Free Speech in the Era of False News: Section 230 Protections In the Modern Era

Given the Trump Administration’s frequent use of Twitter, as well as the recent use of social media to spread conspiracy theories, many have begun to question how best to apply the principles of free speech to social media companies while also holding these companies accountable for certain bad behavior. The First Amendment protections only limit governmental actors – federal, state, and local – and there are good reasons why these protections should not be completely extended to private organizations. In many instances, platforms such as Facebook and Twitter have been used to spread hate speech and promote illegal activities. Under current law, Section 230 of the Communications Act of 1934 protects web platforms for third-party content published on their website. However, recent events such as the Russian interference in the 2020 U.S. Presidential Election, have increased scrutiny on Section 230, and suggest that reform is necessary. This article addresses the origin of Section 230, the current reach of the law, and issues facing its amendment.

Protections for Internet Providers

Section 230 of the Communications Act of 1934 (47 U.S.C. § 230) generally provides immunity for web platforms that provide third-party content. When Section 230 was passed in 1996, AOL was the most successful website in the country, and Amazon.com only sold books. At the time, only 20 million American adults had access to the Internet, approximately 7% of the U.S. population. Section 230 states that “[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provision.” This passage has been called “the 26 words that made the Internet” and has been credited for the rise of Big Tech companies such as Google, Facebook, and Twitter. However, Section 230’s protections also allow fringe websites to publish conspiracy theories, hate speech, and racist messages without the fear of being sued or prosecuted.

Congress originally passed Section 230 in response to several lawsuits against Internet service providers. Prior case law delineated between publishers of content and distributors of content. While publishers of content could be held liable for illegal content they published, distributors of content (such as bookstores) could not. These principles were tested and expanded in the 1990s due to the rise of the internet. In Cubby, Inc. v. CompuServe Inc., the United States District Court for the Southern District of New York held that Internet service providers were subject to traditional defamation law for their hosted content. In a similar case, Stratton Oakmont, Inc. v. Prodigy Services Co., the New York Supreme court held that online service providers could be held liable for their users’ speech.

Criticism of Section 230

Many politicians advocate for either repealing or updating Section 230, though their motivations greatly differ. Many Republicans have argued that websites should no longer enjoy these protections because these websites censor conservatives, violating the spirit of the law. Democrats, meanwhile, argue that Section 230 enables websites to ignore problematic or incorrect content. This latter argument has support from one of the Section 230’s authors, Ron Wyden. According to Mr. Wyden, the law was originally written to provide “a sword and a shield” for internet companies. The shield would protect internet companies from liability while the sword would encourage these companies to keep out offensive materials. A recent example of this “sword” was Twitter’s decision to suspend Donald Trump’s private Twitter account in the wake of the 2021 storming of the United States Capitol. Despite this recent event, Mr. Wyden has argued that internet companies have not done enough to keep these offensive materials off of their sites.

Current Issues Facing Section 230

While powerful, the protections provided by Section 230 are not absolute. First, the section requires internet companies to moderate their content to prevent copyrighted material from being posted. Second, Section 230 protections do not extend to websites that knowingly support, assist, or facilitate sex trafficking. However, given the different political motivations behind revising Section 230, it is unclear whether Congress will be able to pass a bi-partisan reform. For example, Senator Josh Hawley, a Missouri Republican, introduced a bill in 2020 which would have eliminated the immunity unless the company submitted an external audit that their content moderation policies were politically neutral. This bill, however, would not address Democrat concerns related to hate speech and fake news.

Another issue facing Section 230 reform is the fact that many influential cases have upheld immunity in a number of controversial areas. For example, in Force v. Facebook, the Second Circuit ruled that Facebook was immune from civil liability for housing terrorism-related content created by users. In Ben Ezra, Weinstein & Co. v. America Online, the Tenth Circuit ruled that AOL was immune from liability for a user’s posting of incorrect stock information. These cases suggest that given the broad applicability of Section 230 and the near absolute protection it provides, judicially created reform is unlikely.

In June 2020, the DOJ held a workshop meant to investigate and discuss the current applicability of Section 230. In concert with this workshop, the DOJ issued to Congress four recommendations to modify Section 230. These include the following: (1) Incentivizing platforms to deal with illicit content, (2) Clarifying Federal Government enforcement capabilities to address unlawful content, (3) Promoting competition, and (4) Promoting open discourse and greater transparency. As of the writing of this article, Congress has yet to pass a law implementing these suggestions.

Thomas is a first semester LLM student in NYU’s Taxation Program. Originally from St. Louis, Missouri, Thomas and his wife have lived in New York for a little less than two years. After graduating, Thomas plans on working in corporate taxation. In his free time, Thomas enjoys hiking and reading fiction.