Social Media and Section 230

A couple of useful links for those following these issues:

From Eugene Volokh, a detailed legal analysis of the proper interpretation of Section 230.  Haven’t read it yet, but I plan to soon.

Vivek Ramaswamy, in the WSJ, offers a favorable view of Trump’s lawsuit against search and social media companies.  Excerpts and commentary at Stuart Schneiderman’s blog.

There are few if any issues more important than the problem of oligopolistic control over information flow.

23 thoughts on “Social Media and Section 230”

  1. The Volokh piece is interesting, and merits close reading. The argument seems to be that when Section 230 says “No provider or user of an interactive computer service shall be held liable on account of … 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” that the seemingly-wide-open phrase “otherwise objectionable” should be read in the context of the overall Communications Decency Act (of which 230 is a part) and that, if so read, it would be would not apply to political discussion.

    “Section 230(c)(2) is thus best read as immunizing Internet companies’ private enforcement of rules analogous to restrictions on “obscene, lewd, lascivious, filthy, excessively violent, [or] harassing” communications—not to enforcement of completely different restrictions that the companies might make up. Using this understanding, “otherwise objectionable” might thus cover other materials discussed elsewhere in the CDA, for instance anonymous threats (sec. 502), unwanted repeated communications (sec. 502), nonlewd nudity (sec. 506), or speech aimed at “persuad[ing], induc[ing], entic[ing], or coerc[ing]” minors into criminal sexual acts (sec. 508). But “otherwise objectionable” would not cover speech that is objectionable based on its political content, which Congress did not view in 1996 as more subject to telecommunications regulation, and didn’t try to regulate elsewhere in the CDA.”

  2. If the above Volokh interpretation is correct and is upheld, the question becomes: what are the remedies? If a social media company bans your political post, which is not considered to fall into the safe-to-ban category, then…

    1–Is your remedy limited to claiming damages for the harm the suppression of your post or posts do to you?…Might be significant if you are an ‘influencer’ of some kind and hence can show direct financial harm as a consequence of the blocking, but for most people, would be hard to put a defensible number on it.

    …or alternatively..

    2–Would the consequence by that if a social media provider bans a political post, or shows a pattern of such banning, then they would lose ALL immunity for content posted on that platform? (by acting as publishers)…That is the interpretation that the court took in the (pre-section-230) case Stratton Oakmont vs Prodigy.

  3. There are few if any issues more important than the problem of oligopolistic control over information flow.

    I agree, but this doesn’t go far enough.

    The real problem is that the political class has decided the public has no rights they should feel bound to respect. We’re all Dredd Scott, except we’re allowed to wander around loose.

    For now.

    I wish Trump’s lawsuit all the best, but it won’t solve the problem, even if it succeeds, which it won’t.

    If you’re Parler and you object to Amazon Web Services voiding your contract and destroying your platform, it doesn’t help much if your option is to bankrupt yourself against Amazon in a multi-year legal battle. And because I’m cynical, I suspect that if section 230 did get changed, the end result would be that deep-pocketed leftists would go around suing conservative sites based upon nonsense reasons with the intent of shutting them down.

    The real solution is to replace the present regime with one that respects the Bill of Rights and will enforce it by any means necessary, even by writing entirely new laws and repealing bad ones.

    I wish us all the best at obtaining that.

  4. Mr. Volokh’s column was good but it does leave open the method of enforcement, which does seem to be primarily private lawsuits. I think there’s an intersection with the Darryl Cooper thread (expanded here https://outsidevoices.substack.com/p/author-of-the-mega-viral-thread-on at Glenn Greenwald’s SubStack Outside Voices) where he notes that “And then came the Hunter Biden laptop scandal. Liberals dismiss the incident because, after four years of obsessing over the activities of the Trump children, they insist they’re not interested in the behavior of the candidate’s family members. But this misses the point entirely. Big Tech ran a coordinated censorship campaign against a major American newspaper while the rest of the media spread base propaganda to protect a political candidate.”

    Spending months or years, and significant sums of money, to eventually get reinstated long after the moment when having your voice heard might have made some difference isn’t a real remedy. Maybe a change in the interpretation of Section 230 would signal a sufficient shift in culture but I’m probably even more pessimistic than Xennady that the solution is actually going to be found in law.

  5. At Instapundit today: bill in the Wisconsin State Senate would require social media companies to publish their algorithms for blocking vs free publishing:

    https://pjmedia.com/instapundit/461375/

    …presume this would need to include the prioritization logic for what shows up in the feed and when. It is basically the concept of a feed controlled by the SM company, rather than by individual readers, that distinguishes a SM platform from a simple microblogging platform.

  6. presume this would need to include the prioritization logic for what shows up in the feed and when.

    Deciding what is readable when is the essence of ‘publishing’ content to me, and should have nullified at least FaceBook’s claims to be covered by Section 230. (I don’t do Twitter so I have no direct experience with how Tweets are presented in the UI.) That it occurs largely (so they claim) by algorithm rather than by direct human intervention shouldn’t make any difference.

  7. David: Regarding nonlewd nudity (sec. 506)

    There seem to be a lot of sites featuring what might be called nonNude Lewd-ity.

    Jiggle Gifs of healthy girls in skimpy bikinis, for example. A whole bunch of “slash” fan-fic for another: Kirk / Spock; Kirk /Harry Potter; Kirk/Xena Warrior Princess… Of late there are all the adult men in costumes seemingly intended to outrage parents, confuse children, and titillate the already-strange, but IN costumes that nevertheless cover all the body regions ordinarily covered.

    As much as I’m inclined to favor segregating such offerings AND the full frontal sites all to a top-level domain of “xxx” or similar, I’m reluctant to authorize my government to take that step. Is there a work-around?

  8. I remember reading that when FB was first launched, there was no such thing as an automatic feed, and you had to explicitly go to the pages for the people you wanted to see. Does anyone go back far enough to remember how that worked?

  9. I have more.

    It seems to me that the 2020 election is roughly the equivalent of the Dredd Scott decision for the present regime.

    That is, the clumsy and open electoral fraud has set it on a similar road to political oblivion which will end it, hopefully in not a similarly bloody manner.

    The recent prominence of Section 230 is fine. But the impetus for reform also strikes me as yet another good idea that is inexorably morphing into yet another opportunity for the Gee Ohhh Peeee to put on yet another production of their patented failure theater. They’ll campaign on reform, fundraise off it, pat themselves on the back should they do well in 2022- then accomplish nothing and blame the people who supported them for not sending enough money and not voting hard enough.

    Pardon my cynicism and I’m not alleging Trump’s lawsuit is insincere or without legal merit. But I think any reform of Section 230 at this point would be the rough equivalent of overturning the Dredd Scott decision after slavery had been thoroughly established in every state, enough to make the reversal effectively moot.

    And note also, this is just a lawsuit. It doesn’t require any GOP establishment politician to meaningfully commit one way or the other. They can claim to their corporate benefactors that they’re just playing to the rubes- truthfully, I think- and then they can tell their rank-and-file voters that they support the lawsuit really, really hard. That can also be equally true- and equally meaningless.

    I’m reminded of reading of how the Antebellum Whig leadership told their members from the South to vote pro-slavery, and their members from the North to vote the opposite, so they could avoid getting involved in that pesky slavery question.

    That didn’t work out well for that opposition party, way back then. I suspect the present reluctance of the GOP to involve itself in the actual internal controversies of the United States won’t work out well for them, either.

    But I note again that I’m cynical.

  10. Jiggle Gifs of healthy girls in skimpy bikinis, for example.

    How do you know this? I refuse to believe it without links.

    Is there a work-around?

    Yes. I simply don’t visit sites featuring content that I have no interest in.

  11. Does anyone go back far enough to remember how that worked?

    I’ve never been on facebook, but I will note this- my memory goes back far enough such that I recall when the operating system on my computer didn’t clumsily attempt to force-feed me regime propaganda from such outfits as the Washington Post.

    That happened about last week, via mandatory updates. I turned that anti-feature off as soon as I noticed it.

    I take this as yet another example of the feeble fecklessness of the present regime. Not only does the regime not enforce existing antitrust law, no one acts as if they ever would enforce antitrust law.

    Essentially, if I want to avoid this nonsense, I get to enjoy Linux, which is like opponents of Standard Oil getting told to keep using whale oil.

  12. It’s an interesting dilemma. Newspapers, TV stations, etc have tort liability for what is said on their media. (Not complete though – Times v Sullivan limits defamation of famous people by having to prove actual malice). But ISPs, SMS providers, FedEx, etc are exempt, but that is because they don’t provide the content. This was the purpose of § 230 of the CDA. but we now have a middle ground acting as gatekeepers for content, purporting to be within the § 230 Safe Harbor, but acting, in many cases, like newspapers and TV channels. Compounding things, they tend to be powerful monopolies of sorts, based on network effects.

    § 230 of the CDA was not designed to protect these latter companies. Sure, early on, before they got so involved in moderating content, but that ended with the election of Trump. They are now some of the richest companies on the planet, and their businesses depend on § 230 immunity from tort liability.

    The solution would seem to be to sue them for, say, defamation, on the grounds that they approved of the defamatory statements through their censorship. That though is not going to be easy, because they have some of the deepest pockets around. I would want very deep pockets on the plaintiff’s side, and as Republican a Circuit as I could find. Plus some judicious forum shopping to hopefully get a Trump judge at the District Court level. We are probably talking tens of millions of dollars for discovery alone.

    But one place where I think that these companies could be vulnerable is in their “fact checking”. They aren’t saying there that the SPLC is calling someone a racist, but that something that someone said is false. The Fact Checkers are speaking for these media companies, and if they claim that what someone said was false, and it wasn’t, then they called them a liar. Their only defenses there would seem to be: that it was opinion; § 230; or Times v Sullivan actual malice standard. While they may have been careful early on, esp with the election fraud issue, to make clear that their claim of falseness was their opinion, it seems to me that as the quantity of evidence showing election fraud continues to increase, their desperation to control the narrative seems to be overriding their caution, and the opinion proviso seems to be seen less and less. § 230 is going to be a hard sell for them, because they aren’t acting as an intermediary. Which leaves Actual Malice and Times v Sullivan. Project Veritas, among others, have plenty of evidence of malice driving their decisions (and The Times Actual Malice standard is a bit more forgiving). Discovery should be able to find a lot more.

    We shall see.

  13. Bruce…good analysis. The clear purpose of Section 230 was to protect platform companies from things that *other* people said on their platforms, so for example a company hosting a blog would not be liable for things said on that blog. I see nothing in Section 230 that would immunize a social media company from things that they, themselves, say. So if FB (for example) employs ‘fact checkers’ and attaches those statements of claimed *fact* to other people’s posts, then seems to me that FB is publishing *their own content*.

    The question is whether the remedy would be limited to suing for damages in each specific case, or whether a sufficient pattern of *publishing* activity, when operating under the guise of being a neutral information exchange, would be sufficient to lose *general* immunity.

  14. Guys! Let’s get back to reality. FaceBook and its peers are in a committed relationship with the entire Democrat Party and most of what is jokingly called the Republican Party. This is what Fascism looks like — the marriage of political power with commercial wealth. And the “Justice” system is effectively under the control of that Fascist nexus.

    There will be no effective policing of the Democrat-Media Complex through legislation or litigation. Instead, D-M C control will get tighter & tighter until it finally breaks. What will emerge from the ruins? We will have to wait & see.

  15. Volokh is an enemy disinformation conduit.

    The fundamental problem with all discussion of remedies through the formal legal system, is that certain idiots have created an appearance suggesting that the profession of law is capable of discriminating against specific parties in legal matters. There are something like two hundred, or more, accredited law schools. A bit over 150 heads of law schools sgined that letter on January 12th, saying that they did not think claims of fraud in 2020 should have been represented, and that they would ensure that their graduates would not represent people in the future. I have not heard that one of them has resigned or been fired because of that. Those people to stop being faculty, stop being admitted to the bar, and there needs to be formal recognition that the letter was in error. Until the situation is addressed fully, talking about intricacies of changes in formal legal procedures distracts from consideration of the main issue.

    I would note that the blogroll includes the Tax Prof blog. Paul Caron is a signatory of that letter. Paul Caron was proud of it, and is in fact how I learned of the letter.

    Assassinating executives of tech firms is potentially an appropriate remedy.

  16. Bob the Registered Fool, I’m previously said: **I do not want people talking about killing people in comments to my posts.** Please don’t do it again.

  17. “Essentially, if I want to avoid this nonsense, I get to enjoy Linux, which is like opponents of Standard Oil getting told to keep using whale oil.”

    This makes no sense. Linux is a superior operating system and makes windose look like a jail. Not that I care much, but the analogy is backwards. ;)

  18. This makes no sense. Linux is a superior operating system and makes windose look like a jail. Not that I care much, but the analogy is backwards. ;)

    Uhm…

    (Several minutes pass as I ponder the above statement and try to think of a way to truthfully disagree with it)

    Well, I paid for Windows and I want it to not clumsily force-feed me regime propaganda. I certainly did not pay for <that.

    (So there)

  19. PART of the problem here is that you should also be looking at WHY the s230 stats were written in the first place.

    The simple idea was that, on social media, the sheer number of posts was overwhelming, and so it was impossible for the companies to police the content reasonably and practicably against false and libelous information.

    It had long been held that the phone company was a “neutral carrier”, who made no effort to check content and, thus, was not liable if Jimbob got on the phone and spread nasty, lying gossip about his ex, Janey Sue. Or if Bumcorp reps got on the phone and badmouthed their main competitor, Bungle Mgmt Group, to steal customers. The liabilities fell where they should, onto the speakers, not onto the companies who innocently enabled the slanderous statements.

    s230 simply developed and extended those protections onto the various communications companies involved in social media — the hosting sites, the software makers, etc.

    I do not see how, in ANY regards, at ANY point, anyone assumed, suggested, or anticipated, that they would begin making major “control of content” efforts. This is utterly anathema to the entire argument for giving them liability coverage.

    I understand and grasp that this is not a direct legal argument, but it does tie to an aspect of The Law, and that is, The implementation of laws should certainly reflect upon the STATED GOALS of those laws.

    Barring complaints about posts that they violate some law which the associated companies KNOW define them as illegal, or which, at the least, a “reasonable person” would suspect they were illegal, the companies currently all overstep the bounds of being “neutral carriers” and become, instead, publishers, and should no longer have s230 liability protection.

    As to the concern, “what solution do those individuals have to provide remedy?”, you’re missing the very POINT.

    The instant those companies lose liability protection, you can DAMNED SURE bet a vast array of legal vultures would descend upon them with any number of CLASS ACTION suits which would be ruinous.

    And those vultures will not be defending the speech of cons, they’ll be against the SMs for allowing various libels to happen — not to remain after they had been notified about them, but for actually allowing them to HAPPEN AT ALL.

    So the very THREAT of losing that liability coverage for being “publishers” would have them backpedaling the instant it became a serious possibility, and make them STOP censoring for almost all cases.

  20. Dere’s DIS information, and den dere’s DAT information.
    Facebook only wants you to publish DAT information… See?

    :-D

  21. The problems here are much deeper than 230, which is simply chipping away at the edges. Failure to implement real controls over technological power threatens the future of humanity, in a very real way.

  22. its a function of illiberally educated populace, that is ignorant about history, but is righteous about it, same with science economics et al

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