February 9, 2021

Something strange happened on Newsmax last week. It behaved like … a newspaper.

The conservative news channel — profferer of conspiracy theories and election denialism and the destination of choice for viewers for whom Fox News isn’t Fox enough — for a few minutes on Tuesday upheld journalism’s traditional values. You know: balance, fairness, verifiable facts. That sort of thing. Just like the old-fashioned newspaper your granddad read.

It didn’t last, but it was nice while it did. It was also instructive: As a television station, Newsmax was forced to stop an irresponsible and potentially slanderous rant. Social media sites, by contrast, have no such restrictions. Not surprisingly, they’re a cesspool.

It’s time we change that. It’s time to repeal the 1996 law that gives websites immunity for anything their users post. TV stations, newspapers, radio and other traditional media enjoy no such amnesty. They never have.

For sure, Newsmax is no model of sound journalistic practice. It recklessly broadcasts conspiracies even after they’re disproven. It’s ripe with accusations that have no merit.

So why did anchor Bob Sellers cut off a rant by the unabashed conspiracy theorist Mike Lindell, also known as the MyPillow Guy? Because Newsmax, as a television station, could have been sued for slander by the target of Lindell’s ire.

That target is Dominion Voting Systems, an election technology company accused in conspiracy theories about the 2020 presidential election. Dominion has threatened defamation lawsuits against Fox News, Newsmax and other media outlets, and has already sued Trump campaign personnel. A Dominion competitor last week sued Fox News and some of its anchors over similar comments.

Unfortunately, a fear of litigation, rather than conventional journalism practices, may have prompted Newsmax to do the right thing. But at least the incident shows that news organizations will use standards when held to account. Not so with social media. Fully protected by law, they can let Lindell and others rant at will. Truth does not matter there.

Social media are no longer carriers

Social media’s freedom from responsibility derives from Section 230 of the Communications Decency Act of 1996. That law defines websites not as publishers of users’ content, but as mere carriers of it. As such, the owners of the sites are free from civil recourse if the content is defamatory, obscene or otherwise unlawful.

Protecting carriers makes sense. Let’s say you mail a libelous letter. You can be sued, but the postal workers who delivered it can’t be. They’re only carriers. That’s simple enough.

But traditional news media — TV, newspapers, radio — are not carriers, even if the content originates from outside their newsrooms. If a newspaper publishes a letter to the editor that defames, the newspaper can be sued even though the letter was written and submitted by an outsider. Likewise, had the MyPillow Guy slandered, NewsMax would have been on the hook.

So, the issue is whether websites are mere carriers. It certainly doesn’t seem that way. Some 55% of Americans get their news from social media either often or sometimes, according to a 2019 study. Among millennials, not surprisingly, social media is the main source, according to a 2020 report.

Studies aside, don’t Facebook and the rest seem like publishers these days? We refer to them as though they are. Aren’t we more likely to say, “Look what I saw on Facebook,” rather than, “Look at what Johnny says.”

The reason Congress created Section 230 in the first place — it wanted the nascent internet to thrive without being bogged down — has long passed. Does anyone think Facebook and YouTube still need government protection to thrive?

Sure, monitoring and editing all of that content would be a huge chore for social media sites. But if social media companies don’t want the financial burden of having to monitor their content — an obligation that traditional news sites have always borne — there’s a simple response. It is this: Too bad. It’s the cost of doing business.

Imagine a factory that could succeed only if allowed to forgo expensive safety requirements. Imagine a restaurant that could thrive only without the burden of those pesky health department rules that prevent it from selling month-old meat.

Better yet: Imagine a small, struggling newspaper that can’t afford editors anymore. Shall it publish things indifferently? Verifying facts is too expensive, you know.

It’s just a matter of scale. The burden on Facebook, Twitter and the like would be massive. But so are their budgets. Small newspapers and TV stations have less content to edit and fewer resources with which to do it. That’s business. Besides, if Facebook and its ilk decided they wanted to replace traditional media as the recipient of all those advertising dollars, maybe they should have considered the burden that goes with it.

Human or algorithmic intervention might slow the Twitterverse a little. Does that matter? Are you really worse off if your crazy uncle’s diatribe shows up a few minutes late?

Repealing Section 230 will affect traditional news organizations, too, because their comment boards enjoy the same absolution from what users post. And with limited resources to monitor that content, newspapers, TV stations and news websites might have to disable reader comments altogether if Section 230 goes away. But what would they really lose if that happens? Comment sections have not become the forum for smart civic engagement they were once thought to be. Comments can build pageviews — but not revenue, because advertisers don’t want to be anywhere near them. Reader and viewer comments can connect journalists with audiences, which is good, but they just as often repel such connections.

Indeed, just one day before the MyPillow Guy was thwarted from a full-throated tirade, The Philadelphia Inquirer, citing “a small group of trolls who traffic in racism, misogyny, and homophobia” and noting that its readers deserve better, shut down commenting on most of its stories. It’s hard to argue that comments are valuable if a news company, fully protected by Section 230, doesn’t even want them.

Where political viewpoints miss the mark

Conservatives and liberals alike seem unhappy with Section 230 these days, although for different reasons.

Many Republican lawmakers complain that Section 230 allows technology platforms to silence conservative voices, notably Twitter suspending former President Donald Trump and many of his allies, including Lindell. (Pillows are not the problem. Interfering with civic integrity is, according to Twitter’s new policy.)

Some Democrats want a more surgical approach to change the law, seeking ways to make social media sites address things like misinformation, hate speech, election interference and content that leads to violence. But that’s not the same as repealing Section 230 altogether.

The Republicans’ position doesn’t seem logical (removing the Section 230 shield would discourage publication, not the other way around). It doesn’t seem constitutional (surely the right to publish includes the right to curate). For that matter, it doesn’t even seem Republican (it would force policy on private businesses).

The Democrats’ goal seems like social engineering. It would thwart content that doesn’t align with a particular agenda, but let other content slide. And who would police all this? There’s election interference and then there’s election interference.

It’s not a free speech issue. Making social media sites responsible for the content posted on them will curb speech, but speech has never been unfettered. You can say what you want; no one is obligated to broadcast it.

A simpler idea: Just get rid of Section 230. Social media sites are publishers, and publishers either behave responsibly or suffer the consequences if they don’t. It works. It did, anyway, before 1996.

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Howard Saltz is on the journalism faculty at Florida International University in Miami. A Pulitzer Prize-winning editor, he is the former publisher and editor-in-chief of…
Howard Saltz

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