President Trump and his supporters really, really hate Big Tech. In particular, their ire is targeted toward social media companies who they, sometimes fairly, perceive as biased and censorious.
The president just signed an executive order instructing federal agencies to reinterpret Section 230 of the Communications Decency Act, the liability-shielding provision that enables social media’s existence. Trump has gone even further in a series of recent tweets, explicitly calling to outright revoke Section 230 protections:
REVOKE 230!
— Donald J. Trump (@realDonaldTrump) May 29, 2020
“Regulate Twitter if they are going to start regulating free speech.” @JudgeJeanine @foxandfriends Well, as they have just proven conclusively, that’s what they are doing. Repeal Section 230!!!
— Donald J. Trump (@realDonaldTrump) May 29, 2020
Twitter is doing nothing about all of the lies & propaganda being put out by China or the Radical Left Democrat Party. They have targeted Republicans, Conservatives & the President of the United States. Section 230 should be revoked by Congress. Until then, it will be regulated!
— Donald J. Trump (@realDonaldTrump) May 29, 2020
So, it’s worth considering just what the ramifications of repealing Section 230 would be. Turns out, it would actually be a very bad thing not just for freedom of expression online, but also for the president’s personal political fortunes.
Despite all the confusion and obfuscation from critics, here is how Section 230 actually works. It gives all platforms and publishers alike liability protection for open platform content and allows leeway for moderation. For example, this applies to both Twitter and the New York Times. Legally speaking, a Twitter post’s user is responsible for the content, not Twitter, the same is true in the comments sections of the New York Times.
However, for both publishers and platforms alike — Section 230 critics try to make a distinction here that doesn’t actually exist in the law — they are legally responsible for whatever content they choose to publish. In the New York Times’s case, that would be articles they edit and choose to print.
In Twitter’s case, it would be the rare content they themselves publish, rather than simply provide a platform for. The information they recently published as a “fact-check” on one of Trump’s tweets is one example.
Who originated the false claim that an entity is exclusively a “publisher” or a “platform” under Section 230 (with different liability depending on the *type* of entity)? Ninety-five percent of the confusion on this subject stems from this misstatement of the law.
— Justin Amash (@justinamash) May 29, 2020
I do wish my friend would stop embarrassing himself. As he knows, S230 doesn’t insulate platforms from liability based on their own speech. When twitter fact-checked POTUS, it spoke. S230 protects it from liability for HIS speech. Without 230, it could hardly let him post. https://t.co/u1hjG6RhHA
— Thom Lambert (@profthomlambert) May 28, 2020
I expect we’ll be talking a lot about this in the next few days, so here’s a head start: there is no platform/publisher distinction.
All CDA § 230 does is protect a website from liability for user content & user moderation. It doesn’t matter if the website is also a publisher.
— Gabriel Malor (@gabrielmalor) May 28, 2020
If Section 230 were “revoked” or “repealed,” social media platforms, such as Twitter, would no longer have any liability protection for the millions of statements published on their platform every day. Ironically, revoking this protection would almost certainly lead to more censorship, not less.
Now that they’d be liable for all the content, platforms would probably have to preapprove posts and delete anything potentially legally problematic. This would mean they’d have to actually start all-out censoring Trump — something they haven’t done yet — because he sometimes shares potentially libelous falsehoods, such as spreading the debunked conspiracy theory that MSNBC host Joe Scarborough killed a former aide.
It’s possible that without the liability shield provided by Section 230, Facebook and Twitter would have to delete Trump’s account altogether to avoid putting themselves in grave legal jeopardy.
“The president is currently engaged in a campaign against an industry that helped his campaign,” the Cato Institute’s Mathew Feeney told me. “The irony is that absent Section 230’s liability protection the president’s Twitter account and many others would be gone. Those wishing for less online conservative speech should be cheerleading for Section 230 reform.”
Remember, Trump is widely successful on social media, with the ability to reach tens of millions regularly and spawn entire news cycles at whim. This was and is part of what allows him to get his political messaging out despite being reviled or at least disfavored by most of the political media. Only through social media platforms has Trump been able to get around the traditional gatekeepers that historically limited the rise of anti-establishment candidates.
So, the consequences of repealing Section 230 are clear. Conservatives should only be cheering along with Trump’s regulatory efforts if they want him to deplatform himself inadvertently and sabotage his only reelection campaign.
