Your Problem Is Not With Section 230, But The 1st Amendment (original) (raw)

from the so-good-luck-with-that dept

Everyone wants to do something about Section 230. It?s baffling how seldom we talk about what happens next. What if Section 230 is repealed tomorrow? Must Twitter cease fact-checking the President? Must Google display all search results in chronological order? Perhaps PragerU would finally have a tenable claim against YouTube; and Jason Fyk might one day return to showering the Facebook masses with his prized collection of pissing videos.

Suffice to say, that?s not how any of this works.

Contrary to what seems to be popular belief, Section 230 isn?t what?s stopping the government from pulling the plug on Twitter for taking down NY Post tweets or exposing bloviating, lying, elected officials. Indeed, without Section 230, plaintiffs with a big tech axe to grind still have a significant hurdle to overcome: The First Amendment.

As private entities, websites have always enjoyed First Amendment?freedom of speech?protections for the content they choose (and choose not) to carry. What many erroneously (and ironically) declare as ?censorship? is really no different from the editorial discretion enjoyed by newspapers, broadcasters, and your local bookstore. When it comes to the online world, we simply call it content moderation. The decision to fact-check, remove, reinstate, or simply leave content up, is wholly within the First Amendment?s purview. On the flip side, as private, non-government actors, websites do not owe their users the same First Amendment protection for their content.

Or, as TechFreedom?s brilliant Ashkhen Kazaryan wisely puts it, the First Amendment protects Twitter from Trump, but not Trump from Twitter.

What then is Section 230?s use if the First Amendment already stands in the way? Put simply, Section 230 says websites are not liable for third-party content. In practice, Section 230 merely serves as a free speech fast-lane. Under Section 230, websites can reach the same inevitable conclusions they would reach under the First Amendment, only faster and cheaper. Importantly, Section 230 grants websites and users peace of mind knowing that plaintiffs are less likely to sue them for exercising their editorial discretion?and even if they do?websites and users are almost always guaranteed a fast, cheap, and painless win. That peace of mind is especially crucial for market entrants posed to unseat the big tech incumbents.

With that, it seems that Americans haven?t fallen out of love with Section 230, rather, alarmingly, they?ve fallen out of love with the First Amendment. In case you?re wondering if you too have fallen out of love with the freedom of speech, consider the following:

If you’re upset that Twitter and Facebook keep removing content that favors your political viewpoints,