Trump Is Targeting Twitter and Internet Giants for the Wrong Reasons—But It's the Right Thing to Do | Opinion

The president of the United States declared war last week on a little-known piece of legislation called Section 230 of the Communications Decency Act. Lawyers like me have worked to reform Section 230 for years. So why am I not happy?

The first thing you need to know is that Section 230 is old. It was passed in 1996, the year we all learned the Macarena and there were a minuscule 100,000 sites on the entire internet. Today there are 1.5 billion, still growing exponentially.

Back in 1996, when the minority who used the internet regularly still suffered the speeds of a dial-up modem, Section 230 was added specifically to protect the "little guys" in the newly burgeoning internet economy. If startups were held legally responsible for the content their users submitted, the emerging, exciting model of sites sharing what users posted themselves would be strangled. Representative Ron Wyden of Oregon, now a senator, co-authored the amendment and said in 2019, "And I said then—and it's the heart of my concern now—if that's the case, it will kill the little guy, the startup, the inventor, the person who is essential for a competitive marketplace. It will kill them in the crib."

This concern seems almost quaint now, as Section 230 manifestly protects the big guys, such as Pornhub, Twitter, Facebook and YouTube.

Because of Section 230, those behemoths have no legal responsibility for what their users post. They are considered platforms, not publishers. Consider an analogy that made sense 20 years ago: If the New York Times prints a libelous story about you, you can sue the newspaper. But if someone slanders you over the phone, you can't sue AT&T.

That analogy is no longer useful. By making social media companies responsibility-free zones, Section 230 certainly allowed them to grow and profit—but in a way that has made them dangerous to many "little guys" (and gals). I see this in my law practice every day.

I represent people whose lives are upended by online bullying, harassment, revenge porn and reputation-destroying lies delivered by Facebook or Twitter right onto the phones of the people who matter most to them. Sure, there are policies (on the more reputable sites) for taking down poisonous false posts or revenge porn images (illegal in 46 states). But in reality, good luck—once they get into the electronic ether, you are fighting a battle on many fronts, while the perpetrators can hide behind anonymous accounts and the platforms that permit the anonymity and the mass distribution of the pernicious material are raking in billions in ads, immune from any real responsibility thanks to Section 230. And if you are unlucky enough to have an intimate photo posted by an angry ex-boyfriend on Pornhub or a site that cares even less about its public responsibilities than Facebook, forget it—it will metastasize all over the web, again because of Section 230.

Other little guys who suffer are musicians and photographers who see their copyright violated again and again by cost-free sharing the big sites do nothing to curb, destroying their livelihoods.

These are words I have never written before, but I agree with President Trump. Section 230 is ripe for reform. We must be able to hold social media companies legally responsible, because sometimes the only way we can force companies to deliver a better and safer product is to be able to sue them when they don't.

But as to the president's proposed reforms, and his reasons for them, we couldn't be farther apart.

The president's executive order trying to restrain internet companies came about because a Twitter fact-check pointed users to reputable sources showing he was wildly misrepresenting reality. He seems to want to be able to publish anything that comes into his Twitter fingers, including the false and incendiary, without being subjected to as much as a content warning. As for me, I want sites to take down damaging, illegal videos of abuse, and I want robust tools to stop harassment, efficiently operated by the companies that run the electronic highway and profit from its traffic.

In any event, this kind of change cannot legally come via executive order in a fit of presidential pique. Section 230 is the law of the land. Any replacement must go through Congress and intense public scrutiny. This process should incorporate the latest research on harmful online content and who is most vulnerable. Hint: that is not the most powerful people, but the least.

Freedom of speech is not suppressed by Twitter slapping a fact-check tag on a tweet. In a paradox the president does not acknowledge, Twitter is not an appendage of the state. The First Amendment requires the government not to abridge people's right to free speech; it does not require private companies to do anything, even if forums like Twitter or Facebook have become so large and intertwined in our lives that they're the modern equivalent of the "public square" that the Founders intended the First Amendment to keep open to robust debate.

Still, the president and other users who are unhappy with a fact-check or who disagree with a moderator's comment remain perfectly able to publish on a different platform, whose terms of service their opinions would not violate. They can take their business and their opinions elsewhere, freely. It is actually a much clearer breach of the First Amendment's restraints on government action when the chief executive intimidates platforms and publishers with threats of closure or by naming individual employees who offend him.

Donald Trump
U.S. President Donald Trump makes a statement to the press in the Rose Garden at the White House June 1 in Washington, D.C. Chip Somodevilla/Getty

Our clients are not free to take their reputations and online lives elsewhere. They can't escape the harassment they endure, because it follows them from platform to platform and site to site. Deeply private videos or pictures show up in a rudimentary Google search because they can be linked to a full name, wrecking prospects with future employers, business partners, first dates, scholarship committees or everyone in their high school. It is devastating, emotionally, reputationally and financially, to suffer repeated privacy violations and have no effective tools to fight back.

Yes, Mr. President, it's time we reform Section 230, to truly make it protect "the little guy." But it's also time to become part of the solution, not the problem. Hold websites legally accountable for hosting illegal content—and either don't sweat your fact-checks, or learn from them.

Dr. Ann Olivarius is chair of the executive committee at McAllister Olivarius, a trans-Atlantic law firm specializing in harassment and discrimination.

The views expressed in this article are the writer's own.