Way back in 1996 when the Communications Decency Act of 1996 was being contemplated, no one imagined the outsize role of the internet. In fact, few of the people debating the bill had ever seen this internet thing. The internet as we understand it was in its infancy and only tech savvy hobbyists were using it. Most homes did not have a personal computer at the time. The only thing everyone was sure about was that the internet had to be free to grow.
Section 230 of the Communications Decency Act made a lot of sense to all involved, because it gave the new internet companies relief from parasitic lawyers who were already sinking their fangs into the industry. Giving the public platforms protection from liability allowed them to host the public platform without having to edit everything the users posted on the platforms. At the time, the tech companies claimed they lacked the resources to monitor user behavior.
The logic made sense as long as that last bit was true. If the people creating these public platforms could not edit what was posted, then they could not reasonably be held accountable, as we do for newspapers and magazines. The New York Times controls its content, so in theory it is responsible for it. As a practical matter they are never held accountable and libel people daily as we saw with the Sarah Palin case a few months ago, but that is a topic for another day.
In a quarter century, much has changed. Not only can the tech platforms edit what is posted on their sites, they now aggressively monitor content. Not only that, but they also promote content on the platforms and they create their own content. The millions of bots used to boost some content over others is a form of content. It is similar to a newspaper making the editorial decision to post some stories on the front page and relegate the real stories to the back pages.
The Section 230 protections were specifically tailored on the assumption that the platforms could not control what was posted. Therefore, someone could not reasonably sue them for defamation. It would be like holding the building owner liable for something someone write on the walls outside. In theory, the platform, like the building owner, would take reasonable steps to remove the material. If the court asked, they would try to identify the person responsible.
Of course, we live in a different age and therefore the laws crafted for the prior age no longer make any sense in this age. No one in 1996 could contemplate a world where an oligopoly in Silicon Valley controlled political discourse. Further, no one imagined the oligopoly being controlled by crazy people. This is why the matter is working its way through the courts in various conflicting cases. In fact, it will probably end up in the Supreme Court in the next term.
The U.S. Court of Appeals for the 5th Circuit upheld a Texas law barring companies from removing posts based on political ideology. The U.S. Court of Appeals for the 11th Circuit overturned a similar Florida law on the grounds that it violated constitutional protections for tech companies. The question is whether these private firms that get the same protections as all other private firms or are they private firms operating public accommodations and therefore can be regulated.
Morally, this would be a simple question if not for the racial double standard that has become nearly universal. Facebook regularly hosts livestreams of black people hunting a killing white people. This happened most recently with the Memphis spree killer who livestreamed his rampage on Facebook. On the other hand, a white guy uses the wrong pronouns when describing a public degenerate and he is banned. In the age of Jim Snow, everyone knows the score.
Before the Jim Snow laws, when Section 230 was created, no one imagined the sorts of double standards we now accept. In 1996, everyone agreed that a public accommodation had to accept everyone as long as they did the minimum that was required of the enterprise. Restaurants could require a dress code, but they could not ban people for holding the wrong opinions. If they violated their own rules, then they could be held accountable in the courts.
Ultimately, the court will have to fashion a new standard. If Facebook is a public accommodation, then what are the rules that define such a thing? If it is a private company, then how can it have special privileges? The simplest solution is to clarify how one can claim Section 230 protections. A platform that does not edit the content of users would qualify, while a firm that censors the users would not qualify. This would be the logical solution, which is why it cannot happen.
Instead, the court will end up supporting the tech companies, because the so-called conservatives will be so high from chanting “they are private companies” that the crazies on the court will write the decision. We will end up with a new standard that says private companies can viciously and aggressively discriminate, as long as it is not against protected classes. At this time, there is one class left unprotected in the law, which is the class known as while people.
In fact, there is a good chance that the court creates a new framework that requires public platforms to aggressively censor content in order to get the protections offered under Section 230. That would mean a site like Gab is wiped out unless they apply the same standards as Silicon Valley. It would also mean that hosting companies are required to monitor the content of their users. This would be the first example of “common good conservatism” in the law.
This sounds terribly negative, but it is realistic. Stalin allegedly said that it is not the votes that count, but who counts the votes. He probably never said it, but it is something he would have grasped. He was a communist, but he eventually came to see that who decides counts for more than how things are decided. That is what we see in the current age with things like censorship. It is not the rules that matter, but who is enforcing and interpreting the rules that matters.
If the tech firms were run by the same sorts of people who were running what passed for big tech in 1996, none of this would matter. The internet pioneers were civic nationalists and libertarians. They were on-line to get away from people who wanted to police free expression. They needed Section 230 to keep the internet open, but they were replaced with people who want to close it down, so one way or another, speech will be closed down on the internet.
Finally, this is a good reminder that when a society begins to debate the letter of the law, it no longer respects the spirit of the law. Put another away, if the people in charge are so corrupt that they need written rules to behave themselves, they are corrupt enough to find a way around those written words. This is where we find ourselves with the current ruling class. They see the rules like they see the truth. If they are useful, they enforce them. If not, then not.
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