The events in Washington DC last Wednesday, and the subsequent permanent suspension by Twitter of the account @realDonaldTrump, throw into the spotlight the question of how responsible social-media companies are for the material that users post by the technical means that the companies provide. They add urgency to a question that was already being raised: should Section 230 of the Communications Decency Act of 1996 be modified or repealed?
The critical part of Section 230 has been hailed as “the twenty-six words that created the Internet,” which is also the title of a book by Jeff Kosseff. In case you’re wondering, the twenty-six words are: “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.”
To see how these words apply to, for example, the thousands of tweets from President Trump, read “Twitter” for “provider. . . of an interactive computer service” and “President Trump” for “another information content provider”.
What this section did was to place the then-infant Internet in the category of common-carrier communications providers such as telephone companies, and not in the category of news providers such as the New York Times. The traditional “old media” (newspapers, radio, TV) were regarded in law as the originators of what they printed or broadcast, and could be sued if their material proved libelous or otherwise harmful. But if a blackmailer, for instance, called his victim on the phone and made a threat, the idea of suing the phone company because of the blackmailer’s actions would be regarded as ridiculous.
So for the next two decades or so, the industries spawned by the internet — notably Facebook, Twitter, Google, and their ilk — grew without concern for possibly crippling lawsuits regarding the content that their users posted. Legally, it wasn’t their fault what people put on their sites, generally speaking.
Few people (or lawmakers, who are also people) anticipated that the main source of news and information for millions of US citizens would shift from the old-media world to the social-media world, but that is exactly what happened. The techno-optimists who foresaw a brave new world of egalitarian news sharing have been disappointed to find that lies get halfway around the world while the truth is still putting on its pants. (Neither Winston Churchill nor Mark Twain apparently wrote “the truth is still putting on its pants”, but it’s worth saying anyway. The author of it is unknown, but researchers have traced the saying back at least to the 1700s.)
In particular, the elaborate structure of lies coming from @realDonaldTrump since the November 3 Presidential election has convinced many millions of people that (a) the election results were manipulated by evil conspirators who managed to hide their tracks from everyone except a few off-the-wall news sources and President Trump himself, (b) President Trump actually won the election and deserves to be president for another four years, at least, and (c) the alternative is the end of America, as the evil Biden administration takes charge and sends us all straight to perdition in a wicker container.
After concocting increasingly incredible lawsuits challenging state vote counts, the President issued a call via Twitter for his followers to show up in Washington on January 6, when a joint session of Congress would count the Electoral College votes and certify the result. He fraudulently claimed that Vice-President Pence had the power to discard the results and reinstate the President, whereas nowhere in the Constitution or elsewhere does the Vice-President receive this power.
But by the technique of saying lies and repeating them over and over in the echo chamber of the Internet where people who like certain kinds of material get more of it, the President drew a crowd of thousands to Washington last Wednesday. He spoke to them in person in a long, inflammatory speech that repeated many of the lies he originated over the past two months, and then sent them down the street to disrupt, invade, and vandalize the building where the duly elected representatives of these United States were legally carrying out their Constitutional responsibilities. And Twitter helped him do it.
On Friday, January 8, Twitter announced that it was permanently suspending @realDonaldTrump, citing that the President had violated their “Glorification of Violence policy”. To those who would say that Twitter is violating the President’s freedom of speech, I would counter along with Justice Holmes that someone who is “falsely shouting fire in a theater and causing a panic” has forfeited his right to free speech, at least with regard to that particular statement. And the President has abundantly shown that he is incapable of tweeting without straying into falsehood sooner or later.
But in doing so, Twitter has admitted that they do indeed bear the responsibility for the effects of information provided by another information content provider. In a world where the main source of news for the bulk of the public is social media, social media can no longer pretend that they are a small, insignificant, hobby-type operation that people use mainly for amusement and sharing cookie recipes.
They now play a critical, essential role in the conduct of public affairs, and their increasing censorship of one kind or another (of which the strangling of @realDonaldTrump is only the chief example) amounts to rump editing, essentially no different from what the ink-stained newspaper editors of yore did with their letters to the editor columns. To choose one letter is to reject all the rest, and to censor one tweet is to accept all the rest.
I have no easy solution to the problem of Section 230, but it is clear that things cannot go on the way they are now.
As for President Trump, I hope that Congress has sense and guts enough to impeach him with the penalty of never holding a federal office again. But social media firms cannot have it both ways. They must not enjoy the financial and cultural benefits of being the main purveyors of news while shirking the responsibility for the news (and lies) that pass through their hands.