Congressional hearings may make for good TV and viral social media posts, but reforming Section 230 would be more difficult than it seems.
“Change is gonna come.” That was how Sen. Lindsey Graham (R-SC), Chairman of the Senate Committee on the Judiciary, closed Tuesday’s hearing titled “Breaking the News: Censorship, Suppression and the 2020 Election” and he was referring to Section 230 of the Communications Decency Act. Just before that, Senator Richard Blumenthal (D-CT) called for greater accountability for Facebook, Google, Twitter, and Amazon. Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey appeared virtually at the hearing examining the role that social media had played in the just-completed election. Zuckerberg and Dorsey have testified at another hearing before the Senate Commerce Committee on October 28, that time joined by Google CEO Sundar Pichai. That election-eve hearing was titled “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?”
Beyond hearings, there are multiple pending bills that would seek to rewrite Section 230, including S.3398, The EARN Act of 2020, and S.4534, also known as The Online Freedom and Viewpoint Diversity Act. All of this draft legislation is directed at imposing further regulation on what Sen. Marsha Blackburn (R-TN) called “the invisible gods of the Silicon Valley.”
The hearings may make for good TV and go viral on social media, but we shouldn’t lose sight of the difficulty of the undertaking that is reforming Section 230. The original version of Section 230 was enacted in 1996 at the dawn of the internet era. Congress had not enacted a new comprehensive communications law since 1934, during really the era of radio. Since then TV had come, followed by cable, and then the internet, and Congress was finally prepared to put a new framework in place. The Communications Decency Act was part of the 1996 reform and put in place new laws to deal with obscenity and violence. Tucked at the bottom was a section on online family empowerment—who could be against that?—with the text of the new Section 230: “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.” Most of the CDA was found unconstitutional in 1997 as a violation of the free speech clause of the US Constitution, but Section 230 survived.
Section 230 was designed to make it possible for online services to filter content posted by users without concern that they would somehow become liable for that content. The legislative history to the statute points to an early decision from 1995, Stratton-Oakmont v. Prodigy, which had treated an online service as a publisher of the content when the service was filtering that content. Prodigy, a joint venture of Sears and IBM, billed its service as family-friendly and was getting tagged for doing the filtering. The 1996 Congress wanted to make sure that online providers could make those decisions without fear of incurring liability.
The Electronic Frontier Foundation has long held the view that Section 230 is the law that built the internet. It is, as the EFF sees it, “the most important law protecting internet speech.” Section 230 has made it possible for platforms like Facebook, YouTube, and Twitter to be built on user-generated content. But there is no question that we are beyond the window of internet wonder and the platforms are facing sustained scrutiny. Some of that has an antitrust framing, but the most recent hearings are focused on the content that arises on social-media platforms and how those platforms process that content.
The issue came to a head in connection with the October 28, 2020 hearing. Two weeks earlier, on October 14, 2020, The New York Post had run a story regarding Hunter Biden and Ukraine. Both Facebook and Twitter deemed the story dubious took steps to limit access to the story on their services, but Republicans saw the platforms as interfering with the pending presidential election. At the October 28 Senate hearing, Sen. Ted Cruz (R-TX) angrily confronted the Twitter CEO: “Mr. Dorsey, who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear …?”
There is so much in that sentence. The New York Post publishes whatever it wants to in print and on its website and it enjoys broad First Amendment protection in doing so, though, of course, that protection is not unlimited. And Twitter isn’t in charge of what The New York Post prints, but Twitter also has the same First Amendment rights to publish whatever it wants to on its site. Nothing requires it to host any content at all and it can apply whatever slant to content if it so chooses. Many newspapers in the US bring a particular political slant to what they publish but that doesn’t alter in the slightest the scope of the First Amendment protection that they enjoy. And of course, we don’t elect our media. No one voted to have the Sulzberger family-run The New York Times, Jeff Bezos to own The Washington Post, or Rupert Murdoch to own, among others, The New York Post and The Wall Street Journal. And no one voted for Jack Dorsey either. We elect senators, not media barons.
The two recent hearings suggest that the current Republican majority in the Senate finds it politically useful to harangue social media CEOs. It makes for good TV and creates all sorts of soundbites that you can, of course, find everywhere on social media, including Sen. Cruz going after Dorsey. They undoubtedly know more about the politics of the hearings than I do, but we shouldn’t get too distracted by these hearings.
The hearings do make clear that there are substantial differences in Congress about what social media companies are doing and whether Section 230 could be rewritten to improve how Facebook, Twitter, and YouTube operate. Democrats see the platforms as sources of disinformation, especially heading into the election, and want the platforms to more aggressively label speech or to block speech altogether. Republicans see the platforms as singling out conservative speech for condemnation—rightly or wrongly, I do not know—and would want any rewrite of Section 230 to address what they see as concerns about balance and tilt. Perhaps a fairness doctrine—the FCC’s long-dead rules on equal airtime for opposing points of view—for the social media age?
We will have a new president and a new Congress in January, and I suspect that President Biden will spend less time on Twitter than the current occupant of the White House. Capital letters everywhere will rejoice and get some much-needed rest. All of that will allow for a more sober, more nuanced assessment of the genuine complexities of rewriting Section 230.