The First Amendment enshrines fundamental freedoms so core to our democracy that they must be honored. But the First Amendment has limits, and non-government entities that are granted the ability and power to spread speech must not be immune to the repercussions of their actions. The most powerful market actors should not be allowed to censor or silence free speech, or promote false, potentially harmful information with no accountability.
Digital platforms, like Facebook and Google, have escaped liability for publishing misinformation for decades, despite looking more like publishers than platforms. Even with radical digital advancement, there has not been any change to regulation of big tech, to the detriment of consumers, free markets and the marketplace of ideas.
The Communications Decency Act (CDA), housing Section 230, was established by Congress in the late 1990s to limit access to obscene materials on the internet. However, through incentivizing the big tech platforms to remove obscene content by giving them immunity, Section 230 actually protects them from liability for publishing such content. Meaning, even if a third party knowingly publishes obscene content on their platforms that is obviously false, they don’t have to (and often do not) remove it unless they are paid to do so.
The current lack of liability of the platforms threatens the core First Amendment freedoms of speech and of the press. Online media, including social media, has become a primary a source of news, according to Pew Research Center. News publishers, which produce quality, investigative journalism, are held liable for any false or defamatory statements they publish, in print or online. The platforms frequently share and vet news content, as well as publish content of their own, making them moderators of public forums and therefore responsible to uphold First Amendment. Internet platforms have essentially been granted the protections of a private residence, while having the reach and substantive effect of a public forum, with nearly 70 percent of adults in the United States using Facebook. Yet, they are protected by Section 230 immunity.
Digital platforms’ expansive forums should entitle their users to experience the marketplace of ideas, free from cumbersome censorship. The First Amendment protects free speech and provides for recourse when that freedom is violated or abused.
Self-regulation, the option for which the platforms advocate, is not working, with documented cases of violence, harassment and stalking, child pornography and predatory behavior resulting from online dating apps and other platforms, such as YouTube and Uber. Section 230 only limits innocent victims’ already-scarce resources to protect their First Amendment rights. While Facebook and Twitter have more latitude than the government to restrict certain material on their platforms, because Section 230 protects them from liability, attempts by individuals seeking restitution for discriminatory censorship or predatory behavior by big tech would not be successful.
Facebook, Google and other digital platforms continue to be shielded by laws that are over two decades removed from the rapidly advancing technology, and we are seeing the disastrous effects from years of inaction to correct this oversight in the law.
The best application of the Constitution in this case would be to impart on digital platforms the liability that accompanies the First Amendment protections they already enjoy. If digital platforms truly champion the principles of Free Speech and Free Press, as they claim they do, then they will accept the accountability that comes with their role as publishers and arbiters of content.
Natalie Seales is a First Amendment Law and Policy Fellow at the News Media Alliance.