Section 230 Still Isn’t the Solution to Conservative Claims of Social Media Censorship
Elon Musk and journalist Matt Taibbi resurrected a controversial news story on Friday that first broke in October 2020 regarding Hunter Biden, son of then-presidential candidate Joe Biden. In a series of tweets dubbed “The Twitter Files,” Taibbi revealed a series of emails from Twitter executives discussing their decision to block users from linking to a New York Post article about the contents of a laptop that once belonged to Hunter Biden.
When the Hunter Biden story first broke, it fueled the flames of an already-ongoing debate over Section 230 of the Communications Decency Act, a law that protects online services from liability for removing or failing to remove third-party content. Most relevant to Twitter’s handling of the Hunter Biden article was Section 230’s liability protection for “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.”
This provision had previously drawn criticism, predominately from Republican lawmakers who argued that it allows social media platforms to censor conservative viewpoints and introduced multiple bills that would change the language of Section 230. But Twitter’s response to the New York Post article enraged many lawmakers. The resulting controversy resulted in then-CEO Jack Dorsey admitting that blocking links to the article was “wrong.” But for some lawmakers, the changes Twitter later implemented, such as labeling potentially misleading tweets instead of removing them, were too little, too late. One of the emails included in the Twitter Files was from Rep. Ro Khanna (D-CA) to the head of Twitter’s legal department, warning that the story surrounding Twitter’s handling of the Hunter Biden story had led to “serious efforts to curtail” Section 230.
Multiple lawmakers have expressed a desire to pare back or remove Section 230 protections as a punishment for online services misusing their power to remove speech on their platforms. After Twitter banned President Trump, Sen. Lindsey Graham (R-SC) tweeted his desire to “strip Section 230 protections from Big Tech.” Earlier, in 2019, Speaker Nancy Pelosi (D-CA) called Section 230 a “gift” to tech companies, and expressed that she didn’t think companies were “treating it with the respect they should,” stating that Congress could remove those protections as a consequence. These and other sentiments from lawmakers represent the potential future for online services: the loss of a vital legal shield that has enabled innovation online.
However, as multiple Section 230 experts have pointed out, the First Amendment—as currently interpreted by the courts—also protects online services’ content moderation decisions. The First Amendment protects Americans from government censorship, which doesn’t include private companies like Twitter removing users’ posts or banning their accounts. Instead, the First Amendment freedom of association allows social media platforms to remove objectionable speech.
Some conservatives want to repeal Section 230 or amend it to further restrict the types of content online services can remove without being liable. The latter would impede online services’ ability to moderate content in a way that best suits their users, including removing types of content that fall in a complicated gray area of being widely regarded as harmful yet not illegal. Meanwhile, repealing Section 230 is likely to result in more censorship, rather than less, as online services would have a greater incentive to remove any content that could potentially land them in legal trouble, including controversial content like political discourse.
Those who believe social media censors conservative opinions—an allegation current research does not support—would likely not prefer the reality of an Internet without Section 230. Moreover, it is the First Amendment, not Section 230, that gives online services the right to make content moderation decisions. There is plenty of legitimate discourse over how companies should exercise that right in a way that best protects users without censoring legitimate speech, but drastic changes to Section 230 are not likely to accomplish that goal without making the Internet worse for the average user.
