Platform, or Publisher?
As Cruz properly understands, Section 230 encourages Internet platforms to moderate “offensive” speech, but the law was not intended to facilitate political censorship. Online platforms should receive immunity only if they maintain viewpoint neutrality, consistent with traditional legal norms for distributors of information. Before the Internet, common law held that newsstands, bookstores, and libraries had no duty to ensure that each book and newspaper they distributed was not defamatory. Courts initially
extended this principle to online platforms. Then, in 1995, a federal judge
found Prodigy, an early online service, liable for content on its message boards because the company had advertised that it removed obscene posts. The court reasoned that “utilizing technology and the manpower to delete” objectionable content made Prodigy more like a publisher than a library.
Congress responded by enacting Section 230, establishing that platforms could not be held liable as publishers of user-generated content and clarifying that they could not be held liable for removing any content that they believed in good faith to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” This provision does not allow platforms to remove whatever they wish, however. Courts have
held that “otherwise objectionable” does not mean whatever a social media company objects to, but “must, at a minimum, involve or be similar” to obscenity, violence, or harassment. Political viewpoints, no matter how extreme or unpopular, do not fall under this category.
The Internet Association, which represents Facebook, Google, Twitter, and other major platforms,
claims that Section 230 is necessary for these firms to “provide forums and tools for the public to engage in a wide variety of activities that the First Amendment protects.” But rather than facilitate free speech, Silicon Valley now uses Section 230 to justify censorship, leading to a legal and policy muddle. For instance, in response to a lawsuit challenging its speech policies, Google claimed that restricting its right to censor would “impose liability on YouTube as a publisher.” In the same motion, Google argues that its right to restrict political content also derives from its “First Amendment protection for a
publisher’s editorial judgments,” which “encompasses the choice of how to present, or even whether to present, particular content.”
The dominant social media companies must choose: if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They can’t claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.
