Steady State: Freedom of Speech and the Internet

Ayush Kumar


The banning of former president Donald J. Trump from various social media platforms, led to a flurry of reactions: some positive, and others negative. The former president was banned for his use of these platforms in inciting the 2021 storming of the United States Capitol and the potential for further violence.

The reactions at first appeared to be nothing out of the ordinary; some who supported Trump were outraged while everyone else rejoiced, However there were some people who in general opposed Trump but appeared to be skeptical about the issue. The general argument went something along the lines of: some tech companies should not have the power to control who gets to speak based on what they deem appropriate, and I agree.

The First Amendment of the US Constitution guarantees that the government (at any level) lacks the power to govern speech (in general), however, these restrictions only apply to the government and thus, are virtually void when it comes to private tech companies. This does not mean that the internet is unregulated by the government but merely means that the government may not censor (in general) the internet. Congress on numerous occasions has attempted to regulate the internet, among the most notable was the Communications Decency Act (CDA) of 1996. The CDA was an attempt by Congress to regulate pornographic material on the internet, in Reno v. ACLU the supreme court unanimously struck down most of the act regulating free pornography as a clear violation of the first amendment. However, tucked in CDA was Section 230 which, though modified, remains at large.

Now before we talk about Section 230 we need to talk about obscenity and some supreme court cases. The Supreme Court has maintained that obscenity is not protected by the first amendment; in Roth v. United States (1957). The Supreme Court established that obscenity was not protected under the first amendment defining a material to be obscene if the “dominant theme taken as a whole appeals to the prurient interest" of the average person, applying contemporary community standards.

In 1959 The Supreme Court heard Smith v. California, Eleazar Smith, a proprietor of a bookstore, was convicted of violating a city ordinance prohibiting any person to have in his possession any “obscene or indecent writing”, “[or] book... in any place of business where books are sold or kept for sale.”

The case is notable as The Supreme Court ruled that the ordinance violated the Fourteenth Amendment, and in the process noted that asserting liability of the material in question on book store (the provider) would result in, what Balkin refers to as, “collateral censorship,” i.e. when a person A censors person B out of concern that the government may hold A accountable for B’s speech. The court recognized that such collateral censorship may then lead to the restriction of various forms of speech protected under the First Amendment.

Here the Court created a distinction between providers, and publishers and that providers may not be held liable for the speech of publishers. The Court recognized that it would force the provider to self-censor a variety of protected speech to prevent potential liability, as very often the provider may not have the capacity to determine if the material in question is protected by the first amendment or not.

This delineation is the reason that any publication, say, The New York Times, is held responsible for libel if an article published in it is libelous, but a newspaper vendor distributing the Times is not.

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” Section 230 states.

Therefore Section 230 in some respects states the obvious, it would be impossible for a social media company to monitor every single post and therefore it should not be treated as a publisher. Consequently several academics and Judges believe that Section 230 is redundant, scholars such as Freivogel state that it would be inaccurate to note that the First Amendment requires Section 230 when it comes to ‘acceptable liability’ of tech companies as a publisher, and so is my position.

The privileges afforded by Section 230, however, are not encompassed in toto with the interpretation of the First Amendment as provided above. Some Courts have interpreted Section 230 more textually therefore categorizing these tech companies as publishers even in the cases involving negligence, commercial speech, or in the cases where the publisher knowingly did not censor content violating the First Amendment. This protection may be argued to be crucial in certain cases; however, in my view, these protections are an overstep as they shield corporations even in cases where they should be held accountable, say willful negligence.

Concerning the crowd who believes that repealing Section 230 may reduce online ‘censorship,’ I offer the following: (i) First, as is aforementioned, Section 230 is most likely implied by the First Amendment (ii) Suppose not, and imagine that repealing Section 230 would allow internet companies to be treated as publishers and they would be liable for the content published by its users (iii) This would lead them to censor anyone they believe could violate the First Amendment, making them defacto arbitrators of law on the internet. Therefore, I find that the belief that removing Section 230 may allow for more freedom on the internet is largely incorrect.

When a user decides to use a social media platform, they agree with its terms and conditions. Former President Trump was banned from various social media platforms for violation of such terms and conditions. This banning was not arbitrary but thoroughly consistent with the general policies of these Social Media Platforms.

The critics have generally resolved to ‘whataboutisms,’ however, the sheer size of these social media platforms makes it difficult for them to find every single individual responsible for violating their terms and services. For example, a dictator on Twitter cannot be banned from it for saying something violent elsewhere, but can be banned only if the platform is used to espouse violence. I in no way imply that it is the best system, however, I note that it is perfectly in line with the law with or without Section 230.

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