The Internet is a lot like the Wild West, but with at least one important difference – it is not entirely lawless. Section 230 of the Communications Decency Act of 1996 provides internet service providers (“ISPs”), the companies that connect all of us to the Internet, with protection from being considered the “publisher or speaker of any information provided by another information content provider.”
This law, passed when there was no such thing as Facebook or Twitter, created what lawyers call a “safe harbor,” meaning that these companies, as well as Google, Yelp, and countless others, are not required to screen what people say. In that sense, they are treated like a bookstore, which is not legally accountable for the contents of the books it sells.
Newspapers, broadcasters, and other media, on the other hand, are considered “content providers” who are legally responsible for what they publish. They therefore face exposure to libel and other kinds of lawsuits brought by people and corporations claiming injuries such as damage to reputation or other harm. That risk exists even if the published words are accurate quotations from another publication, or even letters to the editor. Under what is known as the “republication rule,” if you publish it, you own it.
Under Section 230, the opposite is true. The ISP does not “own” what appears on its website.
The preamble to this federal safe harbor law says that Congress has found that interactive computer services offer the public “a great degree of control over the information that they receive” and “a forum for a true diversity of political discourse.” The authors of those words undoubtedly believed that ISPs would engage in self-regulation, thereby protecting the public interest. More than twenty years later, one can fairly ask whether they were overly optimistic.
If it weren’t for Section 230, we would live in a different world. Social media platforms would not be able to post much of what appears online. Supreme Court Justice William J. Brennan famously wrote in the landmark 1964 New York Times v. Sullivan case that debate on public issues should be “uninhibited, robust, and wide open.” Today, those words carry a certain irony. As Georgetown Law Professor Rebecca Tushnet has observed, the safe harbor law has given big companies “power without responsibility.”
Access to information online is extremely useful. Think Wikipedia, or Google. But there is a dark side to the Internet, populated by cyber criminals, terrorists, and, we now know, foreign governments intent on influencing our elections.
In the words of Justice Oliver Wendell Holmes, the First Amendment provides protection not just for “good” speech but also “freedom for the thought that we hate.” Examples of such thought are plentiful – Hustler Magazine’s vulgar parody directed against Rev. Jerry Falwell; funeral protests by members of the Westboro Baptist Church carrying homophobic and hateful anti-American posters; and yes, Alex Jones, who tells his millions of radio listeners that the Sandy Hook school shooting never happened, or at least did so until he found himself in court recently facing the victims’ parents.
Internet speech is undoubtedly protected by the First Amendment, but probably not to the extent provided by Section 230’s safe harbor, a question the Supreme Court has not addressed. The issue is not whether online freedom should be protected, but whether it should be regulated in a different way. Considering the growth of the Internet since 1996, and the power acquired by Facebook, Twitter, and other interactive service companies, it is fair to ask whether the law strikes the right balance.
The answer is that it went too far in the case of at least one company, an ISP called Backpage.com, whose online pages contained not-so-thinly veiled messages, accompanied by photographs, offering “personal” services. When courts found no basis to exempt the company from Section 230 immunity, Congress amended the law by passing the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” known as FOSTA. In April of 2018, the Department of Justice closed down Backpage.com.
The role of the Internet in our society, and in our political system, raises profound legal and social questions. I recently taught constitutional law in Iceland, where one of my students, commented that speech in the United States is freer than anywhere else. I responded by quoting Winston Churchill, who said that “nowhere is speech freer” than in the United States.
But not all speech is free, even in a country where censorship is forbidden in all but the most extreme situations, and where punishment for speech is greatly disfavored. Whether online speech is “too free” in our country is a fair question, one that we will surely debate during the coming election year and beyond.
The question is where to draw the line in order to tame those who would be outlaws without infringing on “wide open” debate on public issues. Where is Wyatt Earp when we need him?