President Trump warned Congress on Twitter this week that unless the House addresses the statutory flaws in Section 230 of the 1996 Communications Decency Act (47 U.S. Code § 230), he will veto the latest National Defense Authorization Act (NDAA) -- the annual military funding bill that politicians often use as cover to push pork spending and attacks on liberty.
Section 230 has been tossed around by "the left" and "the right," but rarely has it been explicated. In part, it utilizes the constitutionally claimed “power” for Congress to create the courts above the state supreme courts and below the United States Supreme Court. This “power” also lets Congress prevent certain kinds of suits from entering the federal courts or from going to the Supreme Court. Hence in 2005, a majority Republican Congress voted to prevent liability suits against gun makers from entering the federal courts, because leftist activists were attempting to sue gun-makers for murders committed with their firearms - even though that’s got nothing to do with a flaw in the design of a firearm, just like a person intentionally killing someone with a baseball bat has nothing to do with the manufacturer of the bat.
Likewise, for internet providers and website hosts, Congress wove protection against liability suits (ex: defamation, slander) into Section 230, and it also added protection against federal or state governments charging said providers or hosts for any criminally-produced images that might involve minors, or other posts that might run afoul of FCC “regulations,” or state or federal statutes.
But there are tricky nuances here, in both the wording of Section 230, and the underlying assumptions about the FCC, the states, and “communications.”
The first point to address, and the predicate of Trump’s argument, is that Section 230 is worded in such a way as to be “interpreted” in more than one manner.
Here’s the pertinent clause focusing on liability against lawsuits:
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
The key is the phrase “in good faith,” which can be read as granting the protection against personal suits as long as the web hosts say they are acting “in good faith” - in other words, that they are trying to be consistent and fair, not biased or malicious.
But the phrase also implies that the federal government can decide whether the web hosts were acting “in good faith.”
As one can see, this muddies the waters.
The liability protection in Section 230 ostensibly was included to create a method by which web hosts and internet providers would be comfortable that they could open avenues of free communication, that, should someone on their platform say something malicious or defamatory about another, the host would not be liable for the defamation or slander. The webpage owners, the video hosts, the podcast hosts, etc., could allow wide arrays of opinions and real free speech, sans worry.
That was the concept.
But the political biases and funding connections of many in key positions at web giants have revealed themselves in very dark ways -- from the Google Blacklist exposed by Zach Vorhies that included MRCTV and CNSNews (in addition to myriad libertarian, conservative, and anti-war sites that Google appears to have been suppressing in search results) to Politifact “Fact Checkers” who recently had to admit that they completely mishandled a “check” on Democrat-turned-conservative Candace Owens.
And this stunning bias is exercised under the umbrella of Section 230, as the hosts and site managers claim they’re operating in “good faith.”
OnDecember 1, President Trump tweeted his dissatisfaction with this state of affairs, writing:
Section 230, which is a liability shielding gift from the U.S. to “Big Tech” (the only companies in America that have it - corporate welfare!), is a serious threat to our National Security & Election Integrity. Our Country can never be safe & secure if we allow it to stand.....
And he added:
....Therefore, if the very dangerous & unfair Section 230 is not completely terminated as part of the National Defense Authorization Act (NDAA), I will be forced to unequivocally VETO the Bill when sent to the very beautiful Resolute desk. Take back America NOW. Thank you!
This is significant. If Section 230 is repealed, it will send shockwaves through Twitter, Youtube and their parent Google, Facebook, and other social media and tech giants when it comes to their handling of politically-charged content and their own leftward biases.
But it could do more than that.
Despite there being no constitutionally enumerated power for it, the Federal Communications Commission (FCC) claims the power to regulate cable television, radio, telephones, telegraphs, and the internet. And if Section 230 is repealed, the FCC might step in to help conservatives fight left-oriented social media giants that have suppressed non-left messages.
It could also see the FCC engage in what it has done many times in the past: attacking free speech -- this time online, going after internet hosts, not just internet users who might peddle foul, criminal child porn.
This is the deeper problem that can be seen when looking at Section 230. It is the beast lurking in the background for any form of telecommunication: claims of FCC control.
According to the Constitution, the feds can get involved in policing cross-state-border crimes. Thus, if an image were created as a result of criminal acts against minors or other criminal acts on state levels, and that image was sent over state borders, Congress could get involved to arrange for federal involvement in extradition or policing for the original crimes themselves.
But this cannot be seen as allowing federal “prior restraint” of peaceful speech that is not sourced from the commission of a crime. The First Amendment prohibits Congress from getting involved in writing any laws abridging the freedom of speech. And it certainly can’t create a “Communications Commission” to impose rules for radio stations, television, or the internet simply because the non-criminal speech and trade they facilitate crosses state borders.
Ad this brings us to the last key aspect of Section 230.
Curiously, the First Amendment has been misinterpreted for years, seeing many Americans mistakenly believe that it applies to the states and localities, prohibiting those from abridging speech.
But, as much as liberty-lovers might like to prevent such infringements, the First Amendment specifically denotes Congress in its prohibition of speech infringement, and many states had speech codes and funded religious schools until the late 19th Century.
Thus, when looking at Section 230 t is important to remember that the "Section" written in 1996 also stops state governments from bringing legal action for “speech violations” against internet providers or web hosts for material that the various state politicians might not like.
Again, as much as one might want to prevent state or local politicians from interfering with peaceful speech in their localities (usually the state constitutions also protect against political infringements), that is supposed to be left up to the states.
From a federalism standpoint, Section 230 thus stands against the First Amendment when it comes to state power to punish people for speech.
And, finally, there’s the NDAA to watch here. As the debate rages and Trump’s statement regarding Section 230 hits more telescreens, Americans might want to remember that in the we hours of 2011, Barack Obama signed that year’s NDAA, and it included something his White House team had pushed: the indefinite detention of any American the feds deemed an “enemy combatant” or an person who had given what the feds deemed “substantive aid” to such an evildoer. This was subsequently dropped from a future NDAA, but, in December 2017 (again, barely seen during the holiday season), he signed his final NDAA, which included the “Countering Foreign Propaganda Act”, a bill that allowed the feds to create an agency to literally hand up to $150 million dollars to American media interests that backed US policies. The program lasted two years, saw an office set up in the Pentagon to hand out the cash to favored media outlets, and ended when Donald Trump would not allow it to be renewed.
These are the things wrapped into the sweet and sour meal of Section 230 and Donald Trump’s threat to veto the National Defense Authorization Act unless Section 230 is eliminated.
It’s a shimmering, blurry issue that actually involves much more than the immediate problems of leftists in social media shadow-banning conservatives and libertarians. It goes to the heart of numerous constitutional issues and the “powers” of the states.
We can learn from it, no matter how it pans out.
(Cover Photo: Gage Skidmore)