Section 230 of the US Code is a controversial piece of legislation. At the core of the code, it was written to provide the websites that host user-created content the ability to moderate their content without facing civil liability for censorship. The intention here is to provide these mediums the ability to remove lewd or violent material for the sake of promoting a safe and healthy internet, and in particular to keep children safe and provide parents with a trustable web location. Like all things law, this code has been interpreted to mean many more things and has given companies like Facebook, Twitter, Reddit, and others the legal freedom to censor topics as they see fit.
Here is the relevant section of code 230:
(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of—
(A)
any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)
any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]
https://www.law.cornell.edu/uscode/text/47/230
The remainder of the code goes on to state that existing legislation around sex trafficking, criminal law, and privacy law are not altered by this bill. This importantly indicates that even upon the repeal of Section 230, existing laws around requiring companies to moderate illegal content is still present. Instead, this law gives Facebook and others the right to moderate their content and remove items that are not illegal but still violate what they feel is appropriate for their viewers.
This is where the tension lies. Social media websites act as a medium where individuals across the world can interact and say what they please. The law here reinforces that these social media spaces are maintained by private company and as such they are allowed to moderate their content as they see fit – assuming it is in the best interest of their clients and the moderated content falls under (A) above. On the other side of the argument, it is stated that Facebook and others have gained such popularity that they should no longer be able to act with impunity when censoring material and that instead of operating as a private space, they are now a ‘town square’ where freedom of speech should not be restricted.
The Republican party is stating that Section 230 allows social media websites to censor the activity of prominent conservative speakers. This is true. Because of section 230, Twitter has been able to censor President Donald Trump in his tweets discussing alleged election fraud and they are able to do so without any repercussion. It is up to Twitter to decide if they think that the tweets presented by President Trump are obscene or objectionable and section 230 prevents any liability for them choosing to restrict this content if they believe it is in the best interest of their users. It is an interesting and perhaps hypocritical argument coming from the conservative party here because it seems to go against some of their core beliefs around corporate libertarianism. According to this argument and others made by similar folk, the government must not force your company to sell gay wedding cakes, yet the government must force you to keep communications made by conservatives inciting violence. If they intended to keep consistent with their libertarian values, you would assume that they would allow these companies to make decisions in line with whatever values that company holds – conservative, liberal, or otherwise.
The repeal of Section 230 will have unintended consequences on the internet. Just recently Instagram decided that they would remove all references to OnlyFans on their medium. This is within their rights by Section 230 because they are attempting to remove lewd material from their application to make it more friendly to the children that use it. While they are not legally obligated to remove this content, they believe they are making the right ethical choice. Similarly, PornHub has recently decided to completely eliminate the majority of their content due to pressure from the credit card processing industry. Their hand was forced and they have ultimately decided that moderation was too difficult and they will instead eliminate the ability for unverified users to upload content. Because many of these users use this website to generate personal revenue, without Section 230 protecting PornHub, these users could sue for losses.
This brings me to my next point, the rights of content creators. When Twitch decides that a streamer is acting lewd on camera, Twitch retains the right to ban this individual. Twitch is a platform that people of all ages use and Twitch feels obligated to protect their customers. They are protected under Section 230 when they ban these users. For popular Twitch streamers and famous Youtubers, the threat of being banned for their content is very real and can result in very serious financial losses. It is not uncommon for a content creator to make 10s of thousands of dollars a month – an amount that if turned into a lawsuit could quickly bankrupt these platforms. The repeal of section 230 could potentially open the floodgate of lawsuits to these platforms and fundamentally change the internet as we know it.
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