USA Today Publishes Yet Another Bogus OpEd Against 230, Completely Misrepresents The Law

Legal Issues

from the aren't-you-tired-of-this? dept

Another day, another op-ed that totally misrepresents Section 230. This one comes from USA Today, and is written by faux-conservative Rachel Bovard, who is doing this on purpose. Sometimes we see op-eds where it’s clear the author is unfamiliar with how Section 230 works. Other times they are deliberately misrepresenting it. Bovard is in the latter category. She works for an organization, with dark money funding, that pretends to be for “transparency” about the tech industry — which is hilarious since that organization’s own funding is kept secret. The only known funding for that organization comes from Oracle, a company that has made it clear it wants to do away with Section 230 (despite the fact that it wants people to use its cloud services). Bovard has had many, many experts in Section 230 explain to her why she’s misrepresenting the law. And she has never once changed her arguments, nor admitted to being wrong. She just keeps repeating the bullshit.

I get it. That’s her job. Everybody’s gotta make a buck, and apparently this is the best she can do. However, why is USA Today sullying its own reputation by allowing her to misrepresent the law on its pages? Let’s go through some of the misrepresentations.

Though Section 230 protects more than just Google, Facebook, and Twitter, the giant tech platforms have benefited substantially from the privilege ? so much that Section 230 can be characterized as a giant government subsidy to the world?s biggest companies.

At least she admits that it protects more than just “big tech” (in the past she has pretended otherwise), but it’s still wrong to say that only those companies have benefited, or that it “can be characterized as a giant government subsidy to the world?s biggest companies.” Nothing could be further from the truth, on multiple levels. The big companies could deal with the legal liability of not having 230. This is why Facebook has been fine with undermining it over the past few years. The senior management team there long ago made the calculation that they’d come out of it fine. Their competitors would be harmed.

It’s everyone else — including you and me — who cannot handle a world without 230. Indeed, empirical research has shown that 230 increases competition in internet companies by encouraging investment to go up against the internet giants.

But, more importantly, Section 230 has never been about “protecting” the big companies — it has always been about enabling you and me to speak. Without Section 230 few websites would willingly host just anyone’s speech. Section 230 opened up the possibility for more people to be able to communicate and speak online. And it protects all of us as well. People like Rachel like to forget that the key part of 230 says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker…

That’s what protects you and me when we retweet someone. Or when we forward an email. To say that it disproportionately benefits large companies is simply wrong.

But it’s even worse to say that it’s a “subsidy.” How is it possibly a subsidy, other than if you declare it a subsidy not to have to waste time fighting off mistargeted, vexatious lawsuits? You know, the kind of vexatious lawsuits that “conservatives” like Rachel Bovard used to pretend they were against, but are now for when they’re against companies she dislikes. The entire setup of Section 230 is simple: lawsuits should be targeted at those who actually violate the law. It’s a tool for avoiding frivolous lawsuits. That’s not a “subsidy.”

But the article gets worse:

It wasn?t always viewed this way. The law was enacted nearly 25 years ago as something akin to an exchange: Internet platforms would receive a liability shield so they could voluntarily screen out harmful content accessible to children, and in return they would provide a forum for ?true diversity of political discourse? and ?myriad avenues for intellectual activity.?

This is also a misrepresentation. A big one too. This is one that a lot of people focus in on, and if you’re unaware of the history here, I can see how you might get this wrong. Rachel knows the history, so she’s using this line to blatantly misrepresent reality. There was no exchange. It wasn’t “you get this protection if you create a true diversity of political discourse.” Indeed, the authors of the law have directly debunked this point. So I’m not sure why Bovard would repeat it other than that she assumes the readers of her op-ed can be easily misled.

As the authors of 230, Ron Wyden and Chris Cox, have explained, the purpose of properly applying liability to those doing the law violating was not to create platforms that themselves enabled a wide diversity of voices, but to enable every platform to moderate as they see fit so that each platform could use their own favored approach. The “diversity” would be in the different kinds of platforms that were enabled by it. Here’s what Cox & Wyden said just recently in their FCC filing:

In our view as the law?s authors, this requires that government allow a thousand flowers to bloom?not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same ?neutral? point of view. This is the opposite of true diversity.

For example, 230 has enabled things like Parler to take a different approach to content moderation than Twitter. That’s the diversity they were looking for — not that Twitter (or Parler) have to host all voices. You’d think that Rachel would know this, seeing as she herself is active on Parler. Parler, for what it’s worth, supports Section 230, knowing that it couldn’t exist without it.

But, having established the false premise that 230 was a trade-off for “diverse” platforms, Bovard then argues that the big websites engage in discrimination (which they do not):

Critically, in protecting these companies from costly damages in lawsuits, Section 230 has also fueled the growth of the Big Tech platforms which now engage in viewpoint discrimination at an unprecedented scale and scope; international mega-corporations determining what news, information and perspectives Americans are allowed to read, hear and access.

Again, there remains no evidence to support this contention, but even if it was true, so what? Parler’s own CEO gleefully shared with a reporter how he was sitting around banning “leftist” trolls who showed up on Parler. This is what Section 230 allows. It allows a website to moderate how they see fit, so that it can ban trolls of any political persuasion. Sites like that need to ban trolls because otherwise the experience sucks. But under Rachel’s own (false) argument for how 230 is supposed to work, Parler wouldn’t be allowed to ban leftist trolls either.

And, similarly, Facebook would no longer be able to give Trump fans more leeway to post disinformation. Or is that not the “viewpoint discrimination” Bovard is actually concerned about?

A handful of Big Tech companies are now controlling the flow of most information in a free society, and they are doing so aided and abetted by government policy. That these are merely private companies exercising their First Amendment rights is a reductive framing which ignores that they do so in a manner that is privileged ? they are immune to liabilities to which other First Amendment actors like newspapers are subject ? and also that these content moderation decisions occur at an extraordinary and unparalleled scale.

Nearly everything here is wrong as well. They are not “controlling the flow of information” any more than Fox News or OANN is. Is Rachel saying that Fox News and OANN are “controlling the flow of information”? People go to them for information. And people have lots of choices for where they get their information. None of that has anything to do with Section 230.

More importantly, they are not immune to liabilities that others like newspapers are subject to. First off, most newspaper content is consumed online these days, meaning that they have the exact same liability protections under 230 as any other website does. Second, Google, Twitter, and Facebook (just like newspapers) still retain liability for content they themselves create. Again, this is the same across the board. It’s misleading to pretend that there’s a real difference.

When Google decides to suppress or amplify content, it does so for 90% of the global marketplace. Twitter?s choices to cut off circulation of certain content ? as they did when they banned circulation of a story critical of the Biden family, a month before the November election ? very much shapes the national news narrative. Facebook, by its own admission, has the power to swing elections ? which is troubling, as some of the platform?s ?fact checkers? are partially bankrolled by a Chinese company.

Almost all of this is presented misleadingly. Google search may have 90% market share, but what news does she think it’s “suppressing”? And is general search a proxy for news? No, it’s not. The Facebook claim about “the power to swing elections” is taking some marketing puffery by their ad sales team out of context, as is the scare quote claim about fact checkers (Facebook partners with a whole bunch of different fact checking organizations, including one with whom Rachel Bovard is a frequent author.

So it would be just as honest to say that Facebook’s ability to fact check news is “troubling, as some of the platform’s fact checkers are partially run by an organization willing to post blatant misinformation from serial fabulist Rachel Bovard.” Can’t have one without the other.

And, finally, let’s get to the Twitter/Hunter Biden/NY Post story. We’ve discussed that here in the past, mainly to note that it seemed like a dumb decision, though there were existing policy reasons why it happened. But the most important thing is that it did not “suppress” that story. It did the opposite. The article got way more attention because of the hamfisted moderation issues.

Bovard is selling USA Today readers a load of misinformation. And she knows it.

That policy makers have a role here is obvious. While private companies have the right to set the rules for their own platforms and online communities, they do not have a right to do it with the privilege of Section 230 protections. And the more these companies engage in behavior that ranges away from the original goal of ensuring a ?true diversity of political discourse? and toward gatekeeping independent thought in America, the more they prove themselves undeserving of special government treatment.

Again, this completely gets the point of 230 backwards. It was designed to allow platforms to discriminate as they see fit in order to create very differentiated communities.

The question at hand distills to this: Are we to allow the lords of Silicon Valley to determine the terms of free speech, free thought, and free behavior in America? Or will we, a fiercely independent people, speak through our representative self-government to strip them of a congressional privilege they no longer deserve? Trump has opened the door. It is up to Congress to walk through it.

This is just completely misleading. Right before this, she supports Donald Trump’s and various Republican elected officials’ proposals for gutting Section 230, which would set up the government as internet speech police, determining how social media websites can and cannot moderate their content. That’s a true threat to free speech online. Letting private companies moderate as they see fit is not a threat to free speech. At all.

Stripping websites of Section 230 will not give Rachel the world she seeks. It will lock in those large companies, who will retain their 1st Amendment right to not associate with any speech they don’t want to associate with. What it will do is shut down many other spaces online — spaces like Parler, where Bovard and friends like to gather to lie to each other. Removing Section 230 is what would actually do significant harm to the diversity of speech online, by forcing it only onto platforms that can handle the liability.

Rachel Bovard has a job to do: blatantly misrepresent Section 230 to attack Google. I get it. USA Today doesn’t need to help.

Filed Under: intermediary liability, misleading oped, rachel bovard, section 230
Companies: usa today