November 2, 2020 | Written By - Katherine Cassese '21
In the United States, one statue that governs social media is Section 230 of the Communications Decency Act of 1996.
In simple terms, a platform for sharing information is not responsible for what is posted, while a publisher assumes responsibility. But section 230 exempts social media companies from the responsibilities of a publisher, even if they might moderate some content. Without section 230, social media companies would probably become liable for every single post, which would require moderation on a near-impossible scale.
There have been recent challenges to Section 230. In 2018, exceptions were made to Section 230 that made platforms responsible for prostitution advertisements on their sites. Other proposed legislation attempts to make the Section 230 exemption to publishers’ responsibility contingent on political neutrality in moderation.
Lots of recent challenges have come about because some people think that media companies are unduly silencing conservative voices. Others think that social media companies are allowing misinformation to spread on their platforms. In response to both of these accusations, some social media companies are trying to make changes in their operations. Twitter, for example, has stopped accepting political advertisements, and Facebook has recently become more open to moderating false political content.
But there are two intrinsic problems getting in the way of a healthy public sphere existing on social media. First, the platforms are part of the attention economy and work to keep users’ interest; incendiary material can get elevated as a result, even if it is false. Second, moderation of misinformation requires social media companies to become “the arbiter of truth,” to use Facebook CEO Mark Zuckerberg’s words. If even tweets from the president have been taken down as misinformation, clearly we don’t have any overlapping consensus regarding what is true.
Some of the president’s tweets attacking California’s mail-in voting system have been tagged with further information because Twitter finds the tweets to be potentially misleading. Additionally, Donald Jr. experienced a temporary lockout from his Twitter account after he shared a video of doctors promoting Hydroxychloroquine. These two topics – voting and COVID-19 – are especially sensitive issues right now and misinformation regarding them seem more likely to result in action. For example, Trump has tweeted multiple times the unfounded allegation that the former Congressperson and current reporter, Joe Scarborough, was responsible for the sudden death of one of his staffers.
It is possible that social media is biased against conservatives. It is also possible that Trump’s unique brand of populist conservatism has less regard for truth and science than others, so it is more subject to removal by social media companies. However, none of this is really a question of the first-amendment right to free speech because the platforms can regulate as they wish.
The election will be crucial to the further development of this story: Trump has already signed an executive order trying to further define section 230 and has tweeted “REPEAL 230” after his Tweets and Facebook posts were tagged.
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