Before we sort out what to do about Big Tech’s assaults on free speech, let’s examine the special treatment Congress granted to Big Tech, which treatment enabled it to infringe so broadly on free speech and sort out the implications and consequences of that legislation.
To get a clear picture of the situation, one must first recognize that people who publish slanderous or libelous words (“defame”) have committed a tort against the person(s) defamed are liable for damages caused by their tort. Publishers of such defamation are liable as a joint participant in the defamation.
When Big Tech came up with the idea of creating platforms on which users would post comments, Big Tech executives knew (1) their platforms would facilitate the propagation of much defamation by users, and (2) they would face huge, potentially untenable, liabilities if they were to be held responsible for the defamation posted on their platforms by users.
Before the internet, the established law was: “Distributors, such as booksellers, newsvendors, and libraries, merely distribute content and hence bear liability only upon a showing of knowledge or negligence. Common carriers, such as telephone companies, transmit information mechanically with no opportunity to review its content. Therefore, common carriers are not liable for the transfer of harmful data.”[i] In 1991 a court had held that Compuserve[ii] was a distributor rather than a publisher of content, i.e., not liable for defamation posted by users. On May 24, 1995, however, a New York Supreme Court ruled that “Prodigy was liable as the publisher of the content created by its users because it exercised editorial control over the messages on their bulletin boards in three ways: 1) by posting Content Guidelines for users, 2) by enforcing those guidelines with “Board Leaders,” and 3) by utilizing screening software designed to remove offensive language.”[iii] In response, Big Tech, that was doing things identical or similar to what Prodigy had been held liable for, ramped up lobbying efforts to obtain a federal law shielding Big Tech from publisher liability. By that time, Big Tech was in a position to greatly affect what was heard or said about Representatives and Senators. Big Tech’s lobbying efforts paid off in less than nine months.[iv]
Big Tech’s argument to Congress (at least for public consumption—more on this below) to justify a liability shield for content published on their platforms by users was that, unlike publishers who pick and choose what to publish (thereby being directly involved in the act of publishing the defamation), Big Tech, subject to a few, reasonably objective and appropriate exceptions, would not be involved curating or filtering what was published by users. Their platforms were to be open public forums available to all.
A necessary and proper role of democratic-republican governments is to ensure that public forums exist. Cass Sunstein put it this way, “The idea (the “Public Forum Doctrine”[v]) is, in addition to saying the government can’t censor speech of which it disapproves, it has to maintain spaces open for expressive activity. Parks and streets; and this is a historically-based idea, that streets and parks have been open for expressive activity. Supreme Court has actually said that’s part of what free speech tradition requires. And that’s important because it gives us an opportunity, if we want to use the streets, to have access to people with whom we have a beef–so, we can protest.”[vi] Consequently, it was appropriate and beneficial to the public for Congress to enable Big Tech to deliver on the promise of the greatest and most effective and unbiased forum for free speech humans have ever experienced. Adopting a law that, in effect, would accomplish approximately the opposite of a neutral forum open to all (and putting their interests ahead of the public’s interest in free speech in the process), however, was a betrayal of the American people.
The 1996 law, 47 U.S. Code § 230. Protection for private blocking and screening of offensive material (“Section 230”) codified the betrayal. This law is startlingly short but directly enabled the unfathomably long list of Big Tech’s destructive abuses of blocking and filtering powers. Amending Section 230 could be a means to address the Big Tech problem. Sorting out the contrast between what the law proclaimed it would do and what it did is essential to understanding the issues involved.[vii]
The findings of Section 230 were reasonably accurate—in 1996:
(a) Findings The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
The finding, “(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops” could not be found today—after more than 20 years the law’s consequences, quite the opposite. As Big Tech has honed its algorithms, finding the facts/truth about something is easy only if the facts/truth comport with the biases of Big Tech. Facts/truth that do not so comport crop up, if at all, after many pages of search results comprised of debunking, biased “fact checks,” counter-takes, and ridicule of the searched proposition, while the most effective critics of Big Tech’s biased “facts/truth” are suppressed, ridiculed, demonetized, and/or de-platformed.
Proof that Big Tech designs their algorithms to serve up what Big Tech leftists want users to see rather than give “users a great degree of control over the information that they receive” is in prior posts in this series. In Douglas Murray’s insightful new book, “The Madness of Crowds: Gender, Race and Identity,” another way to make the point glaringly obvious was presented. Take a look at these two screenshots of Google searches that I took on 10/9/19.
The first search was for images of “straight white couples.” You will see that only 16 of the first 36 images presented were of possibly straight white couples. Six of that 16, however, were of a white couple who lost a court battle seeking equal treatment under the law for straight couples, most with controversial protest signs behind them. (Is that what typically comes to mind when you think of straight white couples?). So, only 11 of 36 different examples of straight white couples were presented. Worse, only four of the 36 results were of normal, reasonably happy, white couples. The second search was for “straight black couples.” Compared to the search for straight white couples, the search for straight black couples produced twice as many different examples of straight black couples. Moreover, 15 (as opposed to only four for whites) of the examples were of normal, reasonably happy, black couples. Note also, that when searching for “straight white couples,” Google took it upon itself to eliminate results that were limited to “straight” white couples, but did not do so for black couples. Obviously, according to Google’s biases, being a happy straight black couple is OK, but being a happy straight white couple is not.
Based on the examples given in Murray’s book, it appears that the results Google presents now have been tamed down after his book was published. Little doubt, Google will return to its more aggressive “nudging” when the hullabaloo of the book wears off. By reporting that Google’s search results in non-Western foreign countries evince none of the shenanigans described above proves that Google can tweak its algorithms to give “users a great degree of control over the information that they receive,” but chooses not to do so in Western countries.
As if the above was not bad enough, the following screenshot of Google results for “straight white couples” leaves no doubt about what Google executives want you to think about straight white couples and the lengths to which they will go to get you and everyone else to think it as Google executives do. The below image is an example of groupthink and attempted brain-washing of the highest and most evil order. A free society cannot allow this to go on for much longer.
If “(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse…” was true before Section 230’s adoption, it has not been true after. Big Tech has been and is shutting down as much diversity of political thought as rapidly as Big Tech believes it can, which is a great deal. The more they have done, the more it becomes unnoteworthy, and the more they can do without effective hue and cry.
It is truer now than in 1996 that “(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.” That is why it is so important that Congress undo the damage that Section 230 enabled Big Tech to inflict.
The policies Congress was trying to implement were laudable:
(b) Policy It is the policy of the United States—
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
If only the laudable stated policy objectives had been sincere.
Note that the removal of the “disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material” has not worked out as advertised. Though many blocking and filtering technologies are thankfully now available to parents, Big Tech is using blocking and filtering technologies to achieve other ends, i.e., to restrict, bury deep in search results, and eliminate access by adults to content Big Tech believes, in its own, arrogant, biased, and uncircumspect opinion, to be objectionable. To defend itself against criticism of that practice, Big Tech testifies that what it is doing is necessary to keep out of search results and platform posts what essentially everyone believes should not be in our K-12 school libraries. Because Big Tech is fully capable of producing multiple search engines equivalent to movie ratings (G, GP, GP-13, R, M, etc.) to overcome the stated obstacle to real free speech in the public forum, this defense is merely a smokescreen for their treatment adults as their who must be indoctrinated (propagandized) in the ideologies approved by the Big Tech-Government Complex. That is precisely the opposite of achieving “a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” for adults while providing “technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.” They could do both, but they falsely proclaim that Big Tech is not capable of delivering on the policies Section 230 purports to deliver. In practice, the language of the “Findings” and the “Policies” of Section are false advertising to provide cover for technologies and powers that enable Big Tech to coordinate with the federal government to enhance the powers of both.
The protections the law created were a mixed bag:
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
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.
(2) Civil Liability No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph.
To divine in 1996 that all Big Tech executives will always be “Good Samaritans” in the use of blocking and screening powers granted to them by Section 230 was both naively presumptuous,[viii] a dereliction of duty, and a violation of their oaths of office. Congresspeople could have been responsible had they defined in the law what Big Tech had to do and what standards they had to meet to avail themselves of immunities a Good Samaritan would deserve, but, as you can see from the text, they did not. On the contrary, they granted blanket immunity, i.e., they, in effect, deemed Big Tech executives to be “Good Samaritans” regardless of their future conduct. As it turned out, far from being Good Samaritans, Big Tech executives now play the role of priests who pass by on the far side of the road when they see a non-leftist naked, bruised, and abandoned on the internet highway (unlike the priests of the Bible, however, the Big Tech priests, at a minimum, appear to sneer at and often smear the abandoned soul as they pass)—all with, IMO, solemn perjurious denials and arrogant impunity.
The coup de gras of the betrayal is in subsection (c)(2)(A): “No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable…” [Emphasis added.]
This subsection appears to be specifying the few, reasonably objective, and appropriate authorizations to block or filter user content that a responsible Congress would impose on people who seek immunity from otherwise established law. Given that a court can be called upon to determine whether the platform provider was acting in good faith when blocking or filtering “obscene, lewd, lascivious, filthy, or excessively violent” content, this immunity is unobjectionable. A reasonable exception could be taken to the grant to Big Tech the power to determine what is “harassing,” but that grant is not blatantly objectionable. What is blatantly objectionable is the unreasonable delegation of the functional equivalent of governmental power to block “otherwise objectionable” content and effectively placing Big Tech’s blocking and filtering power beyond the review of the courts. Adding “otherwise objectionable” to the list of items permitted to be blocked renders all the previously listed standards superfluous, window dressing for the delegation of abusive power, mere feigns for the knockout punch to people’s natural right to free speech.
The “the functional equivalent of governmental power” claim is founded on the mutuality of interests between government functionaries and Big Tech. The Congresspeople who enacted the law knew that Big Tech executives, like they, are unsympathetic to (or, at a minimum were in a conflict of interest with) the Constitutional principle of “limited government.” People in power typically want unlimited power and Big Tech wanted a grant of immunity to exercise powers that Congress did and could not exercise itself. (Whether Congress can delegate a power it does not have is an interesting constitutional question that will not be sorted out here). Consequently, Congresspeople knew that Big Tech executives would use any blocking and filtering immunity delegated to them to promote posts that support Congress freeing itself from limitations and squelch contrary posts. Consequently, Section 230 was an undermining of the Constitution’s purpose of securing people’s natural rights, which violates their oath of office.
Passing Section 230 created the near-perfect, “you scratch my back, and I’ll scratch yours” arrangement, with each party having the power to do great damage to the other if they stopped scratching. In other words, to maintain the mutually beneficial arrangement, Big Tech must either infringe on speech in the dominant modern public forum in a way that suits Congress so as not to loses the favors of Section 230, and Congress must to either ensure that the government does not prevent Big Tech from doing what it wants to do, or Big Tech will adjust the filters so as to wreak havoc on political careers. The especially delicious icing on this corrupt cake was that by granting such a valuable right to Big Tech, Congress enabled Big Tech to make enough money to thrive even after it delivers luxurious scratches to the backs of Congresspeople.
The phrases, “effectively beyond the review of the courts is the power to block or filter content that Big Tech believes, in good faith, is, in some way objectionable to Big Tech,” refers to the fact that the phrase “otherwise objectionable” in Section 230 is not a standard. Objectionable to whom? Is 66/100% objectionable (i.e., 99 and 44/100% pure/unobjectionable) enough to block speech? Is something objectionable to any madcap moderator sufficient to block, no matter how unfounded, irrational, or biased the objection? When the intent is to grant unlimited power to a third party to do one’s bidding in the public square, unconstitutional vagueness will do the trick.
With the above context in mind, we are in a position to sort out “What to do.” We’ll do that next.
[i] See “Communications Decency Act 230 – Berkeley Law Research,” Page 403.
[ii] See “Cubby v. CompuServe.”
[iii] See “Stratton Oakmont v. Prodigy Services Co.”
[iv] See “47 U.S. Code § 230. Protection for private blocking and screening of offensive material.”
[v] See “Public Forum Doctrine.”
[vi] See or listen to “Cass Sunstein on #Republic” at about 6:30.
[vii] The law is comprised of five subsections (a) – (e). Because they are irrelevant to this post, discussions of subsections (d) and (e) will be omitted.
[viii] “Power tends to corrupt, and absolute power corrupts absolutely.”
2 thoughts on “Free Speech and Big Tech – The Legislative Betrayal”
This is one of your best post to date!!!
You offer great insights into the some of the major issues to date. Please keep it up!!
I agree the law was shoddily written. But I do not think Congress had any idea in 1996 how prevalent our everyday use of the internet would become. In their naivety they relied on the industry to police itself, probably thinking their would be many players in the market.
Search engines were very rudimentary in 1996 Google Search was not launched until 1998 and started out very bland. Yahoo search was the predominant search engine when it launched. Facebook was not launched until 2004 and probably did not reach critical mass until maybe somewhere between 2008 and 2010.
In 1996 who could have foreseen the monopoly type entities of Google, Amazon and/or Facebook. If I had, I would have much more monies in my portfolio 🤣🤣
Does that mean the law should remain as is? Hell No! It is definitely time to tackle the issue. Can’t wait to read your next installment on how to sort this out.
TR, Thanks for the kind comments about the post.
Your observations are well stated, very relevant to the issues I raised, and present valid reasons to be skeptical about my claim that the Congresspeople were as forward-looking and self-servingly irresponsible as I made them out to be. On the other hand, Congresspeople on both sides of the aisle tend to crave power, and, in their minds, the more the better. Though there were notable exceptions, by having gone to universities, most people who ran Big Tech companies had had at least four years of indoctrination into leftist ideology. Odds were good that they would be amenable to doing the blocking and filtering that would be advantageous for Congresspeople as they aggregated more power to themselves. (And Congress could amend or repeal the law if it didn’t pan out.) The validity of that reality is born out by the fact that there are multiple near-monopolies in various sectors of Big Tech, and they all have essentially the same political philosophy and lust for power. In other words, the existence of monopolies was not essential to the plan (although the plan works better with them).
“The arrangement” between Big Tech and the government established by Section 230, cleared the erstwhile mind field that would have prevented Big Tech from doing Congress’s bidding. I view the massive amounts of window dressing crammed into the very short statute to be evidence that they understood that the bill’s real purpose needed to be obscured. That the unconditioned grant of immunity could not work to achieve the enunciated policy goals is another bit of evidence. My money remains on what I wrote in the blog approximates what was intended.
Thanks for commenting!