BREAKING NEWS: On Wednesday of next week the SMFF will announce a major Constitutional Challenge pertaining to Section 230. Make sure to look here for the details after the announcement is made.
The Social Media Freedom Foundation is taking on the fight over Section 230. Section 230 is not settled law because the Supreme Court had never defined what the law actually does. David Harris Jr has joined the group as a director and Rep Louis Gohmert has partnered with the SMFF in their effort. David Harris says that he became a director in order to fight the censorship that Big Tech has imposed that is not consistent with the law as read.
Here is what the law says:
Title 47, United States Code, Section 230 is an administrative law, which provides civil liability protection when a private entity (ICS) takes “any action voluntarily in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2)(A). Private entities (ICSs) are acting as regulatory agents of Congress. Agencies are delegated power by Congress…, to act as agencies responsible for carrying out certain prerogatives of the Congress (e.g., block or screen offensive materials). Agencies are created through their own organic statutes (e.g., Section 230), which establish new laws (e.g., Community Standards) and, in so doing, interpret, administer, and enforce those new laws. Generally, administrative agencies are created to protect a public interest (e.g., protect children from harm), not to vindicate private rights. Section 230 provides administrative agency authority (i.e., state action) to private entities. An administrative agency is “[a] government body authorized to implement legislative directives [e.g., block or screen offensive materials] by developing more precise and technical rules [i.e., “fill up the details,” see, e.g., Wayman v. Southard, 23 U.S. 1, 43 (1825)] than possible in a legislative setting. Many administrative agencies also have enforcement responsibilities.”2
You will notice in the section in red that there is no mention of disinformation. Although Congress did limit free speech under extreme circumstances, there is no mention of censoring a difference of opinion. In light green, it explains that the power to limit free speech comes from the Congress and the Congress has never addressed this for a very good reason. Google, Facebook, and Twitter did not exist in 1996 and therefore Congress could not foresee the problems that could arise.
The courts in California have expanded the definition of Section 230 and since most of the Big Tech companies are located in the Silicone Valley most of the cases are heard there. Supreme Court Justice Clarence Thomas wrote in the court case of Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 141 S.Ct. 13 (2020) that:
“courts have extended the immunity in §230 far beyond anything that plausibly could have been intended by Congress… Courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content [i.e., development in part by proxy] Courts have long emphasized nontextual arguments when interpreting §230 [i.e., proof-texting], leaving questionable precedent in their wake.”
Two things need to happen to clarify Section 230. The legislature needs to update the law and clearly define the barriers of the law and then it needs to receive approval from the Supreme Court to establish settled law.
Read more on this from the SMFF here.
Rep Louis Gohmert will be hosting a press conference on April 27th at 4 PM EST at the House Triangle. Gohmert will talk about the options for legal actions as well as legislation by Congress in order to rein in the one-sided censorship platforms like Google, Facebook, and Twitter wield. Legal action could improve the situation, but in order to get a permanent solution, Congress would have to sit down and tie up all the loose ends that have allowed platforms to take advantage of Section 230 that Congress never intended.
Section 230 was originally set up to protect the platforms from liability from 3rd party posts. There were some exceptions, including copyright violations, sex work-related material, and violations of federal criminal law.
Section 230 was written by Sen Ron Wyden (D) and Rep. Chris Cox (R) in 1996 to protect website owners from liability for what was posted by third parties. Many of those third-party posts are in the comment sections of many news sites such as DJHJ Media. They can be very difficult to keep up with, especially with the more popular sites that receive the most readers.
In May 2020, President Donald Trump released an executive order targeting Section 230 and social media. His intent was to narrow the interpretation of Section 230, bypassing the authority of Congress and the courts. It also called for the collection of complaints about bias in censoring free speech. Trump would now like to see Section 230 repealed entirely.
Proposals to reform the law generally fall into two categories. One is a “carveout” approach that removes protections from certain categories of content — like FOSTA-SESTA did for sex work-related material. The other is a “bargaining chip” system that ties liability protection to meeting certain standards — like the proposed Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT), which, as its name suggests, would make sites demonstrate that they are fighting child sex abuse. (This would likely have the intended side effect of weakening encryption for private messaging.) This approach is often bundled with broader data privacy and tech regulation proposals, which are covered in more detail in a separate guide.
David Harris Jr says:
“My Constitutional Challenge is not partisan. It solves the censorship and the antitrust issue, so democrats should get behind it.”
But, will they be? Only time will tell.