Lessons learned from last week’s Section 230 circus — A resource for the civil rights community
by Joseph S. Miller
A tweet from President Trump last week criticizing California Governor Gavin Newsom’s Executive Order allowing Californians the right to vote by mail, in addition to preserving their right to vote in person if they’d prefer, has triggered a turning point in the debate around Section 230 of the Communications Decency Act.
President Trump attacked Governor Newsom’s order even though it was in line with an official Centers for Disease Control recommendation that election officials allow mail-in voting, specifically because of the disproportionate impact the COVID-19 disease is having on communities of color — the very targets of past voter suppression efforts.
Section 230 is the 1996 law widely seen as the heart of the internet as we know it, because it shields interactive content providers, like Twitter, Google, and Facebook, from liability stemming from content posted by users. In short, without Section 230, it would be all but impossible for Twitter, Facebook, and Google to exist: without Section 230, it would simply be too risky for social media platforms to expose themselves to liability for content that you and I, or even Trump, post.
President Trump posted the now-infamous tweet about Governor Newsom’s Executive Order on Tuesday. In it, the president alleged that sending mail-in ballots to voters would cause what right-wing politicians theorize is “voter fraud”, and that sending ballots to what the president termed “millions of people” would lead to the ballots being stolen. The president didn’t indicate how those attempting to steal ballots would even know whether ballots were inside of a person’s mailbox. Would they go to every single mailbox every single day to see if a ballot’s inside?
In any case, the president has expressed a general fear of snail mail in recent months. At the start of the pandemic, he and Treasury Secretary Steve Mnuchin blocked funding from the $2 trillion stimulus bill that would have provided the U.S. Postal Service with billions of dollars in grants to balance its budget.
So, something’s up with the mail that this president seems extremely frightened of.
All of this culminated in Twitter, for the first time, posting a disclaimer on the president’s tweet — a blue hyperlink with an exclamation mark next to it that says, “Get the facts about mail-in ballots”. When users click the link, they’re redirected to another Twitter page listing articles discussing the factual inconsistencies in the president’s claim that mail-in ballots would lead to election fraud and voting by immigrants.
Unsurprisingly, Trump was livid when this happened. Two days later, he released an Executive Order providing for the Department of Commerce to file a petition at the Federal Communications Commission asking it to review still-unsubstantiated claims of social media companies’ alleged anti-conservative bias. The order also calls on the Federal Trade Commission to allow individuals to file complaints.
When protests began around the nation in response to the killing of George Floyd by a Minneapolis police officer who has since been fired and charged with manslaughter, Trump tweeted a comment that echoed Miami’s then-Mayor Walter Headley’s 1967 remark “when the looting starts, the shooting starts”, which was met with scorn by civil rights leaders. In the tweet, the president called protesters “THUGS”, saying he’d spoken with Minnesota Governor Tim Walz “and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts.” (Here would be a good place to recall last summer’s Center for Investigative Journalism report that several Confederate, anti-Islam, misogynistic or anti-government militia Facebook groups counted hundreds of police among their members, a report that corroborated an earlier finding by the FBI released over a decade ago that warned of the infiltration of law enforcement by white supremacists.)
Twitter followed up with the president’s “THUGS” tweet by placing a notice over it saying the tweet violated Twitter’s policy against users glorifying violence, but still allowing users to clickthrough and see the president’s tweet. The company also went on to flag tweets from Ice Cube, Chinese Foreign Ministry spokesman Zhao Lijian, and others it deemed to have violated Twitter’s community standards.
But as far as Trump’s Executive Order to rein in social media companies is concerned, after speaking with experts like Tech Freedom’s Berin Szoka, Georgetown’s Gigi Sohn, and Public Knowledge’s Harold Feld — all of whom have been guests on the WashingTECH Tech Policy Podcast — the Hill reports that there’s a general consensus in the telecommunications public policy community that the president’s executive order is a non-starter. To make it happen, the FCC would need to undo years of precedent and essentially contradict every ruling it’s made, at least during Ajit Pai’s tenure there as Chairman, including its repeal of the net neutrality order.
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On another front, Senator Ted Cruz, alleging that Twitter is violating sanctions against Iran, is calling for a criminal investigation into Twitter’s alleged preservation of accounts of enemies of the United States, like Iranian Supreme Leaders Ayatollah Ali Khamenei and its Foreign Minister Mohammad Javad Zarif.
Also, Facebook CEO Mark Zuckerberg confessed to Fox News last week that Facebook shouldn’t be “arbiters of truth”. In fact, The Wall Street Journal reported last week that Facebook Executives ignored a 2018 internal report that found the company’s algorithms “exploit the human brain’s attraction to divisiveness”. It also warned that, if left unchecked, Facebook could spread even more discord, and that bringing Facebook’s algorithms under control would disproportionately affect users espousing conservative viewpoints. Facebook never publicly released the report or even acted internally to “check” conservative misinformation. Coincidentally, the presentation came at the same time the Trump administration was just beginning its campaign to characterize social media companies as being biased in favor of liberals. Last week, House Speaker Pelosi called Zuckerberg’s non-interventionist stance a “disgrace”.
Running with the ball, Republicans in Congress are reportedly working on legislation to control speech on social media platforms by undoing the liability protections conferred by Section 230. Conservatives are pushing for the legislation even though a three-judge panel of the D.C. Circuit last week dismissed a lawsuit brought by Freedom Watch, the conservative legal group, and far-right activist Laura Loomer, against Facebook, Google & Twitter, alleging the companies were conspiring to suppress conservative viewpoints.
