Repealing Section 230 could have unintended consequences for Trump and conservatives

The assault on Silicon Valley’s liability shield by conservatives could result in Donald Trump being booted from social media

Jack Dorsey, Twitter CEO, testify during a Senate (Select) Intelligence Committee hearing in September 2018.  (Tom Williams/CQ Roll Call)
Jack Dorsey, Twitter CEO, testify during a Senate (Select) Intelligence Committee hearing in September 2018. (Tom Williams/CQ Roll Call)
Posted October 20, 2020 at 6:02am

Actions taken by Facebook and Twitter to limit the spread of the New York Post’s dubious Hunter Biden story last week led to President Donald Trump and Republican lawmakers intensifying calls to punish social media companies over long-standing accusations of anti-conservative bias.

Twitter’s decision to initially block users from sharing a link to the story and Facebook’s referral of the story to its third-party fact-checkers were met with swift calls from Trump and others to repeal or narrow the terms of a 1996 law that protects social media companies from most lawsuits related to third-party content that is posted on their platforms.

But legal experts, free speech advocates and the technology industry all agree that getting rid of the once-obscure law, known as Section 230, would have unintended consequences for Trump, a prolific user of social media, and would likely result in more online censorship, not less.

Section 230 will now receive prominent attention in the final two weeks of the presidential race, and each company’s CEO, Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey, will face a grilling over their handling of the Post story from at least one congressional committee prior to Election Day.

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Both executives — along with Sundar Pichai, the head of Google — are scheduled to appear before the Senate Commerce, Science and Transportation Committee on Oct. 28, after the committee voted to authorize subpoenas for their testimonies earlier this month.

But after Twitter and Facebook cracked down on the spread of the New York Post story, Republicans on the Senate Judiciary Committee clamored for their own hearing and plan to vote on subpoenas for Dorsey and Zuckerberg as early as Tuesday. If approved, the subpoenas could require the executives to testify as soon as Friday.

Elsewhere in Washington, conservative Supreme Court Justice Clarence Thomas wrote that he would welcome a case that allowed the court to review Section 230, and Ajit Pai, the Republican chairman of the Federal Communications Commission, said he would act on an executive order issued by Trump in May that asked the agency for a new interpretation of the law.

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The flurry of activity represents an all-out assault on Silicon Valley’s prized liability shield by conservatives in every branch of the federal government, even as legal experts argue that repealing Section 230, as Trump wants to do, could see him booted from social media.

“Repealing Section 230 would have the perverse effect of actually chilling the very speech that the president engages in all the time,” Olivier Sylvain, a professor of communications law at Fordham University, told CQ Roll Call.

Currently, social media companies can mostly choose to moderate noncriminal content posted on their sites however they want without fear of being sued over those decisions. Without Section 230, Sylvain explained, companies like Twitter and Facebook would be so inundated with lawsuits related to Trump’s posts that it would be simpler to ban him.

“That’s the irony of proposing a complete repeal,” Sylvain said. “It fails to recognize that the outlandish claims about public health involving COVID-19, or about Russian interference, or election fraud — all these statements made by conservatives — would have to go.”

Free speech advocates say repealing Section 230 would turn social media companies into unwilling speech police. 

Evan Greer, a deputy director of the digital rights group Fight for the Future, said in a statement that repealing Section 230 “would just make all the bad parts of the Internet worse while burning the good parts to the ground.”

“Social media platforms would likely engage in mass censorship and banning of accounts rather than open themselves up to lawsuits for hosting controversial opinions,” she said. “Trump’s accounts would surely be among the first to go.”

Representatives for the technology industry, which is opposed to changing Section 230, have argued that repealing the law to crack down on large companies like Facebook and Twitter would also undermine other online companies and ultimately hurt innovation.

“We’re talking about thousands of websites that use this law every single day,” said Carl Szabo, vice president of NetChoice, an industry group representing Facebook, Twitter and Google. “If we want to turn the internet into a cesspool, amending Section 230 is the easiest way.”

Defenders of Section 230 are quick to point out that Democrats have eyed their own changes to the law over concerns about the proliferation of hate speech and violent content online. Democrats have also complained that social media companies have done too little to stop Trump from spreading disinformation related to issues such as mail-in voting.

That each party is approaching Section 230 with diametrically opposed grievances is proof that Section 230 should be maintained, Szabo said. He called increased attention on the law in the lead-up to the presidential election an attempt by both parties to influence how social media companies moderate content on and after Election Day.

“Both sides are trying to work the refs,” Szabo said. “And what I mean by that is force or encourage online platforms to remove all content that shows them in a negative light while leaving up the content that they like.”

Greer wants Congress to take on Silicon Valley in ways other than repealing Section 230.

“It’s time to put this bad idea to rest and focus on putting actual policies in place to protect free speech and rein in Big Tech abuses,” she said, “like enacting strong federal data privacy legislation, restoring net neutrality, banning micro-targeting and harmful forms of algorithmic amplification, and breaking up monopolies.”

Nevertheless, observers agree that the level of bipartisan attention paid to Section 230 in recent years could result in changes, though probably not a full repeal. Two bipartisan proposals have received considerable attention and could lay the groundwork for a deal next Congress, even as Republicans and Democrats disagree over why changes are necessary in the first place.

“There is momentum for reform,” said Sylvain. “It’s yet to be determined how that reform will be articulated.”