you function as the online version of a publisher, we’re removing your liability from other “information content providers” – aka you and me when we write a blog, post on social media, etc. And Congress couldn’t have been more right – from that point; we’ve flourished all the way to Big Tech.
Big Tech and the Future
Big Tech is the current buzzword name for the largest companies in the information technology world – Apple, Google, Amazon, Facebook and Microsoft. Silicon Valley is another common reference here, as many tech giants are headquartered in Silicon Valley – a region of California.
Love them or hate them, these are private businesses operating and regulating themselves legally within a free enterprise system. At its core, it’s a conservative’s dream come true.
But conservatives say they’re being targeted and censored by Big Tech. And, liberals say Big Tech needs to be held accountable for spreading hate speech, terrorism and harassment. Believe it or not, we’ve come to the point that both conservatives and liberals agree on – something has to be done about Section 230.
Both former President Trump and President Biden want it repealed/revoked. Doing so would radically change social media as we know it today. Remember, without Section 230 these companies would become legally liable for everything posted on their social media platform. It’s not outrageous to suggest that everything posted would need to be reviewed and approved before being published – much like my magazine example.
What’s the solution? There have been several suggestions for how to amend Section 230. Some want to tack on additional exceptions to the immunity, while others want to require proof and transparency into how these companies are handling posts related to specific topics (like hate speech, political partisanship, etc.).
Mark Zuckerberg believes the answer lies in regulating Facebook somewhere between newspapers and telecommunications companies (which in his mind should remain protected as-is under Section 230). Facebook published a white paper that explains its opinion on an approach.
Senator Ted Cruz (R) goes so far as to say Big Tech “poses the single greatest threat to free speech in America.” But at the same time, in my opinion, the government creating the regulations for what type of speech is and isn’t allowed makes me nervous.
I’m not an alarmist. In my mind, I can see why former President Trump was banned from social media through Inauguration Day. Inciting violence is wrong, and I think there could have been a threat to the Inauguration. I can also remember a time before social media, and so, to declare we all have a right to free speech on social media feels phony. Plenty of people lived before the era of social media and had plenty of opportunities to share their free speech in other ways.
Social media is here to stay, and while I think we’ve outgrown Section 230, I am concerned about censorship. A few big questions I have:
- Who’s making the decisions of what to remove? If it’s the government, there could be legitimate concerns surrounding the First Amendment.
- Are there clear and consistent rules currently in place for each of these Big Tech companies? If a company is banning a former U.S. President for inciting violence, let’s make sure all others are held accountable in the same way.
- Do the members of Congress understand the logistics of these platforms enough to be able to create legislation for them?
This may be the first time I’ve covered Section 230, but I’m confident it won’t be the last.
-The Petite Patriot
