There are two mainstream positions on Trump’s recent Executive Order on Preventing Online Censorship and section 230 of the 1996 Communications Decency Act (CDA): 1) the Electronic Frontier Foundation (EFF)/Techdirt liberal/libertarian view that Twitter, Facebook, etc. are private firms and can do what they want and 2) the Trump/Hawley/social conservative view that social media platforms should lose Section 230 immunity and be regulated as public utilities with mandatory viewpoint neutrality. Position 1 is also supported by empirical claims that without Section 230 protection the internet as we know it would never have developed (see The Twenty-Six Words That Created the Internet).
My propertarian libertarian view is close to position 1 but with caveats. Social media platforms are indeed private firms and can publish or edit (they cannot censor, a term that refers exclusively to state actors) whatever they like—subject of course to the terms of service between the platform and users who generate content. However, I think Section 230 is bad policy on procedural or rule-utilitarian grounds. Congress should not give particular firms blanket immunity from common-law civil causes of action via statute. Rather, these issues should be handled by contract law as enforced by courts, not by legislation.
Without legislation, disputes between platforms and users about content moderation can be handled by reference to the terms of service. If Twitter says that it will remove posts that it considers against its community guidelines and those turn out to be disproportionately libertarian or conservative leaning, so be it. If Gab.com or some other site pledges not to moderate content but does anyway, then the user would have a cause of action against the platform for violating the terms of service. You don’t need Section 230 to protect against that; you just need contract law.
What about the claim that without 230 the internet would never have grown and flourished?
First, even if that were true, it wouldn’t make the statute just. And the claim may even be wrong. To me, these are like the Mazzucato-style arguments for NASA (or, closer to the subject at hand, DARPA [the Defense Advanced Research Projects Agency]). Remember the broken window fallacy? We don’t know what the counterfactual, non-230 internet would have looked like. Maybe the technology would have developed differently. Maybe there are no comment sections. Maybe no social media platforms. Maybe that’s terrible (or isn’t). Or maybe entrepreneurs would have found other solutions, e.g., decentralized encrypted P2P platforms that are impossible to sue. Maybe there would be a flood of defamation and copyright lawsuits against whatever sites and platforms existed, but courts would reject these claims because of the sheer difficulty of enforcing the claims. Maybe that would spur debate and legal reform toward a more libertarian position. Who knows? My point on this is simply that we should decide on rights-based, deontological grounds, not because of what we predict would happen, given the difficulty of anticipating entrepreneurial market outcomes.
Second, the claim that internet would not have developed into what it is without the Section 230 provisions opens the door to critics saying “Okay, but we have some new legislation here that will make the internet even greater!” I don’t want to have an empirical debate about which (positivist) legal rules would give us more traffic or more reliable ISPs (internet service providers) or larger (or smaller) platforms or whatever. Let’s keep the discussion focused on property rights!
So what are my preferred policies? I haven’t worked through all the details, but to me the most obvious ones are:
- Repeal the CDA, the Digital Millennium Copyright Act (DMCA), the General Data Protection Regulation (GDPR), etc.
- Enforce contractual agreements between platforms and users.
- Avoid all attempts at viewpoint neutrality regulation.
- Remove government-created entry barriers for new entrants (see also no. 1).
- Don’t treat information as property (e.g., don’t act as if users “own” “their data” and don’t force platforms to make data “portable”).
Finally, as a practical matter, Trump’s executive order is unlikely to have any impact and is in my humble opinion a silly political stunt. What Trump should do is simply move to Gab.com or a similar platform. Many of his 85 million followers would follow, and this would do more to “punish” Twitter (and encourage new competitors) than any legal action.
