Thursday, May 28, 2020

Trump's effort to prevent online censorship

In Reason, Eugene Volokh writes in part,
I'm still doing some research related to President Trump's "Preventing Online Censorship" draft Executive Order, and hope to post more about this today. But for now, I wanted to post some background I put together earlier about 47 U.S.C. § 230 (enacted 1996), the statute that is so important to the order; I hope people find this helpful.

Section 230 makes Internet platforms and other Internet speakers immune from liability for material that's posted by others Congress enacted 47 U.S.C. § 230 (with some exceptions). That means, for instance, that

I'm immune from liability for what is said in our comments.
A newspaper is immune from liability for its comments.
Yelp and similar sites are immune from liability for business reviews that users post.
Twitter, Facebook, and YouTube (which is owned by Google) are immune from liability for what their users post.
Google is generally immune from liability for its search engine results.
And that's true whether or not the Internet platform or speaker chooses to block or remove certain third-party materials. I don't lose my immunity just because I occasionally delete some comments (e.g., ones that contain vulgar personal insults); Yelp doesn't lose its because it sometimes deletes comments that appear to have come from non-customers; the other entities are likewise allowed to engage in such selection and still retain immunity. Section 230 has recently become controversial, and I want to step back a bit from the current debates to explain where it fits within the traditions of American law (and especially American libel law).

Historically, American law has divided operators of communications systems into three categories.

Publishers, such as newspapers, magazines, and broadcast stations, which themselves print or broadcast material submitted by others (or by their own employees).

Distributors, such as bookstores, newsstands, and libraries, which distribute copies that have been printed by others. Property owners on whose property people might post things —such as bars on whose restroom walls people scrawl "For a good time, call __"—are treated similarly to distributors.

Platforms, such as telephone companies, cities on whose sidewalks people might demonstrate, or broadcasters running candidate ads that they are required to carry.
And each category had its own liability rules:

Publishers were basically liable for material they republished the same way they were liable for their own speech. A newspaper could be sued for libel in a letter to the editor, for instance. In practice, there was some difference between liability for third parties' speech and for the company's own, especially after the Supreme Court required a showing of negligence for many libel cases (and knowledge of falsehood for some); a newspaper would be more likely to have the culpable mental state for the words of its own employees. But, still, publishers were pretty broadly liable, and had to be careful in choosing what to publish. See Restatement (Second) of Torts § 578.

Distributors were liable on what we might today call a "notice-and-takedown" model. A bookstore, for instance, wasn't expected to have vetted every book on its shelves, the way that a newspaper was expected to vet the letters it published. But once it learned that a specific book included some specific likely libelous material, it could be liable if it didn't remove the book from the shelves. See Restatement (Second) of Torts § 581; Janklow v. Viking Press (S.D. 1985).

Platforms weren't liable at all. For instance, even if a phone company learned that an answering machine had a libelous outgoing message (see Anderson v. N.Y. Telephone Co. (N.Y. 1974)), and did nothing to cancel the owner's phone service, it couldn't be sued for libel. Likewise, a city couldn't be liable for defamatory material on signs that someone carried on city sidewalks (even though a bar could be liable once it learned of libelous material on its walls), and a broadcaster couldn't be liable for defamatory material in a candidate ad.

...Under current law, Twitter, Facebook, and the like are immune as platforms, regardless of whether they edit (including in a politicized way). Like it or not, but this was a deliberate decision by Congress. You might prefer an "if you restrict your users' speech, you become liable for the speech you allow" model. Indeed, that was the model accepted by the court in Stratton Oakmont. But Congress rejected this model, and that rejection stands so long as § 230 remains in its current form. (I'll have more technical statutory details on this in a later post.)
Read more here.

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