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We need Section 230 now more than ever

For those who want to see less of the kind of content that led to the storming of the Capitol, Section 230 may be unsatisfying, but it's the most the Constitution will permit.

The U.S. Supreme Court

Even if certain forms of awful speech could be made unlawful, requiring tech sites to clean it up would be even more constitutionally difficult.

Photo: Angel Xavier Viera-Vargas

Many conservatives are outraged that Twitter has banned President Trump, calling it "censorship" and solemnly invoking the First Amendment. In fact, the First Amendment gives Twitter an absolute right to ban Trump — just as it protects Simon & Schuster's right not to publish Sen. Josh Hawley's planned book, "The Tyranny of Big Tech."

The law here is clear. In 1974, the Supreme Court said newspapers can't be forced to carry specific content in the name of "fairness," despite the alleged consolidation of "the power to inform the American people and shape public opinion." The Court had upheld such Fairness Doctrine mandates for broadcasters in 1969 only because the government licenses use of publicly owned airwaves. But since 1997, the Court has held that digital media enjoys the same complete protection of the First Amendment as newspapers. "And whatever the challenges of applying the Constitution to ever-advancing technology," wrote Justice Antonin Scalia in 2011, "'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears."

Republicans battled the Fairness Doctrine for decades, and for good reason: The Kennedy and Johnson administrations really did weaponize the FCC to keep conservatives off the airwaves. Republicans' 2016 platform (recycled for 2020) blasted the (by then, long-dead) Fairness Doctrine, demanding "free-market approaches to free speech unregulated by government."

Sadly, most elected Republicans have since abandoned those free market principles as they have increasingly come to see themselves as the victims of censorship by Big Tech. Even the removal of outright bigots like Richard Spencer and other neo-Nazis has been cited in august outlets like The Wall Street Journal without considering exactly who was banned and why. The storming of the Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequences — in this case, five deaths (plus a Capitol officer's suicide days later).

MAGA Republicans initially struggled to reconcile their "Fairness Doctrine for the Internet" with conservatives' past hardline defense of the First Amendment. They quickly learned how to obfuscate their hypocrisy.

First, they've posed as the "real defenders of free speech" — as if the First Amendment gave every American the right to an audience on someone else's property. In reality, the First Amendment prohibits compelled speech and forced association — a point conservatives trumpeted when it was bakers refusing to make cakes for same-sex weddings.

Second, they claim that websites have no First Amendment right to block speech they find abhorrent because their centrality to public discourse makes them "public fora" just like town squares, where the First Amendment guarantees everyone a right to speak. But the Supreme Court, led by Justice Brett Kavanaugh, emphatically rejected an equivalent argument (in a case about public access cable channels) in 2019: "Merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints." In other words, the First Amendment remains a shield against government meddling in online speech, not a sword for the government to ensure "fairness."

Third, they blame Section 230 for online "censorship." Trump even cited Congress' refusal to repeal the 1996 law in his veto of defense spending (which Congress overrode). But when sites are sued for banning users or removing content, Section 230 merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment grounds — but with far less hassle, stress and expense. Multiply all those across the huge volume of online content, and websites could be deterred from trying to moderate content altogether. It's not just website operators that would suffer, it's their most vulnerable users — and our overall discourse.

And that's exactly what MAGA Republicans are trying to do: force websites to broadcast their speech, no matter how noxious. That's why they've proposed ending 230's liability shield for moderation of hate speech, misinformation, conspiracy theories, voter suppression and most foreign election interference — all real threats to our democracy that the First Amendment bars the government from doing much, if anything, about.

In 2012, the Supreme Court ruled that the First Amendment protects false speech, with only narrow exceptions. The Court hinted that it might be possible to curtail false claims about election procedures and results. But the Court isn't likely to reconsider the line it drew in 1969: The government can punish a call for violence only when it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." It's unclear whether Trump's speech encouraging his supporters to go to the Capitol actually met that very high bar. But, again, social media sites have a First Amendment right to take down such speech and ban him for it.

Even if certain forms of awful speech could be made unlawful, requiring tech sites to clean it up would be even more constitutionally difficult. It's one thing to do that with child sexual exploitation material, which is generally readily identifiable. It's quite another to make a website both judge and jury in cleaning up the speech of others. As an appeals court said in 1978, an FCC regulation holding cable operators responsible for obscenity created by public access channel users would have "subjected the cable user's First Amendment rights to decision by an unqualified private citizen, whose personal interest in satisfying the Commission enlists him on the 'safe' side — the side of suppression."

That's why Section 230 is so vital. It enables private website operators to do what the First Amendment says the government may not: at least try to clean up the internet. For those who want to see less of the kind of content that led to the storming of the Capitol, Section 230 may be unsatisfying, but it's the most the Constitution will permit. Yes, we should pressure websites to do more, but without Section 230, that won't work. Simply put, we need the law more than ever.

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