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Time for another not-very-happy rant about the state of 230 coverage, this time about the claim that it is the law that “allows political censorship.” See these two articles this week that just assume that to be true. It is not and this is why.
For background, 230 has two key parts. (c)(1) says that online services are not treated as the publisher/speaker of 3d party content. These are the “26 words” that, by far, are most commonly used by courts to dismiss claims against platforms.
These claims both arise from failing to remove/monitor harmful content and deciding to take content down. Both “treat” online services as publishers and that is not allowed under (c)(1).
This is (c)(2), a separate provision in 230 that protects platforms for their “good faith” efforts to remove objectional content.
So much commentary - from people who should know better - has alleged that platforms are abusing the “otherwise objectionable” language as a shield while they block certain types of political speech.
A few problems with this argument. First, the vast majority of 230 claims - even those that involve moderation decisions - are decided under (c)(1), not (c)(2), because they “treat” the platform as the publisher.
Second, there is not really a cause of action here. “Unfair moderation” isn’t really a thing. I suppose that there might be some sort of contract or deception claim if a platform’s policies promised not to discriminate by political viewpoint. (a big stretch)
But in that case, they just change the policy to make it more ambiguous.
Third, and this is an area that probably could use more scholarship - even if there was a cause of action *and* 230 was not on the books (two very big if’s), I don’t see how such a claim survives a First Amendment defense.
The court would have to say, “Hey, private unregulated company, we are going to penalize you for not carrying certain types of political speech.”
I just don’t see that happening under current First Amendment doctrine.
I welcome other 1A experts’ views on this. @CathyGellis @BerinSzoka @LidskyLidsky @daphnehk @Klonick @ericgoldman @ma_franks @FrankLoMonte @MediaLawProf @vekstra @daniellecitron @ChristopherTerr @sfmnemonic
(And I’m not even going into the broadcast/fairness doctrine comparisons here).
That’s not to say that (c)(2) is meaningless. In some cases it has allowed moderation-related claims to be dismissed earlier than they otherwise would have.
And (c)(2)(B) is useful for anti-malware/cybersecurity efforts.
But it’s not like the “otherwise objectionable” language is this secret loophole that allows platforms to engage in a mass conspiracy to suppress political speech.
I’m not saying whether platforms *are* systematically blocking particular political views. I personally would like to see a more thorough examination of that issue as it is very important.
But even if they were doing this, 230 wouldn’t be the enabler of this, except to the extent that some platforms simply wouldn’t exist without 230.
The only way that 230 might be characterized as “pro censorship” is that it allows platforms to moderate some content without being classified as the publisher of everything else that they fail to moderate.
But that leads to what I think is a very unsupported assumption that 230 results in more moderation than would otherwise exist. Again, it is something that we don’t have a great factual record on.
When I look at some particularly controversial political content that is left online, I often think that without 230, it likely would be removed quickly because the content is too risky for the platform.
When 230 is eventually repealed (and it will be), I think a lot of the anti-moderation folks will see just how much leeway platforms actually have to moderate controversial content.
I don’t seek to minimize concerns here. A handful of companies have tremendous control over speech. But it makes little sense to point to 230 - and particularly (c)(2) - as the cause of this concern.
I can’t see courts or regulators being able to force platforms to carry particular political views unless there is a truly radical overhaul of First Amendment doctrine.
