Section 230 and The Insurrectionist, Seditious Coup Attempt At Our Nation’s Capitol
On January 6th, 2021, hundreds of rioters attacked the building in a bid to preserve Donald Trump’s hold on the presidency. As a result, Trump has been banned from virtually all major online media platforms leading to a call for the repeal of Section 230. Additionally, Wall Street and Silicon Valley have paused donations to the Republican Party and politicians who backed the halt to decertify the election in favor of Joe Biden.
In charged times like these, it’s important to have a handle of pertinent information. Dakin Andone of CNN provides a brief overview of the meanings of and differences between coup, insurrection, and sedition under U.S. Law. Casey Newton at The Verge has a more comprehensive overview and update on Section 230 and social media companies. Finally, attorney Brette Sember elucidates the first amendment describing the relationship between defamation, libel, and slander.
A “coup,” shorthand for “coup d’état,” is broadly characterized by Merriam-Webster as a “sudden decisive exercise of force in politics,” but particularly the “violent overthrow or alteration of an existing government by a small group.”
According to Merriam-Webster, “insurrection” is the “act of revolting against civil authority or an established government.” Other definitions, like that of the Cambridge Dictionary, specify the act is usually a violent one. Synonyms include “revolt” or “uprising,” according to Merriam-Webster.
Insurrection, or rebellion, is a crime under Title 18 of the US Code, punishable by a fine, a maximum sentence of 10 years in prison, or both. Being found guilty of insurrection also makes someone ineligible to hold office in the United States.
“Sedition” is the “incitement of resistance to or insurrection against lawful authority,” according to Merriam-Webster.
Similar to insurrection, the act of sedition is also a crime under the US Code, which characterizes it as two or more people who conspire to overthrow the US government, or “prevent, hinder, or delay the execution” of US law by force. It’s punishable by a fine and up to 20 years in prison.
Section 230 of the Communications Decency Act, which was passed in 1996, says an “interactive computer service” can’t be treated as the publisher or speaker of third-party content. This protects websites from lawsuits if a user posts something illegal, although there are exceptions for copyright violations, sex work-related material, and violations of federal criminal law.
The law was crafted specifically so website owners could moderate sites without worrying about legal liability. The law is particularly vital for social media networks, but it covers many sites and services, including news outlets with comment sections
First Amendment and Section 230
In the United States, the First Amendment prohibits the government from restricting most forms of speech, which would include many proposals to force tech companies to moderate content. A law that required companies to moderate content based on the political viewpoint it expresses, for example, would likely be struck down as unconstitutional.
Private companies can also create rules to restrict speech if they so choose. This is why Facebook and Twitter ban hate speech, for example, even though it is legally permitted in the United States. These moderation rules are protected by the First Amendment as well.
This issue is distinct from discussions over whether platforms should be liable for what their users post, though it often gets lumped in with the 230 discussion.
Defamation is a false statement presented as a fact that causes injury or damage to the character of the person it is about. An example is “Tom Smith stole money from his employer.” If this is untrue and if making the statement damages Tom’s reputation or ability to work, it is defamation. The person whose reputation has been damaged by the false statement can bring a defamation lawsuit.
Defamation of character happens when something untrue and damaging is presented as a fact to someone else. Making the statement only to the person the statement is about (“Tom, you’re a thief”) is not defamation because it does not damage that person’s character in anyone else’s eyes.
Suing for slander, libel, or defamation brings a civil suit in a state court and alleges that under the slander laws or libel laws of that state the person who brought about the lawsuit was damaged by the conduct of the person who made the false statement. A libel or slander lawsuit seeks monetary damages for harm caused by the statement, such as pain and suffering, damage to the plaintiff’s reputation, lost wages or a loss of ability to earn a living, and personal emotional reactions such as shame, humiliation, and anxiety.
Opinion v. Defamation
There is an important difference in defamation law between stating an opinion and defaming someone. Saying, “I think Cindy is annoying” is an opinion and is something that can’t ever really be empirically proven true or false. Saying “I think Cindy stole a car” is still an opinion but implies she committed a crime. If the accusation is untrue, then it will defame her. This is why the word “allegedly” is used when talking about people accused of a crime as its merely reporting someone else’s accusation without stating an opinion.
A crucial part of a defamation case is that the person makes the false statement with a certain kind of intent. The statement must have been made with knowledge that it was untrue or with reckless disregard for the truth (meaning the person who said it questioned the truthfulness but said it anyhow). If the person being defamed is a private citizen and not a celebrity or public figure, defamation can also be proven when the statement was made with negligence as to determining its truth (the person speaking should have known it was false or should have questioned it). This means it is easier to prove defamation when you are a private citizen. There is a higher standard required if you are a public figure.
Some states have laws that automatically make certain statements defamation. Any false statement that a person has committed a serious crime, has a serious infectious disease, or is incompetent in his profession are automatically defamatory under these laws.
Libel v. Slander
Libel and slander are both types of defamation. Libel is an untrue defamatory statement that is made in writing. Slander is an untrue defamatory statement that is spoken orally. The difference between defamation and slander is that a defamatory statement can be made in any medium. It could be in a blog comment or spoken in a speech or said on television. Libelous acts only occur when a statement is made in writing (digital statements count as writing) and slanderous statements are only made orally.
You may have heard of seditious libel. The Sedition Act of 1798 made it a crime to print anything false about the government, president, or Congress. The Supreme Court later modified this when it enacted the rule that a statement against a public figure is libel only if it known to be false or the speaker had a reckless disregard for the truth when making it.
If you are accused of defamation, slander, or libel, truth is an absolute defense to the allegation. If what you said is true, there is no case. If the case is brought by a public figure and you can prove you were only negligent in weighing whether the statement was false, that can be a defense as well.
In May 2020, President Donald Trump released an executive order targeting Section 230 and social media. (He reportedly drafted the order a year earlier, but it was tabled following confusion from regulators and legal experts, until a feud with Twitter revived the idea.) The order asked regulators to redefine Section 230 more narrowly, bypassing the authority of Congress and the courts. It also pushed agencies to collect complaints of political bias that could justify revoking sites’ legal protections.
Trump has broadly backed Republican efforts to change the law in Congress. Following Joe Biden’s election, he’s gone further and pushed for complete Section 230 abolition.
To start, as someone who is avidly opposed to all things MAGA and Trump, what is happening to him is censorship. Censorship is the suppression of speech, public communication, or other information, on the basis that such material is considered objectionable, harmful, sensitive, or “inconvenient.” Censorship can be conducted by governments, private institutions, and other controlling bodies.
Biden too has proposed revoking Section 230 completely though he hasn’t advanced a specific Section 230 agenda since the election. In December 2020, a Biden advisor suggested “throwing out” Section 230 and developing new legislation — saying the rule allowed children to view disturbing material online.
In April 2018, Trump signed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a bill that purports to fight sex trafficking by reducing legal protections for online platforms. (It’s also sometimes referred to as the Stop Enabling Sex Traffickers Act, or SESTA, after an earlier version of the bill.)
FOSTA carves out a new exception to Section 230, stating that Section 230 doesn’t apply to civil and criminal charges of sex trafficking or to conduct that “promotes or facilitates prostitution.” The rule applies retroactively to sites that violate it.
Following the passage of the bills, websites began to censor parts of their platforms — not because they were currently hosting prostitution ads, but because of the faint possibility that some third party could do so in the future. The laws are why Craigslist no longer has a Personals section. Now, sex workers say that they have broadly been forced offline, making their work far less safe. Prostitution-related crime in San Francisco alone — including violence against workers — more than tripled.
Thus far, there is little to no evidence that the law has had much of an effect on reducing online sex trafficking.
Proposals to reform the law generally fall into two categories. One is a “carveout” approach that removes protections from certain categories of content — like FOSTA-SESTA did for sex work-related material. The other is a “bargaining chip” system that ties liability protection to meeting certain standards — like the proposed Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT), which, as its name suggests, would make sites demonstrate that they are fighting child sex abuse. (This would likely have the intended side effect of weakening encryption for private messaging.) This approach is often bundled with broader data privacy and tech regulation proposals, which are covered in more detail in a separate guide.
To date, legislators have paid less attention to online marketplaces like Airbnb, which also benefits from the liability shield created by Section 230. So far, the only bill to pass out of committee is the EARN IT Act, which was amended into a milder version before advancing.
Democrats have largely been concerned with getting platforms to remove more content because of the harms associated with hate speech, terrorism, and harassment. To facilitate this, they’ve helped introduce several bipartisan proposals to erode Section 230.
Sen. Richard Blumenthal (D-CT) was a sponsor of the EARN IT Act and is a frequent critic of Section 230’s protections. Sen. Brian Schatz (D-HI) has proposed an alternative called the Platform Accountability and Consumer Transparency (PACT) Act, which focuses on requiring websites to transparently report how they moderate content.
The most serious Republican effort to rewrite Section 230 has come not from Congress, but from the Department of Justice. In June 2020, Attorney General William Barr released a series of recommendations for how Section 230 might be reformed, playing off a string of workshops earlier in the year. The recommendations include new restrictions on cyberstalking and terrorism, which would likely result in more proactive moderation efforts, along with measures intended to punish arbitrary or discriminatory moderation. Barr’s proposal would only grant immunity for moderation decisions that are “done in accordance with plain and particular terms of service and accompanied by a reasonable explanation” — a far narrower scope than the current law.
Barr’s recommendations would need to be passed by Congress to have any legal force, but so far, they’re the best blueprint congressional Republicans have for what mainline conservative 230 reform might look like.
A smaller faction of Republicans has focused entirely on restricting moderation immunity, punishing platforms that moderate in a biased or otherwise discriminatory way. Sen. Josh Hawley (R-MO) has also proposed a bill that would bind platforms to a “duty of good faith,” entitling users to significant monetary damages if they were able to show in court that the platform had breached its duty.
More extreme versions of that approach include Rep. Paul Gosar (R-AZ)’s Stop the Censorship Act, which sought to prevent platforms from removing content that they found “objectionable.” (That would mean they could only remove posts that violated the law.) Introduced in 2019, Hawley’s Ending Support for Internet Censorship Act would have required platforms’ content moderation teams to be certified as politically “neutral” by a bipartisan panel in order to retain their liability protections.
Neither proposal has so far advanced. Republicans are also behind the EARN IT Act described above.
Tech Companies on Section 230
Among tech platforms, Facebook has led the call for more regulation. In February 2020, CEO Mark Zuckerberg said the company ought to be regulated as something in between a telecommunications company and a newspaper. That same day, Facebook released a white paper laying out the approach it would prefer regulators take.
The approach rests on a handful of core assumptions: that platforms are global and thus subject to many different laws and competing cultural values; that they are intermediaries for speech rather than traditional publishers; that they will change constantly for competitive reasons; and that they will always get some moderation decisions wrong. (There’s another assumption buried in that last one: that they will never hire enough people to screen content in advance or in real time.)
Facebook argues that the government could hold tech platforms accountable for certain key metrics: holding violating posts below a certain number of views, for example, or setting a mandatory median response time for removing them. But they note that any of these efforts could create perverse incentives. If platforms are required to remove certain posts within 24 hours, for example, they are likely to simply stop looking at older posts while they focus on posts that are still within the 24-hour window.
When Can Businesses Discriminate?
Under the 14th amendment concept of equal protection as defined in the Civil Rights Act of 1964, a public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, amusement parks, private schools, and day care centers.
Public accomodations can not discriminate (with few exceptions) based upon race, color religion, sex, national origin, sexual orientation, nor physical or mental handicap. In determining whether someone deserves to be considered within a suspect classification, a court will look at whether the person is a “discrete and insular minorit[y].”
In determining whether someone is a discrete and insular minority (and thus the person’s claim deserves strict scrutiny), courts will look at a variety of factors, including but not limited to whether the person has an inherent trait, whether the person has a trait that is highly visible, whether the person is part of a class which has been disadvantaged historically, and whether the person is part of a group that has historically lacked effective representation in the political process.
Private clubs and religious organizations are exempt from requirements for public accommodations. Otherwise, you can be discriminated against by business if you are not apart of a discrete and insular minority.