Trump vs. Free Speech on the Internet: Death by 10,000 Duck Bites

By Kevin Pollack

“Joe Biden has died” — that is, according to barely active Twitter user “logan.” Contrary to this preposterous claim tweeted out to 82 followers, the former vice president and presumptive Democratic challenger to President Donald Trump lives on. 

Fortunately for Twitter, only logan, the user, is legally responsible for the tweet. Under Section 230 of the foundational 1996 Communications Decency Act, online platforms such as Twitter cannot be treated as the publisher of third-party, user-generated content — a designation that shields the social media site from legal liability. As a result of the law, companies like Twitter can create public forums for users while only minimally moderating objectionable content. A new Trump executive order would undermine this distinction and recast the internet in an entirely different image.

Just two days after the president’s unsubstantiated claims regarding voter fraud, which prompted Twitter to encourage users to “get the facts about mail-in ballots,” Trump issued an Executive Order on Preventing Online Censorship on May 28, 2020.

The order specifically targets Section 230(c)(2)(A), a subparagraph protecting interactive computer services — including social media entities like Twitter that provide online platforms — that act in “good faith” to moderate user-generated content. Trump’s order argues that Section 230 provisions should not be “distorted” to protect those who engage in “deceptive or pretextual actions” to censor users.

Trump’s approach, in gutting Section 230 regulations, diverges from other proposals to limit the power of tech companies, many of which do not undermine Free Speech. The University of Chicago’s Stigler Center, for example, which supports research on regulatory capture, argues that reducing the power of data would moderate digital platforms’ immense power.

Should the executive order become law — a long shot, given that it is already being challenged in court — social media companies would assume liability for their users’ posts. In that scenario, Biden would be able to sue Twitter, rather than an individual like logan, over the user’s libelous and erroneous tweet. Furthermore, as a result of Trump’s intense distaste for social media companies, the president might exploit new opportunities to sue them.

Attempts to modify Section 230 are as old as the law itself, which dates back to the passage of the Communications Decency Act in 1996. The provision has been described as the most important law protecting internet speech and the “26 words that created the internet.” The legal framework established by this section has allowed websites like Facebook and Twitter — whose primary content is generated by users rather than the sites themselves — to thrive.

In a cyberworld without Section 230 protections, social media platforms would cease to exist in their current form. Twitter would assume legal responsibility for hundreds of millions of tweets per day, YouTube for 500 hours of video uploaded per minute, and Facebook for the posts of more than 2.5 billion users. These companies and many others would find themselves forced to eliminate any content that might provoke litigation; even then, they might still have to dedicate millions of dollars to hefty legal budgets. The result would inevitably be severely limited Free Speech online.

Section 230 has become a favorite target of lawmakers wary of big tech’s ever-expanding influence, according to Wired. However, motivations for these criticisms vary across party lines. While Republicans echo Trump’s baseless claims that social media companies suppress conservative voices, Democrats argue that Section 230’s expansive protections create little to no incentive to remove harmful content. These grievances have permeated the top of the Democratic Party; Speaker of the House Nancy Pelosi referred to Section 230 as a “gift” that social media platforms are not treating “with the respect that they should” and that could be “in jeopardy,” while Biden asserted that it “immediately should be revoked.”

Luckily for backers of Section 230, Trump’s order is unlikely to be upheld in court. Wired describes the order as “an effort to use constitutionally unsound theory and procedure to circumvent the natural back-and-forth of a legislative process” for political purposes. Kate Klonick, an assistant professor of law at St. John’s University, cited the “25 years of judicial precedent” underpinning Section 230 as evidence that the order would likely be rejected.

The order also directs the Federal Trade Commission to investigate abuses by social media companies and requests that the Federal Communications Commission clarify Section 230. However, both are independent regulatory agencies beyond Trump’s direct control.

Experts also argue that the order could backfire by accomplishing the opposite of its intent: chilling Free Speech rather than empowering it. Two researchers at the Information Technology and Innovation Foundation, a think tank concentrating on public policy and technological innovation, concluded that if Trump’s order were implemented, social media companies would be forced to police speech more intensely than they do under current regulations, in order to avoid excessive lawsuits. Internet giants like Twitter would then find themselves incentivized to oversee and remove content with much greater vigilance.

Moreover, Eric Goldman, a law professor at Santa Clara University who specializes in internet law, posits that Section 230 actually functions as a financial subsidy for tech companies by reducing barriers to entry for smaller businesses. New companies can launch without forming extensive content moderation and legal teams, which “keeps the marketplace open for the next generation of startups that hope to usurp the current Internet giants,” Goldman writes. Abolishing this advantage would only enhance the relative power of today’s tech superpowers.

The only change made to Section 230 in its decades-long existence reinforces this perspective.

In April 2018, Trump signed into law the bipartisan Allow States and Victims to Fight Online Sex Trafficking Act, known as FOSTA. The law holds a website legally responsible if it assists, supports, or facilitates sex trafficking — broad language that can be and has been weaponized to target platforms for user-generated content. Digital civil liberties groups adamantly opposed the law for exactly this reason.

However, the law did gain support from the Internet Association (IA), the lobbying group that represents Facebook, Twitter, and a number of similar companies. In advocating for a law that would increase barriers to entry for its competitors, the IA solidified its clients’ status as arbiters of Free Speech online.

Trump’s executive order has already begun its inauspicious legal existence in U.S. District Court for the District of Columbia. On June 2, the Center for Democracy and Technology, a nonprofit organization that promotes democratic internet policies, sued Trump, alleging the retaliatory order curtails constitutionally protected speech and unfairly abuses government authority. Twitter thanked the center for the lawsuit, which seeks a declaration that the order is unlawful and invalid, according to The New York Times.

In a 2008 opinion that limited Section 230 immunity for a particular website, Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals wrote that Section 230 must help protect websites “from having to fight costly and protracted legal battles.” Otherwise, the law would force them to “face death by ten thousand duck-bites.”

An internet forged by Trump would execute countless companies in exactly this manner, while safeguarding the richest and most powerful, ushering in an era of heavily restricted online speech.