During a panel discussion hosted by the nonprofit Federalist Society on August 24, Acting Assistant Secretary of Commerce for Communications and Information Adam Candeub stated that a social media company should not be able to claim legal immunity if it “shapes and controls its overall content according to a discernible viewpoint.”
Candeub made reference to Section 230 of the 1996 Communications Decency Act, which generally absolves online platforms from liability for user-generated content. However, Candeub asserted that this shouldn’t be interpreted so broadly as to protect the firms’ decisions to remove or reshape the content.
“When they remove, promote, comment, or edit user content … when social media firms act in this way, they are speakers and they do not qualify for Section 230 protection,” he stated.
Section 230 spells explicitly out legal immunity for regulating content “in good faith to restrict access” to content the firm deems “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
According to Candeub, however, this shouldn’t be interpreted as an invitation to block any content the firms’ label as objectionable. Instead, he states that it should only apply to content falling into similar categories of inappropriateness as outlined by the law “to create a family-friendly environment.”
In July, the Commerce Department asked the Federal Communications Commission (FCC) to clarify the language of Section 230 along the lines described by Candeub.
The petition was called for by President Donald Trump in his May 28 executive order that accused the online companies of “selective censorship that is harming our national discourse” and “invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech.”
Candeub pushed back against the notion that a narrower interpretation of Section 230’s protections would infringe on the companies’ freedom of speech. As part of this, he noted that the First Amendment does not guarantee any such liability shield the law provides – if they want to continue to editorialize as they want, they would have to forgo the immunity.
“It’s a quid pro quo and the petition is simply asking the FCC to make sure there’s enough quo for the quid,” he said.
Other panelists at the event such as Eric Goldman, a law professor at Santa Clara University and Ashkhen Kazaryan, director of civil liberties at think tank TechFreedom, disagreed with Candeub. Limiting tech companies’ ability to editorialize, argued Goldman, still amounted to censorship.
Meanwhile, Kazaryan stated that it was Section 230’s protections that enabled online discourse to flourish. Restricting them, on the other hand, would put an undue burden on smaller internet companies.
The major digital platform holders such as Facebook, Twitter and Google have claimed that their services are designed to be operated to be politically neutral. Evidence, however, seems to indicate that these companies are infusing political preference into their content policing.
This has led the administration to make moves to limit or outright strip the protections offered by Section 230 to these companies. In June, the Department of Justice released new guidelines urging tech companies to more fairly police the content users post on their platforms.
Attorney General William Barr decided to take action after several conservatives, including Trump, were targeted and their posts “fact-checked” by social media platforms for sharing “misinformation” online.
Whether any actual changes to Section 230 push through, however, remain up in the air. Such a move would require bipartisan support in Congress – something that seems doubtful during an election year. The latter makes the issue even more controversial as both sides of the aisle try to garner online support from voters.
At the same time, industry trade groups, such as the Internet Association, have publicly opposed any alterations to Section 230. The group claims that removing the immunity that the law provides would mean that companies like Facebook and Twitter would lose their ability to operate.
“The threat of litigation for every content moderation decision would hamper IA member companies’ ability to set and enforce community guidelines and quickly respond to new challenges in order to make their services safe, enjoyable places for Americans,” the group stated.
The Justice Department has made clear, however, that regardless of their current status under Section 230, tech companies do not have immunity from either civil enforcement actions brought about by the federal government or antitrust claims.
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