Repealing Section 230 to Downsize Facebook and Twitter

April 16, 2022

Peter Coy used his column to discuss the prospects of Section 230 of the Communications Decency Act, the provision that protects Internet sites from being sued for defamation for third party content. Many right-wingers have bizarrely targeted Section 230, arguing that it allows companies like Twitter and Facebook to do things like remove postings from Donald Trump and his supporters. As Coy points out, these companies might actually be quicker to remove this content without Section 230, since they could be held liable for their defamatory claims.

In reviewing the arguments for Section 230 repeal, Coy left out what I considered the most important, the downsizing of Facebook and Twitter. In their current mode of operation, these companies depend on not being held responsible for defamatory items in third party content. If they were subject to the same sort of liability as their competitors in print and broadcast media, they would have to spend far more money in viewing and moderating posts and ads.

It would be impractical for Facebook and Twitter to moderate the billions of daily posts as they went up, but they could face takedown rules, similar to what is required with copyrighted material under the Digital Millennial Copyright Act. This would mean that they could be subject to defamation suits, if they did not remove potentially defamatory material in a timely manner, after they were notified.

To ensure that this change benefitted competitors at the expense of Facebook and Twitter, Section 230 type protection can be left in place for sites that did not rely on selling advertising or personal information. This means that sites that had a fundamentally different mode of operation, relying on either subscriptions or donations, would be able to continue to operate as they do now. (I discuss this idea in somewhat more detail here.)

Insofar as there is a legitimate issue with Facebook and Twitter’s moderation decisions, it stems from their size. While people may be unhappy with the editorial decisions on content made by the New York Times or CBS News, no one thinks that they raise any fundamental free speech issues. The same would be the case with a seriously downsized Facebook and Twitter.

To my view, this is the best argument for altering Section 230. There is no good reason that Internet intermediaries should be exempt from the same sort of liability for spreading defamatory statements as print or broadcast media.[1] Treating them in a symmetric manner would be a big step forward.

[1] Under Section 230, if some racist starts posting claims on Facebook or Twitter, that he and his family got food poisoning from various Black or Asian owned restaurants, these restaurants would have no course of action against these companies. They could sue the racist, but if he either has no assets, or has them hidden, they would not be able to collect any damages from the companies that had allowed these false claims to be widely spread. In contrast, if a local newspaper had published these false claims, they absolutely could be held liable, which is why they would likely never allow them to be printed in the first place.


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