December 18, 2020
Section 230 of the 1996 Communications Decency Act has been getting considerable attention lately for almost all the wrong reasons. Donald Trump has been yelling that he wants the provision repealed, and even threatened to veto the main military spending bill for next year if it does not include the repeal of Section 230. (It doesn’t.)
Trump apparently believes that repealing Section 230 would prevent Facebook from pulling down posts from Trump and his racist friends. He also is upset that Twitter labels his absurd lies as being subject to dispute. In fact, repealing Section 230 would in no way prevent Facebook from pulling down posts it found objectionable or stop Twitter from putting warning labels on Trump’s nonsense tweets.
There are others who seem to believe that repealing Section 230 would force Facebook, Twitter, and other social media networks to remove material that is racist, sexist, or in other ways offensive. There is nothing about Section 230 that facilitates the spread of such material and its repeal would not stop it.
The Real Reason for Repealing Section 230: Restructuring the Industry
I have been arguing for the repeal of Section 230 for entirely different reasons. I have argued that repeal would fundamentally change the structure of the industry, leading to a major downsizing of Facebook, Twitter, and other social media giants. It would also level the playing field between social media platforms and traditional media outlets. To my view, these are hugely important accomplishments, even if they do not square with the more common arguments on Section 230.
I’ve had difficulty making this case, since the defenders of Section 230 seem determined to defend it on other grounds. In fact, I have a very hard time simply making my argument as defenders of Section 230 insist that repeal is a bad idea because people would still be able to be assholes on social media.
My favorite reply along these lines was when some jerk on Twitter sent me a link to his list of stock answers to advocates of repealing Section 230. I read through his list and then tweeted back that I didn’t see my argument addressed. Needless to say, he never responded.
Anyhow, the basic point here is simple. Repealing Section 230 means treating social media in the same way as print and broadcast media. When the New York Times or CNN are offered an ad, they have to review its content to ensure that it does not contain libelous material. If the ad defames someone, it is not only the party that took out the ad that could be sued, the New York Times and CNN can be sued.
Facebook doesn’t have this concern. Facebook gets tens of billions of dollars in advertising revenue from people who buy ads that no one at Facebook ever sees. They just go on-line, indicate a target audience, upload their ad, and send Facebook the money.
The repeal of Section 230 would fundamentally change this process. If Facebook’s ad buyer had libeled someone, that person could not only sue the buyer, it could also sue Facebook.
This would force Facebook to restructure its ad selling process. If people were posting ads that could potentially cost it millions of dollars from losing a libel suit, it would almost certainly see a need to review ads before they are posted.
This is likely to mean hiring thousands, or even tens of thousands, of people to review ads for potentially libelous material. These additional hires will be a major expense to Facebook. Also, it will have to turn down many ads, because they do contain potentially libelous material. That means both considerably higher expenses and lower revenue from fewer ads. Also, many potential customers will undoubtedly be annoyed by having their ads reviewed and instead look to other alternatives.
These changes go beyond just reducing Facebook’s profits, people should take the issue of Facebook circulating libelous material seriously. Imagine the perfectly altered image of your favorite progressive politician confessing to being a child rapist or whatever crime you might find most disgusting. Or, maybe it will be a prominent writer, actor, musician, or academic. Anyone who doesn’t think this will happen has not been paying attention to the last four years.
And, what is the recourse for this person under Section 230? Well, they can’t sue Facebook, that’s exactly what Section 230 prevents. They can instead sue whoever took out the ad. And that might be the XYZ Corporation, which is registered to a post office box in a small town in Iowa. The post office box is in turn registered to John Smith. In other words, there will be no real person who can be sued for this action, and even if there is a person, they almost certainly will not have any serious assets that will be at risk in such a suit.
However, without Section 230 protection, Facebook would be in the same position as the New York Times or CNN if they ran such an outrageous ad. In that world, you can be very certain that Facebook would make sure that this sort of garbage was never carried on its network.
There is a further issue with Facebook. The network has hundreds of millions of users who are constantly posting new items on their Facebook pages. Many of these surely contain libelous material. It would be a herculean task to review all of these items before they were posted.
But the standard need not be that Facebook prevents libelous material from being posted. Rather, Facebook can be required to remove libelous material after it has been called to its attention. This is similar to what is required of Internet sites with third party postings of copyrighted material under the Digital Millennium Copyright Act.
The host of the site has 48 hours to remove copyrighted material, after they have been notified, in order to be protected from an infringement suit. Furthermore, since Facebook’s system allows it to know exactly who has opened a post, it can be required to send a correction to anyone who originally received the libelous material.
This will further alter Facebook’s mode of operation. It is also likely to anger many Facebook users who have items removed from their pages, and have their friends notified that items they posted may be libelous. This is likely to further reduce Facebook traffic.
I realize people may value having a Facebook-like system, where they don’t have to worry about material pulled because Facebook is concerned it could be libelous. There is a simple way to allow these people to continue to have a Facebook-like page: leave in place Section 230 protections for genuine common carriers.
A common carrier is a system like a phone company or an Internet provider. It sells a service for a fixed fee, by the month or by the minute, it doesn’t have control over content. Nor does it profit from selling ads or personal information. If a common carrier were to host Facebook-type pages, it would not be liable for the material carried on its system, just as a phone company is not held liable for defamatory statements people make on a phone call. The option of turning to common carrier systems should further erode Facebook’s usage, making the company smaller and less profitable.
Leveling the Playing Field and Never Having to Give a Damn About Mark Zuckerberg Again
The collapse of traditional news outlets is a huge deal and has been widely noted, for obvious reasons. Part of the story is the Internet. Online advertising has not come close to replacing the revenue from print advertising. But a large part of the story is that much of the ad revenue that used to go to newspapers and television stations is now going to Facebook and other social media companies.
While we can’t do anything about the impact of the development of the Internet, we can do a lot about Section 230 which gives Facebook and other social media companies an unwarranted advantage in this competition. (I have outlined a system of individual tax credits, which could support newspapers and other forms of creative work in the Internet Age.)
This is not just nostalgia for the “good old days” of print journalism. It is very hard to see a rationale for allowing Facebook to run an ad with impunity, when the same ad would cost the New York Times or CNN tens of millions in damages from a defamation suit. If there is a logic in the differential treatment, I am not smart enough to see it.
I should also add that the idea we would be in the position of begging Mark Zuckerberg, or any other social media titan, to govern their system in a way that allows for a fair election is absolutely obscene. The idea that the preservation of our democracy depends on the whims of a rich jerk, who was never elected to anything, is unacceptable. I can’t guarantee that repealing Section 230 will ensure that this situation never arises again, but it seems like a very good bet at the moment.