What journalists should know about Communications Decency Act Section 230

Do you have the 'right' to post to social media? Why does Section 230 exist? Can social media sites flag or ban politicians' comments?

May 29, 2020

Covering COVID-19 is a daily Poynter briefing of story ideas about the coronavirus for journalists, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

President Donald Trump signed an executive order Thursday calling on the Federal Trade Commission, the attorney general and the Federal Communications Commission to investigate and possibly punish social media sites that unfairly restrict content.

The president, who himself published no fewer than six posts on Twitter Thursday, has repeatedly accused Twitter and Facebook of unfairly restricting conservative voices.

Let me say right here that this executive order may have no legal standing and no teeth. But, as my father would say, “It isn’t nothing.” If a government agency could punish a website for what it disallowed, it would be an almost unimaginable reversal of current free speech and free press laws.

The president is angry that Twitter tagged one of his posts this week with a link to “facts,” implying his post was not factual. Twitter said the president’s post about mail-in ballots “contained potentially misleading information,” and needed “additional context.”

But why would Twitter be so concerned about a tweet that refers to mail-in ballots but not flag misinformation contained in presidential posts about COVID-19, for example?

Do you have the ‘right’ to be published on social media?

Misinformation and disinformation cause harm. Social media nonsense leads people to take unprescribed medications, drink bleach, disregard social distancing warnings and ignore mask requirements. And while you have the right to pass along nonsense, nothing requires a social media network or website to host your nonsense or restricts them from placing a warning next to your posts that says it might be nonsense.

All of this is covered in the federal Communications Decency Act Section 230. And it is that act that is most threatened when the president of the United States demands unfettered access to an internet company’s audience.

Facebook and Twitter, among others, have made some moves toward curbing misinformation. But every edit produces a predictable collision between freedom of expression and responsible publishing. In short, you have the right to say what you want online just as you have the same right to say what you want standing in your front yard. But you do not have the right to stand in my front yard and express yourself. And, even if you are standing in your own front yard expressing your opinion, you are still legally responsible for what comes out of your mouth.

In the early days of the internet, we hoped it would become a place where there would be a robust exchange of ideas. An important federal law, Section 230 of the Communications Decency Act, was designed to be fundamental to freedom of expression on the internet.

Section 230 says, “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.” (47 U.S.C. § 230).

It means that the writer is responsible for what the writer says, not the publisher — Twitter or Facebook, in this case. Section 230 does not protect a person who libels another person on social media and, importantly, it does not guarantee anybody free access to any social platform.

There is nothing in Section 230 that says a website like Twitter cannot regulate content.

But, and this is important, the website’s terms of use must be consistently applied. When they are not applied according to their terms of use, the website risks losing Section 230 protection.

Why do we have Section 230 protection?

Going back to old names you may remember, including CompuServe and Prodigy, courts have wrestled with a question that Time magazine columnist David French summed up this way: “If I write a comment and post it on an online chat room or a comment board, is it my speech, the internet service’s speech, or did we both speak?”

A 1995 ruling by a New York state court said that when Prodigy edited posts, it assumed some legal responsibility for the content of that post. (Trivia alert: That lawsuit was filed by Stratton Oakmont, a brokerage firm that was featured in the movie “The Wolf of Wall Street.”)

That shook up news organizations because they were left to let false and even defamatory posts stand — or assume responsibility for anything they edited. I clearly remember discussions in Poynter classrooms where editors were considering getting rid of all reader comments because if they did just a little bit of editing, they felt they could be held liable for everything readers posted.

Congress stepped in with a new law, Section 230, that answered French’s good question by saying when a person posts comments on sites like Twitter or Reddit or Yelp, they are that person’s, and not the websites’ comments.

So why can Twitter flag or even ban a politician’s comments?

What President Trump considers to be “censoring” others consider to be “editing” or “flagging.” This is one of the posts behind the accusations the president hurled at Twitter on Thursday:

(Screenshot, Twitter)

The note that Twitter added to the bottom of the president’s tweet sends readers to this:

(Screenshot, Twitter)

Twitter said it has a matrix that it considers when it sees questionable content:

(Graphic from Twitter)

Hours before President Trump spoke Thursday afternoon, Facebook’s Mark Zuckerberg jumped into the conversation and said, “Political speech is one of the most sensitive parts in a democracy, and people should be able to see what politicians say.”

Keep in mind, Twitter did not ban the president and it did not edit his post — it added an alert to the end of it. CNBC reported:

Although Facebook does use independent fact-checkers who review content on its social networks, the point of the fact-checkers is to “really catch the worst of the worst stuff,” Zuckerberg said.

“The point of that program isn’t to try to parse words on is something slightly true or false,” he said. “In terms of political speech, again, I think you want to give broad deference to the political process and political speech.”

Facebook announced in October that it would allow politicians to run ads on the social network, even if they include misinformation.

It is worth remembering that Facebook spends a lot of energy trying to stay in the good graces of government leaders and this week posted guidelines for how it hopes to reduce polarization.

Twitter CEO Jack Dorsey shot back:

(Screenshot, Twitter)

Federal courts have repeatedly ruled that social media sites can make their own rules about what to allow and what to block. A federal case, Knight First Amendment Institute vs. Trump, ruled that the president turned his private Twitter account into what amounts to a government-run Twitter account, and so the account must be open to everyone. President Trump wanted to have the power to decide who could follow him.

That ruling is just another in a series of rulings that said social media sites can make their own rules. The 2nd U.S. Circuit Court of Appeals was unanimous in its decision.

Those rulings are one reason why legal scholars think the president’s new call for oversight on social media won’t go anywhere. But the one sticking point could be in a passage in Section 230 that says:

The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

If a litigant could prove a website is not allowing a “forum for a true diversity of political discourse,” the site might be in some peril of losing some legal protection. And in 2018, Congress did write an exemption into Section 230 that allows authorities to go after websites that are used in the human sex trade. Without the exemption, websites could say they were not responsible for what users posted, even if the users were posting about human trafficking.

Now, let me take just a little jag here to say for decades, the government did require broadcast stations to follow the fairness doctrine, which required the holders of broadcast licenses to present controversial issues of public importance and to do so in a manner that was — in the FCC’s view — honest, equitable and balanced.

In 1987, the FCC repealed the doctrine, which gave rise to, among other things, conservative talk radio. The government had the authority to impose those content restrictions because the government regulates licensed airwaves in ways it cannot regulate the internet or printing presses. Those are not licensed.

Have Twitter and Facebook banned conservative voices?

The answer is, as parents say to their children, “complicated.”

In 2019, Facebook banned right-wing conspiracy theorist Alex Jones, far-right commentators Milo Yiannopoulos and Laura Loomer, Nation of Islam leader Louis Farrakhan and white supremacist Paul Nehlen. Facebook said it will not allow “dangerous individuals and organizations” to post on its site. Google banned Alex Jones’ app in March 2020. And there are some examples of right-wing posts being purged from YouTube.

Republicans recently complained that Twitter refused to mark two Democratic National Committee ads with “manipulated media” warnings after it slapped a “manipulated media” label on a pro-Trump ad. In that ad, the Democrats’ ad included the president saying, “The coronavirus, this is their new hoax,” but a number of media watchdog groups from Snopes to Poynter’s PolitiFact said the ad took the president’s statement out of context.

And still, the president has posted more than 1,600 tweets in 2020 — an average of 11 tweets per day — to his 80.4 million followers. Just on the issue of COVID-19, the White House is the ninth most prolific Twitter poster, and President Trump himself ranks 11th. Taken together, they would add up to the fourth biggest Twitter user when it comes to mentioning the coronavirus. Trump is also the most-retweeted Twitter user based on the number of retweets received on all tweets labeled #Covid19.

What’s bad about Section 230?

Let’s say I write something defamatory about you in a Twitter post. For example, let’s say that I suggest, wrongly, that you had something to do with a murder. You could sue me, but since I have no assets and live in my parent’s basement, you will get nothing from the outcome of the lawsuit.

So you might turn your attention to Twitter and sue the multibillion-dollar social media company for enabling the post. Section 230 protects Twitter. But wait, doesn’t Twitter profit from the user traffic that comes to the site to read such incendiary posts? Yes, and therein lies the friction.

Twitter profits from robust conversations, even when those conversations are filled with nonsense and vitriol.

What happens in countries without Section 230 protection?

In Thailand, if an internet site publishes a photo that insults the Thai royal family, both the blogger and the internet service provider can be held criminally liable.

In Turkey, it is a crime to criticize the founder of the Turkish Republic or the country as a whole online.

Kyrgyzstan is considering legislation that would have the government appoint an “authorized public body” with the power to decide which internet content is unreliable or untrue and should be blocked, then it would force the provider to block the content.

You can see a collection of other anti-misinformation laws around the world on Poynter’s website.

The president said he will extend National Guard service to preserve Guard benefits

I have covered this a couple of times, so I wanted to tie up this loose end. President Trump said he will extend the service of National Guard troops, which was to end this month after 89 days. That would have been one day short of the 90 days that guard members need in order to qualify for retirement and education credits.

(Screenshot, Twitter)

Pandemic pizza

We are eating a lot of pizza during this pandemic shutdown.

Papa John’s said same-store sales in the U.S. were up 33.5% in May and international sales were up more than 7%. Domino’s reported a similar trend.

Pizza sales are a sort of barometer of important consumer trends according to industry experts. The San Antonio Express-News reported:

Slowing sales would likely be an early signal that consumers are warming up to other dining options as states lift measures to contain the virus, said Bloomberg Intelligence restaurant analyst Michael Halen.

“Some of these gains in May should subside in June because dining rooms are reopening and people are starting to venture out a little more,” Halen said.

More-robust pizza sales may continue for a while, he added, depending on conditions of the pandemic. A second surge of the virus could extend pizza’s success, which is aided by the entrenched delivery model and the ease of contact-free transactions. At some point, however, they’ll inevitably decline from the quarantine numbers.

“We could see another outbreak in the fall and winter, and that would obviously be a boon for sales again,” Halen said.

Food Navigator USA, a publication that provides news and analysis on food and beverage development, said, along with pizza, ice cream and alcohol sales have done very well during the COVID-19 lockdown because people are more concerned about finding comfort than watching their weight.

One category that might interest you has dropped by a lot during the shutdown is bottled water. One week in April saw a 23% drop in bottled water consumption. One reason may be that consumers bought a lot of bottled water in the early days of the stay-at-home order and are just drinking what they stored up.

What is the delay in refunding those concert and event tickets?

Another week has produced another lawsuit over concert tickets. Two Floridians sued the Ultra Music Festival for not yet refunding thousands of dollars in tickets to the canceled festival.

Ticketmaster is only offering refunds on canceled events, not postponed events, so the company is sitting on millions of dollars of tickets until the promoters reschedule them. The mayors of New York and Los Angeles predicted there will be no large-scale concert events in those cities this year.

If concertgoers are frustrated, consider the sports fans who expected to attend games in March. The NHL, NBA and MLB won’t say their games were canceled. Their official status is still “postponed,” which delays refunds. USA Today said a billion dollars is tied up in tickets for delayed games.

Vox reported this week:

“If an event has been postponed, it means the event organizer is still working to determine whether the event will be rescheduled or canceled; in the meantime, your tickets are still valid,” goes Ticketmaster’s policy. Any possible refund is dependent on what the band, venue, or both ends up doing — whenever they make that decision — and if they simply reschedule, it is again up to them if those who can’t make the new dates will be offered any compensation.

LiveNation, another company that handles ticket sales, has an even more frustrating policy regarding postponed shows. “If 60 days has passed since a show was postponed and no rescheduled dates have been announced, the 30-day window for refunds will open at that time,” according to the company’s updated COVID-19 refund policy. “There will only be one refund window offered per show. If the refund window is activated after 60 days, there will not be another window once the new date is set.” (LiveNation did not return a request for comment on this story.)

Limiting refunds to a specific window puts the onus on buyers to decide whether or not they have faith in their show being rescheduled and if they’ll be able to attend it when it is.

The Hustle reported: “StubHub, for one, won’t be giving out cold hard cash. Mass refunds would make for a huge financial hit, so the company is offering a 120% credit instead.”

Journalists, I urge you to stay on this story even if you have touched on it before. It involves billions of dollars that your viewers, listeners and readers will be hungry to reclaim as unemployment benefits run out and rents and mortgages come due.

Why we are paying so much attention to birds during COVID-19

An Associated Press story explained what you may have noticed — that there seem to be a lot of birds flying around these days. The truth is it happens every spring, but this year, when we are not as on the run as usual, we may have stopped and noticed the critters. The AP said:

With coronavirus restrictions dragging on, interest in bird-watching has soared as bored Americans notice a fascinating world just outside their windows. Downloads of popular bird identification apps have spiked, and preliminary numbers show sales of bird feeders, nesting boxes and birdseed have jumped even as demand for other nonessential goods plummets.

The trend coincides with peak migration for hundreds of species and nesting season, giving newfound birders a front-row seat to some of nature’s biggest shows. Birds are their most active — and noisy — now.

May 15 is the annual “Global Big Day,” when bird watchers help count birds worldwide for the Cornell Lab of Ornithology. The Big Day attracted a record number of volunteers this year. At the same time, researchers worry that 2020 may produce big holes in bird population data because so many researchers had to stay home at the peak of their usual counting season.

Our new attention toward birds comes at a time when they badly need it. The Washington Post reported:

The irony is that scientists say bird populations have been declining over the past few decades. A study in September showed that nearly 3 billion birds have been lost in North America since 1970, a 29% drop in the United States and Canada.

The story added:

In some cases, the newfound freedom is to their detriment. On the Gulf Coast crescent that extends from Brownsville, Texas, to Naples, Florida, migrating shorebirds and seabirds have nested in areas that human beachgoers would occupy were it not for the pandemic. Now, people are returning, and those nests could be threatened.

“Generally, when the COVID shutdown began and all the beaches closed, that was right at the beginning of the breeding season of the shorebirds and seabirds we work with,” said Kacy Ray, the gulf program manager for the American Bird Conservancy. “They were just beginning to nest and pair.”

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Al Tompkins is senior faculty at Poynter. He can be reached at atompkins@poynter.org or on Twitter, @atompkins.