The future of Section 230 and internet speech after Trump

Debates about content moderation, especially on social media, have been a background hum throughout Donald Trump’s presidency. Early criticisms of his tone and comportment on the campaign trail morphed into more tangible worries about what a smartphone-happy commander in chief meant for America (Did he just threaten nuclear war in a tweet?) and reached a fever pitch in 2020 as he used social media to spread misinformation, first about the coronavirus and then about election fraud.

As social media platforms evolved new policies to rein in Trump’s transgressions and those of his most toxic fans, Trump responded by zeroing in on Section 230 — the previously obscure law giving websites such as Facebook and Twitter latitude to moderate their users’ posts — as Big Tech’s original, censorship-promoting sin. His allies in Congress took up the banner at repeated hearings in which they hit Silicon Valley’s top executives with accusations of liberal bias.

But now Trump is banned, at least temporarily, from Facebook and Twitter — and Instagram and Snapchat and Twitch and Shopify and Stripe — for his role in inciting a lethal riot at the U.S. Capitol last week; the Trump-friendly alt-platform Parler has been cut off from basic internet infrastructure; and a variety of pro-Trump message boards and hashtags have shut down or been blocked.

The question now is whether Trump’s social-media silencing also mutes the calls to repeal Section 230, with last week’s violence demonstrating the need for aggressive policing of extremist online speech — or whether, in making Trump a martyr, the platforms only energized those who believe their power to censor must be curbed.

Trump is far from the only national politician in favor of revisiting internet speech laws. President-elect Joe Biden has also called for the repeal of Section 230 — but in hopes of encouraging more moderation of content, where Trump wanted less. High-profile Democrats such as House Speaker Nancy Pelosi and former presidential candidate Sen. Amy Klobuchar (D-Minn.) have also expressed an openness to rethinking the law.

With Democrats winning both of Georgia’s runoffs last week, effectively giving the party bicameral control of Congress heading into Biden’s term, change is likelier, but there’s no consensus about what form it should take.

“There have been a lot of ideas coming out of the Democratic caucus on what potential amendments to [Section] 230 might look like,” said Emma Llansó, director of the Center for Democracy & Technology’s Free Expression Project. “There’s not one bill sitting out there that they’re all already lined up behind.”

Instead, she said, there’s a spectrum of proposals, focused on issues such as child sexual abuse, transparency and due process, and content recommendation algorithms.

Fact-finding efforts and even more congressional hearings will probably define Democrats’ efforts in the early days of Biden’s term, she said.

Other Democrats have been more hesitant to change the landscape — foremost among them Sen. Ron Wyden (D-Ore.), who co-wrote Section 230 decades ago.

“I remind my colleagues that it is the First Amendment, not Section 230, that protects hate speech, and misinformation and lies, on- and offline,” Wyden said in a statement to The Times. “Pretending that repealing one law will solve our country’s problems is a fantasy.

“Congress needs to look no further than 9/11 to remember how badly knee-jerk reactions to tragedies can backfire. I am certain that any law intended to block vile far-right speech online would inevitably be weaponized to target protesters against police violence, unnecessary wars and others who have legitimate reason to organize online against government action.”

Democrats’ dual wins in Georgia may have given them effective control of the Senate, with Vice President-elect Kamala Harris acting as tiebreaker to the body’s 50-50 split, but it’s an incredibly slim margin; a few defectors could easily sink reform efforts, especially if Democrats faced a filibuster, which they’d need 60 votes to overcome. And although collaborating with Republican critics of Section 230 sounds easy enough in theory — Sen. Lindsey Graham (R-S.C.), for example, said he was “more determined than ever to strip Section 230 protections from Big Tech” after Twitter banned Trump — bipartisan consensus on what to replace the policy with would be much harder to come by.

“It’s clear to everybody that these [tech] intermediaries can wield enormous power in deciding whether individuals or even entire services are available or not,” Llansó said. “But I don’t really see anything yet that points to bridging that partisan divide of whether people think that’s a good thing or a bad thing.”

Part of the complication lies in the multifaceted nature of Section 230 itself, which gives web platforms the power to moderate user content but also shields them from liability for user content they choose not to moderate.

“Simply removing platforms’ immunity under Section 230 likely would precipitate an even more sweeping removal of accounts by various social media platforms, to avoid incurring liability for extremist speech on their platforms,” Katy Glenn Bass, research director of the Knight First Amendment Institute at Columbia University, said via email.

India McKinney, director of federal affairs at the Electronic Frontier Foundation, agreed the risk of unintended consequences is high.

“It’s going to be very difficult in a policy proposal and legislation moving forward to differentiate between a peaceful, political, legitimate protest and a violent mob,” she said. “I don’t actually think that’s possible, to write legislation that can correctly prevent violent protests while allowing peaceful protests to continue.”

Another big question mark is what role Trump himself — who has been mostly quiet since his deplatforming — and the broader Trumpist ideology will play.

Even if Trump’s crusade against Silicon Valley does gradually fade from the Republican agenda, Llansó cautioned that the issue of content moderation itself is here to stay.

“The attack on the Capitol … really shows the potential offline impact of what’s going on on these online content platforms,” she said. “Sure, the president exacerbated them in different ways at different times, but they will, unfortunately, continue independent of President Trump.”