The debate on reforming Section 230 of the Communication Decency Act (1996) is one of the few issues in US public policy that has bipartisan support. Both parties have different objectives for abolishing or amending the law. Conservatives want social media platforms to be regulated as common carriers, to avoid the “censorship” of conservative users[1]. There may be some veracity to the claim of social media bias towards conservatives, since 35 % (the highest percentage of any other ideology polled) of participants identifying as “strong conservatives”, in a survey conducted by researchers at the Cato Institute, have experience having content penalized by social media companies. On the other hand, liberals challenge the status quo of Section 230 on grounds that social media firms are not sufficiently blocking the dissemination of misinformation. Despite their conflicting interests in reforming the law, both parties form an “odd bedfellow” coalition for Section 230 reforming. Making the bipartisan zeal for change an example of a Bootleggers and Baptists (1983) coalition.
What is Section 230
Many readers may be wondering what Section 230 is. Section 230 was the 1996 amendment to the Telecommunications act which has been dubbed by the media as the “.. 26 words that created the internet..”. These twenty-six words state:
“…(c) PROTECTION FOR GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL- (1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider…” (p.101).
This section of the law insulates platforms from being liable for the content created by users. Effectively, there is a certain degree of rent-seeking implied; by this immunity, this privileged separation between the platform and the user is the proverbial glue that holds the internet together. Message boards, social media platforms, pornography, video-sharing websites (YouTube), and even blog-hosting websites would not exist without 230. These protections provide platforms with the incentive to be more permissive with what they allow users to post. If users find the content moderation from current social media applications restrictive, a world with this section nullified would be even worse. Freely allowing users to post any content they wish; would be a costly risk.
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Gonzales v. Google (2023)
The public debate over Section 230 is now coming to fruition in the form of two twins (based on the same facts) in Supreme Court cases. The first case Gonzales v. Google concluded the oral argument on February 21st,2023. The facts detail how the father of Nohemi Gonzales, Reynaldo Gonzalez, a U.S. citizen killed in a terrorist attack (2015) orchestrated by Isis in Paris filed a lawsuit against Google. Gonzalez asserts that Google (the parent company of YouTube) was complicit in the attack for YouTube’s algorithms leading users to terrorist recruitment videos posted on the platform. The next day after the attack, ISIS claimed responsibility for the attack in a YouTube video. The district court dismissed Gonzales’s claim against Google based on Section 230 and the court of appeals affirmed. The U.S. Supreme court granted certiorari on October 3rd, 2022.
In the oral argument, the attorney on the side of Gonzales, Eric Schnapper, argued (p.17) that Google so much didn’t fail to take down the content, but actively encouraged it through their algorithms. Schnapper implies that driving viewers to such content is outside of the scope of Section 230[2]. However, in the process of questioning Schnapper, the Court was seeking to determine if Section 230(c)(1) applies when platforms utilize “targeted recommendations” predicated on “..information provided by another information content provider..” The verdict is still pending on the case; only time will tell what the fate of Section 230 will be.
Twitter, Inc. v. Taamneh (2023)
In the twin case for Gonzales, Twitter, Inc. v. Taamneh, was only argued a day apart from Gonzales (02/22/23). The facts of the case were a copy-and-paste of Gonzales, but the scope of the argument was to determine if Google, Facebook, and Twitter were liable in the context of anti-terrorism statutes. Per Oyez:
“…The district court dismissed the claims based on aiding-and-abetting liability under the Anti-Terrorism Act, and the U.S. Court of Appeals for the Ninth Circuit reversed…”
The court was attempting to validate whether the above-listed platforms assist terrorist organizations by not having an extensive prevention plan (in the context of 18 U.S.C. § 2333 ). Also, the SCOTUS attempted to answer if “..internet platform whose services were not used in connection with the specific “act of international terrorism” that injured the plaintiff still be liable for aiding and abetting under Section 2333..”.
Bootleggers & Baptist Analysis
While the SCOTUS deliberates on the future of Section 230, it is still worthwhile to evaluate who truly benefits from reforming this law. The bipartisan support for amendment/abolishment of this law; makes this determination a close call. The assignment of the role of Bootlegger and Baptist can be determined by ideological preferences, like in the scenario of Qualified Immunity reform. In the name of objectivity (for the sake of positive analysis), one faction within this coalition has more to gain than the other. While liberals get to cloak themselves in the robes of the white knight saving us from misinformation, this pales in comparison to what conservatives have to gain from overturning or revising this law. Social media platforms have an obvious left-leaning bias; conservatives are disproportionately penalized for their content. If social media companies block conservative content, right-wingers gain substantially through having more forums for disseminating their ideological message.
However, it would be shrewd to warn conservatives about pursuing this end too aggressively. This is the conservative version of the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Why? In the Masterpiece case liberals were hoping the court would rule in favor of violating the rights of the bake shop owners by legally forcing them to bake the gay wedding cake. Thankfully, the court ruled in favor of the bake shop; but making liberal social media platforms host conservative posts is just as transgressive as forcing right-wing Christian bakers to make gay wedding cakes. Firms operating in the private sector; have the right to exclude users for any reason they deem fit. It is frequently unwise to discriminate against platform users, but that is the Firm’s prerogative. If conservatives cannot see the irony of this inverted scenario, I am at a loss for words and can only believe that such obtusity is the byproduct of partisanship.
Notes:
1.) There is a wide variety of views from conservatives on how they desire to reform Section 230 reform. Ranging from a tear-it-down methodology to a moderate approach to amending it. In his article Section 230—Mend It, Don’t End It, Klon Kitchen, former Director at the Heritage Foundation recommends an amendment strategy over abolishment.
2.) At many points in the oral argument, it appears that Schnapper fails to convey a convincing argument upon further scrutiny from the Justices. Schnapper obtusely justified culpability peripherally through JASTA. Justice Sotomayor calls him out on deviating from the initial complaint of YouTube being derelict for failing to remove ISIS videos when at oral argument, he shifted to claiming the algorithms were the issue (p.19-20). She further prods at the veracity of the claims of YouTube aiding and abetting ISIS; when the algorithms on their face are neutral and not tailored to support explicitly pro-ISIS videos (p.25). Justice Thomas also struggled to see how “inaction” ultimately led to “aiding and abetting” (p.33).
Inverted logic 