John Daniel Davidson
There’s nothing like a row between Twitter and President Trump to turn everyone into an expert on 47 U.S. Code § 230, a heretofore obscure section of federal law that deals with liability protections for companies like Twitter.
Go on social media right now and you’re bound to find friends, neighbors, and colleagues opining on federal statutes and citing old Supreme Court cases to bolster their arguments that we have to do this or that right now to save the internet or protect free speech.
So let me just say up front, I am not an expert on Section 230 or on federal liability law generally. I don’t have a strong opinion on exactly how the law should be reformed or what the mechanisms of a successful reform might be, nor do I think there aren’t real trade-offs to consider here.
But I don’t need to be an expert in liability law to know this: social media are corrosive to our civic life, and social media companies like Twitter are largely unaccountable for their actions in that regard. Without question, Twitter and Facebook and YouTube have harmed democratic life in America, eroded our civic values, and exacerbated divisions and distrust between citizens. If they all disappeared tomorrow, the country would be better off.
Consider for a moment the disconnect between what social media promised us and what we actually got. The big idea was that making everyone more connected virtually would bring us closer together in reality, that a digital commons would increase empathy and build real community.
Facebook’s Mark Zuckerberg made this sentiment a kind of mantra. When he took his company public in 2012, he was clear about the social mission behind the enterprise. “We are extending people’s capacity to build and maintain relationships,” he wrote, adding that, “Facebook exists to make the world more open and connected, and not just to build a company.”
It hasn’t worked out that way, or at least not quite in the way Zuckerberg meant. The world is undoubtedly more open and connected thanks to Facebook and Twitter, but it is not more sanguine or tolerant or kind. Connectedness through social media has not made us more empathetic or willing to change our minds, and it has not brought us closer together.
Just the opposite, in fact. Even setting aside the online ugliness of the 2016 election, is there any conflict or tension in American society that isn’t made worse by social media? Sure, there are rare exceptions—sometimes people do nice things for each other, sometimes people use these platforms to reunite with long lost family members or friends. But the dominant emotion of social media is anger, the default tone is caustic, and the overall effect is division.
Obviously, not everyone shares this view. Many people think the advent of the internet and the inventions of mass platforms like Facebook and Twitter meant we had to make concessions in federal law to enable these companies to host third-party content without the fear of defamation lawsuits over what their users might post. (For some background on how we got Section 230, check out Eugene Volokh’s helpful primer at Reason.)
Rolling back or reforming these liability protections isn’t so easy, were told. And besides, such drastic reform might not even be necessary. After all, companies like Twitter have no obligation under federal law to be neutral in how they police content posted on their platforms.
My friend David Harsanyi makes this point at NRO, rightly noting that newspapers and magazines with online comment sections enjoy the same liability protections under Section 230 that Twitter does. An outlet like the New York Times is liable for what it publishes or commissions but not for what online commenters write.
“In the same way,” writes Harsanyi, “if Twitter ‘factchecks’ a user, its opinion should be considered published material that is no longer protected from liability. By offering one opinion, Twitter isn’t suddenly liable for the billions of other tweets that exist on its site, or for the opinion held in the tweet to which it is responding.”
It’s a fair point, but it misses a larger problem. Why should Twitter or Facebook or YouTube be given liability protections at all? Why should it be the case that these companies can host all manner of content, make a fortune, and not be expected to bear responsibility for any of it?
Section 230 of the Communications Decency Act was passed in 1996, back when Congress was grappling with new technology and trying to make the internet as open as possible. Harsanyi and others worry that if liability protections are taken away, there would be a flood of lawsuits. Media companies might abandon open platforms altogether. Social media as we know it might cease to exist.
Let’s hope so. It wouldn’t be the end of the world—or even of free speech—if we went back to an Internet without comment sections, without Twitter mobs, and without aggressively politicized social media companies.
And anyway, in all likelihood we wouldn’t go backward but forward. New kinds of platforms and new methods of communications would emerge, maybe a more diverse array of companies, too. Somewhere along the way, someone might even devise a social media platform that doesn’t incessantly turn us against one another and stoke division and civic unrest.
The future is uncertain, but the present state of affairs is not. Let’s admit what we all know: Twitter and the other tech giants are a cancer on our body politick. We owe them nothing, certainly not special protection from liability. Let them figure out how to operate like the traditional publishers they have decided to be—and if they can’t, let them die.