By Rachel Allore, Staff Writer Vol. 20
Social media outlets provide an unprecedented scope to the modern-day internet; anything from innocuous life updates to scathing anonymous comments can reach thousands of people every second. This space brings novel First Amendment issues directly to our screens, and social media sites rely on an obscure and specific law as they navigate their new territory – Section 230.
What is Section 230?
In an attempt to stimulate the growth of online platforms and allow users control of what information they receive, Congress enacted Section 230 of the Communications Decency Act of 1996. Its key provisions allow social media sites to avoid liability for their users’ content and to restrict content they, in good faith, view to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Section 230 in Action
The law came under fire recently when, in the wake of the Capitol insurrection on January 6, 2021, social media platforms such as Facebook and Twitter permanently suspended then-President Donald Trump’s accounts for his alleged incitement of the violent attack. While conservatives argued that this was a persistent effort of mainstream social networks to silence their voices, liberals claimed the platforms should have done more to combat online hate speech and disinformation. However, under Section 230, social media outlets can choose whether or not to qualify or remove content without legal accountability. For example, although Amazon shut down the right-wing Twitter alternative Parler for its failure to monitor violent content before the January 6 insurrection, it faces no legal consequences for harboring this kind of speech.
Even though the former President once characterized this law as permitting partisan censorship, Trump hopes to reap the protections Section 230 offers his own social media platform Truth Social. The terms of service explain that Truth Social reserves the right to monitor and, in its “sole discretion and without limitation,” deny access to or use of the service for “any reason or for no reason.” Prohibited actions include retrieving data without consent, advertising or offering goods or services, or posting material that interferes with another’s uninterrupted use and enjoyment of the site. Users also must agree not to post false, inaccurate, or misleading statements.
First Amendment Implications
Historically, maintaining an open and diverse marketplace of ideas has taken precedence over concerns about the spread of harmful content. The government cannot restrict speech based on its content in traditional public forums, which are spaces such as parks and sidewalks that have historically been open to political speech and debate. Recently, the United States Supreme Court has noted that the internet and social media, in particular, is one of the most important spaces for the exchange of ideas, dubbing it the “modern public square.”
However, whether these First Amendment principles extend to social media websites is unclear. Because these sites are owned and operated by private entities rather than the government, they are not subject to First Amendment constraints. The Court has clarified that merely hosting others’ speech on an online platform does not make these entities state actors. To protect the individual freedom of speech, these private actors must be permitted to allow, exclude, and disclaim content as they see fit. Thus, heralding a social media site such as Truth Social as a refuge for free speech while reserving the right to remove certain content runs counter to our understanding of the First Amendment.
As concerns for the spread of harmful content grow, some argue that the solution does not lie in censorship but more speech. Known as the counterspeech doctrine, this tenet of the First Amendment implies that the public can discern the truth for themselves when presented with conflicting information or views. One could argue that Facebook disclaiming false vaccine information and Twitter flagging baseless claims regarding the 2020 election is counterspeech because presenting viewers with multiple viewpoints simultaneously allows them to decide to which view to ascribe.
However, when social media outlets remove users’ content and access to their sites based on internal community standards, is this truly counterspeech? Probably not. Still, the Supreme Court also has recognized that counterspeech doctrine is not a perfect solution to harmful speech, such as the categories enumerated in Section 230. Critical race theorists posit that hate speech, for example, serves no societal purpose and should be met with more than just counterspeech.
Social Media Sites and Section 230 Today
Social media sites from Facebook to Truth Social celebrate neutrality and expression. They justify their moderation as an attempt to prevent harm and encourage a more productive exchange of ideas. Thus, while content of little to no social value, such as hate speech or false information, may be protected from government regulation by the First Amendment, these sites can disclaim or remove such content to achieve these goals. However, the business component of these organizations incentivizes moderating content to maximize engagement and profits. Thus, they also can ignore such speech to cultivate an environment that will best serve these interests.
Time will tell if Truth Social will genuinely be a place of digital liberty and neutrality, but Trump’s newfound reliance on Section 230 and swift implementation of the terms of service suggest otherwise. Within one day of the platform’s launch, a user was banned before he’d even posted to the website because of his username. More recently, on August 30, 2022, Google stopped Truth Social from becoming available on the Google Play Store for violating “standard policies” involving content moderation — moderation they are allowed to require due to Section 230. Truth Social can curate its content within the bounds of Section 230 to create the user experience the site and its users envision, but its promise to be a haven for free speech may be unfulfilled, especially with its selective moderation and access to 44% of smartphone users being curtailed on major platforms.