No, Section 230 Doesn’t Undermine Election Integrity
Content moderation can't suppress information freely available on other parts of the internet or prevent people from evaluating the trustworthiness of information.
Earlier today, President Trump launched yet another attack against Section 230, alleging it amounts to “corporate welfare” and “is a serious threat to our National Security & Election Integrity.”
As usual, the president’s rhetoric fails to properly characterize Section 230 and what it helps protect.
Section 230 and Free Speech
The First Amendment limits the ability of the federal government, not private companies, to regulate speech. When the government doesn’t like what you say, it has the resources of the judiciary and the police force to harass and prosecute you. Private companies like Facebook may annoy you with some of their decisions on content moderation, but they can’t do anywhere near the level of harm that an angry bureaucrat can.
Because the First Amendment doesn’t limit the actions of private companies, so-called “censorship” on social media really isn’t a free speech issue. But Section 230 nevertheless facilitates the ability of countless individuals to speak freely.
Politicians and party apparatchiks love hyperbole. Among the more famous examples is the “Daisy” ad run by Lyndon B. Johnson’s 1964 presidential campaign, which heavily insinuated that victory for Barry Goldwater would result in nuclear holocaust.
A more recent examples is an ad run by progressive group The Agenda Project which depicted then-Congressman Paul Ryan, who was involved in Medicare reform efforts, pushing an old-lady in a wheel chair off a cliff.
These kinds of over-the-top, often baseless claims are usually protected speech because lies that aren’t told for financial gain are generally considered to be covered by the First Amendment. The federal government can’t prosecute people who lie about it and campaign ads that make fallacious claims about political actions and intents are usually legal, if maybe unethical and off-putting to voters.
Section 230 offers the same kind of protection. It ensures that hyperbole and lies remain protected speech by offering a certain kind of immunity to online platforms that prevents them from being prosecuted for false statements made by their users, or by criminal acts committed by their users.
Writing for the R Street Institute, Mike Goodwin offers a good description of what Section 230 does:
Services could “curate” user content if they wanted to (just as a bookstore has a First Amendment-grounded right to choose which books it carries and sells), but wouldn’t be liable either for content they overlooked or for content they had (mis)judged to be lawful. In the digital world, Section 230 gave the platforms something like common-carriage legal protections but also autonomy to shape the character of their online “spaces.”’
From a speech perspective, there are two important things that Section 230 does. In the first place, it protects the rights of online platforms and services: allowing them to make decisions about how to run their businesses without fear of retaliation from government for either publishing something government doesn’t like or failing to respond to something government doesn’t like in a way government doesn’t like.
By creating these protections for publishers, Section 230 creates a safe harbor for online platforms, allowing them to give users a space to speak their minds. Absent the ability of online platforms and services to be immune from liability for the actions of their users, this space would not exist. If platforms like Twitter or Facebook, or even online news sites with comments sections, were liable for speech made by users, they would have a choice: to severely limit, and maybe eliminate altogether, these opportunities for users to voice their opinions or to allow all content to coexist, including spam and explicit content.
And while users don’t have any free speech rights on privately run platforms (meaning it’s not illegal or a violation of the First Amendment for a platform to take down or edit user speech), they do provide many services that help facilitate the ability of people to speak freely.
They are useful for organization, for messaging, and for providing places where members of physically disparate communities can meet and socialize.
The benefits of Section 230, then, cut both ways from a free speech perspective: it ensures private companies have explicit First Amendment protections and provides tools for private citizens interested in talking about politics or organizing political events and movements.
Are there drawbacks to Section 230 and do private companies sometimes go too far in content moderation? Of course, more so if you belong to certain political persuasions. But this is something for the market—not the government—to sort out. Just as the First Amendment’s protection of most lies might seem unseemly, the alternative is a government that has the power to arbitrate truth. And that benefits no one, especially in a country where the controlling party changes frequently.
Section 230 and Election Integrity
So, from a free speech perspective, Section 230 is overwhelmingly good for both online platforms and service providers, but what about claims that it’s damaging to election integrity?
Given that the president seems to want to be the ultimate arbiter of election integrity—creating a dichotomy that aligns his cause with truth and pits all his enemies as lying, scheming cheats—it’s hard to pin down exactly what he means by this. Presumably, he’s referring to content that’s been taken down or labelled as false by social media companies.
But it’s hard to see how these actions damage election integrity any more than do campaign ads played ad nauseum on local television that contain false and sensationalistic claims.
Nor are claims that information is “suppressed” by content moderation, altering election outcomes, very credible. The supposedly bomb-shell story about Hunter Biden’s laptop (since debunked), for example, was initially suppressed by Twitter but was available to view elsewhere on the internet. Following public backlash, Twitter also changed the policy that led to it temporarily stopping the spread of the story: proof that private companies adapt to pressure in free markets.
Some news organizations also sat on this because they could not verify the information, a display of journalistic restraint one would think the president, always descrying the “fake news” media would welcome.
Many of the president’s tweets in the past month also advance debunked conspiracy theories about various attempts to steal the election through ballot dumping and rigged voting machines.
Absent facts, the president’s statements are hyperbole and are ironically protected by the very law he seeks to eliminate. Yes, Twitter frequently slaps a warning about the truth of these statements on the president’s tweets, but they still leave them online. Without Section 230, the president either wouldn’t be able to tweet—because Twitter couldn’t risk the liability of being prosecuted for his false statements—or the president’s tweets would be drowned in a sea of unmoderated content, his Twitter feed’s heft drowned in spam and explicit content.
Politicians can lie in campaign ads because of the First Amendment. But this exists not just as a recognition of the injustice of allowing politicians to decide who should be given a voice and what she be said. It exists because a free society has to trust the judgment of its citizens. Representative democracy is doomed from the get-go if people can’t exercise independent judgment and evaluate for themselves where the facts lie when powerful people present themselves as truth-sayers.
Content moderation might be annoying from time-to-time, but when social media slaps a “misleading” label on a statement by your favorite political talker, it’s not election interference. No more than attack ads that only present some of the facts are election interference. Ultimately, people have to decide for themselves what to believe. Government can’t tell them. Section 230 helps ensure people are free to sort through information on the internet and determine for themselves who to believe.