Last week’s censorship of the New York Post story regarding Hunter Biden’s business dealings in the Ukraine has renewed calls to take another look at the immunity from suit for libel and defamation provided to social media giants, Facebook, Twitter, and the like. Should Internet hosts be immune from suit if they behave like censors, deciding who gets to see what and when?
Section 230 of the Communications Decency Act gives Internet companies broad immunity from suit for republishing content generated by others. It is a privilege that traditional publishers do not enjoy. As a result of the immunity, social media companies are free to distribute material without engaging in fact-checking, editing or otherwise vetting what they distribute, so long, of course, as they do not foster criminal activity such as solicitation of illegal conduct or publication of child pornography.
But here’s the rub: Social media companies are free to engage in whatsoever censorship they like. That’s because they are private companies, not government entities. First amendment prohibition against content-based censorship do not apply to private entities.
Thus, in the wake of the 2016 elections and wide-spread fears that fake news and Russian propaganda had an out-size influence on the voting public, broad calls sounded for social media companies to responsibly evaluate what they permitted to be published on their platforms. So, too, did a growing chorus of those calling suppression of what they regard as hate speech.
Social media companies have obliged, enacting community standards policies, and engaging in monitoring of what is posted on their sites. Content is now routinely removed if it offends a company’s policies about what is and is not permitted. Users have accounts frozen, and are sometimes banned altogether, as has been a client of mine, Alex Jones, founder of Infowars, if their speech is too offensive to meet the companies’ standards.
Conservatives suspect a liberal bias in application of social media censorship. Thus, the Post story, suggesting that young man Biden was out peddling to foreign governments his connections to his father for massive cash payments, was immediately quashed by Facebook and Twitter. Why? Although the story was reliable enough for publication in the New York Post, it didn’t meet the non-journalistic standards of the “like-merchants” at Facebook and Twitter, who are widely perceived as supporting the efforts of Joe Biden to become president.
President Trump is, of course, outraged – a common enough emotion for him, indeed, perhaps the only real emotion he is capable of expressing. He is calling for potential repeal of Section 230 immunity. He’s not alone. Even centrist Michael Smerconish, who is, perhaps, the only watchable commentator on CNN, last week questioned whether it’s time to rethink Section 230 immunity.
There is another solution: Treat social media companies as public utilities and regard them as public trusts, thus requiring them to adhere to first amendment standards.
The fact of the matter is that a vast number of Americans now rely on social media outlets for news and information. The giants, Facebook, Twitter, Instagram, enjoy quasi-monopolistic status, earning enormous profits harvesting data about users and selling this data to third parties. The market is free in name only – the barriers to entry are enormous. It makes no sense as a matter of public policy to let private companies to censor whatsoever they like with impunity all the while making enormous profits.
A simpler and more elegant solution about what to do about social media censorship would be to require the giant companies to live up the privilege to publish with impunity that Congress gave them under Section 230. Make Section 230 contingent on a requirement to adhere to first amendment principles in deciding what to publish and what not to publish. It would be unlawful for a public entity to take action against a person on account of the content of their speech; make it unlawful for social media giants enjoying immunity from suit to play favorites.
This will beg the question on the minds of many: Is social media good or bad for the republic? There are growing cries for regulation of speech. I predict that we will soon see either legislation or court challenges intended to challenge the right to engage in hate speech. It would be short step to walk from freedom of speech to the elimination of certain forms of speech – simply liken hate speech to pornography, and the work is done.
I, for one, oppose such a law. The antidote to hateful speech is more speech, not less. Folks engaging in vitriol are generally afraid of something. You don’t make their fear disappear by prohibiting them from speaking. As the new woke standards inhibiting speech at universities and at major publications shows, there is no mob quite so dangerous as a self-righteous mob: I no more want the editorial board at The New York Times, or the Dean of Students at Yale, telling me what is and is not appropriate to say or think than I do the algorithms and anonymous overlords of Facebook and Twitter.
Let Congress do its job and amend Section 230 to require adherence to first amendment standards. Absent that, court challenges can attempt to force the social media behemoths to be regarded as public trusts accountable to public standards.
I want to be free to consider the nepotism in the Biden family as I want to be free to consider claims that President Trump pays no taxes. The truth shouldn’t be hidden. Ever. Knowing all these truths may not set us free, but I prefer chaos to the unctuous box of the self-righteous.