Free speech is under attack, apparently, and it is all the fault of politicians on both sides who want to reign in Big Tech:
Both sides of the political aisle are attacking long-accepted principles of speech law, frequently in ways that are both logically incoherent and deeply concerning.
Many of them profess to hate another law: Section 230 of the Communications Decency Act. But the more they say about 230, the clearer it becomes that they actually hate the First Amendment and think Section 230 is just fine.
Removing Section 230 protections is a sneaky way for politicians to get around the First Amendment. Without 230, the cost of operating a social media site in the United States would skyrocket due to litigation. Unable to invoke a straightforward 230 defense, sites could face protracted lawsuits over even unambiguously legal content. And when it comes to categories of speech that are dicier, web platforms would be incentivized to remove posts that might be illegal — anything from unfavorable restaurant reviews to MeToo allegations — even if they would have ultimately prevailed in court. All of this would burn time and money in perhaps existential ways. It’s no wonder platform operators do what it takes to keep 230 alive. When politicians gripe, the platforms respond.How America turned against the First Amendment – The Verge
This has all the bingo cards — 230 is actually free speech, both sides, opposing 230 is illogical and just a cover for people who hate free speech.
This is of course disingenuous nonsense. The criticisms of section 230, from the center and left at any rate, are largely focused on the fact that section 230 has been read in such an expansive way that product liability for websites and other platforms has ceased to exist. No matter how dangerous a product is, as long it is somehow related to user generated content, it is safe from scrutiny. As a practical matter this means
- You can create a product that gets people assaulted and put at risk for assault over and over again
- You can push life-threatening content to children
- You can push terrorist supporting material to your users
- You can make money off pushing radicalizing material to your users, such as election denial
The author claims that any attempt to reign in this destruction of product liability will inevitably lead to the end of free speech. She gives as one example a quote form Biden, where he said that section 230 allowed COVID disinformation to spread unchecked. Aha! See, since what we knew about COVID was sketchy and uncertain, cracking down on platforms that push misinformation would mean that we would never have the chance to figure out what was actually true about COVID! Do your own research, man!
Well, no. Putting aside that the President hasn’t actually proposed anything like the end of free speech online Nothing in the product liability approach would prevent people from talking about COVID and learning the truth. It would, however, hold a company responsible for when it deliberately tells people that the vaccine causes miscarriages, for example. If I made a machine that you could ask a health question of and it constantly spit out dangerous or incorrect information, I would face, as I should, liability for that failure. That is not an attack on my free speech — that is a valid protection of my fellow citizens. Online algorithms should be no different.
The author does attempt to obliquely address the fact that these companies harm people for money by bringing up attempts to fight child pornography:
When lawmakers do take up serious issues around platform regulation, it’s often with the blatant ulterior motive of punishing “Big Tech” for perceived political misdeeds. Debate over the EARN IT Act targeting child sexual abuse material, for instance, was peppered with claims that Section 230 was a gift to Facebook or Google — when groups like NCMEC acknowledged that the popular “Big Tech” targets were some of the most responsive at reporting CSAM. Omnibus Section 230 reform bills are bizarre chimeras from lawmakers with conflicting goals, pushing sites to moderate more and less at the same time.
So, it’s bad when lawmakers go after illegal speech as well? It cannot be that people don’t want child porn to spread easily online. Of course not –that must be a bad faith argument mean to shut down your ability to post memes. That level of bad faith is distressingly present in this article. The tone is massively dismissive of anyone who doesn’t think section 230 is God’s gift to the world and it doesn’t take seriously the hard questions at the center of these debates. It is the worst kind of us vs. them tripe.
One argument she makes to take the heat off the failures of section 230 is that the law has not kept up with the internet.
To put it bluntly, the First Amendment doesn’t work if the legal system doesn’t work. Arguing over the rare exceptions to free speech doesn’t matter if people can’t be meaningfully censured for serious violations or if verdicts are vestigial afterthoughts in cases filed mostly for clout. And it’s especially useless if the courts themselves won’t take it seriously.
There is actually some truth to this — she discusses the Jones and Amber Heard trials — but it is also avoiding the question. One of the reasons the law is so bad at handling the internet is section 230. Maybe, perhaps, if section 230 didn’t protect companies that made harmful products online the law would work a little bit better.
Not that she seems to care. Her only solution in that section is anti-SLAPP laws. First, I find it amusing that someone who is so gung-ho about free speech online is intent on keeping poor people form speaking in courts. Because that is a known effect of anti-SLAPP laws. Now, that does not mean that such laws are not valuable. This is, like everything associated with the First Amendment, is complicated. It would have been nice if the author had acknowledged some of those complications
Take her discussion of the Texas and Florida laws the prevent large online platforms from banning conservatives even if they violate the platform’s terms of service. This is a bad law with bad motives. (And would be if the law came from the left.) But is it really such a bad thing that large companies that effectively control the public sphere of discussion face greater scrutiny about what they do and do not do with that control? She brings up the side of treating this companies as a public utility, but dismisses it with literally a shot about conservatives previously arguing against ISP being public utilities. She doesn’t even bother to discuss the idea. She just, as she does with everything else in the article, just dismisses it because regulation is bad, m’kay? If you are concerned about a loss of expression, maybe its worth treating social media companies as public utilities rather than leaving these decisions entirely to the whims of the people who care mostly, or sometimes entirely, about making money off them.
In the end, her argument appears to be that people suck, so the government cannot be trusted to do anything to deal with the thorny issues the massive online, algorithmically driven platforms can and have caused to individuals and the body politic:
When bad behavior goes unpunished, unaddressed, and spirals out into something worse and worse, people look for something to blame. And the reality is that no politician can blame the First Amendment, so they blame 230 instead. That’s the lesson, the takeaway: whenever politicians talk about regulating Big Tech or changing 230, they are almost always talking about imperiling the First Amendment.
The bigger issue, though not the only one, is that the internet allows people to speak to each other at a scale unprecedented in human history. The shortcomings and tradeoffs of the laws governing that speech have never been so evident, and their troublesome edge cases never so numerous. And instead of trying to reckon with a new world, the people who make and enforce those laws have abdicated their principles and responsibilities in favor of wielding raw power — and, often, abdicating a lot of their common sense as well.
Those last lines are rich in an article that spends effectively no time grappling with the actual hard questions these issues raise. Look, I am a socialist. I know how much most people in authority would like to shut down my kind of speech, and how far they have gone to do so in the past. I am not blind to the perils, here. But I am also not blind to the fact that defending section 230 as it is today is effectively saying free speech absolutism is worth this:
At the peak of the abuse Matthew Herrick suffered, 16 men showed up every day at his door, each one expecting either violent and degrading sex, drugs, or both. Herrick, a 32-year-old aspiring actor living in New York City, didn’t know any of them, but the men insisted they knew him — they’d just been chatting with him on the dating app Grindr. This scenario repeated itself more than 1,000 times between October 2016 and March 2017.
Protective orders and police reports against J.C. failed to stop the torrent of harassment. Herrick, his friends, and lawyers submitted 100 complaints to Grindr asking it to block J.C., but they received no response. Eventually, Herrick took Grindr to court in an attempt to force it to do something to stop the nightmare. Grindr argued that under federal law, it didn’t have to help Herrick, and in February 2017, a federal judge agreed.Herrick Vs. Grindr Is A Section 230 Case That Could Change The Internet As We Know It (buzzfeednews.com)
I do not. I believe, just as you cannot yell fire in a crowded theater, online platforms must be held responsible for the products they build. I believe that private control of public discussion raises a lot of hard questions about free speech and the fate of our democracy. This article claims to be concerned about free speech, but it reads as if it doesn’t care about the hard questions. It only cares about making sure that essentially that no possible discussion of that id the digital equivalent of shouting fire in a theater can take place. I suspect the author believes that good speech always wins in the end (something that the last twenty years should have disabused her of) and/or that we must accept the harm done by these companies to have any free speech at all.
If you look at the rest of the liberal democratic world, though, you see that countries with no first amendment and no section 230, like Germany, are no less open and free and might even have healthier public spheres, than the US.
At the end of the day, it is clear from the insults and presumption of bad faith that the author does not trust any politicians, and thus does not trust any democratic arguing of these issues. I don’t find that compelling. These are hard issues with no clear answers. Refusing to grapple with them, as this article does, is an admission that you have no answers beyond telling people that their harm is not as important as your speech under any circumstances.