What Facebook’s planned change to its terms of service means for the Section 230 debate

For conservative critics of “Big Tech”, Section 230 reform may be a case of being careful of what you wish for. Rather than protecting conservative speech, attempts at Section 230 reform may backfire with unintended consequences that could be worse than the perceived problem. Facebook’s recent change to its terms of service shows one possible response to Section 230 reform, and illustrates the necessity of the core protections of Section 230 if we want to have a vibrant Internet ecosphere with platforms for third-party speech.

On Sept. 1, Facebook announced that section 3.2 of its ToS would be amended to include that they can “remove or restrict access to your content, services or information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”

The timing of this announcement is interesting in light of the comment period for the NTIA petition for rulemaking on Section 230, due later this month. Facebook’s announcement appears tied to a proposal in Australia that would force Facebook to pay for news links which are posted, but the timing and the now-familiar cry of censorship it has caused in some corners of the Internet makes it very interesting.

The NTIA’s petition, much like earlier legislation from Sen. Josh Hawley (R-Mo.), proposes to condition Section 230 immunity on the “good faith” enforcement of a platform’s terms of service. While both were attempting to prevent “Big Tech” censorship of “conservative” speech, the perverse effect of either proposal could be to push allegedly biased platforms to become actually biased.

Thus, it should not be surprising if Facebook and other social media platforms thwart these attempts at Section 230 reform by simply amending their terms of service.

Facebook’s proposed change goes right to the heart of the original purpose of Section 230: in order to facilitate third-party speech on online platforms, there needs to be some protection of the platform itself from liability for the third-party speech. While some reform of Section 230 to make sure bad actors are held liable may be necessary, the focus on anti-conservative bias will backfire. If Section 230 immunity is removed for Facebook, for instance, they are likely to remove all kinds of speech, conservative speech included, if it could raise liability issues. Rather than facilitate a “public forum” for debate, taking away the protections embodied in Section 230 would lead to something much more akin to a private echo-chamber.

In fact, the Australia law which would force Facebook to pay for news stories which are posted by third-parties on its platforms is emblematic of the issue. Instead of promoting more “fair” treatment for news organizations, the outcome is just less available speech, as Facebook announced in response to the draft regulation that it would not allow Australian users to post news links from that county. Well-intentioned attempts at creating “fairness” by reducing the editorial discretion of online platforms may backfire, leading to less legitimate news sources shared.

Here in the U.S., since the First Amendment applies to state action, not private action, Facebook is not required to carry all speech on its platform, and the government is unable to directly require Facebook to do so. The First Amendment protects Facebook’s right to engage in editorial discretion, whether through adding fact-checks or removing posts they believe are based upon misinformation, removing posts or groups for causes they disagree with, or reducing the reach of messages they disagree with. This is why the effort has focused on Section 230 immunity instead, in a misguided attempt to condition this important protection of third-party speech on platforms giving up their rights to editorial discretion. But even this attempted end-run around the First Amendment would likely be subject to strict scrutiny. 

It’s not just the unconstitutionality of these attempts to condition Section 230 immunity on platforms giving up their rights to editorial discretion which should bother people, it’s the utter ineffectiveness of the method. Rather than lead to better outcomes for conservatives online, removing the core protections of Section 230 will more likely lead to less third-party speech — including conservative speech — on online platforms altogether. Hopefully Facebook’s announced changes to its ToS will help the FCC see the light on the NTIA’s petition.

Ben Sperry is Associate Director of Legal Research at the International Center for Law & Economics, where he focuses on the intersection of civil liberties and government regulation.