In 1996, Congress gave companies like Facebook and Google lawsuit immunity from what users post on their platforms.
Known as Section 230, the law also lets internet companies block or remove user content without incurring legal liability to aggrieved users. They can complain to the moderator, whose decision is final. This isn’t new; a newspaper doesn’t have to print your letter to the editor.
The Supreme Court agreed today to hear a challenge to the law from a family that lost a daughter to an Islamic State terror attack in Paris, and wants to sue Google for allowing the group to rant on its website (see story here).
How the court rules in this case could upend the content moderation practices of social media companies. Both Democrats and Republicans think those companies are too powerful, and have criticized Section 230, either for allowing disinformation to circulate, or for censoring it.
Last year, Justice Clarence Thomas criticized the “enormous control over speech” social media companies exercise, and complained about Congress giving them legal immunity from the content they distribute, arguing “it has not imposed corresponding responsibilities.” I disagree with him. Let’s pick this apart, using Facebook as an example.
First, Facebook has no control over speech. If they’re not telling users what to say, they’re not controlling users’ speech. In any case, the speech expressed on Facebook’s platform is only a tiny, tiny fraction of what 330 million Americans are saying every day. I talk all the time (just ask my wife), but Facebook has zero influence over what I say.
For example, if I’m shopping for groceries, and I tell the guy at the seafood counter I want 2 lbs. of fresh salmon, cut and packaged in 1/2 lb. portions, a moderator from Facebook isn’t standing there messing with my fish order. (And if he was, that would be between him and me; not him, me, and the government; and believe me, I’d take care of it.)
Second, somebody who posts a political rant on Facebook may have a wider audience than my fish order does, but so what? Nothing in the First Amendment gives me a right to have 500 million people, three-quarters of them in foreign countries, listen to me order fish for my family.
When the Constitution was drafted, there was no internet, but there were newspapers; and if you didn’t own a newspaper, fewer people paid attention to your opinions, but the Founding Fathers didn’t have a problem with that. They would say, “Print your own newspaper.” Or, nowadays, “Start your own Truth Social or whatever you want to call it.” (If you don’t know what that is, look it up here.)
Third, where do the “corresponding responsibilities” Thomas speaks of come from? Not from the Constitution. Speech, like voting, is unconditional. As far as the law is concerned, you have no responsibilities when you open your mouth or vote. You can say whatever you like, except “FIRE!” in a crowded theater, and you can vote for whoever you like, including Ted Cruz, Marjorie Taylor Greene, and Trump. Sure, there’s social pressure against irresponsible verbal and voting behavior, but that doesn’t come from the Constitution, the courts, or government — and shouldn’t. It should come from your daughter (see story here).
The real question is whether the Supreme Court should be interfering with what Congress chooses to do. The longstanding rule of thumb is that courts should intervene only if Congress does something that violates the Constitution. And since the First Amendment doesn’t give Trump a right to post his election lies on Facebook, it’s none of Congress’s or the Supreme Court’s business if Facebook refuses to post his garbage.
But what if Google posts Islamic State’s garbage, and somebody gets killed as a result? That’s an interesting question, and I guess we’re going to find out. I just hope free speech survives their ruling in this case.