For 25 years, one of the greatest protections of free speech survived within a law largely created to limit free speech on the Internet. Three years after the Internet became public, the Communications Decency Act of 1996 was passed to prevent certain indecent distributions of material on the Internet. Section 230 was a 26-word provision within this niche law that stated Internet Service Providers enjoyed immunity from what their users published with the only exceptions being sex trafficking, copyright, child sex abuse, and terrorism related activities. These providers, however, are free to set their own standards of editorial judgement and remove anything they feel offensive or irrelevant to their site’s purpose. While other portions of the CDA have been struck down, Section 230 remains and has been referred to as “The Twenty-Six Words that Created the Internet” (Kosseff 2019). Now, this provision is under attack by both major American political parties, though for different reasons. The possible benefits from reform are far overshadowed by the potential damage to the free speech rights enjoyed by members of the public, and by extension the entire US democracy.
Some may underestimate the importance of Section 230. The clear boundary created by the Section gives the providers incentive to only focus on moderating severe federal crimes. However, this provision also protects the 1ST Amendment rights of the consumers as their providers have no legal incentive to censor much else they say. By leaving this up to the discretion of the providers themselves and what they may find irrelevant or offensive enough to get involved, widespread innovation of the Internet has been allowed to flourish. If this provision is stricken, providers suddenly become responsible for every little post from millions of citizens on their sites. This incentivizes large-scale intervention and censorship. There are two problems with this. First, the algorithms and manpower required to comb through vast amounts of data would be expensive and subject to mistakes, which would lead to sweeping generalizations for the sake of time and money. Large established institutions would survive such requirements, but this would place an undue burden on new or smaller providers by increasing the barrier to entry, thus promoting illegal anti-competition practices and undermining our free market as a democracy. Secondly, the new and highly censored Internet would be a mere shadow of the bastion for free speech rights it once was.
If this is the case, why do both major political parties still strive to reform this provision?
Well, Republican politicians (most notably former President Donald Trump) feel that the provision protects social media sites that unfairly censor them based off mere political views. Whether or not you agree with Donald Trump’s removal from Twitter, Facebook, or YouTube following the events of January 6th, this does create an alarming dilemma. Should social media sites have the power to silence a sitting President? Does this silencing of a political actor’s free speech lie within the corporation’s own rights of free speech? In Citizens United v. Federal Election Commission, the Supreme Court affirmed corporate personhood and established that First Amendment protections do apply to corporations. Even if political discrimination by corporate actors on their websites is legal by precedent, maybe this should be reconsidered given the substantial influence Internet service provider’s hold over mass communications, news, and political debate. The Internet has grown far larger than the lawmakers who drafted Section 230 possibly could have dreamed of. It is due to these concerns that Republicans are pushing to repeal Section 230 and replace it with legislation further guaranteeing freedom of speech on social media sites.
The Democrats, on the other hand, wish to expand the areas in which providers are expected to moderate speech, specifically as it pertains to hate speech and misinformation. In addition to the potential anti-competition ramifications if not handled carefully, this expansion of government outreach not only limits the free speech rights of providers but also of their consumers. The goal is safety, yes, and much of what they strive to censor is indeed unpleasant material, but this would constitute a massive undertaking of censorship the likes of which this country has never seen.
As usual, the Democrats and Republicans have two entirely different remedies to two entirely different perceptions of the issue at hand. Therefore, I feel that a reform of Section 230 would endanger the democratic balance. Even discussions alone have led to increasingly polarized arguments. Polarization is widely accepted as a precursor/cause of democratic erosion as it decreases trust in the legitimacy and effectiveness of the opposition party, and further the democratic institutions in place themselves. If either reform proposition was passed, this would simply escalate the situation.
If a more laissez-faire approach to speech on social media sites is adopted, Internet users will have free reign over a wide array of hate speech, violent organizations, and potentially endangers many citizens of the United States both emotionally and physically. Social media sites could even be used for voter oppression, intimidation, and other tactics that could threaten the integrity of America’s elections. On the other hand, if a more substantial law is levelled at Internet providers to curb and censor all offensive/inciteful speech, this gives the government extreme power to censor citizens and businesses. Though the initial intentions may be pure, once this censorship is put into practice the government always has an avenue to prevent the essential right to express oneself politically. The law may be democratically passed but could later be corrupted through stealth authoritarianism and used to stifle lively citizen participation that is essential to American democracy. One needs look no further than the increased censorship in Myanmar, Belarus, and China and the negative relationship it had with their freedom score in the Freedom House Index. A large reason censorship is so successful in undermining democratic values is because it removes a tool the citizens have to hold their politicians accountable. According to political experts Lust and Waldner, accountability is one of the three core ideals of democracy; once this safeguard against corruption is removed, any democracy will experience significant backsliding.
My solution to solve the problem whilst not endangering any democratic ideals is to reorganize the Federal Communications Commission. Congress should pass a law giving them jurisdiction over the Internet, which is not an untested method or far stretch given that they already monitor national and international TV, radio, satellite, cable, and wire communications. Their power to fine individuals over obscenities should be extended to fining those who incite violence, purposefully spread misinformation, and other troublesome communications on the Internet. This increased cost should deter many individuals from participating in these actions, while also gathering funds for my next proposition. Grants should be given to up-and-coming internet providers of various backgrounds and political leanings to establish a diverse free speech market. This way, each corporate actor is still able to adhere to their own guidelines, thus mitigating the gatekeeping of ideas and potential for hypocrisy seen when very few Internet providers are making all the rules.