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Donald Trump’s executive order issued earlier this week purports to prevent online censorship by effectively instructing federal agencies to reinterpret the Communications Decency Act of 1996 (CDA). In particular, Trump has a well-founded complaint with the infamous section 230 of the CDA, which grants tech companies a certain level of immunity from various civil lawsuits, including defamation lawsuits. By doing so, section 230 not only attempts to preempt state law to the contrary—federal preemption is almost always bad— but also creates a class of actors that enjoys the status of a neutral platform or common carrier but exercises editorial discretion.
Remember, in 1996 social media did not exist. Search engines like Alta Vista and Netscape were rudimentary; most people still typed site addresses into their browsers. The CDA was aimed primarily at internet service providers such as AOL, which Congress ostensibly wanted to shield from any liability for the actions, communications, or content of users. After all, when two individuals engage in a criminal conspiracy by phone prosecutors don’t indict the cellular network provider. The CDA made sense in an era when the internet was in its infancy.
But fast-forward twenty-five years, and social media companies have been thrust into the role of “community standards” police. Search engines, particularly Google, are the gatekeepers and curators of the information we consume. These tech companies now appoint themselves arbiters of truth and propriety, and not only with regard to politics and campaigns. Hate speech and harassment, both ambiguous and ever shifting, are grounds for removal or suspension from platforms. Unorthodox or politically incorrect views on scientific issues surrounding global warming, vaccines, and COVID-19 are regulated by invisible algorithms or unaccountable employees of tech companies. “Bad” websites and blogs disappear from search results, or are buried so deep as to become invisible.
By any measure, these actions by technology companies—banning, suspending, shadow banning, and demonetizing—are based on the content involved or the identity of the user. In both cases, editorial judgment is applied. This is inescapable. So to the extent that the CDA immunizes editorial decision-makers or their tech company employers against liability for damages from lawsuits otherwise recognized by state law or common law, libertarians have every reason to object. But as with most cases of favoritism in law, the answer is repeal of special privileges rather than more legislation.
A few additional summary comments:
- Executive orders are inherently suspect and generally bad, not simply because of (at this point laughable) constitutional concerns, but because they establish another layer of de facto “laws” for which you and I have little legal recourse. If the CDA needs amending, let Congress do it. Better yet, scrap it.
- Yes, Facebook, Google, Twitter, Amazon et al. are private companies, despite their deep entanglements (including contracts) with the federal government. Virtually every industry and every large company is in bed with Uncle Sam, from subsidies and lobbying to protectionist legislation. If we allow such entanglements to justify even deeper levels of regulation, we only further erode what ought to be a bright-line distinction between private sector and state.
- Yes, these companies have deeply illiberal biases, and even outright illiberal agendas, from a libertarian perspective.
- No, private companies are not required to give you or anyone else access to their platforms.
- No, the First Amendment does not apply to private companies.
- “Fact checking” is inherently and inescapably political. Who are the disinterested angels charged with performing these checks? Which facts are checked, and whose facts are checked? What about half-truths and distortions, as opposed to outright falsehoods?
- We are all “media” in an age of instantaneous social sharing platforms and camera phones. The First Amendment did not create or contemplate a special class of institutional press that enjoys enhanced protections from government. Kids on bikes have as much right to “cover” the situation in Minneapolis as CNN, and your Facebook posts deserve the same protections as Wolf Blizter’s nightly show.
What to do, then? Peter Klein lays out one path forward:
- Repeal the CDA.
- Enforce contractual agreements between platforms and users.
- Avoid all attempts at viewpoint neutrality regulation.
- Remove government-created entry barriers for new entrants (including the CDA).
- Don’t treat information as property (e.g., don’t act as if users “own” “their data” and enforce regulations on portability).
- Finally, Trump simply should move to Gab 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.
