The Center for Freedom and Western Civilization sponsored a Constitution Day Debate, “Big Tech and Liberal Democracy: Freedom and Responsibility in the Digital Age,” on Friday, Sept. 17.
The event, part of the center’s Forum on Constitutional Government, was moderated by Professor of Political Science Stanley Brubaker. It featured Matthew Feeney, director of the Project on Emerging Technologies at the CATO Institute, and Adam Candeub, professor of law at Michigan State Law School, debating questions of reform of “Section 230,” specifically, “Should big companies be allowed liability protection? Should they be forced to adopt a policy of nondiscrimination based on message content or sender?”
Setting up the debate, Brubaker cited Section 230 of the Communications Decency Act of 1996, which he says was critical to the incredible growth of the internet as we know it today: “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.”
The act goes on to say, “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
“This is very important,” Brubaker says. “The normal liability rule that would apply to newspapers does not apply to the internet. Lower courts have differed on their interpretation of [‘otherwise objectionable’], but it seems that it’s wide open.”
Candeub argued against allowing platforms unlimited immunity and decision-making power in content moderation.
“When [Congress] passed Section 230, their concern was pornography. But what Section 230 has become is a protection for social media’s political censorship. [There have been many cases where] they boot people off for reasons that have nothing to do with obscenity, nothing to do with protecting children, but really to impose the preferences of the company,” Candeub says.
He offered examples of Facebook intervening in the spread of articles covering Hunter Biden’s involvement with the Ukrainian energy company Burisma; the effort of Amazon, Google, and Apple to remove the social app Parlor from their app stores; and the spread and suppression of information regarding COVID-19.
In opposition, Feeney says that, if politically based content moderation is truly occurring, tailoring Section 230 to nondiscrimination is not the right approach to counteract it. Conceptual confusion regarding what exactly constitute a dominant digital platform and public accommodation could lead to the creation of poor policies.
“Many people watching the debate might be familiar with the Tide Pod challenge or the more recent craze of people trying to walk up and down these crates, potentially paralyzing themselves,” Feeney says. “This is totally legal to film someone eating a Tide Pod or to film someone walking up these crates. But I understand why a private company might want to disassociate from such content or to halt it completely.”
Depending on the outcome of the debate, he contends, this kind of content could be ruled as protected under the First Amendment, preventing companies from distancing themselves from such damaging imagery.
Attendees, watching via Zoom, sent in questions during the latter half of the debate. Topics included whether Congress should narrow the language of Section 230; the possibility of social media platforms being flooded with harmful content; conservative viewpoints violating speech guidelines; network externalities associated with search engines and social platforms; and whether tort law is a valid solution allowing for removal of censorship.
“At the moment, I would argue that there is a website available to any legal political opinion in the United States. You’re not going to be the most popular person necessarily, and Twitter may boot you off, but, compared to all of the other countries in the world, [this is] what I think is so exceptional about the U.S. Constitution,” Feeney says.