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Section 230, Parler, and the Illusion of free speech on the Internet.pdf (95.45 kB)

Section 230, Parler, and the Illusion of free speech on the Internet

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posted on 2023-07-28, 18:39 authored by Isabel Wolff

Free speech on the internet is a mirage, both socially and legally. As we spend an increasing amount of time online, dedicated to our now-pandemic approved public forums, social media is, in theory, the perfect place for us to hold online discussions, however, in practice, the opposite is true [1]. Social media channels might not be the best way to actually communicate, but it is important to understand why the Internet is in part, the way it is, before examining why and how social media became how defunct it is now.

The legal basis for the Internet is Section 230 of the Communications Decency Act of 1996 [2]. Section 230 was created to encourage the development of the Internet in both public and private spheres, as the internet was not a vital tether to life as it is now.

To bolster the use of the Internet, Senator Ron Wyden (D-OR) and Representative Christopher Cox (R-CA) wrote Section 230 [3]. The two felt inclined to write the piece of legislation after the case Stratton Oakmont v. Prodigy Services Co [4]. In the 1995 case which predates Section 230, Stratton Oakmont sued Prodigy, an early web service, after an anonymous user posted defamatory comments on Prodigy’s Money Talk bulletin board. Prodigy was found liable for the anonymous user’s actions, even though the company was not responsible for what the user said. Without a tenet like Section 230 in place, the growth of the Internet would have been seriously hindered, as many companies would still be responsible for defamatory speech, and would still make it an uncertain risk to communicate on.

With this case in mind, Section 230 of the Communications Decency Act was born. The law itself is fairly curt and straightforward because presently, only section (c) stands [5]: “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 [6].” For further clarification, this means that websites and other internet-based services are not held responsible for what users themselves post or the platforms, the users themselves are responsible for their own actions. In practice, this is why online services where reviews or comments are commonplace, and why they are even allowed to exist in the first place.

The next clause is where our troubles begin, for the second clause of the “good faith” provision really sets the stage for the due criticism that invalidates Section 230’s validity in the current Internet age. This describes the civil liability of the law by stating that no website should be held accountable in good faith [7], “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 [8].” Websites have — unless something is legally impermissible– no legal obligation to remove harmful content. Additionally, this means that websites and social media platforms can create their own rules in regards to content moderation and do whatever they want in that regard. In the twenty years that the law has been in place, there have not been any legal challenges that invalidate or change this legal doctrine except the FOSTA-SESTRA Act, which is tailored against the solicitation of sex work and sex workers [9]. Granted, websites and social media platforms have filled in the gaps to remove content through their own community guidelines, making it safer for users through their own content moderation efforts.

Regardless, Section 230 is only the legal bounds for content moderation, allowing websites and the people behind them to deem what is acceptable for their particular online presence. Section 230 is really only a liability law, and when passed, did not consider how the Internet would eventually turn into the social tool it is now. Since it does not consider the current state of cyberspace, there is due criticism from both sides of the aisle about Section 230. Republicans broadly criticize Section 230 because they believe that it is responsible for anti-conservative censorship on social media platforms. This is broadly an unfounded claim [10] and is really dependent on the fact that those that share a conservative ideology are in actuality breaking websites and social media platform’s own community guidelines [11], as Section 230 is not the true reasoning behind this reaction (even if it is the true rationale behind a decision to take something down). On the flip side, Democrats are concerned that Section 230 is not doing enough to combat malicious content on the Internet, and that it does not invalidate a lot of the issues that make the Internet hard to grapple with, which include graphic content, misinformation, falsehoods, harassment etc. Despite the fact that there is a general consensus that Section 230 [12] is overall bad and needs revision, there is disagreement on what should be done about it, and how it should be changed.

The conservative criticism regarding Section 230 is rather intriguing to examine since the criticism is misguided itself. President Trump is the most prominent conservative to spark discussion about Section 230. In late May, President Trump tweeted about mail-in ballots in the upcoming election that was blatant misinformation. In response, Twitter flagged his post and labelled it as not being credible information, which is something a website can, and is allowed to do. However, taking it as a personal attack against himself, President Trump tweeted against the flagging of his tweet and within 48 hours has signed an Executive Order on Section 230 to specifically punish the platform for their actions and the legal right that allows them to make decisions like that.

The day before this part of the controversy happened, President Trump tweeted “Twitter has shown that everything we have been saying about them (and their compatriots) is correct. Big action to follow [13]!” Of value is the fact that he wrote “we” in the tweet, in reference to other conservatives like himself that log onto Twitter every day. Despite the fact that President Trump has publicly denounced and legally-threatened the platform, he has continued to tweet every day. Unlike other conservatives, many have flocked to other social media channels in the past and will continue to flock to other platforms (i.e. 4Chan, 8Chan and even Facebook etc. [14] ) to express their views. One of many alternative social platforms is Parler, a relatively-new social media channel that many conservatives have begun to use in the mainstream.

Parler prides itself, and sells itself, on the First Amendment, despite the fact that it does not run or have the full protection that it provides. From the website, it states that: “Parler is an unbiased social platform focused on open dialogue and user engagement. We allow free speech and do not censor ideas, political parties or ideologies [15].” However, in recent days, the social media platform has realized that that is nearly impossible to control, due to users testing the limits of online expression by posting pornographic images and obscenities on the platform [16]. Despite its claim that it is a space for “free expression” on the Internet, Section 230 does not make it a space completely free with unfettered free expression. In spite of this, Parler’s Community Guidelines states: “Our goal is to provide all users with a welcoming, nonpartisan Public Square. While the First Amendment does not apply to private companies such as Parler, our mission is to create a social platform in the spirit of the First Amendment to the United States Constitution [17].” From a marketing perspective, further emphasis is needed than just in the Community Guidelines of on “in the spirit of the First Amendment” to a wider audience because that is rather deceptive. Besides this, Parler claims to be an online public square, although that is not possible because there are still restrictions on what could be said and posted on the platform. The platform also claims to be “neutral” which is also not possible if you have to legally remove content that doesn’t comply with federal law, as true neutrality requires a complete disregard for what is being said and done by others. Section 230 sidesteps the First Amendment online since Parler claims to be a platform that is only “in the spirit” of the First Amendment.

Another reason why Parler is very interesting to discuss in reference to free speech is that the User Agreement is much stricter than other social media platforms. In the User Agreement, Parler also states that it can remove any content and terminate your account for any reason [18], which is much harsher compared to other social platforms, because they often pull a multiple strike type system, or other steps before removing your account before banning a user. This further shows how free speech on the Internet is a ruse, particularly from a company that claims to be anti-content moderation and is pro-free speech.

[Read the rest of this article in the attached document]



American University (Washington, D.C.); Juris Mentem Law Review


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