Last week, the Senate passed the Allow States and Victims to Fight Online Sex Trafficking Act. The legislation amends Section 230 of the Communication Decency Act, which holds that online platforms cannot be responsible for their users’ content, to exclude sex trafficking. Big tech companies warned that the bill could inadvertently compel them to block controversial political speech. Though they lost the fight over this exception, the tech lobby hopes to expand their immunity across North America via NAFTA renegotiations, also invoking free expression.
Despite this rhetoric, Google and other social media giants cite Section 230 to defend their own censorship policies in court. Congress enacted the law in 1996 to nullify a court decision, which made online message board owners liable for their users’ posts under some circumstances. In response, the Communications Decency Act established that “interactive computer services” (ICSs), where users post content on another platform, cannot be “treated as the publisher or speaker of any information provided.”
Over the past two decades, interactive platforms have taken over the Internet. Google, eBay, Facebook, Twitter, Yahoo, the Apple and Android app stores, and Instagram all receive Section 230’s protections. Most controversially, courts have ruled the law immunized Backpage.com, which had received over 90 percent of its revenue from “adult services” advertisements on its website.
Legislators responded with legislation to strip the immunity from ICSs that allow sex trafficking on their platforms. Although the Internet Association, which represents all major online firms including Microsoft, Amazon, Google, and Facebook, eventually supported a scaled back version of the bill, its general counsel Abigail Slater testified that adding “ambiguity” to Section 230 “would send a dangerous signal to other countries that are seeking to require U.S. internet services to filter dissenting political speech.” The association also argues that the United States should demand that Canada and Mexico enact similar laws to protect Americans from countries with “weaker standards on free speech” who “can impose extraterritorial control on the activities of U.S. citizens and companies.”
These are legitimate concerns. Most countries do not share America’s commitment to free speech. In addition to authoritarian regimes, Germany has threatened to jail social-media executives for not removing hate speech. As the United Nations special rapporteur on free speech David Kaye warned: because “major companies operate at scale,” the “troubling content regulations in Europe” risk seeping, “into global corporate practices with an impact on the uses of social media and search worldwide.”
Moreover, there are five hundred million tweets, over five hundred thousand hours of YouTube videos, and billions of Facebook comments posted every day. Even if liability was limited to blatantly illegal posts, overly-broad enforcement would lead platforms to filter out legitimate content.
Yet big tech’s demand for absolute immunity is less compelling in light of their use of Section 230 to justify political bias and censorship. Conservative commentator Dennis Prager is suing Google for demonetizing and restricting access to many of his PragerU YouTube videos on topics such as “Gun Rights Are Women’s Rights” and “Israel’s Legal Founding.”
Among other claims, Prager’s attorneys argue that Google cannot advertise itself as a “platforms for free expression,” while enacting politically based restrictions on content. Google responded to the lawsuit by citing Section 230. Its attorneys argued that limiting its ability to censor would “impose liability on YouTube as a publisher of [Prager’s] videos.” In the same motion, Google argues that its right to restrict political content also derives from its “First Amendment protection for a publisher’s editorial judgments encompasses the choice of how to present, or even whether to present, particular content.” Twitter, which describes itself as the “great public square,” has made near identical arguments.
In fairness, lawyers often offer legal theories in lawsuits that do not mirror their clients’ official public policy. However, the tech industry advocates for absolute and global intermediary immunity specifically to avoid unintended consequences in litigation. While Section 230 was partly enacted to encourage companies to obscene and violent content in good faith, it was not meant to shield political censorship. Indeed, the law described ICSs as a “forum for a true diversity of political discourse.”
Stopping abusive and illegal posts on social media without restricting lawful speech requires difficult tradeoffs. But rather than balancing concerns, the tech titans’ thumbs are on both ends of the scale. Before the U.S. government tries to impose Section 230 on our trading partners in the name of free speech, the courts or Congress should clarify that it cannot be used to restrict political speech.
Mark Epstein is an antitrust attorney. He writes frequently on online speech and competition for publications including National Review, the Wall Street Journal, and U.S. News and World Report.