Repeal section 230 of the Communications Decency Act of 1996
Free speech thrives in traditional media without the legal immunity bestowed on social media platforms
Section 230 of the Communications Decency Act of 1996 was fueled by counter-factual, counter-historical premises about prohibitive social media liability for falsehoods disseminated on their platforms, for example Twitter or Facebook postings. It was fantasized that without legal immunity from defamation, invasion of privacy, or related tort claims for third party postings on their digital platforms, social media companies would capsize into bankruptcy. Thus, section 230 shields both social media whales and minnows from liability based on content provided by third parties. The relevant text reads as follows in subsection (c):
“No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.”
In contrast, newspapers, broadcasters, cable companies, and satellite transmitters are subject to liability for content provided by third parties. But the law and the practicalities of litigation provide formidable defenses that adequately protect against adverse judgements or insolvency leaving a wide margin for free speech.
The United States Supreme Court in New York Times v. Sullivan (1964) and its progeny has erected virtually insurmountable First Amendment barriers to successfully suing public officials or public figures for defamation, invasion of privacy, or similar speech. A plaintiff must shoulder the burden of proving by clear and convincing evidence that the defendant published a false statement of fact (not opinion) with knowledge of its falsity or with reckless disregard of whether it was true or not. Simple negligence is not enough. The defendant must be shown to have entertained a conscious awareness that the allegedly offensive publication contained a defamatory fact.
Moreover, damages cannot be presumed but must be proven. Proving compensatory damages in the form of business that never surfaced is a steep challenge. And punitive damages generally are limited to nine times compensatory damages. Further, liability insurance is readily available to protect against huge judgments.
In addition, plaintiff’s are characteristically reluctant to sue to avoid providing a free and ruinous platform for further distribution of the defamatory falsehood. Defamation suits are customarily costly and lengthy because proving the state of mind of the publisher and the reputation of the plaintiff is complex. A plaintiff’s entire life, warts and skeletons and all, are open to discovery. Unless you’re a saint, a defamation lawsuit may further ruin to your brand.
In light of the law, it is unsurprising that successful defamation or invasion of privacy suits against traditional media are extremely rare, like unicorns. Even a wealthy plaintiff like Sarah Palin was crushed in her defamation suit against The New York Times. See Palin v. New York Times Company (S.D.N.Y. 2020).
Even before the constitutional protections of New York Times v. Sullivan and its progeny kicked in, tort liability judgments against traditional media were few and far between even for investigative journalists like Drew Pearson, whose “The Washington Merry-Go-Round” appeared daily from 1932-1969. He won 119 of 120 libel cases, and never was deterred from his muckraking columns as recounted in Donald Ritchey’s Leaks, Lies, and Libel in Drew Pearson’s Washington.
Repeal of section 230 would still leave social media platforms with all the layers of constitutional protections enjoyed by traditional media that have safeguarded free speech, a diversity of viewpoints, and organized scrutiny of government. Even if the section was plausibly justified at birth 27 years ago because of the embryonic state of social media, the latter have become media behemoths who can fend for themselves in defamation litigation. Repeal is called for.
As Justice Oliver Wendell Holmes observed in The Path of the Law: “It is revolting to have no better reason for a rule of law than that so it was laid down in the line of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and rule simply persists from blind imitation of the past.”
The latest argument being propped up is how we aren't entitled to 'freedom of reach'. 🙄