The spread of false claims, conspiracy theories, and organization for events at which people have shown up armed at state houses and the U.S. Capital, has led to a lot of commentary about section 230 of the 1996 copyright revisions. That section reads:
"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."
Print publishers, radio and television stations, had been held to “publish” what was printed, seen or spoken on their systems. In turn, publishers have been held responsible for publishing libel or slander since the birth of the nation and further back in England. But section 230 absolved publishers and speakers of liability for what they put on their internet services. Although the Court changed the general standard of liability for false statements, it has never removed the joint responsibility of papers, magazines, broadcasters or other publishers for defamation. Section 230 did that, but nothing in section 230 is constitutionally required and the First Amendment is no obstacle to its repeal.
Before section 230 was passed in 1996, much of the scurrilous content advanced by QAnon, white extremists, Proud Boys and other groups would have been confined largely to word-of-mouth chatter, with relatively little impact on national politics.
Some of the stories blaming Hillary for the death of Vincent Foster, the death of American diplomats at Benghazi, or for “sexually abusing children in satanic rituals … in the basement of a Washington, D.C., pizza restaurant” could have subjected any publisher to litigation for defamation and resulted in a significant judgment and the embarrassment of defeat in court, as would similar claims against other Democrats. In light of what we know from the publicity and the investigations of those charges, it is unlikely that any of those allegations would have satisfied a court, any more than the repeated charges that the 2020 election was rigged by the Democrats.
Unable to sustain the claims, the defense would likely have collapsed in such cases. Not surprisingly, papers, magazines and broadcasters would have been cautious about such claims absent protection such as by section 230. Even the congressional investigations of some of those charges wouldn’t have protected all the allegations being thrown around and many of those stories would have been rewritten to avoid liability before they hit our screens. Ironically, the efforts to gerrymander the legislative races and to disqualify Democratic-leaning voters did strongly suggest election rigging but by the Republicans, by taking advantage of gaps in the law and in favor of Donald Trump and his allies.
Publishers are targets but anonymous and individual speakers are rarely sued. Going after small-time speakers is a game of whack-a-mole, never ending, expensive, resulting in negligible damages collected and therefore frustrating for plaintiffs. Going after publishers, however, is big news, makes substantial damages for false claims reasonably likely, and could well shut much of the nonsense down.
Section 230 was included in the 1996 Copyright Act to provide some cover for the emerging internet chat-boards. But it has become the source of outrageous garbage. Scurrilous attacks on candidates aren’t new. But the spread, the currency and the way they have convinced so many Americans to trust that nonsense, should make every American ashamed. Repealing section 230 and restoring liability for libel and slander is consistent with the First Amendment. Although more will need to be done, repealing it is essential to the very purpose of freedom of speech – getting at the truth instead of smothering it in a smokescreen of lies.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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