Online Censorship: Repealing Section 230 Might Not Accomplish What You Think It Will

Photo by Animated Heaven on Flickr

Brandon Bryer, Associate Member, University of Cincinnati Law Review

I. Introduction

Social media censorship is one of the most hotly contested topics in the United States.[1] A recent Pew Research study found that seventy-three percent of the American population believes that it is very or somewhat likely that social media companies intentionally censor political viewpoints they find objectionable.[2] As social media has become such an intricate part of how the world communicates, viewpoint censorship poses a serious problem and can have significant ramifications. In fact, the Supreme Court of the United States has called the Internet the modern public square and noted that social media platforms are “the most powerful mechanisms available to a private citizen to make his or her voice heard.”[3]

Citizen pressure to address social media censorship has placed Section 230 of the Communications Decency Act in the political crosshairs.[4] Often cited as the “twenty-six words that created the Internet,” Section 230 grants social media companies broad immunity from liability for the content their users post.[5] Section 230 also encourages companies to filter user content.[6] Section 230 has faced scrutiny from political leaders for either not allowing social media companies to censor enough or for doing just the opposite – allowing companies to “shape the interpretation of public events” and “control what people see or do not see.”[7]

II. Section 230

Passed in 1996, Section 230 of the Communications Decency Act protects social media companies from two forms of liability.[8] First, Section 230(c)(1) designates social media companies as mere providers of information, not as editorial publishers.[9] With provider status, social media companies are granted a broad liability shield from any suit where a plaintiff attempts to hold the company liable for information posted by a third party.[10] Section 230(c)(2) is referenced as the “Good Samaritan” blocking and screening provision and is the more controversial of the two liability protections.[11] Section 230(c)(2) allows social media companies to restrict and limit access to content they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” so long as the company is acting in “good faith.”[12] Section 230(c)(2) immunity has been interpreted so broadly by courts that in most lawsuits, the social media company is deemed to have acted in good faith and the lawsuit is summarily dismissed.[13]

Political leaders have identified Section 230(c)(2) as the key to remedying the social media censorship problem.[14] In May of 2020, President Donald Trump issued an Executive Order on Preventing Online Censorship.[15] In the order, the President argued for more accountability against the growing monopoly of social media companies and that Section 230(c)(2) should be eliminated.[16] President Trump has consistently called for the repeal of Section 230 on Twitter and at campaign rallies.[17] Adversely, Democrats have urged Congress to revise Section 230 to make tech companies more accountable for limiting hate speech and extremism, election interference, misinformation, and disinformation.[18] On October 28, 2020, the Senate Commerce Committee questioned the Chief Executive Officers of Facebook, Google, and Twitter in what proved to be a highly-partisan affair about the scope of online speech and how social media companies enforce their policies.[19] But would a repeal of Section 230 actually provide a remedy to social media censorship? 

III. Defining the Censorship Problem

The precise issue of social media censorship is extremely difficult to define. For example, is placing a warning sign that a post is inaccurate or misleading considered censorship? What if the social media company deletes a post or a user’s account entirely? Is it censorship for social media algorithms to filter certain posts or news stories? President Trump and Republican politicians such as Senators Ted Cruz and Kelly Loeffler have argued that all of these are censorship, specifically when done against conservative voices.[20] For purposes of this article, this phenomenon will be referenced as “bias censorship.” 

Believers of bias censorship argue that private social media companies treat content differently depending on whether they agree with the political opinion expressed. Conservatives argue that social media companies pick and choose what will or will not be fact checked and on the whole, permit inaccurate stories about Republicans to run rampant while hiding or removing damaging stories about Democrats.[21] Bias censorship is frequently covered in the news.[22] Republican politicians rally against bias censorship in campaign advertisements and speeches.[23] To varying degrees, bias censorship is what seventy-three percent of Americans believe social media companies engage in.[24] One concrete example of bias censorship occurred when Twitter and Facebook took “unusual steps” to limit the spread of the bombshell New York Post article about Hunter Biden’s business dealings with foreign countries.[25] Twitter not only removed the story entirely from its platform after it began trending, but Twitter also locked the Trump 2020 campaign account and blocked White House press secretary Kayleigh McEnany’s account in the midst of a presidential election.[26] Twitter has since “revised” its policy and its CEO, Jack Dorsey, has since conceded his company erred in blocking circulation of the Hunter Biden story.[27]

While some on the right have likened social media platforms to “Democratic super PACs,” those on the political left are also subject to unequal standards on social media.[28] Just one example includes a user whose Twitter account was blocked for swearing at Vice President Mike Pence.[29] The user spoke out to protest the Trump administration’s policies on transgender service in the military, but because she used an expletive, Twitter deleted the post and suspended her account.[30] In contrast, when President Barack Obama launched his personal account, Twitter did not restrict expletive-filled, racially-malicious tweets directed at the former President.[31] While the inconsistent application of social media policies may speak to a broader problem, does the repeal or reassessment of Section 230 offer a remedy?

IV. Analysis

While Section 230 is under intense political pressure to be repealed, doing so will not solve the bias censorship issue. To highlight this point, a hypothetical is instructive. Facebook User 1 loves to post on Facebook and uses the platform to express her political opinions with family and friends. She consistently shares dark-web conspiracy theories about politicians she does not like. Facebook repeatedly deletes her posts because they are unsubstantiated and factually incorrect. In response, Congress repeals Section 230(c)(2) liability protections for social media companies who filter content on their platforms. Upon seeing this news, Facebook User 1 opens her Facebook page and shares yet another factually-disproven conspiracy about a public figure. Facebook User 1’s post is again found to violate Facebook’s terms of use and is deleted. She is upset and thinks to herself “Section 230(c)(2) has been repealed. Facebook cannot delete my posts anymore.” Facebook User 1 would be incorrect.

Section 230(c)(2) protects social media companies from civil liability – it does not prevent third party users from experiencing bias censorship. If Section 230(c)(2) were repealed, the only result is that social media companies can be sued but only by a plaintiff who has suffered a harm that supports a civil cause of action. Common examples of civil claims are negligence, defamation, breach of contract, tortious interference with contract, fraud, or employment discrimination. Facebook User 1 cannot sue for negligence because she suffers no compensable injury.[32] She cannot entertain any lawsuit arising in contract because she has no recoverable damages and does not use Facebook for commercial advertising.[33] She cannot sue for defamation because Facebook did not say anything untruthful or defamatory about her.[34] Facebook has not engaged in fraudulent activity that would support a legally viable claim for civil fraud.[35] She is also not an employee of Facebook and therefore cannot allege employment discrimination under Title VII.[36]

Stated another way, even following the repeal of Section 230(c)(2), Facebook User 1 does not have a legally cognizable claim under any civil cause of action when Facebook merely deletes her post for violation of the company’s private terms of use. For example, if she shares the Hunter Biden story and Facebook deletes her post, Facebook User 1 cannot sue Facebook for any civil cause of action. Admittedly, a repeal of Section 230 would permit a few individuals and companies who suffer specific civil harms to sue private social media companies. But individuals who experience bias censorship cannot sue to stop Facebook, Twitter, or YouTube from deleting posts it finds objectionable whether Section 230(c)(2) is a valid law or not.   

While no civil remedy is available, perhaps Facebook User 1 could sue for a constitutional free speech violation under the First Amendment. Facebook User 1 argues she has a constitutional right to express her beliefs freely and Facebook is infringing upon that key liberty. If someone thinks her conspiracies or opinions are wrong, they can simply engage with counter-speech and have a debate. Facebook User 1 would again be incorrect. 

Facebook User 1 cannot entertain a constitutional free speech claim against Facebook because, with limited exceptions, private companies are not held to constitutional standards.[37] This core principle of constitutional law, called the state action doctrine, holds that unless a private entity is so entwined with or “dominated” by governmental authority, the conduct of private parties “lies beyond the Constitution’s scope.”[38] In effect, the state action doctrine requires that a private company be engaged in an activity that is traditionally performed by and under the exclusive prerogative of the State.[39] While social media companies have grown to immense size and influence, it cannot be said that providing access to social media is a function under exclusive control of the government. Therefore, it is very unlikely a court could hold a private social media company, such as Facebook, answerable to First Amendment principles.

Thus, with no civil cause of action and no constitutional First Amendment claim, the millions of Americans like Facebook User 1 that use social media for recreational purposes will continue to see their posts censored. A repeal of Section 230 does not provide a meaningful solution to the problem of bias censorship.

V. Conclusion

Social media regulation, the scope of online speech, and how First Amendment principles apply is an extremely complex area of the law. These topics are also rapidly changing, and Section 230 is just one moving piece among many. For example, the government may choose to regulate social media companies more aggressively. However, because the government itself would be acting, if Congress goes too far in controlling the communicative channels of private speech, it may in turn violate the First Amendment. Congress may attempt to regulate social media companies through principles of antitrust thus breaking up monopolies and increasing competition amongst online platforms. While private social media companies do not have to adhere to the First Amendment, Facebook, Twitter, and YouTube may bend to public pressure and permit offensive, hate, and factually incorrect speech on their platforms to better comply with free speech principles.

Regardless of the future action taken on Section 230 or elsewhere, it is important to understand that at least for the foreseeable future, bias censorship is here to stay. With or without Section 230, posts, tweets, and videos will be deleted, flagged, or fact checked if they violate the private policies of private social media companies. To some, that is a welcomed compromise. To others, social media companies are not going far enough. And to yet another group, this reality tarnishes a foundational American principle that if you disagree with or can prove someone’s speech incorrect, the solution ought to be more speech, not censorship. 

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[1] Jessica Guynn, Trump vs. Big Tech: Everything you need to know about Section 230 and why everyone hates it, USA Today, https://www.usatoday.com/story/tech/2020/10/15/trump-section-230-facebook-twitter-google-conservative-bias/3670858001, (last visited Oct. 28, 2020).

[2] Emily A. Vogels, Most Americans Think Social Media Sites Censor Political Viewpoints, Pew Research Center, https://www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/, (last visited Oct. 27, 2020).

[3] Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

[4] 47 U.S.C. § 230.

[5] Anshu Siripurapu, Trump’s Executive Order: What to Know About Section 230, Council On Foreign affairs,  https://www.cfr.org/in-brief/trumps-executive-order-what-know-about-section-230, (last visited Oct. 27, 2020).

[6] Id.

[7] Preventing Online Censorship, Exec. Order No. 13925, 85 Fed. Reg. 34079 (May 28, 2020).

[8] 47 U.S.C. § 230 (2018).

[9] Id.

[10] Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).

[11] 47 U.S.C. § 230 (2018).

[12] Id.

[13] See Spy Phone Labs LLC, No. 15-CV-03756-PSG, 2016 WL 1089267 (N.D. Cal. 2016).

[14] Guynn, supra note 1.

[15] Preventing Online Censorship, Exec. Order No. 13925, 85 Fed. Reg. 34079 (May 28, 2020).

[16] Id.

[17] Siripurapu, supra note 5.

[18] Guynn, supra note 1.

[19] Tony Romm, Facebook, Google, Twitter CEOs clash with Congress in pre-election showdown, The Washington Post, https://www.washingtonpost.com/technology/2020/10/
28/twitter-facebook-google-senate-hearing-live-updates/, (last visited Nov. 3, 2020).

[20] Bethany Blankley, Senators introduce bill to amend rule over third-party internet content, The Center Square, https://kiowacountypress.net/content/senators-introduce-bill-amend-rule-over-third-party-internet-content, (last visited Nov. 3, 2020).

[21] Charlie Spiering, Donald Trump Signs Executive Order to Curb Big Tech’s ‘Unchecked Power’, Breitbart, https://www.breitbart.com/politics/2020/05/28/donald-trump-signs-exec-order-to-curb-big-techs-unchecked-power/, (last visited Nov. 3, 2020).

[22] Guynn, supra note 1.   

[23] Siripurapu, supra note 5.

[24] Vogels, supra note 2.

[25] Elizabeth Dwoskin, Facebook and Twitter take unusual steps to limit spread of New York Post story, The Washington Post, https://www.washingtonpost.com/technology/2020/10/15/face
book-twitter-hunter-biden/, (last visited Nov. 3, 2020).

[26] Id.

[27] Id.

[28] Dwoskin, supra note 25.

[29] Russel Brandom, Twitter is locking accounts that swear at famous people, The Verge,  https://www.theverge.com/2017/2/24/14719828/twitter-account-lock-ban-swearing-abuse-moderation, (last visited Oct. 28, 2020).

[30] Id.

[31] Julie Hirschfeld Davis, Obama’s Twitter Debut, @POTUS, Attracts Hate-Filled Posts, The New York Times, https://www.nytimes.com/2015/05/22/us/politics/obamas-twitter-debut-potus-attracts-hate-filled-posts.html, (last visited Oct. 28, 2020).

[32] Dimick v. Hopkinson, 422 P.3d 512, 521 (Wyo. 2018).  

[33] Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005).

[34] Morgan v. Kooistra, 941 A.2d 447, 455 (Me. 2008).

[35] Wadlington v. Continental Medical Services, Inc., 907 So.2d 631, 632 (Fla. Dist. Ct. App. 2005).

[36] Bonilla-Ramirez v. MVM, Inc., 904 F.3d 88, 94 (1^st Cir. 2018).

[37] Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-22 (1961).

[38] Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991).

[39] Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 160 (1978).