How lawsuits are threatening free speech online

Do Twitter, Facebook and other Internet-based companies provide material support for terrorism? Lawsuits in New York and California are attacking an important tool protecting online free speech by alleging the interactive computer services essentially do promote terrorism.

In the mid-1990s, Congress passed the Communications Decency Act. Within the CDA, Congress provided, in pertinent part, that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision is known as Section 230. It provides interactive computer services, such as Twitter and Facebook, legal immunity for lawsuits arising from content created by the services’ users.

{mosads}Section 230 protects online speech in a couple different ways. First, it protects social media companies when users advocate violence. It insulates social media companies when users post defamatory or libelous statements. Second, Section 230 protects social media companies when they decide to filter, or not to filter, content they deem obscene, excessively violent, or otherwise objectionable.

By protecting social media companies, Congress has promoted the development of various genres of Internet companies. Without Section 230, there would be no Facebook. There would be no Twitter. There would be no Yelp. Without Section 230 protections, innovators would not create online public forums for fear they would be held liable for terrorist attacks or every comment made on their websites.

Of course Twitter, Facebook and other social media companies oppose terrorism. The lawsuits filed against the companies try to make arguments that lawyers believe will bypass Section 230 immunity. If successful, the lawsuits will have a chilling effect on online free speech, as other potential plaintiffs utilize the precedent to sue social media companies for all types of “offensive” content.

The plaintiffs, who are family members or friends of Americans killed in terrorist attacks, in these cases allege Twitter and Facebook materially support terrorists, among other things, by providing secure communications tools and by not actively identifying terrorist-affiliated user accounts. The problem with these allegations includes the fact that the communication tools referenced are available to all social media users. Twitter and Facebook, further, review and remove accounts with reported terrorist content.

Twitter, Facebook, and other social media companies have not provided terrorists any form of expert advice or assistance. They have not created communications equipment or techniques available solely to terrorists. Instead, these companies have banded together in efforts to remove posts promoting terrorism.

Section 230 does not bar online speech related lawsuits. It merely provides immunity for online publishers. Those who have been injured by improper online speech can still sue the author.

The most salient illustrations come from websites allowing consumers to review businesses. Imagine if you were the owner of a business. A disgruntled customer drafted a negative review and posted the review on Yelp. Further assume the review is completely false. As the disaffected business owner, you may want to sue Yelp, even though Yelp was the publisher, not the author, of the fraudulent review. Section 230, though, protects Yelp.

While Section 230 protects Yelp in this illustration, it does not protect the person who posted the false review. As the business owner, you may still sue the disgruntled customer. If you can prove the fraudulent review led to lost business, you may recover damages for defamation. 

Similarly, if someone posts libelous statements about another person on Facebook, the victim may sue the author of the statements, but not Facebook.

In the terrorism related cases, courts have repeatedly dismissed the actions citing Section 230, and rejecting allegations that social media companies provide material support. At least one of the cases filed against Twitter has been dismissed twice. The others are similarly unlikely to succeed.

Congress intended Section 230 of the Communications Decency Act to promote growth and innovation within the Internet ecosystem. Because of Section 230, platforms have developed through which opinions of all types can be shared. Any attack against, or attempt to weaken, Section 230 will have a direct and negative impact on the ability to share these opinions. Section 230 is an important tool that promotes and protects online free speech. 

Jonathon Hauenschild, J.D., is a technology policy analyst and the founder and principal of Franklin Adams & Co., LLC.

The views expressed by contributors are their own and are not the views of The Hill.