Social Media, Section 230, and Free Expression

• Publication year: 2022

Social Media, Section 230, and Free Expression

Russell L. Weaver

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Social Media, Section 230, and Free Expression

Russell L. Weaver^*

I. Introduction

Throughout history, as new communications technologies have been developed, they have been controlled by "gatekeepers" who had the power to decide who could access those technologies.¹ Although Johannes Gutenberg's invention of the printing press in the Fifteenth century was revolutionary and ultimately led to major innovations in science and technology, as well as to dramatic societal changes,² Gutenberg's invention was not accessible by everyone. Because printing presses were expensive, only wealthy individuals could afford to own and operate them,³ and those few individuals had the power to control who could use their technologies to mass communicate.⁴ Many of the technologies that followed, including radio,⁵ television, satellite, and cable, were correspondingly expensive, or required the owner to obtain one of a limited number of governmental licenses,⁶ and therefore were also owned and operated by wealthy individuals or corporations who could control their use.⁷ Without access to new technologies, ordinary people were forced to communicate in more primitive ways (such as

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orally or through handwritten documents), and found it difficult to "mass communicate."⁸

The Internet revolutionized communication by giving ordinary people the opportunity to mass communicate and widely disseminate their ideas, free of the traditional "gatekeepers."⁹ Like the Gutenberg printing press, the Internet's communications potential led to profound societal changes.¹⁰ Outside of the United States, the Internet played a prominent role in the Arab Spring uprisings in the Middle East,¹¹ as well as in social movements in China, Russia, and around the world.¹² Within the United States, the Internet has helped spur social movements,¹³ and played a major role in politics and political campaigns.¹⁴

Like the technologies that came before, the Internet's potential has slowly come under the influence and restraint of social media companies who have tried to function as the Internet's newest "gatekeepers."¹⁵ While social media companies have unquestionably expanded the ability of ordinary individuals to express themselves on both personal and political matters,¹⁶ their platforms are regarded as private (rather than governmental) entities and therefore have not become subject to the First Amendment.¹⁷ As a result, these social media companies have censored and restricted freedom of expression on their platforms.¹⁸

The power of social media companies to promote free expression, as well as to censor it, has been greatly enhanced by Section 230 of the Communications Decency Act of 1996 (CDA).¹⁹ Section 230 gives social media platforms broad protections against civil liability for information posted on their platforms by others, but it specifically authorizes them to limit or censor material posted on their platforms.²⁰ This Article

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argues that § 230 is fundamentally inconsistent with this nation's First Amendment tradition. While Congress might have had good reasons for providing social media companies with broad protections against civil liability, it was inappropriate for Congress to vest those companies with the power to censor speech and ban individuals from their platforms. Either social media companies are not serving as publishers and editors, in which case they should be exempt from liability for information posted on their platforms by others, or they are publishers and editors, in which case they should be subject to liability. At the very least, social media platforms should be prohibited from discriminating on the basis of content or viewpoint.

II. The First Amendment and Censorship

Although the U.S. free speech tradition developed slowly over centuries, it resulted in a consensus—the federal government possesses very limited power to censor speech.²¹ The United States' approach marked a significant departure from the prior history of censorship and repression that existed in both Europe and the American colonies.²² Speech restrictions were imposed shortly after Gutenberg's invention of the printing press.²³ At the time, governments limited the number of existing printing presses, and generally allocated licenses to print to only those who were regarded as favorable by the government.²⁴ Governments also imposed content-licensing requirements, which required those who wish to be published to submit their manuscripts to governmental censors, and prohibited publication absent such approval.²⁵ The English government went so far as to impose the crime of seditious libel which criminalized criticism of the King and other high clergy.²⁶ For this crime, truth was not a valid defense.²⁷ Indeed, if it

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were shown that the defendant's criticisms of the King were in fact true, the punishment was more severe.²⁸

As the U.S. free speech tradition has evolved over the last couple of centuries, it has come to include several important principles. First, prior restraints on speech are presumptively unconstitutional.²⁹ Thus, the government may not impose content-licensing requirements, like those imposed by medieval governments,³⁰ and is generally prohibited from imposing injunctions against speech, even if the speech is arguably defamatory,³¹ or potentially implicates national security interests (absent a compelling set of circumstances).³²

The second principle is the theory that both content-based and viewpoint-based restrictions on speech are presumptively unconstitutional.³³ Of course, under the U.S. free speech tradition, there are certain categories of speech treated as completely "unprotected" under the First Amendment.³⁴ Outside of those unprotected categories, however, content-based, and viewpoint-based restrictions are not only regarded as presumptively unconstitutional, but also are subject to strict scrutiny.³⁵ Similarly, the government generally has only limited authority to ban speech on the grounds of falsity. Except in a few limited contexts—such as prosecutions for perjury or civil actions for defamation if the constitutional requirements are satisfied—the government does not have the power to declare that particular facts are true and unassailable.³⁶ As the Supreme Court of the United States recognized in United States v. Alvarez,³⁷ the "remedy for speech that is false is speech that is true."³⁸ Indeed,

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Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)

. . . . Freedom of speech and thought flows not from the beneficence of the state but from the inalienable right of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right . . . to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.³⁹

III. The Peculiar Rules Applicable to Social Media

Because of their private status, social media platforms have not been bound by the strictures of the First Amendment. Thus, these platforms possess a unique status, giving them the power to censor speech posted and to ban individuals from access to those platforms. The power of social media platforms is enhanced by § 230 of the CDA.⁴⁰ Under this Act, social media companies are provided two special benefits. First, § 230 makes clear that they are not considered as having published or spoken information posted on their sites, and therefore they are not liable for information posted by other content providers.⁴¹ Second, this Act established a "Good Samaritan" defense, specifically allowing social media companies censorship of information posted on their platforms without the risk of civil liability.⁴² That defense states that:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be

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obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).⁴³

Section 230 marks a significant departure from the nation's free speech tradition. If the government attempted to restrict the types of speech that § 230 allows social media companies to prohibit, the governmental restrictions would undoubtedly be struck down as unconstitutional. Section 230 allows social media companies to remove material that is excessively violent, harassing, or otherwise objectionable.⁴⁴ certainly, such language suffers from an unconstitutional level of vagueness and overbreadth.⁴⁵ It is doubtful whether speech that is regarded as "excessively violent" would be treated as "unprotected speech" under the First Amendment.⁴⁶ In addition, although there are several categories of unprotected speech, there are no unprotected categories that cover "otherwise objectionable" speech.⁴⁷ This lack of protection is presumably why the CDA explicitly allows social media companies to censor speech "whether or not such material is constitutionally protected[.]"⁴⁸

Given their unique status, and the special powers conferred by § 230, social media companies have aggressively utilized censorship on their...