LAL #016 — Big Tech Should Be Held to First Amendment Standards

Law and Legitimacy

Social media companies enjoy the benefit of immunity from suit for the things they publish, thanks to Section 230 of the federal Communications Decency Act.

Known commonly as "Section 230", this federal legislation gives the social media giants enormous competitive advantage over traditional media, who are not granted immunity. In theory, the grant of immunity was supposed to support freedom of speech. By freeing tech companies from the need to make editorial judgments, information could flow freely. But as the companies became more powerful, they decided that they weren’t content with mere immunity from suit for what they published; they decided to take a greater role in deciding what to publish at all.

Because they are not governmental entities, their decision to act as censors, to favor some content over others, is not subject to challenge in court. Social media companies can engage in content-based censorship that is intolerable on first amendment grounds when done by governmental agencies. Consider Facebook’s decision to ban Donald Trump for life after his comments in Washington, D.C., on January 6. The same entity doesn’t ban Black Lives Matter spokespersons, or, for that matter, Rep. Maxine Waters, for engaging in incendiary speech. Why? The suspicion is that the social media companies have an agenda — advancing their vision of the public good. There’s nothing wrong with that, unless you have control over a public forum. Censorship is control and therefore power. Facebook has tried to blunt this criticism by creating its own internal court, staffed by lawyers, activists, and others from around the world. Yet this “court” is beholden to no one, and is unaccountable to the American people.

I really don’t want a European academic or human rights activist setting standards for what I can say and read. There’s a simple solution: require companies who enjoy Section 230 immunity to adhere to first amendment standards when making censorship decisions.

We don’t need secret courts creating new rules; we already have a well-developed and transparent set of legal norms in first amendment law.

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