President Donald Trump’s attempt to curb what he says is social media censorship is a political gambit and will not change the legal obligations of companies like Twitter Inc. and Facebook Inc., according to legal experts.
An executive order signed by Trump on Thursday directs federal agencies to clarify the scope of a law known as Section 230, which protects internet companies from liability for illegal content posted by users and allows them to remove lawful but objectionable posts.
Legal experts said it was unclear if the Federal Communications Commission would embrace Trump’s view of Section 230 laid out in the order. Even if it does, the agency’s regulations will have no binding legal effect on judges who actually have say over the law.
The order “is 95% political theater – rhetoric without legal foundation, and without legal impact,” said Daphne Keller, an expert on internet law at Stanford University.
What’s in the law protecting internet companies – and can Trump change it?
By Jonathan Weber and Elizabeth Culliford
(Reuters) – U.S. President Donald Trump is expected to order a review of a federal law known as Section 230, which protects internet companies like Facebook, Twitter and Alphabet’s Google from being responsible for the material posted by users.
WHAT IS SECTION 230?
The core purpose of Section 230 is to protect the owners of any “interactive computer service” from liability for anything posted by third parties. The idea was that such protection was necessary to encourage the emergence of new types of communications and services at the dawn of the Internet era.
Section 230 was enacted in 1996 as part of a law called the Communications Decency Act, which was primarily aimed at curbing online pornography. Most of that law was struck down by the courts as an unconstitutional infringement on free speech, but Section 230 remains.
In practice, the law shields any website or service that hosts content – like news outlets’ comment sections, video services like YouTube and social media services like Facebook and Twitter – from lawsuits over content posted by users.
When the law was written, site owners worried they could be sued if they exercised any control over what appeared on their sites, so the law includes a provision that says that, so long as sites act in “good faith,” they can remove content that is offensive or otherwise objectionable.
The statute does not protect copyright violations, or certain types of criminal acts. Users who post illegal content can themselves still be held liable in court.
The technology industry and others have long held that Section 230 is a crucial protection, though the statute has become increasingly controversial as the power of internet companies has grown.
WHAT PROMPTED THE CREATION OF SECTION 230?
In the early days of the Internet, there were several high-profile cases in which companies tried to suppress criticism by suing the owners of the platforms.
One famous case involved a lawsuit by Stratton Oakmont, the brokerage firm depicted in the Leonardo DiCaprio movie “The Wolf of Wall Street,” against the early online service Prodigy. The court found that Prodigy was liable for allegedly defamatory comments by a user because it was a publisher that moderated the content on the service.
The fledgling internet industry was worried that such liability would make a range of new services impossible. Congress ultimately agreed and included Section 230 in the Communications Decency Act.
WHAT DOES SECTION 230 HAVE TO DO WITH POLITICAL BIAS?
President Trump and others who have attacked Section 230 say it has given big internet companies too much legal protection and allowed them to escape responsibility for their actions.
Some conservatives, including the president, have alleged that they are subject to online censorship on social media sites, a claim the companies have generally denied.
Section 230, which is often misinterpreted, does not require sites to be neutral. Most legal experts believe any effort to require political neutrality by social media companies would be a violation of the First Amendment’s free speech protections.
CAN PRESIDENT TRUMP ORDER CHANGES TO SECTION 230?
No. Only Congress can change Section 230. In 2018, the law was modified to make it possible to prosecute platforms that were used by alleged sex traffickers. As the power of internet companies has grown, some in Congress have also advocated changes to hold companies responsible for the spread of content celebrating acts of terror, for example, or for some types of hate speech.
A draft of Trump’s May executive order, seen by Reuters, instead calls for the Federal Communications Commission to “propose and clarify regulations” under Section 230. The order suggests companies should lose their protection over actions that are deceptive, discriminatory, opaque or inconsistent with their terms of service.
DO OTHER COUNTRIES HAVE AN EQUIVALENT TO SECTION 230?
The legal protections provided by Section 230 are unique to U.S. law, although the European Union and many other countries have some version of what are referred to as “safe harbor” laws that protect online platforms from liability if they move promptly when notified of illegal content.
The fact that the major internet companies are based in the United States also gives them protection.
(Reporting by Jonathan Weber and Elizabeth Culliford; Editing by Greg Mitchell and Nick Zieminski)
Marc Randazza, a First Amendment lawyer, said he agreed with Trump’s censorship concerns but acknowledged that much of the executive order would not lead to actual reforms.
“I think it’s much more of just a leadership statement, or a mission statement, than a blueprint for anything that’s really going to happen,” Randazza said.
The White House, Facebook and Twitter declined comment.
Trump, a prolific Twitter user, has long claimed that the service and other social media platforms silence conservative viewpoints. He signed the order two days after Twitter for the first time prompted readers to check the facts in tweets sent by Trump, warning that his claims about mail-in ballots were false and had been debunked.
Section 230 contains a provision that allows online platforms like Twitter and Facebook to take down or restrict access to material they determine “in good faith” to be lewd, excessively violent, harassing, or otherwise objectionable.
Such restrictions on internet content are generally lawful because the First Amendment of the U.S. Constitution, which protects free speech, only applies to government actors, not private companies.
Alleging that censorship of conservative viewpoints is routine, the draft executive order states that online platforms should not be shielded when they engage in “deceptive or pretextual actions restricting online content.”
The order directs the Commerce Department to ask the Federal Communications Commission to clarify the law.
Experts said the analysis of Section 230 in Trump’s draft executive order contradicts court decisions that have interpreted the law as providing broad immunity.
“A lot of the executive order is bluster,” said Kate Klonick, a professor of internet law at St. John’s University. “It basically casts aside 25 years of judicial precedent.”
The FCC’s lawyers are well-aware of these court decisions, Klonick said, and may struggle with how to proceed in the coming months.
“It is unclear they (the FCC) are going to want to do something in which they would obviously get smacked down by a court order,” Klonick said.
If the FCC does take action, it will likely spark court challenges, and Trump is unlikely to prevail, legal experts said.
Klonick said the executive order is a way for Trump to score political points, regardless of whether it has actual impact.
Jack Balkin, a professor at Yale Law School, said Trump was trying to use his power as president to frighten social media companies so they do not fact-check him.
“It’s a shot across the bow,” Balkin said.
(Reporting by Jan Wolfe in Washington; Additional reporting by Elizabeth Culliford and Karen Freifeld Editing by Noeleen Walder, Nick Zieminski and Grant McCool)
Trump’s Targeting of Social Media Immunity Is ‘Political Theater,’ Claim Legal Experts - Insurance Journal
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