We’re in an unprecedented time. Protests and rallies for racial justice continue to propagate amid pandemic-related stay at home orders and social distancing mandates. In this strange new world, people are leaning on social media perhaps more than ever to get information and organize.
Whether we like it or not, platforms like Twitter, Facebook and Instagram are instrumental in spreading ideas that inspire action. Because of this, who and what is censored, flagged, blocked and removed on these sites is of the utmost importance. Recently, Twitter flagged several of President Trump’s tweets for being false, and Trump retaliated by calling the labels censorship, and issuing an executive order that would attempt to hold Twitter responsible for his libel.
Confused? Don’t be! At issue is a law from 1996, called Section 230 of the Communications Decency Act, which says: “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.”
That essentially means an interactive computer service–such as Facebook, Twitter, WhatsApp, and Instagram— cannot be held responsible if users post libelous or derogatory material. (Good to know: Libel is a false claim or statement made to hurt another person’s reputation. It is similar to something called defamation.)
But the law also stipulates that the sites would have “good faith” power to remove content they believe to be objectionable. “Without 230, the Internet we have today wouldn’t exist,” says Mark Grabowski, associate professor specializing in internet law and digital ethics at Adelphi University, based in New York.
Trump’s executive order essentially asks the Federal Communications Commission, the agency that regulates interstate and international communications, to reexamine the law with an eye to changing it, making social media platforms more like publishers, and therefore open to libel suits and other legal actions.
Here’s a quick timeline of what’s been going on, and what the implications are for the future of Twitter and social media.
July 26, 2018: On Twitter, President Trump accuses Twitter of “shadow banning, or suppressing, the tweet reach of prominent Republicans, and vows to look into it. At issue, according to Trump, is whether Twitter and other social media companies discriminate against conservatives, by making their tweets and posts less visible. Social media companies have been adamant that their algorithms prevent that kind of blocking.
May 26, 2020: Twitter puts a warning label under two of President Trump’s tweets. The Tweets read: “there is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent,” and “The will be a Rigged Election.”
The warning label says “Get the facts about mail-in ballots.” The label links to a Twitter statement, as well as news stories and statistics pointing to Trump’s claims as false.
May 28, 2020: President Trump issues an executive order stating that if such a site goes beyond their “good faith” abilities to censor its content, they are no longer exempt from lawsuits. If this executive order were to pass, it could mean that any instance of libel on a site such as Twitter would be the legal responsibility of both the writer and the medium. “This executive order would fundamentally shift the balance of power in such a way as to chill first amendment rights of social media companies,” says business attorney David Reischer, based in New York.
May 29, 2020: Twitter flags another Trump tweet, this time for glorifying violence, an act exercising the media giant’s right to flag or remove offensive materials in “good faith.”The flag says the Tweet will remain accessible for the public interest. The tweet reads:
“These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!”
What’s Next: “Trump’s executive order to end Section 230 protections doesn’t have any immediate effect,” Grabowski says. “The Federal Communications Commission, which promulgates rules for the Telecommunications Act, must decide whether and how to implement Trump’s order in a way that’s compatible with the law. There is, perhaps, enough ambiguity and wiggle room in the law’s requirement that platforms act ‘in good faith’ that the FCC could make some changes to appease Trump.”
But FCC Chairman Ajit Pai hasn’t landed on any changes. As of now, the FCC commissioners are debating. The debates will be followed by public hearings. And, Grabowski notes, any restrictive changes will likely then be challenged in court by the social media companies. Following that, if Congress can get a two thirds vote, they could veto any changes.
And the Long Term?: The FCC and Congress have the power to amend Section 230, and according to legal experts, they just might. “I think it’s important to realize that Section 230 was enacted in 1996 to protect startups now these are some of the most valuable companies in the world,” says Todd A. Spodek, an attorney in New York.
Grabowski says that Congress wants to make sure these tech giants stay in check, but Democrats and Republicans can’t agree on how.
If changes to Section 230 prevent social media companies from flagging threatening and offensive language and false claims, social media platforms could devolve into spreading more hate and lies than they already do, legal experts say. But if these changes give more authority to social media platforms, essentially turning them into publishers, the platforms could dictate more of the national and international conversation by promoting content that aligns with their interests.
For now, the long-term future of censorship, libel, and who’s legally responsible for it on social media platforms, remains to be seen.