Social Media Companies' Protections Face Continued Attack

It's no exaggeration to say Section 230 of the Communications Decency Act is the most important law affecting social media companies today.

The 24-year-old media law, dubbed “The Twenty-Six Words That Created the Internet” by law professor Jeff Kosseff, immunizes online publishers from liability for speech by users.

Without that protection, Facebook, Twitter, Yelp and YouTube could face endless lawsuits by people who said they were defamed in comments on the platforms.

Section 230 also immunizes companies from lawsuits for removing or placing warning labels on users' speech -- including comments that violate the companies' editorial policies. Facebook CEO Mark Zuckerberg's decision this week to ban speech that denies or minimizes the Holocaust is one example of the type of decision that's currently protected by Section 230. (Even without Section 230, companies have a First Amendment right to decide what type of speech to ban from its platform. But litigating a First Amendment issue can be more complicated and expensive for companies than securing a dismissal under Section 230.)

That law is now under attack on a variety of fronts. President Trump, who has repeatedly made unfounded claims that tech companies squelch conservative voices, reiterated last week that he wants Congress to repeal the statute. The Department of Justice has proposed new legislation that would make it harder for companies to claim immunity for deleting posts, and the Federal Communications Commission is considering a Commerce Department petition to link companies' protections to their content moderation policies. On top of all that, on Tuesday, Supreme Court Justice Clarence Thomas suggested he wants to narrow the law.

Some Big Tech critics are undoubtedly cheering the prospect of repealing or limiting Section 230. But that law's protections don't apply just to the largest companies. Section 230 protects all web companies -- small social media start-ups as well as tiny publishers -- that allow users to post content.

The Consumer Technology Association made that point recently to FCC Commissioner Brendan Carr -- a critic of Section 230, who says he believes it creates “too much incentive for content moderation.”

Executives from the Consumer Technology Association say in a regulatory filing that they met with Carr last week, and discussed how Section 230 benefits small and midsized businesses that “are engaged in activities like website hosting, email marketing, and managed cloud services.”

The Silicon Valley lobbying group Internet Association weighed in with a similar point in a Texas lawsuit brought by sex trafficking victims who say they were abused by people they met on Facebook and Instagram.

In a friend-of-the-court brief filed late last month with the Texas Supreme Court, the Internet Association argues that Section 230 of the Communications Decency Act shields Facebook from liability for users' activity.

“Facebook’s only connection to the harms alleged by plaintiffs is that its platforms -- Facebook and Instagram -- were a medium for the online exchange of messages created by others,” the Internet Association writes.

“These are the paradigmatic types of claims that countless courts across the country have held are barred by Section 230,” the organization writes.

The Internet Association adds that the court's decision won't just affect Facebook.

“Section 230 has been especially important to small, startup enterprises that depend on being able to devote all of their resources to creating innovative products and services, rather than to fending off litigation,” the group writes.

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