When Elon Musk began his “hostile takeover” of Twitter and promised to restore free speech on the platform, the meltdown within the company and across media illustrated the pathological hatred of free expression that grips so much of our culture. Journalists and academics made an embarrassment of their professions by calling for more censorship, insisting that democracy could only be protected by the organized suppression of any sentiment that does not have the blue checkmark of approval. Twitter’s board of directors, when faced with the opportunity to make a massive 54% profit for their shareholders, refused the offer outright and risked tanking their own stock by adopting a “poison pill” that could dilute the value of their own shares. The message is clear: Twitter’s largest shareholders are not in this for the money. They want censorship for the sake of censorship, and they will raze the platform before they set it free.
Whether they will succeed is an open question, but no one is under the delusion that Twitter is an open platform. No one is blind to the progressive bias of content moderation on social media, the roughshod renovation of the Overton window ever leftward. No one is unaware of social media’s importance as a means of communication and the critical, sometimes catastrophic role it plays in our political culture. But, like it or not, social media giants rightfully own and control their creations, and no one, except maybe Elon Musk, can change that — at least in the current legal landscape.
In the 1990s, we gave social media companies legal privileges on the presumption that they would create a new public square and a center of free discourse for our republic. Twenty years later, it’s obvious these rules and privileges — Section 230 — must change to ensure our nation’s continued functioning and survival.
Today, social media companies receive special treatment from the government, acting like publishers in their content moderation while enjoying the liability protection of platforms. This arrangement dates back to the 1990s, when in the early days of the internet, the sudden arrival of social media companies blurred the lines between the two categories.
Before then, distinctions between publishers and platforms were clear. News outlets, such as this one, are publishers; when I go to my editor with a piece every word has to be reviewed and approved before it can reach the public eye. Platforms, on the other hand, are content-neutral. When I use my phone to send an old college roommate a 12 page political screed every Wednesday, I don’t need AT&T’s approval. Not everyone can write a piece for the New York Times or The Wall Street Journal, but everyone can text — publications take legal responsibility for everything they print, whereas Verizon has no responsibility for any slander, libel or even criminal conspiracies that cross its lines.
But with the birth of the internet in the 1990s, ordinary citizens could share their thoughts on an entirely new kind of public square with a global reach. Public squares — physical, public forums where citizens gather to trade goods and ideas — have always been the bedrock of democratic societies, and the internet promised a new kind of public square that would sustain our republic into the modern era. However, physical public squares differed in that there were always limitations, whether by custom or physical necessity. Fornication, permissible in private, was not permitted in the public square. Violence, theft, harassment and threats were categorically forbidden, and while ideological limits were not tolerated, limits on capacity were inescapable, as only so many organizations could demonstrate in the same place at the same time.
Digital forums eliminated the restrictions of the physical realm by allowing dozens or millions of people to occupy the same space at the same time, from all parts of the world. But, with countless potential users, companies were caught between a rock and a hard place. Moderating their content could relegate them to publisher status, which would burden them with legal liability for everything said and done on their site. No moderation at all would mean their forums could not function as public squares, because violent threats, harassment, illegal activity and pornographic material could not be removed. Under the avalanche of new content, perfect moderation was impossible, imperfect moderation by any publisher risked legal suicide, and no moderation at all would produce a hostile, foul environment few people would want to use.
So, in 1996, Congress crafted an imperfect solution. Under Section 230 of US Code 47, “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.” or “shall be held liable on account of 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, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected” [emphasis added]. By allowing internet companies to moderate content without being deemed publishers, Section 230 protected the early internet from being sued out of existence, allowing social media to emerge in its modern form.
As more and more political and social life moves online, the need for social media companies to function effectively as public squares is self-evident. However, Section 230, as it currently stands, is incompatible with this objective. From COVID-19 to the 2020 election, we’ve seen so-called “platforms” exercise so much editorial control they hardly should be considered platforms. In a physical town square, pornographic, violent or illegal material can be easliy removed, but the removal of a political dissident for “otherwise objectionable” speech would require court orders and face public uproar.
Online, however no such protections exist, as speech must simply be considered “objectionable” by the publisher, or, in legalese, the “provider,” to be removed; if our goal in granting legal privileges to select corporate interests was to promote the creation of platforms that would facilitate free and open debate in the new public square, we have failed miserably. From Twitter’s suppression of the since-New York Times verified Hunter Biden laptop story to account suspensions for the mere statement of biological fact, it’s clear social media companies are not the digital public squares they were meant to be.
With Republicans poised to retake Congress in 2022 and likely the presidency in 2024, they must use this critical window of unified government control to modify Section 230 to serve its original purpose and restore the public square. It’s no secret conservative voters and leaders are disproportionately censored, and without a functioning public square, the country, let alone the party, will not survive long.
To prevent unfair, ideologically-driven content moderation, Section 230 must be reformed to define “platforms” as the digital analogues to the physical public square, with only the same small number of tightly defined, ideologically neutral restrictions on content moderation. Social media companies that continue to behave as publishers and exercise significant editorial control must do so on the same level ground as other publishers, with the same rights and responsibilities.
Today’s technology gives companies the power to remove content that falls afoul of the public square — big data analysis has advanced considerably since the mid-90s and can empower even small communities to take down the limited types of content unsuitable for the public square. For websites that wish to exercise more complete editorial control, volunteer content moderators have proven to be very effective at policing their communities, even at scale. With these technologies, we can finally require social media companies to choose whether to act as publishers or public squares, with all the protections, liabilities and responsibilities that each entails.
Under such legislation, we’d finally see a clear distinction emerge between companies that exercise editorial control as Facebook and the like do now, and those that embrace the benefits of free speech and the public square for all users, as originally intended with Section 230. Control or openness. “Publisher” or “platform.” Social media companies must choose one — for the sake of our republic, they cannot be both.