Section 230 worked after the insurrection, but not before: How to regulate social media

After last Wednesday’s insurrection at the Capitol, Twitter and other platforms shut down President Trump’s social media accounts. They did this because Section 230 of the Communication Decency Act allows social media companies — without liability — to take voluntary good faith actions to restrict access to or availability of “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material. Interestingly, it is unclear whether this provision grants immunity for the fact-checking notices of context that Twitter applied since May to President Trump’s Tweets alleging voter fraud.

An ordinary citizen’s similar Tweets would be removed, but Twitter developed a “public interest exception” for “Tweets from elected and government officials — given the significant public interest in knowing and being able to discuss their actions and statements.” As a result, Twitter permitted Trump — for eight months, albeit with notice of context — to make false statements about the election that became the insurrection’s impetus. Then, after the insurrection, they took all the Tweets down and stripped Trump’s access to the platform.

Trump has vehemently argued that social media company fact-checking, context notices, and access restriction interfere with his freedom of speech, and he repeatedly has sought Section 230’s repeal. However, fact-checking the president — at its core — isn’t a free speech issue: It’s a free press issue.

While both First Amendment rights, freedom of speech and freedom of the press are not the same. Justice Potter Stewart addressed the distinction between the two in a 1975 law school speech subsequently converted into a law review article entitled, “Or of the Press.” Notably, freedom of speech is an individual right. “In contrast,” Stewart observed, “the Free Press Clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection.” Noting the origins and constitutional debates about the checks and balances among the three branches, Stewart said, “The primary purpose of the constitutional guarantee of a free press was a similar one: to create a fourth institution outside the Government as an additional check on the three official branches.” That makes fact-checking the Executive branch a constitutional mandate for the Legislative and Judicial branches – and for the Fourth Estate.

The Fourth Estate, however, does not include social media companies. Section 230 eliminates their publisher liability. That is why social media company fact-checking feels so uncomfortable — it is a traditional publisher’s function. It also feels awkward because conventional publishers have faced more significant economic challenges since Section 230’s enactment. That is extremely disheartening given economic development was one of Section 230’s primary policy objectives (“the continued development of a vibrant and competitive free market for the Internet and interactive media“).

The innovations that spurred the advertising digital revolution, including social media algorithms that deliver information to predictively targeted individuals, have further exacerbated the economic disparities between traditional publishers and social media companies.

These innovations — enabled by Section 230’s two liability immunities — upended traditional publishing economics. Its original sponsors, Sen. Ron Wyden (D-Ore.) and former Congressman and SEC Chairman Christopher Cox are rightfully proud that Section 230 has permitted the Internet and Internet-based businesses to grow with user-provided content. However, society needs to acknowledge its impact on the traditional press. An example from last month: The Hartford Courant, in print since 1764, became the latest daily to eliminate a physical newsroom because of financial constraints — in part attributable to the free distribution of information, mainly unedited, on social media.

The Fourth Estate cannot continue to devolve slowly into a relic of constitutional theory. Congress must fully consider the First Amendment constitutional protections afforded to the Free Press in the continued development and advancement of the internet and interactive media.

Publishing must be financially viable at all levels, particularly the state and local, where the loss of news coverage has been the most severe.

A complete repeal of Section 230 is not practical and would have unforeseen consequences, just like those that followed its enactment. A more rational approach is to regulate social media, consistent with how we approach the banking, utility, pharmaceutical, and insurance industries. For example, requiring social media platforms to algorithmically associate any post by a government official or agency to institutional press reports about the post could advance public discourse with real-time fact-checking and avoid insurrection fomented on falsehoods. Such actions would ensure the Fourth Estate fulfills its constitutional role and help ensure its financial viability without social media company interference.

Michael H. Lanza is executive vice president and general counsel of Selective Insurance Group, Inc., with oversight for the company’s legal department, as well as regulatory, ethics and compliance, and legislative and government affairs functions.