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Is Free Speech Online About To Get A Lot Less Free?

November 30, 2020


If you or your friends and family use any sort of social media, write a review of a product, or comment on a blog, you have a 1996 law to thank for it – Section 230 of the Communications Decency Act.  In brief, Section 230 allows website owners to moderate content (or not) on their sites without being subject to liability for what their users post.  Section 230 is widely credited as making the internet what it is—for better or worse.

Twice in less than a month, the Senate has summoned tech CEOs to testify as part of Congress’s reevaluation of Section 230.  While there is currently a loose bipartisan consensus among lawmakers that Section 230 needs to be updated, the hearings highlighted that the Republican and Democratic senators want radically different reforms for diametrically opposed reasons and that, as such, there is little chance for change in the short-term.

The ostensible purpose for the first hearing, before the Senate Commerce Committee was to “examine whether Section 230 of the Communications Decency Act has outlived its usefulness in today’s digital age[, and to] examine legislative proposals to modernize the decades-old law[.]”   The Committee had the three biggest names in social media tech (Marc Zuckerberg—Facebook CEO, Jack Dorsey—Twitter CEO, and Sundar Pichai—Alphabet and Google CEO) at their disposal, but little light was shed on the very important policy questions surrounding the law.  The hearing was highly confrontational and focused almost entirely on particular moderation decisions involving the then-upcoming election.  This should have been no surprise, as Texas Senator Ted Cruz (R.) publicized the hearing as if it was a professional wrestling match, styling himself as the “Free Speech Champion” and naming Jack Dorsey the “Censorship Czar.”  As such, rather than delve deeper into Mr. Zuckerberg’s newsworthy statement that Congress “should update the law to make sure it’s working as intended,” or consider Mr. Pichai’s request that any changes need to be “very thoughtful,” or even Mr. Dorsey’s warning that changes would “collapse how we communicate on the internet,” the Committee members focused exclusively on their personal views about moderation decisions concerning individual posts/tweets.  On the one hand, the Republican Committee members asserted that the services unfairly ban conservative speech.  And on the other hand, the Democratic Committee members complained that the services were not banning enough content—such as misinformation about the election, hate speech, violent speech, and terroristic threats.  In the end, while it was clear that everyone was unhappy with the current state of internet content moderation, the Committee neither provided nor sought suggestions on how to change the status quo.

The second hearing, which took place before the Senate Judiciary Committee, included only Messrs. Dorsey and Zuckerberg as witnesses.  The Committee was not subtle about its true objective, titling the hearing “Breaking the News: Censorship, Suppression, and the 2020 Election.”  Once again the proceeding was highly partisan, and the witnesses certainly knew that they were not going to be congratulated for their efforts to control misinformation during the election cycle.  The Republican senators once again asked why Facebook and Twitter weren’t moderating less, accusing the platforms of censoring conservative speech, an odd accusation since almost none of the referenced statements actually being censored.  Rather, completely baseless and false statements were labeled as “incorrect” or “disputed,” and posts coming from known foreign propaganda sources were erased and their fraudulently-created accounts eliminated.   Democratic senators again asked why they were not moderating more, accusing the platforms of not doing enough to stop the spread of misinformation.  Despite this demagoguery, the witnesses were able to articulate some small reforms to Section 230 that they believe may be helpful, including producing transparency reports about what posts they decide to remove, giving users more control over the algorithms that determine what content shows up on their screen, and allowing for appeals of moderation decisions.  While none of these proposed reforms go to the heart of Section 230, they do show an awareness on the part of the tech giants that these are valid questions for serious discussion.

There is not much to take away from the hearings other than the fact that the Senate squandered two opportunities to obtain information from some of the most influential people in the tech industry and participate in a real discussion about Section 230.   Perhaps 2021 will bring a fresh approach to problem-solving in Congress, along with a new President.