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President Trump is the latest in a long line of both Republicans and Democrats who’ve taken a swing at one of the legal pillars of the modern Internet, Section 230 of the Communications Decency Act, which ensures that users, rather than sites, are liable for the content they post. Trump wants to change this law to punish social media sites he believes are unfairly silencing conservative voices. Not only is this untrue, but the irony is that if Trump were successful in striking down this law, these sites would likely be forced to be much more aggressive in policing his online speech.
Section 230 has two main provisions that state that online services are not liable for content their users post or for their “good faith” efforts to moderate that content. On Friday, Trump signed an “Executive Order on Preventing Online Censorship” that, among other things, asked the FCC to create new regulations clarifying when content moderation decisions violate Section 230’s “good faith” provision.
The executive order came about just days after Twitter labeled two of the president’s tweets about mail-in ballots as “misleading.” Trump responded by claiming that Twitter was “stifling free speech” and “interfering with the 2020 presidential election.” The president has had a contentious relationship with social media companies for years—long claiming that these platforms have an anti-conservative bias—but this latest executive order represents a sharp escalation in this conflict.
Although Trump’s executive order is more bluster than reform, he is energizing those who want to strike down Section 230. In particular, Senators Cruz (R-FL) and Hawley (R-MO) have been outspoken critics of the law, arguing it should only apply to neutral platforms and not mainstream social media sites, which like Trump, they believe to be biased against conservatives.Both Cruz and Hawley both came to Trump’s defense over the new executive order, with Hawley threatening to introduce legislation on the issue, although his attempt to do so last year was unsuccessful.
But Trump should be careful of what he asks for because striking down Section 230 could very well have the opposite effect of what he intends.
Section 230 provides social media sites immunity, which means when Trump posts a tweet like the one suggesting that MSNBC host and former Representative Joe Scarborough was responsible for the death of one of his staffers in 2001, Twitter has no liability for his posts. But without Section 230, Twitter could be subject to a flood of lawsuits from aggrieved targets of Trump’s tweets.
So what would social media platforms do in that type of legal environment? They could either fight off all of these lawsuits, or they could make a rational business decision that the legal costs of having someone like the president on their platform is too high and either kick him off entirely or heavily censor his posts.
The current environment gives platforms the freedom to allow Trump’s posts to remain online because they are not liable for his actions. And Trump isn’t the only one who benefits from this freedom. For example, the women of the #MeToo movement have been able to share and amplify their stories of sexual harassment and assault on Twitter without the platform removing their tweets because Twitter knows it will not be liable for their statements.
Trump and his conservative allies also aren’t the only ones criticizing Section 230. President Trump and former Vice President Biden have widely different views on many major policy issues, but when it comes to Section 230, they are in surprising agreement. They are both wrong for different reasons.Trump believes large social media platforms censor conservative viewpoints, while Biden would revoke Section 230 in order to hold social media companies responsible for spreading false information, including during the 2016 presidential election. But revoking Section 230 would change the Internet as we know it, with serious implications for the online economy and the freedom of expression online.
Many platforms are rightly considering their own community guidelines and how to effectively enforce them to create a safe environment that fosters creativity, connection, and free speech.And platforms should ensure that they don’t let unreasonable political bias, in one direction or another, seep into their moderation decision. Moreover, the debate surrounding Section 230 may eventually lead to narrow changes in the law to address its shortcomings while still protecting the foundation of the Internet economy. But these changes should come about through the established open and democratic legislative process in Congress, not through an executive order designed to retaliate against a company that the president believes is not supportive enough of his political views.