Moderating the moderators
Free Speech | Proposed legislation would limit social media platforms’ control over content
by Steve West
Posted 9/15/20, 01:13 pm
President Donald Trump last month accused Facebook and Twitter of bias after they removed a video he posted in which he claimed children were “almost immune” to COVID-19. In May, Trump criticized Minneapolis Mayor Jacob Frey’s handling of riots after George Floyd’s death, tweeting, “When the looting starts, the shooting starts.” Twitter blocked the tweet, citing its rule against inciting violence.
A GOP bill introduced Sept. 8 in the Senate would likely make such censorship illegal. Unless social media moderators and fact-checkers reasonably believed posts met certain criteria, they would have to leave them alone.
The bill takes aim at Section 230 of the 1996 Communications Decency Act—dubbed the “First Amendment of the internet”—which shields companies from most lawsuits over user posts. The section also gives internet platforms broad authority to censor content deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” as long as they act in “good faith.”
The Online Freedom and Viewpoint Diversity Act, introduced by Republican Sens. Roger Wicker of Mississippi, Lindsey Graham of South Carolina, and Marsha Blackburn of Tennessee, would strike the catch-all phrase “otherwise objectionable” and require companies to prove they have a reasonable belief that the censored content falls into one of the other categories. The bill would also make tech companies liable for posts if they modify or comment on content.
Big Tech companies criticized the bill. Elizabeth Banker, deputy counsel for the Internet Association, said the legislation could run afoul of the First Amendment and argued Section 230’s “otherwise objectionable” clause makes platforms safer for everyone: “Eliminating that clause will make it harder, not easier, for online services to remove content like misinformation, platform manipulation, or bullying that’s neither illegal nor in the bill’s new description of allowable moderation.”
Other lawmakers have pursued similar regulations. Sen. Josh Hawley, R-Mo., introduced a separate bill earlier this summer that would require tech companies to certify to the Federal Trade Commission that they don’t moderate in a “politically biased manner” to maintain their immunity from lawsuits over user-created content.
Though the Senate likely will not vote on either bill before November, Democrats and Republicans agree on a need for stronger regulation of Big Tech. Trump issued an executive order in May asking for clarification on the scope of internet companies’ immunity under Section 230. Democratic presidential candidate Joe Biden went further, saying he wants to abolish good faith immunity for tech companies. Politicians clearly have Big Tech in the crosshairs, but it remains a tough target to hit.
Read more Liberties Sign up for the Liberties email
Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.