What Doesn’t Kill Section 230 Makes it Stronger

By: Marissa Train

Section 230 of the Communications Decency Act, the federal law providing social media platforms with immunity from liability for user generated content, has recently faced objections from politicians on both sides of the aisle. Both parties’ issues stem with the law largely stem from the protection it offers under 230(c), which gives platforms leeway to maintain their own content moderation policies. Democrats largely view those policies as too permissive, causing misinformation to run wild, while Republicans often view the same policies as too restrictive, ‘censoring’ conservative speakers and content.

While many federal proposals to change Section 230 have been introduced, only FOSTA-SESTA, an attempt to stop online sex trafficking, became law. Instead, most of the legislative action has been at the state level, particularly in conservative states

Florida Goes First

In May 2021, Florida Governor Ron DeSantis signed a bill prohibiting social media platforms from suspending political candidates before elections and allowing all users to bring lawsuits against companies if they believe their content moderation is inconsistent. However, when the bill was signed, Eric Goldman, a professor at Santa Clara University Law School, stated that he “see[s] this bill as purely performative, [that] was never designed to be law but simply to send a message to voters.”  

Goldman’s belief that the law would be found unconstitutional was realized in the form of an injunction issued one day before the law came into effect. The Computer and Communications Industry Association (CCIA) and NetChoice, representing Facebook, Youtube, Twitter, and others, had filed suit in Florida … and won. 

In the order issuing a preliminary injunction, Judge Robert Hinkle stated “[t]he legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.” In short, Judge Hinkle held that the Florida law violates the First Amendment and that it was preempted in large part by Section 230.

Florida appealed the court’s ruling late last year, so now we must wait to see how the Eleventh Circuit rules in the appeal. 

Texas Follows Suit

In March 2021, H.B. 20, also known as the Freedom from Censorship Act, was first introduced to the Texas State Senate. It is widely understood that the bill was a reaction to President Trump’s suspension from every major social media platform after the attack on the U.S. Capitol. Some Texas lawmakers, including Governor Abbott, viewed the suspensions as a direct assault on the sharing of conservative views online. Governor Abbott tweeted such sentiments many times: “Silencing conservative views is un-American, it’s un-Texan, and it’s about to be illegal in Texas.”  

The Texas law essentially prohibits social media platforms with more than 50 million active users from banning users based on political views alone. The law also requires these platforms to create complaint systems for users to appeal removal of their content, and allows Texas residents to file suit against the company if they believe they were wrongfully banned. The bill was enacted in September, and was set to go into effect on December 2. 

The CCIA and NetChoice, the same parties that opposed the Florida law, co-filed a suit against the Freedom from Censorship Act just two weeks after it was enacted. In their complaint, the CCIA and NetChoice allege the law would hamper a social media platform’s ability to stop the spread of hate speech and misinformation, which the groups claim is a violation of the companies’ First Amendment rights.

The complaint states “[a]t a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.” The complaint details that, “legislators rejected amendments that would explicitly allow platforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.”

A federal district court heard arguments on its constitutionality on November 29, and issued a preliminary injunction preventing all parts of it the plaintiffs challenged from being enforced on December 1. Unlike in the Florida case, the district court did not reach the question of whether H.B. 20 is preempted by Section 230, choosing instead to enjoin the law entirely on the basis of the First Amendment

What’s Next For Section 230?

Section 230 is already facing new challenges from state lawmakers, this time from the left side of the aisle. Democrats in New York state introduced New York S. 7568, a bill that attempts to incentivize platforms like Facebook and YouTube to not amplify certain third-party content. It would make platforms liable for content that leads to ‘imminent lawless action’ or ‘self-harm,’ and for information that is ‘false’ and ‘likely to endanger’ public health when any of that content is promoted by an algorithm. 

While, if passed, this law would easily be found unconstitutional on First Amendment grounds and preempted by Section 230 like the Florida and Texas laws, it signifies the Democrats entering the largely performative arena of state content moderation legislation. 

It seems that what’s next for Section 230 might just be more of the same: performative gestures by state lawmakers in the absence of any further guidance from Congress about a path forward.

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