Section 230: How Trump's Attempt to Regulate Twitter Is Unnecessary and Would Harm Freedom of Speech

I was wondering when there would be something inane enough in the news to take a break from writing about coronavirus. It looks like I have found that something. Last week, Trump made a couple of tweets about how mail-in voting could lead to widespread fraud. In response, Twitter fact-checked the tweets and applied warning labels to said tweets. In less than a day, Trump signed an executive order to regulate social media companies from censoring. Trying to stop the censoring of conservative sites has become a cause célèbre for Trump and conservatives.  In attempt to address it, Trump decided to go after Section 230 in the executive order. What is Section 230?

Section 230 is part of the Communications Decency Act (CDA) of 1996 that states that "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." Essentially, it protects social media platforms and other internet platforms from being liable for what their-party actors say or do on the platform. This Section is important because it is the legal framework that allows for people to efficiently post YouTube videos, Yelp reviews, comments on websites, and Facebook statuses. So why is Trump trying to dial back Section 230 protections such a problem?

The evidence for censorship of conservative voices on social media is scant and anecdotal. The basis for such regulation in the first place is that conservative voices and media are being silenced. A March 2020 working paper from George Mason University scrutinized the claim and illustrated how little evidence there is for such a claim (Feeney, 2020). Tech trade association NetChoice shows that such liberal media outlets as Huffington Post, the Daily Show, and Young Turks were more likely to have their content restricted than conservative media outlet Prager U. The Economist shows that Google restricts both left-leaning and right-leaning content alike (see below).

It is based on a misunderstanding of the First Amendment. Twitter is a private platform. The First Amendment only applies to government action regarding speech. There have been a number of court cases that state that private platforms are not subject to applying First Amendment standards to their content moderation: Cubby v. CompuServe, Prager University v. Google LLC, Freedom Watch v. Google, Johnson v. Twitter, Taylor v. Twitter, amongst others. As a matter of fact, Trump's attempt to regulate a private platform very would could end up being ruled as a violation of the First Amendment.

It is based on a misreading of Section 230. As the Cato Institute brings up on its legislative analysis of Section 230, it is Section 230(c)(2)(a) that explicitly allows for platform providers to remove content they find "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."  The reasoning in the executive order violates the plain meaning of Section 230.

Imposing neutrality or fairness on social media could backfire. Government attempts to control speech undermine free speech. We already saw how bad free speech got when the government imposed the Fairness Doctrine on traditional broadcasting. Past administrations used the Fairness Doctrine to blunt dissenting opinions and trample on the First Amendment. Trump's executive order could set legal precedent for other forms of censoring free speech beyond social media platforms. It would not only be an issue for Twitter or Facebook. Trump could use it to silent such liberal comedians as Trevor Noah or Stephen Colbert. What happens if Joe Biden makes it to the White House? This precedent could be used to silent conservative media. If history has taught us anything, a government's attempt at content neutrality would likely result in silencing voices, not amplifying them.

An absence of Section 230 would likely mean less free speech. One of the main aspects of Section 230 is allowing websites and online platforms moderate without risking liability for third-party content on their platforms or websites. It is because of Section 230 that Yelp does not get sued every time someone posts a bad review on Yelp. Imagine if YouTube got sued for all the idiotic comments made in its Comments section. It would be a legal nightmare! If the platforms became legally responsible for third-party content, Facebook, Twitter, and other companies would have greater incentive to remove any content that would be legally problematic or controversial. Trump going after Section 230 is ironic because if it were not for Section 230, Twitter would likely shut down Trump's account for liability reasons.

Other unintended consequences and costs of repealing Section 230. The Electronic Frontier Foundation brings up unintended consequences of removing Section 230. If online service providers are spending money on fighting legal battles, it diminishes the ability of social media platforms to innovate since that money could have been better spent elsewhere. Social media platforms would also have to spend more money on monitoring content in real-time to avoid liability. Given the number of posts on Facebook, Twitter, Reddit, and the like, it would be impractical to moderate every post. These costs could be passed onto online users, which would mean not only censoring your freedom of speech, but also less access to online platforms and resources.

Conclusion. As a private company, Twitter has no right to stay neutral or owe anyone a platform, and that includes the president. Whether Twitter or Facebook is correct in their judgement of fact-checking is a separate question. The First Amendment guarantees social media platforms the right to do so. If you have a problem with a certain platform, delete your account and use a competing platform. That advice goes for President Trump, as well.

Attempting to penalize private companies for purely political reasons under the guise of defining federal regulation of free speech as free speech is as Orwellian as "2+2=5." It is truly vexing and disturbing that Trump is using the government to silence a private company simply for questioning him. If the president were truly able to exert unilateral force to decide how a private company may operate, it would lead to additional erosion of our democratic institutions.

Whether Trump likes it or not, Section 230 is one of the single most important laws protecting free speech on the internet. Without Section 230, individuals, corporations, and government leaders who want to silent free speech on the internet would be more able to do so. If Trump were to get his way, not only would it cost platform providers and users more, but it would be a major assault on the First Amendment. Fortunately for us all, Trump's executive order has much more bark than bite. At the same time, it does not matter if the executive order is unenforceable or if Trump created the executive order to appeal to his voting base to get ready for the November elections: it creates a precedent that would make us all less free.