Following Capitol Insurrection, Debate Looms Over Section 230
On January 8, Twitter suspended Donald Trump’s personal Twitter account, @realDonaldTrump, “due to the risk of further incitement of violence” following the attack on the U.S. Capitol. Twitter’s decision, along with a crackdown on other accounts promoting violence and conspiracy theories, sparked fury among the president’s allies who claimed “big tech” was censoring their free speech rights. In response, many Republicans intensified their calls to reform the oversight practices of large technology companies like Twitter and Facebook, including a growing demand to repeal Section 230 of the Communications Decency Act of 1996.
News and debate surrounding “Section 230,” the shorthand often used among those who call for its repeal, have picked up in recent months. In December, the president vetoed an annual defense policy bill, citing the absence of a Section 230 repeal as one of his primary objections. But for the first time in Trump’s presidency, Congress overrode his veto, ignoring the president’s concerns even as he and some top Republicans clamored on Twitter about Section 230.
Twitter’s suspension of Trump, first for 12 hours on the day of the riot and then permanently two days later, brought Section 230 back into public debate. Called “The Twenty-Six Words that Created the Internet” by cybersecurity law expert Jeff Kosseff, the first part of the provision—Section 230(c)(1)—reads, “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.” Since internet companies are considered distributors (and not publishers) of content produced by others, they cannot—in most cases—be held responsible for such content.
Supporters of the section’s existence say that without the protections it affords, innumerable lawsuits would debilitate the growth and effect of the internet. They fear a repeal would open the door to unpredictable consequences, including defamation lawsuits against internet sites for user-generated content like reviews. Some experts say internet sites would then overcompensate in their moderation practices, hindering the very user interaction that has allowed the internet to thrive for decades under Section 230.
But those same protections have infuriated the president. Under another part of Section 230, internet sites are allowed to moderate content they deem obscene or objectionable, as long as they do so “in good faith.” The general public witnessed clear examples of this following the U.S. presidential election as Twitter flagged President Trump’s own false or misleading tweets about the election’s outcome—before the ultimate decision to suspend his account altogether.
Twitter first tagged Trump’s tweets with a “potentially misleading” label in May after the president falsely asserted that voting by mail would result in widespread voter fraud, a claim further disproven by the success of vote-by-mail efforts this year. In response to Twitter’s actions, and the gradually increasing efforts of other sites like Facebook to combat misinformation over the past several years, Trump signed an executive order on May 28 “on preventing online censorship.”
The executive order argues that for freedom of expression to survive, a small number of technology companies cannot be allowed to govern speech on the internet. To remedy this, the executive order lays out several new rules and stipulations, some of which are of uncertain legality, including authorizing the Federal Communications Commission to “clarify” certain parts of Section 230.
But President Trump now hopes to go beyond just clarification, and he is not the only political leader pursuing such ends. Senator Josh Hawley (R-MO) LAW ‘06, now famous for objecting to the electoral vote count, is an adamant supporter of the section’s repeal and opponent of large, and monopolistic in his view, internet companies. His new book, without a publisher following the insurrection on Capitol Hill, is titled The Tyranny of Big Tech.
Hawley did not support Congress’ override of the annual defense policy bill, in part because it did not include a repeal of Section 230. As he prepares for a possible 2024 presidential campaign, opposition to “big tech” has become one of Hawley’s signature issues. Reflecting Trump’s May executive order that said, “When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power,” Hawley claims that “big tech” companies censor contrarian voices and collect dangerous amounts of data.
Some Democrats agree with the stand against “big tech,” and even against Section 230. Senator Elizabeth Warren (D-MA), Hawley’s colleague and frequent political adversary, supports efforts to break up “big tech” companies and appears to at least want to reform Section 230. Some of her motivations, however, differ from Hawley’s: The desire to stop online disinformation, like the Russian-created fake news that helped Donald Trump win in 2016, largely drives Warren and other Democrats who agree with her.
Going forward, the internet will continue to play an enormous role in information sharing, political campaigning, and life beyond the news. Politicians in both parties appear ready to address the monopolistic tendencies emerging among some internet companies, including Google, Facebook, and Amazon. The question that remains is their motivations: Do they hope to promote competitive markets? To stop political censorship? To force greater regulation of online falsehoods?
Whatever the answer, the dispute over Section 230, and the broader debate over “big tech,” will survive past President Trump’s political career. Senators like Hawley and Warren may seek common ground to repeal or reform Section 230 and other protections for technology companies, or they may find that their motivations create a rift too wide to allow for joint action on a pressing issue.