Godwin, Mike

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On Publishers, Carriers, andBookstoresMike Godwin 2020-10-31T10:16:06The next American election is just days away, so you’d think that most Americanpoliticians would be focusing on campaigning either for their own election (or re-election) or for their colleagues and allies who are running now to attain or retainelective office. But not this week. Weirdly enough, the United States Senate tooktime off from campaigning—even though the official election date is next Tuesday,and millions of American voters are voting in advance of the election or have alreadyvoted—to host a hearing whose nominal purpose was to discuss whether a formerlyobscure but now hotly disputed statute known as “Section 230,” which plays acentral role in limiting legal liability for internet services, needs to be updated.(The actual reason the Senate scheduled this hearing is to complain that a dubiousstory in the New York Post—a Rupert Murdoch tabloid—wasn’t treated with enoughrespect and uncritical acceptance by the social-media companies.)The key sentence in Section 230 is a short one, but like many other briefly phrasedstatutory provisions its impact has been vastly larger than its word count. Subsection(c)(1) of the Section 230 contains the 26 words that have given rise not only toFacebook and Twitter but also to my former employer, the Wikimedia Foundation,which operates Wikipedia: “No provider or user of an interactive computer serviceshall be treated as the publisher or speaker of any information provided by anotherinformation content provider.” The law also has played a profound role for manyother U.S.-based internet sites, including the websites of traditional newspapersthat host “reader comments” sections or other forums in which non-employees mayengage in direct comments and responses to a journal’s traditionally produced editedand reported content.Publisher or common carrierAmerican lawyers like me, who specialize in internet law, recognize Section 230as a foundational statute that has given rise to most of what we love about today’sinternet but also to much of what we find maddening about it. Most of us internet-law specialists are willing to discuss whether this statute, now close to a quarter-century old, needs to be revisited and possibly revised. But most of the proponentsfor Section 230 reform—whether they’re incumbent politicians or otherwise well-regarded legal scholars and commentators (or even the occasional SupremeCourt justice)—have given little attention to why Section 230 was crafted or whatproblems it was trying to solve. The failure to do so is responsible for most of themisperceptions that afflict today’s debate about this law.- 1 -One of the roots of these misperceptions is the notion, frequently stated but almostnever interrogated by American legislators, that internet services like Facebook andTwitter (or Google or Wikipedia) must be understood to fall into one side or the otherof a binary taxonomy, which might be termed the “traditional publisher”/“commoncarrier” distinction. If you’re a traditional publisher, the thinking goes, you havethe right to edit your publication as you see fit, including tailoring it to match youreditorial biases, but you have also legal responsibility if your publication publishes(for example) false defamatory content, or certain kinds of privacy-invading aboutindividuals. (Also fitting this first model was broadcasting. Like the traditional press,broadcasting has a lot of First Amendment protections, but broadcasters are limitedby a government-based regulatory framework via the Federal CommunicationsCommission. When it came to issues like defamation, broadcasters could be heldresponsible for what other people said on their services, too.)In contrast, if you’re a common carrier (a good example here is traditionaltelephone service), you’re generally free from liability for the content your usersand subscribers send or receive through your service, but that freedom is basedon the premise that as a provider of common carriage, you don’t impose editorialjudgment on that content.  Both the publisher and the common-carrier models havetransitioned to the internet; almost every newspaper in the developed world has awebsite that carries the same (edited and proof-read) content that its print editioncarries, and email services like Google’s Gmail typically act as common carriers.Failing their obligations, either wayTo some high degree, the public debate in the U.S. Congress (as well as the publicdebate in other legislative forums and tribunals around the world) has centeredon some critics’ viewing the big internet companies as having failed as publishers,while other critics insist that the companies are failing in their obligations as commoncarriers. In the United States, a common theme among Republican critics of thecompanies has been that Section 230 is supposed to operate as a kind of common-carrier system imposed upon the internet, requiring that Twitter and Facebook andother companies be neutral as a condition of being free from liability. Democrats,broadly speaking, tend to base their criticisms on the claim that the companies—aspublishers—need to do more to filter and/or remove terrible content.It’s unlikely, however, that anyone unfortunate enough to have viewed Wednesday’sSenate hearing (mediated in these days by Zoom teleconferencing) came awaywith anything closer to an improved understanding of the formerly obscure, nowhotly disputed law.  The hearing was remarkable for several reasons, not all ofwhich may be apparent to observers in the rest of the world who may be wonderingwhy the senators decided to take some time off from the final days of a nationalelection campaign to summon tech-company CEOs yet again to be criticized for theirpresumed negligence or misdeeds.Incumbent politicians in both of the two major political parties in the United Stateshave set their sights on Section 230 as a source of the actions (or inaction) thatthe critics have complained about. But the two parties starkly disagree as to which- 2 -side of the publisher/common-carrier divide the Big Tech companies (not just socialmedia but also search providers and even retailers like Apple and Amazon) shouldfall.A false dichotomyWhat the critics commonly fail to realize is that the choice between “traditionalpress” and “common carrier” models is a false dichotomy. As it happens, UnitedStates free-expression jurisprudence has for decades recognized a third model,which might best be characterized as the bookstore/newsstand model. That modelwas first recognized in a 1959 Supreme Court case that centered on an obscenityprosecution of a bookstore owner in Smith v. California. Only five years later, Smithv. California became a keystone of the Court’s decision in New York Times Co.v. Sullivan (1964), which concluded that defamation law as well as obscenity lawneeded to be constrained by the U.S. Constitution’s First Amendment. Applied tocomputer networks by a federal district court in Cubby v. CompuServe (1991), thismodel recognized that bookstores and newsstands (and, also, by the way, libraries)are themselves important institutions for First Amendment purposes. Under thismodel, we don’t insist that bookstore, newspaper stand owners, or library workerstake legal responsibility for everything they carry, but we also don’t insist that theycarry everything. They’re not publishers or common carriers.The CompuServe decision arrived at the beginning of my career as a lawyer and aninternet-law specialist, and the relatively few lawyers back then who were concernedabout internet-service liability (we now use the catch-all term “intermediary liability”)met this development with a sigh of relief. This federal-court decision wasn’t“binding” precedent, but it was persuasively grounded in traditional First Amendmentjurisprudence. The judge in the CompuServe case at least demonstrated that it waspossible for courts to discern what was different about computer-based interactivemedia in which ordinary subscribers and users could speak directly to one anotherwithout an editorial intermediary.But in 1995, when a state court judge misinterpreted the facts and the law in a casecentering on the then-popular online service Prodigy, this model of First Amendmentprotection seemed to be slipping away from the online services, including AOL andCompuServe as well as Prodigy. The few members of Congress who were alert tothese emerging issues saw the Prodigy case—which misread the CompuServe caseas one that required a binary publisher/common-carrier taxonomy rather than as onethat refuted that paradigm—as an event that required legislative intervention. Theresult was the drafting and passage of what eventually became Section 230 of theCommunications Decency Act (a.k.a. the “CDA” component of the 1996 omnibusTelecommunications Act).  The CDA as a whole was passed to limit the availabilityof sexual content on the internet, but Section 230 was designed to empower serviceproviders to act on their own to remove inappropriate sexual content—or any otherkind of “objectionable” content—without incurring legal liability as “publishers.”In those years I was a lawyer for the Electronic Frontier Foundation, and EFF joinedother civil-liberties groups (and many other stakeholders including individuals,- 3 -NGOs, and then-dominant tech companies) to challenge the constitutionality of theCDA. We won that case decisively (nine justices voted to strike down the law), butwe had been careful to challenge only the provisions that would have allowed thegovernment to regulate or prosecute lawful content if it appeared on the internet.That is, we were careful not to challenge Section 230, whose purpose was to enableservice providers to customize their content offerings by curating user-generatedcontent to fit content policies and terms of service.Barracks and swampsIn short, we left Section 230 in place because we knew from experience even thenthat most internet service providers—and most of their subscribers—would beunhappy if a new service like Facebook or Instagram were obligated to choose onlybetween (a) the traditional top-down editorial model for publications like newspapersor (b) the common-carrier model that basically dodged any content curation choicesin order to avoid assuming liability for what they didn’t remove or decided to keep.The sheer volume of user-generated content—and Americans share with individualseverywhere the profound desire to have their voices heard—guaranteed that eventhe most highly capitalized and editorially committed social network wouldn’t be ableto review everything users submitted prior to publication—just as the most highlycommitted bookstore owners and librarians can’t be expected to have reviewedeverything on their shelves.Which is to say, Section 230 is based on the principle that allows bookstores,newsstands, and libraries to exist—these entities have the right to decide what toinclude and what to refuse to make available. But they don’t have the obligation toread and preview everything they distribute or else to refuse to make any editorialdecisions at all. The top-down-publisher model, imposed on social media, wouldbe a bit like requiring everyone to live in military housing—you have to obey all therules and you don’t have any presumptive right to speak at all, much less protest.The common-carrier model, applied to social media, would be more like requiringeveryone to live in a sewer—you have perfect freedom to drop anything you wantinto the stream, but you wouldn’t like having no control at all over what flows pastyou.Put another way, you’d rather spend your time in a library or bookstore than in abarracks or a swamp.So why is Section 230 even controversial?As I’ve said, on one level the controversy derives from the fact that the critics,whichever side they’re coming from, typically haven’t investigated the problemsthat Section 230 was crafted to solve. On another level, the developed world (aswell as much of the developing world) is enduring a moral panic driven by concernthat the tech companies have intentionally or unwittingly or irresponsibly furtheredsocial unrest.  (As I argued in the book I published last year, this concern may beoverblown, not least because it lets the traditional media ecosystem off the hook- 4 -for political outcomes like Brexit and the election of President Trump in the USA orDuterte in the Philippines or Bolsonaro in Brazil.)But at a deeper level, this most recent iteration of the Senate debate about Section230 is driven by Republican politicians who once were happy with how easily aservice like Twitter empowered President Trump (and other politicians) to stir upsupport. These same Republicans now are disturbed to find that their presidentand like-minded users are finding more and more of their social-media commentaryflagged for problems like doubtful factuality or apparent encouragement of votersuppression and violence. Section 230 is what empowers Twitter and Facebook tomake these choices—the choice not to be neutral at all, but instead to curate theircontent and policies to create spaces where users will want to engage with oneanother. So in that dim sense both the Republicans and the Democrats are right tohave identified Section 230 as something worth discussing.But what the president and his supporters don’t realize is repealing Section 230would compel the services to choose between two models, neither of which willmake the Republicans happy. The “publisher” model would entail blocking or filteringor flagging or “adding context to” more of President Trump’s tweets, not fewer ofthem. The “common carrier” model would entail making the services engage inessentially no choices at all with regard to removing content, except content that isexpressly illegal (such as child pornography or copyright infringement or terroristicthreats).Careful what you’re asking forIn sum, then, probably the worst thing for Republicans or Democrats would be if,in their insistence in reviewing Section 230, they get what they’re asking for. Theirony, however, is that in summoning the CEOs of Google, Facebook, and Twitter toa hearing about Section 230, they’re targeting the successful incumbent companiesthat would be best able to adapt to whatever new limits Congress might impose ontheir protections for intermediary liability. Google and Facebook and Amazon andApple will almost certainly be able to invest in coping with new liability risks—andone of the coping mechanisms will be to silence a lot of ordinary user participationin things like status updates and product reviews. (Twitter is perhaps less well-positioned to invest in new content controls—it’s smaller than the other companieson Congress’s Most Wanted Big Tech Offenders list.)But as uncomfortable as the CEOs are in being quizzed by hostile lawmakers,they know to a certainty that they have enough money in the bank to respond towhatever new restrictions are imposed on them. The flip side of this is that whatevernew liability burdens Congress imposes on Big Tech’s incumbents will likely havea disproportionate impact on the Small Tech upstarts that hope to displace theincumbents someday. In effect, it will tend to lock in the market-dominant players fordecades to come.This explains why Mark Zuckerberg has made a point of saying he’s willing toembrace new laws, including Section 230 “reform” (without specifying what that- 5 -reform would look like). Zuckerberg would love Congress to come up with newbright-line rules that define what Facebook and other social-media platforms shouldand shouldn’t be doing. Whatever that consensus is, Facebook knows it can affordto pay to meet the standard. If the standard is difficult for current competitors ornew startups to meet, that’s not Zuck’s problem. He just wants the reflexive andfrequently contradictory complaints about Facebook to go away on the one hand,and to preserve market dominance on the other.But what Zuckerberg wants (a consensus about the rules so he can just meet theconsensus standards and then relax) can be difficult for multinational companies likeFacebook. Harmonizing content between U.S. and EU standards is hard; adding,say, Thailand and India is harder. In addition, companies have been able to competewith one another by setting different standards for content. If they’re all meeting thesame lowest-common-dominator, then the race goes to the first mover with the mostcapital. (Probably Facebook, in other words.)Facebook dominance forever?The risk is that “clarifying” Sec. 230 may hurt competition and lock in Facebookmarket dominance (plus the dominance of other currently successful internetcompanies that rely on 230 but aren’t focused on social-media services). Sec. 230was crafted to *enable* competition. One idea behind Sec. 230 was to empowerdifferent services to make different sets of content-curation decisions withoutincurring legal liability for doing so. So that, e.g., one internet service could be morelike a Disney Channel while another could be more adult-focused.But if you remove or hobble Sec. 230’s protections, so that all services that availthemselves of Sec. 230 have to make more or less similar content decisions, thenall services will be more alike than different, and the biggest ones will be lockedin as market leaders. That’s fine if you’re holding a lot of Facebook stock (or, forthat matter, Alphabet or Amazon stock). So it’s no wonder that Zuck’s responseif Congress says “jump” will be to ask “how high?” (so long as Congress makeseveryone else do the same jump).But if you want to see competition among the tech companies that host content—which certainly will result in consumer benefits in all sorts of ways and not just lowprices—you don’t want to alter Sec. 230, which not only gave us Facebook andTwitter, but also Amazon’s and Yelp’s product reviews and Reddit’s cornucopiaof special-interest forums. (And, of course, TikTok, which just recently catapultedStevie Nicks back to the top of the Billboard charts.) What this means, of course,is that even if Facebook and Twitter were disproportionately targeting conservativecontent (they’re not), you’d want to support their prerogative to do that, not leastbecause it creates the opportunity for President Trump (if and when he ever leavesoffice) to start his own social-media company that does the converse.If President Trump does happen to leave office someday soon, I look forward to theformer President’s development—perhaps in concert with his enthusiastic supporters—of new competitor platforms, TrumpBook (and its subsidiary service LindseyGram)- 6 -and Twitler, which will likely give the former world leader a better perspective onwhat Section 230 already can do for him and his eager audience.- 7 -

On Publishers, Carriers, and Bookstores

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