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Section 230: Not State Intervention, Just Less Interference

The state is not being asked to intervene to punish social media but to stop intervening to protect it.

[Leer en español]

If 2020 was a memorable year 2021 is proving to be not far behind. The rally organized by the Trump campaign, as everyone knows, ended with an almost unprecedented assault on the Capitol. This event that brought and will bring about unmistakable consequences has put at risk, as Tucker Carlson said, the basic rights of Americans. And now -after the definite suspension by Twitter of the personal account of the President of the United States- it brings back to the eye of the storm section 230 and the power that Big Tech has to influence the political debate.

The context of the debate and the repeal of section 230

This debate is not new. It was discussed in 2020 due to Big Tech’s censorship of President Donald Trump during the election campaign, which later intensified with the direct censorship of platforms such as Twitter and Facebook of conservative newspaper New York Post.

Twitter’s explanation for the censorship of the newspaper after they revealed an exclusive story about Hunter Biden‘s businesses abroad, left more doubt than certainty. The company argued that the article violated its anti-hacking rules and that it could not corroborate the source of the Post’s information. On the other hand, Facebook didn’t remove the article completely as Twitter did, but decided to prevent its circulation until its fact checkers had verified that the information was reliable.

But the controversy no longer revolves around the New York Post‘s censorship, but around the definitive suspension of Trump’s personal account, according to the social network, “to prevent hate speech.” After Twitter, other platforms joined in the decision and suspended the American president.

Both cases are tied together and not mutually exclusive, because the doubts are the same: To what extent can Big Tech regulate content or not at all? To what extent does it have the authority to decide what is hate or who incites it? Can content moderators determine what is fake news and what is not? Can the government get its hands on Big Tech to regulate it, or is it better that they regulate themselves? It is most important to get an answer to these questions and, above all, to show why the repeal of Section 230, part of the Communications Decency Act of 1996 is not a call for greater state intervention, but rather to limit the state’s role in censoring Big Tech.

To this end, it is necessary to analyze the profound debate that is taking place.

Can private companies keep censoring?

Some have proposed that Twitter can censor the president or the New York Post because it is a private company which has the right to enforce its rules. They argue that, in any case, the right thing to do would be to get out of Twitter, criticize it and look for alternatives that the market is providing.

But this highly dogmatic stance is grossly unfair in practice. Why should the New York Post leave Twitter after years of cultivating an audience just because the network has ceased to be a trench for full freedom and has become a platform that regulates content according to a subjective ideological perception?

If Twitter, Facebook and the main tech platforms that make up Big Tech are now protected by section 230, it is largely because they are public forums where citizens, the media, politicians and movements have the right to publish and disseminate their ideas.

Section 230
Twitter is one of the platforms that would be strongly affected by the repeal of section 230. (AFP)

If these platforms enjoy the benefit that users cannot sue them, it is precisely because they had not tried to silence voices. It is practically an agreement between two parties: if you are a public forum where everyone has the right to express themselves, then it is not fair for you to be sued for it. This had been respected until the some users themselves asked the platforms for more control over comments, which gradually grew until the permanent suspension of the President of the United States.

Content regulation by a private company and the role of the state

Since Twitter has permanently suspended the President’s account or, as it did before, prohibited the circulation of a very important New York Post story, regulation of content has become mighty powerful. You can’t do anything about it because decisions rest with the social media company. If the Post tries to act legally against Twitter, the Law (Section 230) -the state- will protect the company.

When one asks for the repeal of the law, one is literally not asking for more state intervention but quite the opposite, for the Law to stop protecting Twitter. One would be asking that the Law not interfere allowing justice to determine whether what they are doing is right or wrong.

There is an argument that is misplaced when criticizing the government’s repeal of Section 230, since it is not asking the state to act on a private individual, but rather precisely to stop it from doing so.

Did Big Tech censor Trump?

There are many people who claim that Big Tech didn’t censor Trump, but rather punished him for breaking their rules. This discussion would have been possible, for example, if Twitter and Facebook had not censored the Post for several weeks. Remember that The New York Times, days before the story, had run one on Trump’s taxes without any clear source suggesting signs of at least unethical procurement. That article was not censored.

At the same time, other debates arise: Is it right to punish Trump permanently to “prevent hate speech” but not to do so with other leaders who have exceeded themselves even more?

Recently, the Chinese Embassy in DC published a study of dubious origin tha effectively justified the genocide and persecution of the Uyghurs. The tweet remained for several days, and only today, after all the pressure pointing out the inconsistency of the policies, has the content been removed. Too late, this also points out the fracture lines.

Meanwhile, the Ayatollah’s spokesman described Israel on Twitter as a “cancer” saying it must be destroyed. And there is the man, his account remains intact. On Twitter he tweets about Trump’s head being decapitated; he doesn’t censor himself either.

There is a clear double standard, hate speech ends up being a merely subjective perception by the company and ends up being ideologically biased content moderation. Being Twitter, for example, a public forum of great importance in the political debate, for the content of Conservative voices to be editorialized is a direct attack on freedom of expression.

Is censorship or regulation of Big Tech content an attack on the First Amendment?

This is probably the most difficult discussion of all in view of the fact that the regulator is in this case a private person, and not the government which at the same time, plays a decisive role regarding censorship by treating Big Tech in a special way.

It would be fatal arrogance on our part to determine whether Twitter, or any component of Big Tech, is attempting to undermine the First Amendment, but if the state has a role in censorship, even if it is not the official perpetrator -at most a passive accomplice- debate must take place as a matter of urgency.

It is a complex issue, the power of Big Tech reached the point of censoring a historical American newspaper, attacking the freedom of the press. But, most dramatically, they have proven strong enough to silence the President of the United States. What can be expected for American citizens?

And the most troubling fact is that major Democratic voices, Hollywood actors and 50% of the country are in favor of the permanent suspension of the account of Donald Trump and the more than 80 million people who followed him.

Michelle Obama called for permanent suspension of Trump’s account and 24 hours later the final decision was made, even after he condemned those who took over the Capitol. Then, after this suspension, Hillary Clinton displays the decision as a trophy.

Ideological factor on the right

So-called progressives are clearly in favor of Twitter’s decision. But on the right, there are conflicting thoughts, especially among those less and more conservative.

The problem with ideological dogmatism is that sometimes it falls into slow solutions for situations that need to be addressed immediately.

Can the free market break the monopoly of Big Tech? Perhaps in the long term yes, but not now. It is impossible for Parler, today, to compete with Twitter; the latter is superior to the former in every way, even in the technical aspect. The only chance that Parler has over the little blue bird is that it promotes freedom of expression without restrictions and, just for that, the app stores of Android and Apple ban it.

At the same time, many liberals and advocates of private property, for good reasons, are against government regulation of private property. But we must leave dogmatism aside and look at reality: here Conservatives are not asking for a law to regulate a private individual, they are asking that the state stop being an accomplice of a private individual who restricts freedom of expression for commercial, ideological and political interests.

This situation will continue to escalate and there are two solutions: the repeal of Section 230, which can, unfortunately, end social networks as we know them, or, failing that, that Big Tech stop publishing, something that seems utopian.

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