Rethinking Big Tech’s Legal Immunity

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Presser_0819

Should Facebook, Google, Twitter, YouTube, Instagram or other purveyors of internet content be liable for damages if they fail to ensure that what they disseminate is not inaccurate, libelous, or otherwise dangerous and pernicious?

There is a bit of law on this, but we are only now beginning seriously to consider this question. And only now are we beginning to understand that—since Americans increasingly rely on the internet for basic information—if the internet does not accurately reflect reality, our politics and our culture are at risk.

Given the American preference for free markets and a robust interpretation of the First Amendment (“Congress shall make no law…abridging the freedom of speech, or of the press”), our federal legislators concluded early on that there ought to be no liability on the part of internet providers for materials posted by third parties. Thus, Section 230 of the Communications Decency Act of 1996 provides that “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 plain English, our internet media giants, unless they themselves are the authors of the content they publish, have immunity from private lawsuits seeking damages.

This immunity is of course not extended to the publishers of other print media, online or off. Newspapers, magazines, book publishers and the like can be, and sometimes are, sued for printing damaging falsehoods. However, distributors of print media, such as bookstores or newsstands, are not liable for what is printed in the media they sell. The question is whether internet content platforms are impartial distributors like bookstores or newsstands, or whether they do in fact control what content is presented to audiences. Since that control determines what we do and do not have the ability to access, is it right that technology companies should face no consequences for preferring particular political or social perspectives over others?

If Facebook, Google, and the others are indeed determining the content of what they publish, are they less like booksellers and more like publishers? In fact, before the passage of Section 230, one internet content platform, the now defunct Prodigy, had taken an editorial role in policing content. As a result, it was held to be a publisher and thus legally responsible for libelous materials it presented.

This led to the passage of Section 230, created to facilitate unrestricted public debate. But if Google and Facebook are themselves stifling speech, perhaps is it time to contemplate some renewed control on these internet giants, possibly by exposing them to liability through civil damage suits? It should be stressed that Section 230 does not give immunity to internet providers for violations of federal criminal liability or for the improper use of others’ intellectual property. But it does protect the providers from private parties seeking compensation for damages to their reputations, or from other harm the providers cause.

Indeed, President Trump last year signed legislation designed to hold internet sites that knowingly contribute to illegal sex trafficking liable to damages or penalties. This may be a step toward legislation that would hold internet platforms liable if they suppress speech or particular political perspectives.

Some prominent Republicans are already moving in this direction. Senator Josh Hawley (R-Mo.) on June 19 proposed a bill in the Senate that would remove Section 230 immunity for content platforms that fail to provide “politically unbiased content moderation.” The bill would apply only in the case of content platforms with more than 30 million active monthly users in the U.S., or more than 300 million active monthly users worldwide, or which have more than $500 million in global revenue. This would of course include titans such as Google, Facebook, and Twitter. The Federal Communications Commission would serve as the enforcement agency to ensure lack of political bias. These large platforms would have to prove to the FCC “by clear and convincing evidence” that they do not moderate information in a manner “designed to negatively affect a political party, political candidate, or political viewpoint; or disproportionately restricts or promotes access to…information from a political party, political candidate, or political viewpoint.”

At present, Hawley’s bill probably has no chance of passage, first because of the aggressive lobbying against it that would be forthcoming from the internet titans, and because of the clout those titans have with so many politicians. But it would also face challenges if it is applied too vaguely or so severely that it becomes perceived as a threat to the First Amendment.

But Hawley is not alone. Sen. Ted Cruz (R-Texas) in April 2018 observed that Facebook was clearly hostile to conservative content and wrote in a FoxNews.com opinion piece that “if Facebook is busy censoring legal, protected speech for political reasons, the company should be held accountable for the posts it lets through. And it should not enjoy any special congressional immunity from liability for its actions.” Cruz continued:

Facebook’s actions have ranged from seemingly petty things—like shutting down a ‘Chick-Fil-A Appreciation Day’ to blocking posts from journalists, specific religious groups and most recently, grassroots Trump supporters Diamond and Silk. Facebook’s explanation for limiting access to a popular page with 1.3 million…followers was that it was ‘unsafe to the community.’ Many Americans see this as just the latest poor excuse in a pervasive pattern of political bias.

Texas Republican Representative Louie Gohmert was even more blunt in his criticism of Google following the release of a Project Veritas video demonstrating that the internet giant has plans to weigh in against President Trump in the 2020 Election. On June 24, Gohmert issued a statement:

This video shows Google’s biases are now a threat to a free and fair election, all while they hide behind the immunity given by Congress years ago when they were supposed to be a simple ‘town square’ where everyone’s voice could be heard without biased results.… This media giant’s ‘social justice narrative’ should distress all Americans who value a free and open society. Google should not be deciding whether content is important or trivial and they most assuredly should not be meddling in our election process. They need their immunity stripped and to be properly pursued by class action lawsuits by those they have knowingly harmed.

There is, then, some support in Congress for Hawley’s bill. But the pressure not to strip away the internet giants’ immunity will likely be impossible to overcome, given that conservatives seem to be constrained by talking points about the importance of an unfettered marketplace of ideas.

It ought to be noted, however, that our framers were not so sanguine about an unregulated press. Anyone who researches the genesis of the First Amendment finds that it was actually rather modest in intent, seeking simply to remove prior restraints on publication. In late 18th-century Britain, one often needed permission from governmental authorities before disseminating information, and the framers simply wanted to end that practice. Not only did they believe that anyone who libeled—or published incorrect information damaging to individuals—should be subject to private lawsuits. They also believed that seditious libelers—or those who knowingly publish lies about government officials—should be fined and even imprisoned.

Seditious libel liability pretty much evaporated in the U.S. during the 19th century. By the middle of the 20th century, in the extraordinary 9-0 New York Times Co. v. Sullivan (1964) case, the Supreme Court ruled that incorrect information about public figures could not, consistently with the First Amendment, result in damages unless the publisher disseminated the falsity with actual malice. In short, this meant that litigants had to prove a publisher knew a statement was untrue or published it with a reckless disregard for the truth.

New York Times Co. v. Sullivan established a standard of proof for suing publishers that is often difficult if not impossible to meet. The result is what President Trump has called “fake news”—the proliferation of blatantly false narratives, often parroting one party’s political talking points, as occurred during the recent Russia collusion delusion.

If we couple the Supreme Court’s judicial legislation generally permitting fake news about public figures with the current legislative protection against private libel by internet giants, there is no doubt that there’s a problem with U.S. law. This, and the current media’s implementation of the old newspaper axiom that “if it bleeds, it leads,” seems to have colored coverage to such an extent that Americans are now simply being denied access to the truth about what is happening in our politics and culture.

The British still allow private recovery for the publication of libelous materials by public figures, and that has not led to any less robust a press than ours. Indeed, anyone who compares the quality of the content, say, in The Telegraph or The London Times with The New York Times or the Washington Post is likely to be struck by the higher quality of the discourse in the British papers.

Samuel Chase, one of the most brilliant, if controversial, early Supreme Court justices, revealed the thought of the framers when in 1800 he charged a jury to enforce the 1798 Sedition Act. He reasoned that there were two ways to destroy a republic, “the introduction of luxury, or the licentiousness of the press.” It is too late to prevent the introduction of luxury, of course, but perhaps Hawley, Cruz, and Gohmert have a point, and we ought to attend to the licentiousness of the press.

We have relied in recent years on the notion that the remedy for bad speech is more speech. But in an era when tech giants are actively suppressing voices they disagree with, it might be time to return to more robust libel laws. If what now passes for the press is now incapable of sensibly policing itself, the intervention of those damaged by that failure might be the means to protect both themselves and our republic.

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