Major social media platforms have faced intense public scrutiny for their policing of content in recent months. Republicans in Congress are worried about censorship on social media platforms, while Democrats argue that the companies are too lenient with what they allow to stay up. In recent years, lawmakers across both parties have taken aim at the protections social media companies enjoy for a number of reasons. President Trump in June took action against some of the protections tech companies enjoy in the form of an executive order attempting to alter Section 230 of the Communications Decency Act.
Section 230 is credited as allowing the free and open use Internet as we know it to exist, allowing legal protections for social media companies to operate. It offers legal protections against platforms that host third party content and maintains that those companies cannot be held liable for anything a third party posts. For example, if a Twitter user posted an inflammatory tweet, the user who sent out the tweet could face some type of legal trouble, not Twitter. This is crucial to the business model of social media platforms because without Section 230, companies would either have to severely restrict what could be posted on their platforms or hire staff to monitor what goes on their site very closely. Essentially, Section 230 has allowed social media companies to grow in size incredibly quickly since sites are not responsible for every post and every user on their platform.
Section 230 in its current form does give social media companies discretion to allow or disallow whatever content they seem fit on their platforms. That means when Twitter is within its legal rights to place mis-information labels on President Trump’s tweets. It also means sites like Facebook can keep doctored videos of House Speaker Nancy Pelosi up with very little trouble, and they have no business or legal obligation to take down objectionable content as long as it drives engagement. Basically, companies are allowed to deem what content is appropriate to stay up and what is not. So depending on the companies individual incentives and even political leanings, what stays up on one platform might not make it on another.
In June, President Trump’s administration decided to take steps towards reforming Section 230. The President himself issued an executive order in June with the aim to classify social media platforms as publishers and not moderators of content. This would create greater legal responsibilities for the companies and get rid of any Section 230 protections they enjoy now. While it is unclear whether this specific executive order will actually have any legal backing without Congress, it does show that President Trump wants to move quickly on this issue. He has also directed Attorney General Barr to investigate Section 230, and Barr has signaled his support for reforming the protections, claiming they go beyond what was intended of them at their creation.
One of the ironies of President Trump’s attacks against Section 230 is that he is a perfect example both for lawmakers who defend the bill and for those who want to see its reform. His use of Twitter to communicate with the American people has been one of the hallmarks of his administration. When he started campaigning, his rabid use of Twitter was a revelation of sorts, creating news stories hour-by-hour. It allowed Trump, a figure new to politics when he ran for president, to cut through traditional media. Those who defend Section 230 argue that it advantages start-ups and new players, allowing them a space to move as they please without fear of being sued. If Section 230 was more restrictive, it’s possible that Twitter would have removed a figure like candidate Trump from the platform altogether for fear of legal reprisal.
On the other side, President Trump’s work on Facebook especially is concerning to those who wish to reform Section 230. Not only has he posted a number of things that detractors claim incite violence, but he has also re-posted or posted videos that have been doctored and edited. While Twitter has begun the censoring posts by the President that contain false information, Facebook has refused to take a similar stance. CEO Mark Zuckerberg has said the company won’t do “fact-checks for politicians.”
It remains possible that Zuckerberg is taking this stance for a moral reason, but it is more likely that he is making a business decision. Conservative news outlets often do well on Facebook, and the President and other entities spend millions in advertising on the site. Facebook understands that taking down or censoring President Trump’s posts would create a political and advertising backlash that they are not willing to deal with, no matter how offensive a post might be. Fact-checking posts by politicians would certainly require extra work and extra staff which adds expenses for the company. So a decision has to be made by companies like Facebook on whether they want the President’s posts to stay up along with the engagement they bring, or if they care about what content they allow to spread.
There is bipartisan support for reform, though. The sticking point is how far this reform will go. Conservatives have proposed a law that would force companies to act in “good faith.” That would mean social media platforms must clearly define what their rules are and enforce them consistently, hopefully protecting against any political biases in enforcement. They have also proposed giving users a means to sue companies if they feel their content is removed unfairly with a stipend to legal fees to those who wish to pursue court action. Detractors say this would not be scalable, meaning companies would not be able to grow due to dealing with legal challenges constantly or having to maintain a staff to cover all their bases.
Others, such as Democratic Presidential nominee Joe Biden, have proposed getting rid of Section 230 altogether. He argues that companies like Facebook should be subject to civil liabilities just as a publishing company like the New York Times is. Of course, this runs into similar objections that have already been laid out in regards to moderation and the difference between hosting content and publishing it yourself.
The future of Section 230 is still not clear. What is apparent is that reform of some kind might be a bipartisan issue of the coming years. Both current presidential nominees agree it needs to be changed in some kind, as do many key members of Congress. Whether or not Facebook, Twitter, and other social media companies will be able to argue their case and prevent reform is uncertain. So far Twitter seems to recognize some sort of reform is inevitable, seeing as they have taken steps toward that. If they do so effectively, they can perhaps engender goodwill with liberal lawmakers while Facebook’s more laissez-faire approach caters to the conservative crowd. If no legal reform is pushed through Congress, perhaps the divergence in site’s policies continues to grow and users are left to decide which they prefer, causing an ideological split via which moderation policy you favor. In any case, any reform that does happen must be nuanced and carefully written to balance the interests of the public and of the platforms which serve those who wish to be heard.