As sorted out in “Free Speech and Big Tech – The Conundrum,” Big Tech taking upon itself the role of deciding what speech is to be heard and not heard over the preeminent modern means of communication is so damaging to human rights and flourishing, all options should be on the table, carefully examined, and subjected to searing debate to tease out a policy that has a high probability of doing more good than harm.” But, as sorted out in “Free Speech and Big Tech – How To Make Things Worse,” permitting the government to moderate what speech would make matters worse. What to do?
As is typically the case when addressing complex social/economic/legal issues, there are no solutions[i] to this problem; there are only trade-offs. Whatever is done to mitigate the infringement on speech made possible by Section 230, Big Tech’s ability to provide its good stuff to society will be diminished. Although Section 230 hints that it will deliver platform neutrality, immunity is not conditioned on neutrality.[ii] Therefore, the goal should be to change existing law (either through legislation or judicial determination that aspects of Section 230 are unconstitutional) as little as possible, but as much as necessary to break the pact (Section 230) between politicians and Big Tech that results in the infringement of speech which the Big Tech-Government Complex determines to be detrimental to their continued aggregations of mutually beneficial power. Because free speech is so essential to human flourishing, doing nothing to address the extant infringement on free speech by the Big Tech-Government Complex should not be an option.
The stated purposes and most of the language of Section 230 of the Communications Decency Act are sound. In particular, “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,” and “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” are were accurate and consistent with the Enlightenment ideas. Permitting Big Tech to block or filter content that is “obscene, lewd, lascivious, filthy, excessively violent, [or] harassing,” conflicts little, if any with The Enlightenment ideas—so long as Big Tech does not (1) distort the plain meaning of the words such that Big Tech uses its interpretations of those words to continue with its blocking and filtering of political/social/cultural/scientific ideas that are not simpatico with Big Tech’s biased preferences, or (2) block/filter the obscene, lewd, etc. language of disfavored speakers and not block/filter similar content of favored speakers.
If Big Tech distorts the plain meaning of the words, “obscene, lewd,” etc. or selectively blocked content, Big Tech would not be providing “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” and would be harmfully infringing on free speech which it and the government want to suppress. More important, if Big Tech were to do that, it would be publishing curated news and opinions just as newspapers and magazines do, i.e., it would be a publisher. However, unless Section 230 is changed, “No provider or user of an interactive computer service [Big Tech] shall be treated as the publisher.”
Note that Section 230 grants immunity from publishing liability to Big Tech when it curates content on its platforms to suppress content it deems objectionable for any reason or no reason while it denies such immunity to non-Big Tech publishers who are similarly curating similar content on their platforms. Such a discriminatory application of the law is a violation of the right to equal protection of the law. That portion of Section 230 that denies equal protection should be struck down as unconstitutional, or changed.
Amending Section 230 would be preferable to judicially striking the “otherwise objectionable” language in Section 230. If all defenses for providers of neutral platforms on which users might post defamation were struck down, operating neutral platforms would likely be untenable—which would be a travesty. Also, striking down all immunity would not preserve the valuable distinction between publishers and neutral platform providers, which distinction is essential to a proper balance between the free exchange of ideas (humans’ primary means of finding truth and wisdom) and protecting the rights of individuals not to be defamed. Only legislation could strike a reasonable balance between these conflicting values.
Legislation could repeal immunity concerning “otherwise objectionable” speech and grant to Big Tech an affirmative defense to defamation claims. With such a law, Big Tech defendants would be entitled to a directed verdict if, in a contested pretrial hearing, the defendant can convince a judge that its algorithms or other means of curating content on its platform do not discriminate for or against speech concerning any political, social, cultural, or scientific matter. The trial court’s findings would be subject to appellate review.
The standard of proof for the preliminary hearing should be no less than “by a preponderance of the evidence.” However, Congress should monitor the outcomes of such trials and make periodic assessments as to whether the evidentiary standard is achieving an acceptable level of uninfringed speech. If Congress finds that such level is not being achieved, the standard of proof should be raised to “beyond a reasonable doubt.” If, however, speech remains too infringed, further measures will be required to preserve free speech.