Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues....Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate." Justice William Powell, Gertz v. Welch, 418 U.S. 323, (1974)

Section 230 of the Communication Decency Act states that, "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." According to Jeff Kosseff, author of The Twenty-Six Words That Created the Internet, Section 230 provides internet sites and social media companies immunity from third-party content that appears on their sites (Twitter Posts, Facebook Updates, reviews on Amazon, etc). Section 230 encourages internet sites to develop standards of conduct, or not, and provides them protection if they curate, qualify, or delete content. While there are some exceptions to the liability (e.g. copyright, child pornography), the broad immunity means that users may publish a considerable amount of questionable discourse on websites unless the social media site decides to regulate content. Basically, what Section 230 of the Communications Decency Act means is that if someone tweets something defamatory about you, you can't sue Twitter; if someone posts on his Facebook page something defamatory about you, you can't sue Facebook; if someone uploads a video onto YouTube that defames you, you can't sue Alphabet (which owns Google, which owns YouTube); and, yes, if someone posts on Amazon a defamatory review of one of your books, you can't sue Amazon. If Twitter decides that it will not allow users to post or spread false information about Covid-19 vaccinations, and you decide to Tweet or reTweet false information about Covid vaccines, then Twitter can flag your Tweets or Block you as a user. Unlike the New York Times or the Washington Post (which is owned by a "holding company"), all of these giant social media corporations are immune from lawsuits arising out of so-called "third-party" content that they publish. Instead, users who post are subject to the rules, regulation, and terms of service of the internet provider.

In Jones vs. Dirty Word Entertainment, a case that challenged whether an internet site (Dirty Word Entertainment) could be held liable for defamatory statements against a private individual, Judge Julia Smith Gibbons provided a defense for the importance of Section 230. She argued that first, section 230 is necessary to maintain the robust nature of the internet by keeping government interference to a minimum; second, that section 230 is necessary to protect against the so-called 'heckler's veto,' wherein a person could attempt to shut down a site simply threatening litigation; and third, that section 230 is necessary as a way of encouraging service providers to self-regulate by removing offensive content from their sites. Therefore, Section 230 should secure robust, political debate while it asks service providers to develop policies that outline what posts would be acceptable for their format.

In the run-up to and in the aftermath of, the 2020 Presidential Election, Social Media institutions, especially Facebook and Twitter engaged in heightened regulation of users' posts, especially in relation to conduct or outcome of the 2020 election. World leaders were often exempted from regulation even if they threatened other users, amplified racists comments, or spread false information. However, that exemption ended with the 2020 election. Before the 2020 election, Twitter altered its moderation policy and user agreement as it adopted a "civic integrity policy," which bars users from "manipulating or interfering in elections or other civic processes", such as by posting misleading information that could dissuade people from participating in an election. In May of 2020, Twitter placed a warning label and fact check on two tweets by President Trump that questioned the integrity of mail in ballots because the tweets violated the "civic integrity policy." In the immediate aftermath of the 2020 election, between November 4^th, 2020 and November 12^th, 2020, Twitter "blocked" or flagged 68 tweets and retweets by President Trump about the 2020 election because those tweets presented claims that undermined the legitimacy of voting or the election itself. After the January 6^th insurrection at the US Capitol, Twitter and Facebook banned President Trump from their websites. 

In response to the perceived censorship of President Trump, Republicans attacked Twitter for what they argued were selective moderation practices that targeted conservative voices. Immediately after his May 2020 Tweets were blocked, President Trump attacked "Big Tech" for its selective enforcement policies and removal of political speech. The President signed an Executive Order that tried to strip internet sites of Section 230 immunity if they engage in anything beyond a "good faith" effort to moderate content. The reasoning behind the executive order is that by flagging or blocking the President's Tweets, Twitter is acting as a publisher because it curates which Tweets can be seen. Further, becomes it flags some but not all comments for "misinformation," Twitter creates the appearance of which Tweets appear to be "true." Since the first amendment protects political speech, and speech about elections is political speech, Twitter censors the views of its users when it flags Tweets and/or blocks users from its services. The appearance of inconsistency in applying or enforcing the terms of service, leads to polarization among users of social media and the public and a political backlash against internet providers. 

With the 2020 election in mind, please answer the following questions. First, what is the First Amendment implication of Section 230? Or, said another way, do users have a first amendment right to social media? What, if any, are the limitations of that right?

Second, if an internet provider or social media site like Twitter edits or curates content, is it a publisher?

Third, reread Section 230 and Judge Gibbon's discussion of Section 230. Does Section 230 justify Twitter's ban of President Trump?

Fourth, make an argument over what is the best way to conceptualize the internet. Is the internet:

• Like Print, where a publisher has control over content and is thus liable for defamation, invasion of privacy?
• Like broadcasting (NBC, ABC, CBS) where it is subject to indecency on the part of the FCC?
• Like a common carrier (phone companies, cable) where there should be regulation of startups and an affirmative duty to provide access to all individuals (e.g. high speed internet in rural areas; Twitter for everyone)?
• Another conceptual model?

Answer rating: 100% (QA)

Firstly the First Amendment implication of Section 230 is essentially about the right to free speech Technically speaking users do have a First Amendm... View the full answer