Section 230. What’s the Big Idea?

12/02/2020

Today’s topic of discussion is Section 230, a hot button issue right now in Washington DC. In short, Section 230 — Protection for private blocking and screening of offensive material — gives providers of an interactive computer service (Twitter, Youtube, Facebook, etc.) a shield from liability based on the content posted on their platforms by users. The rule says that neither the provider nor any user is responsible for the content created and shared by another user. The rule allows social media websites to be set up as a public square instead of being considered a media website or blog. Hold up, what does that mean? I’ll get to that.

Let’s imagine if these social media companies were treated as traditional media corporations for a second (think CNN, FOX, MSNBC). Media corps can be held liable for the content they produce. In this case Twitter, Youtube, and Facebook would be held responsible for all of the content that eventually made it onto any feed, channel, or page. What are the dangers of that? The potentiality for lawsuits would be immense. Libel and slander comprise the suable offense of defamation, let’s use it as an example. If Section 230 were repealed (which President Trump has endorsed) and Twitter could be held responsible for everything tweeted they would either need to:

A. Review every single tweet before it was sent to make sure there was no evidence of defamation

B. Cease to operate — the operating costs from lawsuits being too large

Neither option is desirable, B is obviously bad (maybe not so) but why is A necessarily bad? What’s the impact of this option? If Twitter wanted to remain profitable they would have a conundrum as the fixed cost of each tweet has now risen quite substantially if each is reviewed by a human, presumably someone with legal experience which we know isn’t cheap. The monetary value of tweets lies in its ability to keep a user on your platform to see more advertisements, so these tweets need to be engaging and original. The likely effect is that Twitter would be forced to crowd out 99% of users as they would not be profitable meaning it wouldn’t be worth it to review their tweets. Twitter would focus on reviewing the tweets of the most popular users. The everyday folks (you and me) would be relegated to reading tweets of elite Twitter personas with all tweets reviewed by an editorial team at Twitter.

What does this sound like? It sounds like a news website or blog with a staff of writers and editors. The only difference is that these writers are limited to 280 characters. What happened to our public square of free ideas where everyone gets to share their opinions? It has disappeared under the threat of litigation. Section 230 protects social media companies from necessarily morphing into more classic media corporations, it preserves the platform’s ability to operate as a bastion of free speech. Section 230 also allows social media companies the ability to censor content it finds objectionable. This is the portion that has caused quite the stir and underlies the cause for repeal. The important question is, should Americans desire a completely free online public square? This is an ethical question and I will attempt to lay out the implications below.

A key foundation of liberal democracies is the idea of unfettered free speech, not only codified into law but also culturally adhered to. If you would like to understand the necessity of free speech to lively and free democracy I invite you to do some research, this will be taken for granted for the sake of this blog post. I would like to clarify that the word unfettered is an exaggeration, the idea is to err on the side of free speech when uncertain of the implications, but there are cases where liberal societies have decided to reign in what can be said. For example, you can be held legally responsible for yelling ‘FIRE’ in a movie theater when there is no fire. This along with directly threatening to harm someone are examples of limits on free speech.

With those caveats in mind let’s talk about the benefits of the public square moving online. Unlike a physical public square users are not confined to discussions with those who are geographically available to them. Users can discuss topics of all variety with all sorts of people from around the world. This is the first time in human history this capability has been available. Naturally, this has connected like-minded people interested in all sorts of benign activities as well as productive ones, which has seemed to bring much pleasure to the users and moves society forward in productive ways (think awareness for issues and fundraising for those issues).

But it’s not only the benign and productive activities that are flourishing on the web. Believers in pathological ideas and movements can be connected all around the world without moving an inch. Not only does this provide a place for legitimizing these movements, but it also provides a place for recruiting those susceptible to these types of ideas. The rate of spread for both good and bad ideas has accelerated astronomically. When John Stuart Mills was laying out his ethic of free speech under utilitarian ideals he could not have accounted for the sheer volume and reach of terrible ideas and misinformation available today through the web. This observation is not meant to lead us to any sort of conclusion, but shouldn’t we question the underlying tenets of the public square when the stakes have changed?

In JSMs idea of free speech, this public square would be a place of free discourse on old ideas and new ideas to challenge the old ones. All ideas held their own value because they produced one of 3 outcomes:

1. The new idea is correct and furthers our understanding of the world.
2. The new idea is partially right, possibly the true belief resides between the challenged idea and the new idea presented.
3. The new idea is wrong and further strengthens the old idea.

In a controlled environment, this framework seems to effectively describe the process of the public square. By controlled I mean that there are only so many ideas in a public square and face to face conversation is the mode of communication. This type of communication assumes good faith arguments and an empathy that is natural in face to face communication. Also, JSM’s public square assumes a human rationality. That in our natural state we as humans behave rationally for the most part, this is a controversial assumption I will address after first comparing JSM’s public square to social media.

So is JSM’s public square synonymous with the one online? It appears to me, no. The impact of the volume cannot be ignored, JSM never had to worry about bots. There are so many new ideas that it can be difficult to discern deliberate misinformation from good faith arguments. Also, empathy seems to be lost when ideas are discussed online. People will say things online that they would never voice in person. The good faith discussion requires empathy, which is lost online, but what about the requirement of rationality. Aren’t we all as human beings acting rationally in our discourse and isn’t that maintained online?

I think the 20th century has done all but completely wipe out the naive liberal myth of the certainty of the rational man. From Nazis, Stalinists, Maoists, and Radical Islam, humans show an attractiveness to ideas that are built upon our worst biological instincts. The evidence does not show that irrational movements strengthen the rational ones. Well, perhaps they eventually do, but do we really want to have to resort to violence to achieve this? Do we really want to let a society get to the point of mass murder or genocide before we must intervene to stamp out the poor idea? This does not seem sensible. JSM’s public square does not seem to translate perfectly to an online marketplace of ideas.

So what is a social media corporations’ role in upholding the value of the public square online? The goal is to create a place where ideas can be shared in good faith with empathy, which is easier said than done. They are left with the responsibility of quelling nefarious actors on their sites who want to spread misinformation or pathological ideas. They must make the difficult but necessary choices of the type of content they will allow on their site. Section 230 gives these companies that right:

(2)Civil liability*

No provider or user of an interactive computer service shall be held liable on account of —

1. 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
2. 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).

*https://www.law.cornell.edu/uscode/text/47/230

It is no coincidence lawmakers codified this. They are steered by the impression the 20th century left. Ideas can be really dangerous, even more so when they have the reach of today’s internet.

But isn’t Section 230 dangerous in its own way? Aren’t we giving these tech companies a monopoly on truth? Allowing social media providers the capability to filter the content that is allowed on their site surely will lead to biased results. Trusting any human(s) to make decisions on what is and what is not okay definitely engages their predispositions, this is human nature. The common complaint from conservatives is that they are being crowded out on social media. That the liberal bias integral to Facebook, Twitter, and other giant social media firms is silencing the conservative voice. The complaint is not that there should be no filter, but that the filter is bad. Of course the filter is bad! How can we ever expect human beings or even artificial intelligence to come up with a perfect filter?

In all endeavors, there will undoubtedly be a period of trial and error in implementing effective systems. This is just as true as noting that those systems will never be perfected. So what is the American way of dealing with these unfortunate facts? A plurality of solutions and competition! If you think a system isn’t working, then do it better. If the filter is as bad as you claim, people will flock to your new site. If conservatives are right, then they should capitalize on this error inherent in all of these tech firm’s filters. Attack the error through the market. If you are right you will be rich beyond your wildest dreams. If you aren’t right, then time to shut up and move on. Facebook, Youtube, and Twitter all became successful by making social media better. Conservatives can do the same.

The answer is not to repeal Section 230. The answer is to let tech firms pursue their different filters. Let’s see who wins. It is desirable that these companies have the ability to filter pathological misinformation, without it the public square goes past being useless, it becomes dangerous. Today, some of these bad ideas underlie the movements that cause the greatest suffering around the globe. Let’s do our best to avoid those outcomes while at the same time fostering an environment where free ideas can be discussed in good faith with empathy. It’s a process of trial and error. So if you don’t like the current options online, create a new one and let’s see how you can improve the process.

A criticism to this argument is that if we allow free competition in which sorts of filters social media companies are allowed to use, what stops a website from allowing all sorts of hate speech and harmful content (no filter at all)? This is where the legislature ought to step in and the executive branch needs to enforce the relevant laws. The legislature should curb only the most extreme harms such as child pornography, criminal activity, terrorist activity, etc. These are considered the non-negotiable social essentials of the content filters of websites. Beyond that we rightly have left social media sites to determine which content will be filtered. This is the balance of legislative and market forces that is generally desirable in any solution to social problems.

Society is always tasked with finding the right avenue to solve their problems. Generally, conservatives are wary of legislating away issues, preferring that the market work out these issues through trial and error. So why is Section 230 different? Because the market has spoken and they don’t like the result, people like to be on sites that attempt to combat misinformation and bad faith movements. People like to have a space where they can profess ideas in good faith without worrying excessively about nefarious actors. This phenomenon is not unique to social media but is a broader trend across many social spheres. One hears the same complaint about universities and classical media corporations.

I believe we have the framework set up correctly with Section 230. Social media sites have a unique position in society where they are expected to balance safety and free speech in an effort to attract the most users. Disagreeing with the way these sites go about that balancing act is healthy and should produce different ways of going about it. But, if people are unsatisfied with the results, legislating their way towards different results is not the correct response. Produce competitive sites. Try different approaches. We reward ingenuity in America, just look at the net worths of the founders of these social media companies.