In response to efforts by Twitter and Facebook to suppress news from the New York Post critical of Hunter Biden’s business dealings, President Trump tweeted, “REPEAL SECTION 230!!!”
Section 230 has its origins in the mid-1990s, when Stratton Oakmont—a defunct brokerage house that was featured in the movie The Wolf of Wall Street—sued a message board for defamation. The court ruled that since the message board policed posted comments, it could be held negligent for allowing defamatory posts.
By contrast, another court held that message boards that did not monitor and remove posts were not negligent.
The Stratton Oakmont ruling caused Congress to worry about the impact of traditional liability theories on the young internet industry. Senator Ron Wyden said he helped pass Section 230 because he feared that liability for defamatory posts and comments might kill small internet start-ups.
Section 230 protects websites from liability for content they neither develop nor create in whole or in part, and for removing content they find objectionable. Allowing them to remove objectionable content allows entities to manage websites without assuming traditional negligence liability.
About 550 years passed between the invention of Gutenberg’s printing press and the decision in Stratton Oakmont. In that case, the court held that the defamation laws that had developed over the intervening centuries for the printing press were just as applicable to the internet. Section 230 upended that.
Now, nearly 25 years after Section 230’s enactment, we have to ask ourselves whether web-based entities deserve protections we do not extend to ink and paper.
Consider the collapse of the news industry over the past 25 years. Section 230 created a situation in which traditional newspapers had to compete against entities that had no responsibility for their content, even as they reaped advertising revenues. Neither Facebook nor Twitter have responsibility for your posts or tweets, yet still collect the advertising revenue.
Meanwhile, traditional newsrooms employ layers of editorial oversight as they review content produced by their journalists, and all of those people expect paychecks.
Little wonder that between 2008 and 2020, newsrooms shed 50 percent of their employees.
Removing Section 230 protections means social media may result in open sign posts, and that could result in a race to the content bottom. Or site owners may have to employ editors and assume the liabilities all publishers—digital or print—faced prior to 1996.
Section 230 does not bar all legal remedies. State laws prohibiting deceptive or unlawful conduct may be used by businesses to pursue claims if a website fails to live up to the promises in its terms and conditions. A social media company that states content will be removed only if it meets certain criteria (sexual content, violence, or vetting by third-party fact checkers, for example) but then removes content because of a partisan viewpoint, or which has not been challenged by neutral parties, might be exposed to a claim of deception.
However, a claim for deception would have to be centered directly on the failure of the company to live up to its promises. The larger point remains that Section 230 immunizes what might be viewed as censorship; claims must therefore be centered on other theories.
Few issues bring Republicans and Democrats together these days. But between accusations of anti-conservative bias and foreign influence on democracy, it is fair to say neither party is pleased with the environments the larger social media entities have created.
Members from both sides have proposed amendments to Section 230 that address child trafficking, hate crimes, animal cruelty, and other matters, but these efforts underline that web-based entities are entitled to protections we do not extend to the printing press.
The defamation laws applied in Stratton Oakmont developed over centuries, and for good reason, and they can be applied to the internet. Those on all sides of the political debate can see the problems that have arisen from immunizing the advertising revenue digital sign posts receive from posts that are defamatory—or worse.
Richard Lawson is the former consumer protection czar in Florida where he handled many cases that dealt with Section 230-related issues. He is a shareholder at the Florida law firm Gardner Brewer Martinez-Monfort.
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Why should defamation standards not apply to the internet the same way they once did to the printing press?
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