The tortured tale of Section 230 continues to twist and turn even as the world burns. Social media outfits have made a wreck of the media universe by flooding it with disinformation, and it is only getting worse. In my book Army of Liars I get into these matters in detail, but today I want to talk about more recent developments.
Internet Restrictions Abroad
Australian parliament has taken up a measure to restrict internet access altogether for youths under the age of 16. Says Communications Minister Michelle Rowland, “There is wide acknowledgement that something must be done in the immediate term to help prevent young teens and children from being exposed to streams of content unfiltered and infinite.”
I doubt a bill like this could gain traction in the US, due to our often-misunderstood “freedom of speech” issues. The First Amendment says “Congress shall make no law. . .abridging the freedom of speech, or of the press.” The self-styled “free speech absolutist” will interpret this to mean that no other law can pertain; and that all types of speech are protected. Never mind that most of them believe in “free speech for me but not for thee”. That is another matter.
But case law and centuries of legal precedent support the idea that not all speech is protected. For instance, you cannot yell “fire” in a crowded theater. You cannot point at your neighbor and tell people to kill them. Incitements to violence, where damage has been done, often are restricted. Any rational interpretation of the Constitution would have to assume the framers were neither ignorant nor insane; and that they would never have supported the destruction of civil society based on a specious reading of the amendment.
Consider, for instance, the somewhat battered Fourth Amendment, which says, “The right of the people to be secure in their persons, houses, papers, and effects. .. shall not be violated.” This would certainly protect them from physical threats and media-inspired violence, even in consideration of the First Amendment.
Of course the framers could never have imagined the world wrought by social media, where the internet is deployed to deliver massive amounts of lying to targeted lists of vulnerable populations. It is debatable whether social media in its current form even qualifies as either “speech” or “the press”.
Aside from constitutional hurdles, the Australian initiative would probably fail here because of Section 230 of the 1996 Communications Decency Act. Section 230 grants self-styled social media companies the right to determine what they want to publish and protection from liability for anything they do publish. These rights are incompatible. In fact they are diametrically opposed. My personal opinion is that this hypocrisy is so gross that it has come a long way towards destroying civil society; and that the law must be sunsetted or changed.
I was shocked last week to discover that I am not the only one who has noticed this hypocrisy.
Offering a Choice to Social Media
No less a person than the president elect (who shall not be named here) has come out with a statement strongly suggesting he is against Section 230, even if it is for exactly the wrong reason.
His position is that he wants to give the social media giants a choice: to retain protection under Section 230, they must give up all content moderation and publish everything that is sent to them, regardless. Ostensibly this would mean they would be forced to publish not only obvious disinformation, but also snuff videos, puppy-torture, invitations to self-harm, calls to violence, doxxing and many many other types of grotesquely unsuitable content.
I am sure that the president elect has not thought this through, largely because he does not think anything through, is ignorant of the law and has no idea how technology works. But if the social media giants accept his terms, their platforms would quickly become unusable for most Americans. If you thought your feed was getting dirty now, wait until it is flooded by raw sewage pumped through because of a lack of content moderation (which I call editorial choice).
At the same time, according to Orange Man’s proposal, they could elect to continue making editorial choices but lose protection under Section 230.
Even as he is coming to this in search of more ways to spread disinformation (which is why he wants to deprecate 230), the proposal would, for all the wrong reasons, go a long way to correcting a gross inequity. It would force the social media companies to accept a new reality: that they cannot continue to operate as they do, in a position that grants them perfect freedom plus perfect irresponsibility. I have long contended that this impossible combination of privileges is at the heart of our national dilemma.
My personal opinion is that if the social media giants were forced to grapple with this proposal, they would, if they intend to continue in business, forego the protections of Section 230. After all, it would only make them exactly as liable as all other publishers already are today.
Or perhaps they would prefer to become a platform purely of hate and torment, where they would enjoy every protection for a much smaller business.