How Section 230 Changes Targeting Twitter and Facebook Could Backfire on Republicans

Twitter's aggressive restrictions on a controversial New York Post story this week fueled new calls for reform of Section 230, a long-standing internet law that protects websites from being sued based on content shared by users.

Federal Communications Commission (FCC) chair Ajit Pai said on Thursday his agency has "legal authority to interpret Section 230" and as a result would be now exploring "a rulemaking to clarify its meaning," suggesting changes are incoming.

The news was celebrated by Republican politicians and conservative personalities who have long complained social network services are censoring their speech, a case they said was demonstrated this week as Twitter "suppressed" the Post's article.

"The biggest social networks are selectively censoring information. It's time to scrap their special protections under Section 230 and start over," House Republican Leader Kevin McCarthy said yesterday as a chorus of conservative criticism surged.

In a Fox News interview, Sen. Josh Hawley (R-MO) said Americans should be allowed to sue the social media platforms, telling host Sean Hannity that Section 230 protections amounted to a "sweetheart deal" that allowed the firms to grow into monopolies.

What happens next largely depends on how far U.S. lawmakers try to push it; if they will seek to modify the current legislation, or move to revoke it completely.

But legal experts warned revoking the law would have unintended consequences, and even potentially backfire on the Republicans appealing for radical change.

Currently, Section 230 is a provision of the Communication Decency Act 1996 that gives a degree of legal immunity to websites (including social networks) that host speech from users, as under the law they are not considered publishers—but intermediaries. It's not blanket immunity, with exemptions for criminal and intellectual property cases.

Experts have characterized the legislation as being a "backbone" of the modern internet due to it letting free speech flourish online. Without it, it's not clear if social media firms including Facebook or Twitter could continue to exist in their current forms.

In fact, reform could have the opposite effect than some politicians desire, resulting in more censorship as sites are forced to vet posts for rule-breaking content before they are published. In theory, questionable content that could land a site in legal trouble wouldn't be allowed, including posts from those calling for the law's demise.

"Should ICS [interactive computer service] providers decide that the cost of maintaining community standards is one they are willing to pay, there could be significantly more moderation," Ari Cohn, a free speech and defamation lawyer, told Newsweek.

"There's also the matter that Section 230 doesn't just protect giant websites. It protects smaller websites, forums, even administrators of things like Facebook groups."

"So perhaps that church forum doesn't want to have a bunch of people trolling them with Satanist posts. But if there's no Section 230, they're going to have to choose: leave them up and have their forum hijacked and cluttered to the point it's basically useless, or moderate and face liability for any of the other content posted on the forum."

Cohn's assessment was broadly echoed by tech and media lawyer Kelsey Farish, who told Newsweek in an interview last month that if Facebook was made responsible for user content it could likely have to introduce stronger takedown procedures.

"The basic relationship that Facebook and other platforms may change, too. We might see a shift to a subscription model, whereby users are asked to pay fees in order to use social media sites, or agree to much stronger sets of Terms of Use," she said.

Floyd Abrams, a First Amendment lawyer, told Fortune earlier this year that the loss of Section 230 protection for websites would leave all users with "much less ability to post views, or controversial views on any entity." Ultimately, it would be "a major step that would likely lead to less speech rather than more," Abrams said.

Fight for the Future's deputy director Evan Greer echoed the stance in a media release yesterday after news of the FCC's Section 230 announcement was unveiled.

"Ajit Pai's plan to move forward with the Trump administration's deeply silly executive order would be laughable if it weren't so dangerous," she said.

In a blog, the digital rights advocacy group said: "If he [Trump] got his way websites would become legally responsible for the opinions, videos, and memes posted by their users. Social media platforms would likely engage in mass censorship and banning of accounts rather than open themselves up to lawsuits for hosting controversial opinions––Trump's accounts would surely be among the first to go. It would strip users of key protections too. Who's excited to get sued for retweeting something?"

Blowing up Section 230 means MORE censorship, not less

Blowing up Section 230 means MORE censorship, not less

Blowing up Section 230 means MORE censorship, not less

Blowing up Section 230 means MORE censorship, not less

Blowing up Section 230 means MORE censorship, not less

— Evan Greer (@evan_greer) October 14, 2020

Facebook made a similar assessment in a statement published in May after the Trump administration unveiled an executive order targeting social media firms.

In the order, the president said the scope of social media company immunity needed to be "clarified" because the platforms had been engaging in the "stifling" of free and open debate by censoring "certain viewpoints," i.e. his own Twitter updates.

"Repealing or limiting Section 230... will restrict more speech online not less," Facebook spokesperson Liz Bourgeois said at the time, as The Verge reported.

"By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone," she added.

Today, a Twitter spokesperson directed Newsweek to a May statement that called the Trump administration's executive order a "reactionary and politicized approach to a landmark law." The social network tweeted: "Section230 protects American innovation and freedom of expression, and it's underpinned by democratic values. Attempts to unilaterally erode it threaten the future of online speech and Internet freedoms."

The Electronic Frontier Foundation, a non-profit digital rights organization, stresses that Section 230 does not just apply to the social media giants, suggesting that any major changes to the legislation would have a knock-on effect across the internet. It allows YouTube uploads to thrive, Amazon to show reviews and Craigslist to host ads.

It said: "Given the sheer size of user-generated websites it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site.

"Rather than face potential liability for their users' actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online," the group added.

It should be noted Section 230 is an area that Trump and his Democratic opponent Joe Biden appear to agree—albeit for very different reasons.

While Trump decries online censorship, Biden previously told The New York Times that protections for social media, specifically Facebook, needed to be revoked because of the role the websites have in spreading misinformation across the internet.

But the consequences are not limited to the companies, experts said, stressing that if the law was suddenly gone, website users would end up legally vulnerable.

"Section 230 also protects users on social media," Cohn stated. "If there's no Section 230 you might want to think twice about hitting that retweet/share button, because if it's defamatory, you've just republished it and exposed yourself to potential liability."

Angelo Carusone, CEO of left-leaning media watchdog Media Matters, told Newsweek last month it's unlikely 230 will be revoked—but that doesn't mean it will continue in its current form, a prediction looking accurate after the FCC's statement yesterday.

"Modifications or additional laws that establish more legal safeguards for negligence in addressing extremism, dangerous disinformation and other inauthentic activity, as well as liability for violating those safeguards, is extremely likely," Carusone said.

It remains to be seen what direction Republican opponents will go when it comes to the law. Reuters reported yesterday that the CEOs of Twitter, Facebook and Google are set to go before the Senate Commerce Committee to discuss 230 later this month. It said that despite threats there is unlikely to be major changes by Congress in 2020.

Whatever happens, attempts to "clarify" the law will not go unchallenged.

Sen. Ron Wyden (D-OR), who played a key role in the creation of Section 230, tweeted yesterday that the FCC doesn't have the legal authority to rewrite the law. "Ajit Pai can't appoint himself commissioner of the speech police," the senator wrote on Twitter.

Donald Trump
President Donald Trump speaks during a news conference at the White House on September 10, 2020 in Washington, DC. Drew Angerer/Getty