Fact Check: Would Repealing Section 230 Promote Free Speech as Trump Says?

President Donald Trump vetoed the National Defense Authorization Act on December 23 in part because lawmakers did not include a measure to repeal Section 230 of the Communications Decency Act of 1996. The House voted Monday to override the veto, which is now on its way to the Senate.

The president threatened to veto the sweeping $740 billion defense bill earlier in the month if Section 230 was not repealed. According to CNN, the defense bill would include funds to increase American soldiers' pay, modernize equipment and provide provisions for stricter scrutiny before troops withdraw from Afghanistan and Germany.

On Tuesday evening, Majority Leader Mitch McConnell introduced a parallel pandemic relief bill to the one passed by Congress last week that would offer increased direct payments of $2,000 (up from $600) to individuals, as sought by Trump and Democrats, as well as a repeal of Section 230 and legislation pertaining to election fraud studies.

Twitter is going wild with their flags, trying hard to suppress even the truth. Just shows how dangerous they are, purposely stifling free speech. Very dangerous for our Country. Does Congress know that this is how Communism starts? Cancel Culture at its worst. End Section 230!

— Donald J. Trump (@realDonaldTrump) December 24, 2020

The Claim

Section 230 has been criticized as a means for social media companies to censor speech on their platforms. Trump, who has had several posts flagged or removed from Twitter, has called for the legislation's repeal on several occasions. He said repealing Section 230 would promote free speech.

In May, an executive order on preventing online censorship was issued, which stated, "section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike."

The executive order specifically called out Twitter for "selectively decid[ing] to place a warning label on certain tweets in a manner that clearly reflects political bias."

"As has been reported, Twitter seems never to have placed such a label on another politician's tweet. As recently as last week, Representative Adam Schiff [D-Calif.] was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called 'Site Integrity' has flaunted his political bias in his own tweets."

Twitter is out of control, made possible through the government gift of Section 230!

— Donald J. Trump (@realDonaldTrump) November 6, 2020

According to Reuters, the Center for Democracy and Technology (CDT), which is funded by Facebook, Google and Twitter, filed a lawsuit in June against the executive order. The complaint argues that the order violates the First Amendment. Reuters reported earlier this month that the lawsuit was dismissed because the order was directed at federal agencies, not social media companies, to limit the scope of Section 230.

In September, Senators Marsha Blackburn (R-Tenn.), Senate Commerce Committee Chairman Roger Wicker (R-Miss.) and Judiciary Committee Chairman Lindsey Graham (R-S.C.) attempted to reform instead of repeal Section 230 to limit the type of content that social media companies could moderate while maintaining freedom from liability.

"We do think that it is important that there be a revisit and not a repeal of Section 230," Blackburn said.

Today I will be voting NO on the override of @realDonaldTrump's veto of the NDAA.

Here's why:

The act fails to terminate Section 230 and is a gift to our enemies like communist China!

— Lance Gooden (@Lancegooden) December 28, 2020

Recently, Trump has received support to repeal Section 230 from other elected officials including Representative Lance Gooden (R-Texas) and Graham, who have both pledged not to override the veto of the defense bill.

Congress should vote to Repeal Section 230 as requested by President @realDonaldTrump.

I will not vote to override presidential veto unless effort is made to wind down Section 230.

— Lindsey Graham (@LindseyGrahamSC) December 23, 2020

According to Roll Call, across the aisle, House Speaker Nancy Pelosi also opposed Section 230, calling it "a real gift to Big Tech." Pelosi did, however, vote to overturn the veto of the defense bill.

The Facts

Section 230 of the 1996 Communications Decency Act was written by then Representatives Chris Cox (R-Calif.) and Ron Wyden (D-Ore.) to allow internet companies to regulate themselves, limiting government control of what is now the massive industry of internet service providers.

According to the Council on Foreign relations, companies such as Twitter and Facebook cannot be treated as publishers, meaning they serve as hosts and are not liable for what people post on their platforms but can act as moderators in "good faith."

Some politicians feel that the ability for platforms to be their own moderators allows social media companies to censor speech while others have claimed that social media companies have not done enough to respond to misinformation and other issues on their platforms.

In an interview with The Atlantic in November, former President Barack Obama addressed the dangers of misinformation on social media.

"I don't hold the tech companies entirely responsible," Obama said, "because this predates social media. It was already there. But social media has turbocharged it...if we do not have the capacity to distinguish what's true from what's false, then by definition the marketplace of ideas doesn't work. And by definition our democracy doesn't work."

The bottom line is that social media companies can't be sued for content posted on their platforms but can remove content that doesn't adhere to their rules, guidelines and policies. For example, Twitter has the right to flag or take down posts that encourage violence, promote terrorism, involve child sexual exploitation or include a litany of other safety concerns.

On October 28, Facebook CEO Mark Zuckerberg testified before the Senate Commerce Committee about Section 230. He stated, "Without Section 230, platforms could potentially be held liable for everything people say. Platforms would likely censor more content to avoid legal risk and would be less likely to invest in technologies that enable people to express themselves in new ways."

Zuckerberg went on to say that Congress should update the law to ensure it's "working as intended."

Jeff Kosseff, an assistant professor of cybersecurity law at the United States Naval Academy, echoed Zuckerberg's testimony, saying, "I think that if you eliminate Section 230, you're going to see all the platforms, from the largest tech companies to small community news sites, be much more restrictive in terms of user content that they allow to be posted on their sites because they're suddenly going to face a substantial amount of liability for those comments."

On November 17, Twitter CEO Jack Dorsey testified before the Senate Judiciary Committee about Section 230.

"Completely eliminating Section 230 or prescribing reactionary government speech mandates will neither address concerns nor align with the First Amendment," he said.

"Indeed, such actions could have the opposite effect, likely resulting in increased removal of speech, the proliferation of frivolous lawsuits, and severe limitations on our collective ability to address harmful content and protect people online."

Many people who consider flagging as a form of stifling freedom of speech have turned to Parler, which is a platform that considers itself an unbiased social networking service. So far, Trump has not expressed displeasure with the site.

Parler not only criticized Section 230 but some lawmakers, as well.

"As it stands now, Section 230 protects digital publishers such as Facebook and Twitter when they choose to restrict the flow of speech—which they do by selecting from, and giving disparate treatment to, the various types of content submitted for publication on their platforms," Chief Operating Officer Jeffrey Wernick said in a statement to Newsweek. "Ominously, some politicians actively encourage this throttling of free expression: in hearings conducted this year, these politicians have repeatedly harangued the CEOs of these online publishers for failing to remove enough 'hate speech' or enough 'misinformation.'

"These politicians are apparently hoping to expand Section 230, so that it essentially requires private companies to serve as de facto censors, and thereby hinder the publication of speech that they find abhorrent, but that is clearly protected by the First Amendment. Facebook's Mark Zuckerberg has often expressed sympathy with such an approach. Repealing Section 230 outright would prevent this censorship-by-proxy scheme from coming to fruition, and so would protect freedom of expression."

Wernick also attacked the media as being allied with Twitter and Facebook. He said they all feel threatened by Parler's free-speech model.

"Moreover, repealing Section 230 would encourage any new market entrants to embrace a "bulletin-board" model, which reliably enjoyed broad legal immunity in the years leading up to the enactment of Section 230. Parler would go from being under constant siege by Facebook, Twitter, and their allies in the mainstream media—all of whom apparently feel threatened by the existence of a neutral free-speech platform—to competing on a relatively free market with other free-speech platforms.

"The possibilities of Social Media 3.0 could be fully explored without the specter of an 'improved' Section 230 being enacted, and effectively regulating free-speech platforms out of existence."

The First Amendment of the Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment guarantees the right to freedom of speech but does not guarantee freedom from the consequences of that speech.

In the 1919 Supreme Court case Schenck v. United States, Justice Oliver Wendell Holmes concluded that the First Amendment does not protect speech that creates a "clear and present danger of a significant evil." In other words, if people are promoting violence or harm against others, then that use of speech is exempt from constitutional protections.

In 1969, the Supreme Court case Brandenburg v. Ohio built on the clear and present danger test by concluding that speech is not protected "if it is directed at inciting or producing imminent lawless action" and is "likely to incite or produce such action."

The Ruling

False.

Repealing Section 230 would not promote greater free speech because social media companies and other internet platforms likely will restrict the content on their sites to avoid liability and the associated overwhelming legal fees.

Further, the clear and present danger rule and the imminent lawless action test exempt speech that promotes violence or illegal action from Constitutional protections. Social media companies do not limit First Amendment rights by flagging or removing posts that promote harm or violence to other users.