Tightening Section 230: Resisting Technocracy

On October 14th, less than three weeks before the 2020 Presidential Election, Twitter locked the New York Post’s account after it tweeted a defamatory report detailing corruption allegations related to the Biden campaign. In doing so, Twitter indefinitely barred the NYPost from being able to disseminate any of its own journalistic content. On top of this knee-jerk reaction, Twitter went even further by preventing the hit piece from being viewed or shared by users on its interface—as they assigned an irresolvable error message to the link and rendered the original series of tweets invisible to the public. After receiving significant backlash, the tech firm attempted to justify this seemingly blatant act of censorship by invoking its “Hacked Materials Policy.” Under this rather obscure provision, Twitter argued that they had a civic obligation to take down the article because it would be irresponsible to distribute information obtained from a ‘recovered’ laptop. Not before long, Twitter delivered an ultimatum to the NYPost: delete your original series of tweets if you want your account unlocked. In principled defiance, the outlet refused to submit to the tech giant. After almost two full weeks of escalating controversy, Twitter finally relented and unlocked the NYPost’s account so they could actively participate in this online forum once again. The abrupt conclusion to this drama came in the form of an announcement in which Twitter reaffirmed that their policies function as so-called “living documents.” @TwitterSafety elaborated upon this concept and justified their change of heart by tweeting that: “[the company is] willing to update and adjust [their rules] when [they] encounter new scenarios or receive important feedback from the public.” Curiously, it’s worth noting that the damning emails and lewd photos extracted from the laptop have yet to be proven to be inauthentic. Twitter has also failed to reconcile how the materials referenced in the NYPost’s reporting could be considered to be ‘illegitimate’ with respect to their policy, while rival legacy media outlets continue to leak classified information about President Trump on the platform (such as his private tax returns), without being held to nearly the same evidentiary standard. 

This altercation epitomizes the perpetual struggle between those who desire to uphold the founding ideal of free speech and those who intend to heedlessly undermine this bedrock principle. The contrast couldn’t be more stark. On one hand, you have the country’s oldest daily newspaper and its 4th most-circulated tabloid — founded by none other than Alexander Hamilton, a Framer of the Constitution and the First Amendment. On the other, you have one of the youngest companies in Silicon Valley, staffed overwhelmingly by self-identified progressive employees who aren’t afraid to play the role of ‘thought police’ so long as they can foreseeably ground their action in some ‘nonpartisan’ or ‘post-hoc’ way. Now, I want to be abundantly clear about this tendency. Arbitrary big tech censorship and the preservation of free speech are at direct odds with each other, despite impassioned testimonies to the contrary. While big tech may claim to value the virtue of democracy and to protect its best interest, their politically-motivated censorship of our public fora actually poses the most severe and urgent threat to its stability. 

Before I make my point, I should backtrack a little bit. After all, how did we arrive here to the strange position where unelected big tech oligarchs such as Jack Dorsey seem able to single-handedly influence our elections by suppressing the freedom of the press? After all, it would appear that Dorsey faces no imminent legal repercussions for this irreversible overstep. Can he whimsically interfere with the free flow of information with such blanket impunity? In order to answer this question, we must first acknowledge the critical relevance of Section 230 of the Communications Decency Act, which was passed in 1996 before the advent of social media. One of the chief purposes of this forward-looking legislative proposal was to categorically distinguish between platforms and publishers — particularly in the realm of legal accountability for posted content. Under this bill, it was intended that publishers could be sued for promulgating various unprotected forms of speech (as informed by the First Amendment). Alternatively, platforms that impartially refrained from moderating the user-contributed content of their interface would be granted much broader protections from content liability. Thus, the motive behind this bill was essentially to afford platforms the ‘benefit of the doubt’ for problematic user-contributed speech appearing on their interfaces. This way, platforms would enjoy a generous degree of legal immunity (including protection from being sued) so long as they dutifully adhered to the so-called ‘Good Faith Requirement.’ As written, this pivotal provision of the law grants platforms special immunity for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” 

The glaring issue here is that the text of this bill is simply too vague to be enforceable. I want to draw specific attention to the very last words of the code of which continues to be shamelessly exploited by the big tech firms at the cost of our ability to engage in open-spirited public discourse. After all, what constitutes “otherwise objectionable” material? Without further guidance, criteria, or legal mechanisms (such as the ‘Miller test’) to contextualize such open-ended language, this Section 230 loophole enables tech firms to effectively behave as publishers while masquerading as platforms. In this sense, they are truly defrauding their user-base. Allow me to remind you that these so-called ‘platforms’ (such as Twitter, Facebook, and YouTube) did not grow overnight. Rather, they steadily advertised their digital interfaces as something that users could opine and engage freely in without being arbitrarily flagged, silenced, or shadow-banned merely on the basis of their political orientation. Especially in the case of Twitter, this sort of freedom to speak one’s mind and to effortlessly disseminate one’s message was arguably the greatest appeal of the product: as it provided unprecedented access to the free and diverse marketplace of ideas, including the opinions of elected officials who could contemporaneously respond to constituent concerns. Once Twitter was able to successfully amass users however, they began to gradually transition away from their original business model and behave more and more like a content-conscious publisher. Since then, they’ve capitalized upon the immense market power that was naively granted them by abusing the Good Faith Requirement and continuing to moderate their platform in deeply partisan ways — which of course is eerily inconsistent with both users’ and broader society’s best interests.

That all being understood, I want to emphasize how crucial it is for the health of our democracy that our most popular public debate forums refrain from arbitrary censorship or endorsement of specific sources in favor of particular viewpoints. In the case of Twitter and Facebook, this means that they must quit imposing their preferences for certain media outlets over others if they intend to remain considered a platform. I point this out because these two platforms have not only been flagging posts they disagree with, but they have gone even further these past few months by referring and redirecting people to other sources for which they subjectively deem more “credible” or “official.” This behavior is improper at best and subversive at worst. Hence, it should be unanimously condemned by the full breadth of the American political spectrum because Twitter is supposed to referee from the sidelines — not actively participate in debate. 

There are many compelling philosophical reasons for this. In particular though, I’d like to draw from the argument of former Brown professor Alexander Meiklejohn. In 1948, he contended in his book[1] that: “Our action must be guided, not by their principles, but by ours. We listen, not because they desire to speak, but because we need to hear. If there are arguments against our theory of government, our policies in war or in peace, we the citizens, the rulers, must hear and consider them for ourselves.”[2] Based upon this reasoning of which suggests that viewpoints ought to be granted the right to ‘take seat’ and ‘represent themselves’ in hypothetical town halls, we can imagine that Meiklejohn would’ve demanded that Twitter be as inclusive as possible[3] of controversial speech — no matter how unpopular, false, or even hateful these expressions may be considered to be by the platform's administrators. He would likely go even further to insist that a ‘free marketplace of ideas’ is absolutely necessary in order for the truth to eventually win out, which can only really happen when it is placed in fierce competition with contradicting ideas.[4] In this way, Meiklejohn reminds us that it is not just those who are censored who suffer when big tech intervenes without proper cause. Rather, all participants of public debate are made worse off when arbitrary censorship and the suppression of viewpoints is effectuated because this disrupts the natural replacement of dogma, skews viewpoints toward extremes, and reduces the available variety of perspectives to engage with. Meiklejohn further stresses that “freedom of speech is not merely necessary for idle contemplation, but for the vigorous thinking and deciding which [ultimately] determine public action.”[5] After all, how else are we to ascertain how to self-rule ourselves but via prolonged and substantive discourse aimed at truth? 

If we intend to preserve the integrity of our democracy or the privilege to govern ourselves, then we ought to embrace Meiklejohn’s robust justification for freedom of speech in the public sphere. As a first step, we should implore Congress to peel back the excessive protections of Section 230 so that social media platforms can be deservedly punished for moderating in discriminatory ways. By curtailing this provision and standardizing a narrower interpretation of the Good Faith Requirement, this law will become more meaningful and — most importantly — more enforceable. This change will serve everyone’s best interest in the long-run (irrespective of political leanings) because it will re-enfranchise citizens who feel left out of the debate, mitigate the tendency of unreflective ‘groupthink,’ and maximize our collective chances of arriving at fundamental truths. This way, our ever-refined understandings (of human nature, for instance) may be duly reflected in the morality of the laws we impose on one another, and rightfully so.

Tom Bickel is a junior concentrating in Political Science and Philosophy. He serves as a staff writer for the BULR Blog, and can be reached at thomas_bickel@brown.edu.

References

[1] Free Speech and Its Relation to Self-Government. Alexander Meiklejohn. New York: Harper Bros., 1948.

[2] Page 65-66.

[3] For clarification, Meiklejohn was not a free speech absolutist. Hence, he didn’t believe all forms of speech deserved this sort of democratic representation or right to be heard within the public sphere. 

[4] Please refer to John Stuart Mill’s views regarding free speech, which are outlined in On Liberty. He makes a quite similar and very much related argument to that of Meiklejohn.

[5] Page 45.