Reasonableness as Censorship: Section 230 Reform, Content Moderation, and the First Amendment

For the first time in the internet’s history, revising Section 230 of the Communications Decency Act’s immunity for social media platforms from liability for third-party content seems to many not just viable, but necessary. Most such calls for reform are built around the longstanding common law liability principles of duty and reasonableness, namely conditioning Section 230 liability on platforms acting reasonably to “prevent or address” third-party content that might be harmful or illegal. These reforms are finding common cause with several legislative and executive efforts seeking to compel platforms to adhere to “reasonable” or “politically neutral” moderation policies or else face increased liability for user speech. And calls for entirely new regulatory regimes for social media, some of which also call for new federal agencies to implement them, advocate for similar approaches. This Article is the first comprehensive response to these efforts. Using the guidance of the common law to unpack the connections between reasonableness, imminence, and intermediary liability, this Article argues that these proposed reforms are misguided as a matter of technology and information policy and are so legally dubious that they have little chance of surviving the court challenges that would inevitably follow their adoption. It demonstrates the many problems associated with adopting a common-law-derived standard of civil liability like “reasonableness” as a regulatory baseline for prospective platform intermediary fault. “Reasonableness”-based Section 230 reforms would also lead to unintended, speech-averse results. And even if Section 230 were to be revised, serious constitutional problems would remain with respect to holding social media platforms liable, either civilly or criminally, for third-party user content

Section 230 as Civil Rights Statute

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. This Article is the first attempt to demonstrate precisely how Section 230’s distributor-based immunity protects civil rights-related speech. Though the statute’s immunity extends to any website, platform, or other distributor that hosts user speech, it particularly benefits those voices from underserved, underrepresented, and resource-poor communities. Without this immunity, members of marginalized groups would be far less able to raise awareness on issues related to their rights and survival. African Americans would be less able to attract mainstream attention to the sometimes-deadly realities associated with interactions with the police in their communities. Women claiming sexual assaults would be unable to organize online to counteract the advantages of their powerful and litigious attackers. A pseudonymous blogger would be less able to critique their local school board. In a world without Section 230, the new lights cast on these issues would be far less bright. And speech that most of society finds morally repugnant, such as pornography or terrorist speech, would be suppressed—not just speech that falls into such categories, but also speech about speech in those categories. Attacking speech intermediaries is an attack on the speakers who rely on them. Conversely, protecting these intermediaries protects the speech itself

The “Ample Alternative Channels” Flaw in First Amendment Doctrine

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn’t—i.e., to substitute the court’s own value judgments for those of the speaker’s. The modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan’s concurrence in United States v. O’Brien, shows that In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn’t—i.e., to substitute the court’s own value judgments for those of the speaker’s. The modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan’s concurrence in United States v. O’Brien, shows that ample alternative channels analysis was in its incipiency a misguided afterthought—born, as historical Supreme Court case files never examined before this Article show, as literally a margin note to an unpublished draft. In the place of ample alternative channels analysis, courts should ask whether a speaker’s chosen mode is incompatible with the government’s interest in the restriction in question. An incompatibility rule would be more consistent with the Roberts Court’s turn toward reviewing content-neutral speech restrictions rigorously, as evidenced in 2014’s McCullen v. Coakley

\u3cem\u3eReed v. Town of Gilbert\u3c/em\u3e: Relax, Everybody

In Reed v. Town of Gilbert, the U.S. Supreme Court held that a law is content-based if it draws distinctions on its face based on the message an affected speaker conveys. Reed rejected previous lower court interpretations of the Court’s content discrimination doctrine, which had consistently held that a content-based law was not subject to strict scrutiny if its reference to content was not based on government disapproval of that content. Reed has set off a firestorm. The justices who concurred in the judgment warned that the case’s rule would cast doubt on a range of government action historically considered to not implicate the First Amendment, from securities regulation to product labeling. Commentators have called Reed everything from a “groundbreaker” to a “redefinition” of content discrimination doctrine that will have “profound consequences.” The message of this Article is that Reed’s critics should, in a word, relax. Close review of those areas in which Reed’s critics claim the case will cause the most harm demonstrates that other parts of First Amendment doctrine, all of which survive Reed, will limit the case’s reach. The case also clarified several murky areas of that doctrine. Additionally, the focus on Reed obscures a far more important issue: the fallacy of continuing to use a categorical approach to First Amendment cases that turns entirely on whether or not a given law refers to content and ignores a law’s actual effect on speech

International Media Law Reform and First Amendment Agnosticism: Review of Lee Bollinger’s Uninhibited, Robust, and Wide-Open: A Free Press for a New Century

Lee Bollinger\u27s Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself

Lies, Counter-lies, and Disinformation in the Marketplace of Ideas

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truthfinding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by accuracy. False facts and those who spread them are not easily corrected. And some participants, through the dissemination of knowingly false information, seek to frustrate not just the process by which others seek to justify their beliefs, but also their faith that belief justification is even possible. This Article offers a novel but needed corrective to First Amendment theory by taking a social epistemology approach to considering actors’ motivations in the knowledge production system. In so doing, it introduces and theorizes the concept of counter-lies: disinformation concerning verifiable facts that is shared with the intent to deceive one into believing their mistaken beliefs are true. Despite counterspeech theory, counter-lies do not contribute to the search for truth, nor are they amenable to correction through collision with other ideas. The result of this disconnect is the overvaluation of knowing lies. Like Mill, its progenitor, the marketplace theory of the First Amendment has failed to take seriously the epistemic duties that an effective truth-seeking process requires and what happens when those duties are breached. The question is what role knowing and demonstrably false statements should play in a First Amendment theory that keeps those issues properly in view