The Constitution Can Crack Section 230

numbers in federal laws rarely stir the soul, but one of them, 230, is cause for intense anxiety because it seems to justify censorship. Technology companies, including Google and

Twitter

More and more posts, websites and even unfriendly individuals are being taken offline. Online moderation can be valuable, but this censorship is different. It harms Americans’ livelihoods, muzzles them in an increasingly electronic public sphere, disrupts political and cultural conversations, affects elections, and restricts our freedom to find out the truth for ourselves.

But does the Decency in Communications Act of 1996 really justify censoring important technologies? The key piece of legislation, section 230(c)(2), provides that “No provider or user of interactive computer services shall be liable … for any action taken voluntarily and in good faith to restrict access to or availability of material that the provider or user deems obscene, indecent, lewd, lascivious, filthy, excessively violent, offensive, or otherwise objectionable, whether or not such material is constitutionally protected.” Companies see this as an authorization to censor with impunity.

This concept is debatable. The law is rarely as clear as a binary switch. Although the courts have emphasized the extent of website operators’ immunity under Section 230, there is virtually no federal precedent for censorship of large technology companies. So the issue comes down to the law itself. The answers should give the companies a break and encourage those who have censored them.

The fundamental problems are constitutional – the first concerns the Commerce Clause. Congress’s power to enact Section 230 may seem uncontroversial, because since the New Deal the Supreme Court has held a virtually indeterminate view of Congress’s power to regulate interstate commerce. Nevertheless, congressionally supported censorship raises unique questions.

Illustration:

David Klein

Originally, the broadest protection of free speech under the Constitution fell within the limited powers of Congress.

James Wilson

assured Americans in 1787 – four years before the ratification of the First Amendment – that “powers similar to those granted to regulate commerce” had not been granted “to regulate literary publications” and that “the proposed system therefore has no effect on the press.”

In this regard, the expansion of Commerce’s power to regulate speech is troubling. The point is not to debate whether communication and information is “commerce,” but to recognize the constitutional reality of the loss of freedom. The expansion of Commerce’s power threatens Americans’ freedom of speech and publication.

This does not necessarily mean that section 230 is unconstitutional. But when the law regulating freedom of speech rests on the power to regulate commerce, constitutional dangers arise and ambiguities in the law must be interpreted restrictively.

The second constitutional question stems from the First Amendment. Businesses reject it because they are private and the amendment only prohibits government censorship. However, there is concern that the government has privatized censorship. If this seems too dramatic, read Section 230(c)(2) again. It protects technology companies from liability for restricting various materials “regardless of whether those materials are constitutionally protected.” Congress expressly declares that it indemnifies companies from liability for restrictions on speech that would be unconstitutional if imposed by the legislature itself.

Seventeenth-century censorship, expressly prohibited by the First Amendment, was also widely practiced by private organizations such as universities and the Stationers’ Company, the guild of English commercial printers. While privatized censorship was often mandatory at the time, the modern version is voluntary. But technology companies are protected from the restrictions of Congress’s rogue list, which means that the government still practices censorship.

Some documents that may be restricted under Section 230 are clearly protected expressions of opinion. Look at the list of “controversial” documents. The vagueness of the term would be enough to make the restriction unconstitutional if Congress enacted it directly. This does not mean that corporations are violating the First Amendment, but it does suggest that the government, through private companies, is restricting free speech.

This constitutional problem does not extend to ordinary websites that moderate comments and observations; such control is their right, not only under Section 230, but presumably under the First Amendment. Instead, there is a risk of legal protection for large corporations operating as public forums in much the same way as ordinary carriers. The First Amendment protects Americans even in private public fora like company towns, and the law generally requires ordinary carriers to serve all customers on fair, reasonable, and nondiscriminatory terms. But here the opposite is true. Because Congress is unable to fully enforce Section 230 censorship, it protects businesses so that they can do so.

Long ago, some sheriffs in the South assured clans that they would suffer no consequences for suppressing civil rights defenders. Under the Constitution, the government cannot immunize powerful private parties in the hope that they will voluntarily adopt unconstitutional policies.

Judges may be able to avoid the constitutional problem, but it will be more difficult if they interpret Section 230(c)(2) more broadly. Technology companies can’t have it both ways. If the law is constitutional, it cannot be as broad as they claim, and if it is as broad as they claim, it cannot be constitutional.

The statute itself also creates problems for Big Tech. The first question is what Section 230(c) means when it protects technology companies from “liability” for restricting free speech in various ways. It is generally assumed that this means that they cannot be held liable. But the word “liability” has two meanings.

In a civil action, the judge must first determine whether the defendant has violated a legal duty or right of another and is therefore legally liable. If so, the court must decide on a remedy, which may include damages, an injunction, etc. The term “liable” as used in Article 230(c) can refer to any of these categories. Thus, protecting technology companies from “liability” may simply mean that they cannot be held liable for damages, rather than being held liable and subject to other remedies. The first interpretation seems more plausible, if only because mere ambiguity seems a weak basis for denying a broad category of plaintiffs the right to a matter as important as their performance.

After the law protected technology companies from liability, it says, “No cause of action may be brought, and no liability may be imposed, under any state or local law that is inconsistent with this Article.” This section, Section 230(e), may seem exculpatory to companies, but it distinguishes between “cause of action” and “liability,” clearing up the ambiguity. Of course, while section 230(c) protects technology companies from being sued, it does not generally exempt them from a cause of action. It only protects them from “liability” in the sense of damages.

Of course, when a company is sued for damages, section 230(e) prohibits not only the imposition of such liability, but also the determination of the underlying cause of action. But the law apparently only protects technology companies from suing for damages, not other remedies.

The other question concerns the “hardware” that companies can restrict without fear of being sued for damages. Section 230(c) protects it from “any measure taken voluntarily and in good faith to limit access to or availability of materials of various kinds.” Even before going into the enumerated categories of materials, it is important to recognize that the law speaks only of “materials.” It says nothing about restricting people or websites.

Certainly, the law protects companies from “any action” that restricts relevant material, and if they literally take “any action,” this can include various nuclear options, such as denying people access and de-accessing or closing sites. However, the term “any action” cannot include actions that restrict not only the relevant material but also other things. “Any action” must be directed at such material.

Moreover, the Charter requires that these actions be taken “in good faith.” In common law, this can mean not acting to destroy or harm the rights of others, and in particular not acting disproportionately to end the relationship. Thus, the law does not protect companies if they act disproportionately with respect to the material, much less if they unreasonably restrict other things, such as websites and people.

What is bona fide for a website may differ from what is bona fide for a technology company operating as a common carrier or a public forum. But at least for these technology companies, the law’s emphasis on “material” – combined with the requirement of “good faith” – precludes any categorical defense of removing websites, let alone removing them or barring individuals.

What does this mean in practice? Even if a company cannot technically ban certain materials without dismantling the entire site, it should at least allow operators to remove unwanted materials before the site is completely dismantled. As for dismantling sites or keeping people out, these measures will rarely, if ever, be necessary to restrict materials.

It is the letter of the law. However, if you want large corporations, such as public carriers, to go beyond “good faith” action against “equipment,” you need to look at the story a bit, if only to check the proportionality of your wishes. Even the Inquisition gave heretics a formal means of refusal. And even the House of the Stars required its private censors to ban objectionable material, not authors.

The next topic is viewpoint discrimination. Section 230(c) provides protection from restriction for “material that a provider or user finds obscene, indecent, lewd, filthy, overly aggressive, harassing, or otherwise objectionable.” Companies mean just about anything they don’t like.

But Article 230(c) lists only categories of content, not viewpoints. The distinction between content and viewpoint is crucial to the right to freedom of expression: the government may not distinguish between disturbing viewpoints, even when regulating unprotected expression, such as “anti-speech.” Thus, it is clear that the list is content-oriented. One might argue that “otherwise undesirable” can include undesirable views. However, this is abundantly clear, and the list of types of content shows that it only covers additional objectionable content.

Technology companies might argue that the fall is still ambiguous. But what is at issue is the position of discrimination by giant corporations that, like ordinary transportation companies, act as public forums and engage in public policy discussions. Do we really think that mere ambiguity should be interpreted as something so unusual?

The text of Section 230 offers technology companies less protection than they think. It protects them only from damages actions, and not generally when they go beyond a constitutional interpretation of the law.

The implications are far-reaching. Litigation will focus on determining the limits of Section 230 and the legality of privatized censorship. Meanwhile, it is likely that some state legislatures will enact civil rights laws to protect the free speech rights of technology companies. Recognizing that such legislation is not prohibited by Article 230, some state legislatures are already considering this issue. In any case, Article 230 does not and will not prohibit the privatization of censorship by the state.

Mr. Hamburger is a professor at Columbia Law School and president of the New Civil Liberties Alliance.

Editorial: The pros and cons of imposing more controls on large technology companies. Image: Justin Tallis/AFP/Getty Images

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