FCC Set To Review Communications Decency Act Amid Censorship Outcry

OPINION | This article contains political commentary which reflects the author's opinion.

Y’all ever been shushed by someone? Like when you’re in public and you’re talking about something and someone shushes you like you’re a child and you don’t know how to think or speak for yourself? It’s rude and annoying.

Have you ever been shushed online? Ever had a post or comment blocked, removed, or changed to include some kind of warning? Like someone didn’t like what you had to say and decided it shouldn’t be said? I remember the first time I was censored on Facebook.

It was equal parts infuriating and exhilarating to realize that I was finally writing things important enough that someone wanted to keep others from seeing it. So, my obvious reaction was to double down and increase the number of important posts. I’m not about to let myself fade quietly into censorship.

Well, censorship is a hot topic right now. Recently, Twitter refused to unlock the official New York Post account unless the Hunter Biden posts were deleted, and Facebook continues to block links and content related to the Hunter Biden posts. Here are the problems with that, though:

• The New York Post is not a fringe publication. Founded by Alexander Hamilton, it is the longest running and one of the largest news publications in the country and has a positive reputation.
The material in the articles was not hacked or illegally obtained. It was from a hard drive on a laptop belonging to Hunter Biden that was abandoned by him at a computer repair shop. The repair shop was granted access to the computer, then the laptop was abandoned without compensation for services, giving the repair shop constructive ownership of the laptop and the hard drive.
• The ownership of the hard drive has been verified by Hunter Biden’s own lawyer who emailed to request the return of his client’s (Hunter Biden’s) hard drive after the New York Post story broke. That email has now been made public and has been verified.
• Multiple reputable journalists and news organizations have verified the information on the hard drive by corroborating the information through individuals directly involved in the email chains contained on the hard drive and used in the articles.
• The information contained in the articles is no more private and personal than the illegally obtained information contained in the Trump tax return story that was widely spread on both Facebook and Twitter.

Because the articles and posts don’t violate the terms of service, there isn’t a reason for Facebook and Twitter to ban the content and lock the accounts–except for the fact that they have used their companies’ judgments to decide to remove it or restrict access to it.

This is where people say, “Well, they are private companies, so they have the power to do that if they want to.”

Well, it isn’t quite that simple. The question here is whether Facebook and Twitter are platforms or publishers.

Platform: the company is protected from liability regarding content that users post on their sites. (For example, review sites like Yelp are platforms and are not liable for the content of the reviews posted by users of the platform.) Section 230 of the Communications Decency Act gives very limited ability for the company to moderate content such as to remove “offensive” content “in good faith,” but platforms are not permitted to editorialize (restrict, edit, or remove) the content on their platform.

Publisher: the company is free to editorialize content by restricting, editing, or removing content as the company sees fit. The editorial decisions of the company are protected by the First Amendment; however, because it is the company that holds the editorial decision-making power, the publisher is not protected from lawsuits regarding the published content and is responsible for all published content.

Here’s where things get tricky. Both Twitter and Facebook routinely claim the advantages of being both a publisher and a platform. They regularly editorialize by restricting, editing, or removing content that they (the company) deem to be misinforming or unverified. Such content does not constitute “offensive” by the “good faith” allowance of Section 230. These actions would make them publishers. But the companies also claim to be platforms for public discourse and have fought lawsuits by asserting that they are not liable for the content users post on their platforms.

Well, they can’t have it both ways.

  • If the companies are platforms, then users are solely responsible for their own content, releasing the companies from liability but removing editorializing power.
  • If the companies edit, approve, remove, or change content based on what the judgement of the company, then they become publishers and are therefore responsible for all of the content and can be subject to lawsuits.

The issue extends beyond Facebook and Twitter to other major tech companies such as Google, YouTube (owned by Google), and Instagram. These companies have essentially become monopolies in their niche and users have been left with few viable or popular alternatives for information sharing and free expression. These monopolies have engaged in editorializing by unilaterally deciding what can and cannot be shared by users based on arbitrary and ever-changing company judgments. Accounts are removed, posts are blocked, search results are buried, subjects are banned, and the people have no recourse because the tech companies are all-powerful, claiming the best advantages of both platforms and publishers.

But things will hopefully be changing. Senator Josh Hawley is leading the charge to bring accountability to big tech companies. The Federal Communications Commission (FCC) chairman Ajit Pai announced on October 15th that the FCC intends to examine Section 230 to “clarify the meaning” of the law that has been affording platform protections to companies acting as publishers. In a statement Pai said:

“Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act. There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’ And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision… Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230.”

While some now accuse the FCC of participating in partisan politics, a review of Section 230 is in the best interest of our free speech rights and is a protection for all Americans who enjoy and utilize the First Amendment.

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