Disinformation and the Internet

Section 230 permits moderation

Internet statistics are amazing, even when 7 years old. 700,000 hours of YouTube videos watched in 60 seconds. It sounds like a time warp, but all it takes is 42 million users online. There are over 5 billion internet users in the world today. How much of this is disinformation?

Disinformation and the 1st Amendment

Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

from The U.S. Bill of Rights, ratified December 15, 1791, National Archives

Here’s the part we’re interested in: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . The first thing to notice is that this Amendment, like the rest of the Bill of Rights, applies to government and not citizens. It prevents laws that limit free speech and press. 

In practice it has protected all speech except:

1. Obscenity, material that the average person, applying contemporary community standards, would find ‘taken as a whole’ appeals to ‘prurientinterest’ and lacks serious literary, artistic, political, or scientific value.¹
2. Defamation, a false statement that injures a third party’s reputation.²
3. Fraud, misrepresentation of fact that causes injury.³
4. Incitement, or “speech that is intended, and likely, to cause imminent lawless action.”⁴
5. “True” threats that a reasonable person would interpret as intent to do harm.⁵
6. “Speech integral to criminal conduct,” such as child pornography being considered child abuse.⁶

The Supreme Court considers these exceptions to be “well-defined and narrowly limited,” and has refused to add others so far. This means that the 1st Amendment protects lies and conspiracy theories that are not covered by the exceptions above. And the meanings of the exceptions are defined in a history of case law, not in the dictionary. 

Lies, conspiracy theories and disinformation are the price we pay for free speech. The 1st Amendment cannot make citizens cooperate by not spreading disinformation. 

So how do these exceptions result in government media regulation?

Newspaper, radio, television, and cable owners can all be prosecuted or sued for violating any of the exceptions. Defamation civil suits would be a typical example, such as Dominion Voting Systems suit against Fox News for damaging the company’s reputation with false conspiracy theories about the 2020 presidential election. The suit was settled for $787.5 million this year.⁷

Why aren’t internet platforms held to the same standards as other platforms of speech? How is the internet different? The anwer is Section 230.

Disinformation and Section 230

Section 230 of the Communications Decency Act (CDA) of 1996 (47 U.S.C. § 230) immunizes parties that create internet platforms from liability for statements made by third parties. Leaving only frequently anonymous users liable.⁸

The Electronic Frontier Foundation says Section 230 protects “websites, blogs, and social networks that host speech” from “a range of laws that might otherwise hold them legally responsible for what their users say and do.” 

(1) Treatment of publisher or speaker

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.⁹

47 U.S.C. § 230 (c) (1)

This means that Section 230 protects all websites and users when there is content posted on the sites by someone else. No court case on Section 230 has determined whether a website is a “platform” or a “publisher.” What matters is solely the content in question. If that content is created by someone else, the hosting website cannot be sued over it.¹⁰

Section 230 places the liability for online content on whoever created it, and not on whoever is hosting it. One of the reasons for this host protection was Stratton Oakmont v. Prodigy; because Prodigy did some moderation of its message boards, it was held liable for anything it left up. The fact that users are protected as well allows you to repeat something you saw elsewhere and not be liable for it.¹¹

Section 230 does not require websites to be “common carriers” or “public squares.” Specifically, it was passed to enable “family friendly” spaces where inappropriate but legal speech could be blocked.¹²

One thing not mentioned in the infographic is that Section 230’s actual title is “Protection for private blocking and screening of offensive material:”

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

47 U.S.C. § 230 (c) (2) (A)¹³

Providers or users of an internet service are held free from civil damages for blocking “obscene, lewd, lascivious, filthy” material (because Decency is the Act’s middle name), but also “excessively violent, harassing, or otherwise objectionable” material. And all “whether or not such material is constitutionally protected.” Just as the 1st Amendment says government cannot limit speech, Section 230 makes clear that private individuals and businesses can limit any speech they consider “objectionable.” And the courts have upheld this for 27 years.

A final comment on the Infographic is that the countries cited as examples, Thailand and Turkey, are problems not because they “don’t have CDA 230.” It’s because they don’t have a 1st Amendment guaranteeing freedom of speech. 

Ability to Moderate

Some providers have objected that monitoring all posts and comments is impossible. But when a platform is faced with the choice of monitoring or paying fees to third parties, they’re happy to monitor. Following the Canadian Online News Act, which forces companies to pay Canadian publishers for news links, both Meta/Facebook and Alphabet/Google plan to block news entirely. It’s a dispute over who benefits more, the platform or the news outlet. Facebook will be “blocking” news articles or videos, while Google will block news links from searches.¹⁴

Countries are passing this kind of legislation as news outlets layoff journalists in record numbers while Silicon Valley companies take in hundreds of billions of dollars in revenue. 

Between 2008 and 2021, 450 Canadian news outlets have closed, according to Pablo Rodriguez, the minister of Canadian heritage. He says this has led to public mistrust and the rise of disinformation. At the moment, the Canadian Broadcasting Corporation is encouraging Canadians to visit its site directly to catch up on the latest news.¹⁵

Imad Khan, “Facebook Is Blocking News in Canada With Google To Follow: What To Do,” CNET, Aug. 1, 2023

Australia passed a similar measure in 2021, but that law required designation of providers by Australia, which Meta and Google have avoided so far by making separate deals with Australian media companies worth approximately $200 million. The Canadian law didn’t have that flexibility.¹⁶

No Simple Solution

Platforms like Facebook are happy to serve everyone, maximize views for advertising, and sell more user data. They have an economic disincentive to take an editorial stand against disinformation.

If platforms can successfully filter for news, they can filter for disinformation. I would be willing to pay for an algorithm that would spare me. But laws to block controversial speech face a heavy lift against the 1st Amendment. Users can block other users and domains in the decentralized fediverse on sites like Mastodon, but that doesn’t solve the larger social and political problems from disinformation.

Another form of regulation used for older media might offer opportunities for the internet: antitrust laws. Paramount/CBS, FOX Corporation, and Cox Media Grouphave all settled advertising price-fixing claims for $10s of millions this year.¹⁷ Google, which controls a large portion of the online ads market, is currently in a U.S. Department of Justice antitrust lawsuit alleging it used its search engine to block competition and take profits meant for other advertisers and publishers.¹⁸

You see it in the headlines,
You hear it every day.
They say they're gonna stop it
But it doesn't go away.

There's lots of shady characters,
And lots of dirty deals.
It's the lure of easy money,
Got a very strong appeal.

– Disinformation Blues
     after Glenn Frey

---

Footnotes

1. “obscenity,” Cornell Legal Information Institute, retrieved 7 Aug 23 ↩︎
2. “defamation,” Cornell Legal Information Institute, retrieved 7 Aug 23 ↩︎
3. “fraud,” Cornell Legal Information Institute, retrieved 7 Aug 23 ↩︎
4. Ken White, “The First Amendment Isn’t Absolute. Sure, But So What?,” The Popehat Report, Dec 24, 2022 ↩︎
5. Ibid. ↩︎
6. Ibid. ↩︎
7. David Bauder, Randall Chase and Geoff Mulvihill, “Fox, Dominion reach $787M settlement over election claims,” April 18, 2023 ↩︎
8. “United States defamation law,” Wikipedia, retrieved 6 Aug 23 ↩︎
9. “47 U.S. Code § 230 – Protection for private blocking and screening of offensive material,” Cornell Legal Information Institute, retrieved 7 Aug 23  ↩︎
10. Mike Masnick, “Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 of the Communications Decency Act“, Techdirt, Jun 23, 2020 ↩︎
11. Ibid. ↩︎
12. Ibid. ↩︎
13. “47 U.S. Code § 230 – Protection for private blocking and screening of offensive material,” Cornell Legal Information Institute, retrieved 7 Aug 23 ↩︎
14. Imad Khan, “Facebook Is Blocking News in Canada With Google To Follow: What To Do,” CNET, Aug. 1, 2023 ↩︎
15. Ibid. ↩︎
16. Mark Gollom, “Australia made a deal to keep news on Facebook. Why couldn’t Canada?” CBC News, Aug 03, 2023 ↩︎
17. Adam Jacobson, “Three Groups Agree To Big Local TV Ad Antitrust Settlements,” Radio and Television Business Report, May 30, 2023 ↩︎
18. Imad Khan, “Facebook Is Blocking News in Canada With Google To Follow: What To Do,” CNET, Aug. 1, 2023 ↩︎