Yes, Twitter Can Censor Conservatives (Even Though It Shouldn't)

Many critics are calling into question the legal protections social media enjoys in response to what appears to be discrimination and the silencing of right-wing political views.

In the wake the banning high-profile conservatives and parody accounts that mock Democrats, many on the right have found themselves, quite understandably, feeling marginalized and targeted by social media giants like Facebook and Twitter.

In response to what appears to be discrimination and the silencing of right-wing political views, many critics are calling into question the legal protections social media enjoys.

Legal Immunity

They argue that online platforms enjoy legal immunity from the unlawful things users post on them (such as defamatory or fraudulent claims), whereas online publishers, which have more editorial control over content, do not have such immunities.

In the eyes of many, social media sites are exploiting their unique and unfair position of enjoying the legal immunity of an internet platform as well as the editorial benefits of being an online publisher and thus must give up one of these things.

An article published in City Journal, for example, claims that

The dominant social media companies must choose: if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption.

What the Law Says

This is all, however, a misunderstanding of the law in question: Section 230 of the Communications Decency Act (found here). The text states:

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.

In English, this means that websites won’t be held responsible for unlawful speech posted by third-party users. So, if someone posts a defamatory claim on Facebook, Facebook isn’t liable for that.

There is also no mention of a dichotomy between platforms and publishers with correspondingly different legal benefits and limitations, perhaps because most websites could be considered both.

Lastly, there is no mention of political neutrality being a condition upon which these liability protections are based.

A news site may publish an article and in that sense be a publisher, while in another sense be a platform by hosting a comments section. Accordingly, Section 230 has been used a number of times to provide immunity to news sites for defamatory proclamations that people make in the comments of their articles (see here, for example).

Section 230 also asserts that providers of interactive computer services, namely websites, shall not be held liable for taking good faith actions to restrict what the provider (or its users) consider to be objectionable content. Note that the text states that what constitutes objectionable content is the provider’s (in this case, Facebook or Twitter) decision to make, not a court’s.

Lastly, there is no mention of political neutrality being a condition upon which these liability protections are based.

The Intention of the Law

If you read the Congressional Record, the drafters of the law were explicit in their intentions, which were 1) to protect a website’s ability to “screen indecent and offensive material for their customers” by limiting their legal liabilities, which would 2) make it unnecessary for the government to regulate content on the internet.

They pointed out that in the past, state courts had held websites liable for posts made by third-party users on the bizarre basis that since these websites exercised some editorial control (in the form of Content Guidelines and such), they were therefore treated as the publishers of the unlawful speech in question (see, for example, Stratton Oakmont, Inc. v. Prodigy Services Co).

Section 230 superseded these decisions and encouraged content moderation by “computer Good Samaritans” as an alternative to having the government involved.

Private Censorship

To the extent that conservatives are outraged at Twitter for what appears to be targeted censorship, many social liberals are equally outraged at Twitter for allowing what Though the case can be made that private censorship is unethical, surely the answer is not the government.they consider to be “hate speech” run rampant. Social media sites are private companies that are subject to pressure from many groups. Their decisions regarding content moderation aren’t going to please everyone.

If social media sites decide to censor some political content (or creators) they consider to be offensive—and they do so under the impression that it will make their platform more “inclusive” or provide their users with a better experience—it’s hard to argue that they are exploiting the law and need to give up the legal immunities that are necessary for their existence in the first place.

And although the case can be made that private censorship is unethical, surely the answer is not for the government to come in and force a private company to host content (or people) they find objectionable and that they believe will degrade the quality of the service they offer.

Further Reading

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