The First Amendment and Social Media Bans

The First Amendment and Social Media Bans


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Mike Kauffmann
Contributor on The Bipartisan Press

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The bans against Alex Jones, Louis Farrakhan, Paul Nehlen, Laura Loomer, Milo Yiannopoulos, and Paul Joseph Watson have made it clear that the major social media platforms have little respect for free speech. However, while they, as private companies, aren’t covered under the First Amendment, they are still covered under the law.

Social media enjoys a protected status. This protection is provided under Section 230 of the Communications Decency Act of 1996. This section was added to the act specifically “(1) to promote the continued development of the Internet”, “(2) to preserve the vibrant and competitive free market that presently exists”, “(3) to encourage the development of technologies which maximize user control over what information is received”, “(4) to remove disincentives for the development and utilization of blocking and filtering technologies”, and “(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

To accomplish all this, Section 230 states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” These policy descriptions promote the idea of a free market in which the consumer decides for themselves what they see or don’t see on the web. In the five policy statements shown above, only No. 5 says anything about punishing anybody and it mentions certain legal conditions under which that is to occur.

If you based your entire argument on No. 5 above, you could make a case that it was perfectly okay to ban the above-mentioned individuals. But laws don’t live in a vacuum. The other four policy statements make it clear that open platforms are expected to be exactly that: open. All of the above individuals had millions of followers showing that in the free market of ideas there were many that agree with them. The fact that there are many who disagree with them does not make a case that they are trafficking in obscenity, stalking, and harassment by means of a computer.

Case law has further advanced this position. Section 230 goes on to say, “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Despite the many legally vague words in that statement like “lewd” and “filthy” and “otherwise objectionable,” the courts have held that the materials to be removed must meet the standards expressed in the more easily legally definable terms such as “obscene” and “harassing.”

As you get further into the policy statements and definitions provided in Section 230, it gets harder to make a case for banning the above-mentioned people. So why did it happen? Why were those people banned? And why isn’t there already major lawsuits against the social media platforms? Because even though the courts have restrained the loose language which sets the standards for taking “vigorous enforcement” actions against those who fail to comply, they are allowing open platforms to make publishing decisions. Specifically, courts have consistently held that exercising traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, as acceptable under Section 230.

In essence, the courts are allowing social media to act as publishers but the courts aren’t treating them as publishers. In fact, since the passage of Section 230, the courts have consistently tilted the balance sheet in favor of open platforms. It’s practically like the courts have given social media carte blanche while at the same time they remain pretty much impervious to lawsuits.

The position of the courts flies in the face of the policy goals clearly stated in Section 230. Protecting open platforms from being treated as publishers while allowing them to make publishing decisions does not provide a free market in which the consumer decides for themselves what they see or don’t see on the web. Unfortunately, courts generally build on previously existing case law which means are not likely to turn back now.

New legislation shouldn’t be necessary even though the courts have moved away from the spirit of the law. If we want to see open platforms return to being open platforms, Congress should simply clarify Section 230. Either that or do away with this protection and let these social media giants defend their publishing decisions in court.

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