How Section 230 set the standard for free speech online

Twenty-six words embedded in a 1996 telecommunications overhaul law allowed companies like Facebook, Twitter and Google to grow into the giants they are today.

A case heard by the U.S. Supreme Court on Tuesday, Gonzalez v. Google, challenges that law — specifically whether tech companies are liable for material posted on their platforms.

Judges will decide whether the family of an American student killed in a terrorist attack in Paris can sue Google, which owns YouTube, over allegations that the video platform’s recommendation algorithm helped extremists spread their message.

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They seemed unlikely to side with the family, but said they were wary of Google’s claims that the law gives it and other companies immunity from lawsuits.

A second case heard Wednesday, Twitter v. Taamneh, also focuses on liability, though for different reasons. This case concerns the family members of a man killed in an attack on an Istanbul nightclub claimed by the Islamic State group.

The family accuses Twitter, Facebook and YouTube, parent Google, of helping IS grow by recommending extremist content through their algorithms. The platforms argue that they cannot be sued because they did not knowingly or materially assist in the attack.

The results of these cases could reshape the internet as we know it. Section 230 will not disassemble easily. But if it is, online speech could change drastically.

What is Article 230?

If a news website falsely calls you a fraud, you can sue the publisher for defamation. But if someone posts it on Facebook, you can’t sue the company — only the person who posted it.

This is due to Section 230 of the Communications Decency Act of 1996, which 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 provider of information content.”

This legal phrase protects companies that can host trillions of messages from being sued into oblivion by anyone who feels wronged by something someone else has posted — whether their complaint is legitimate or not.

Politicians on both sides of the aisle have argued, for different reasons, that Twitter, Facebook and other social media platforms have abused that protection and should lose their immunity — or at least gain it by meeting the demands that the government has set.

Section 230 also allows social media platforms to moderate their services by removing posts that, for example, are obscene or violate the services’ own standards, as long as they act in “good faith”.

Where did section 230 come from?

The history of the measure dates back to the 1950s, when bookstore owners were held responsible for selling books that contained “obscenity,” which is not protected by the First Amendment. One case eventually reached the Supreme Court, which ruled that it created a “chilling effect” of holding someone responsible for someone else’s content.

That meant plaintiffs had to prove bookstore owners knew they were selling obscene books, said Jeff Kosseff, the author of “The Twenty-Six Words That Created the Internet,” a book on Section 230.

After a few decades, when the commercial Internet was taking off with services like CompuServe and Prodigy. Both offered online forums, but CompuServe chose not to moderate it, while Prodigy, seeking a family-friendly image, did.

CompuServe was sued for this and the case was dismissed. But Prodigy ran into trouble. The judge in their case ruled that “they exercised editorial control — that’s how you look more like a newspaper than a newsstand,” Koseff said.

That didn’t sit well with politicians, who worried the outcome would discourage Internet startups from mitigating at all. And Section 230 was born.

“Today it protects against both liability for user posts and liability for any claims of content moderation,” Kosseff said.

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What will happen if Section 230 is Abolished?

“The main thing we do on the Internet is talk to each other. It might be email, it might be social media, it might be message boards, but we’re talking to each other. And a lot of those conversations are enabled by Section 230, which says that whoever allows us to talk to each other is not responsible for our conversations,” said Eric Goldman, a professor at Santa Clara University who specializes in Internet law. “The Supreme Court could easily disturb or eliminate that basic sentence and say that the people who allow us to talk to each other are responsible for those conversations. Then they won’t let us talk anymore.”

There are two possible outcomes. Platforms may become more vigilant, as Craigslist did after the 2018 passage of a sex-trafficking law that carved out an exemption from Section 230 for material that “promotes or facilitates prostitution.” Craigslist quickly removed the “personals” section, which was not intended to facilitate sex work. But the company didn’t want to take any chances.

“If the platforms didn’t have immunity under the law, then they wouldn’t be risking the legal liability that could come from hosting Donald Trump’s lies, defamation and threats,” said Kate Rowan, former senior legislative counsel for the US Union of Civil Liberties now working. for PEN America.

Another possibility: Facebook, Twitter, YouTube and other platforms could abandon moderation altogether and let the lowest common denominator prevail.

Such unregulated services could easily end up being dominated by trolls like 8chan, a site that was notorious for graphic and extremist content.

Any change to Section 230 is likely to have ripple effects on online speech around the world.

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“The rest of the world is destroying the Internet even faster than the US,” Goldman said. “So we’re a step behind the rest of the world when it comes to Internet censorship. And the question is whether we can even stand up on our own.”