Post by Legal_Latino

My legal thesis in law school was actually on Section 230 of the CDA, the very law the executive order is affecting. I wanted to include some more information to clarify some fake news I’ve been hearing online. Plus, a lot of pedes have been asking questions on the CDA. Basically here is a detailed explanation for some of you more interested pedes:

A publisher is an entity that controls the content that they present to a user—Think of CNN. Because they are in control of the content being presented (like a news article), they are legally responsible for it and any fake news that they publish (defamation for example), even if they hire someone else to write it. The less control they exert over the content they publish, the less likely they will be considered a publisher (and less likely to be held responsible for the content).

In 1996 Congress passed the CDA which includes Section 230. Section 230 was passed for two reasons, to stop the spread of pornography on the internet and at the same time to allow other speech to live freely.

Section 230 basically stated that any internet platform which hosts other users is not responsible for the content posted by those users (and therefore not considered a publisher). So, if a user were to post leaked naked pictures on Facebook, then Facebook could not be held jointly liable for hosting those pictures EVEN IF THEY DID NOT REMOVE THE PICTURES. The intent by congress was that if we protect these companies from liability from users then they will avoid taking action by limiting and censoring posts and as such, speech.

However, Section 230 contains a clause which has been the subject of a lot of legal debate. 230(c)(2)(A) provides that even if a social media platform exerts control over material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”, then it still cannot be considered a publisher (remember that exerting control over content usually makes you legally responsible for that content).

The problem is that the clause was almost unequivocally referring to violence and porn, but federal courts (who knows why) began interpreting “otherwise objectional” as anything that a platform finds offensive. As such, social media platforms were able to ban and censor speech just because they found it offensive. Thus, exerting control and still immune under the language of 230(c)(2)(A).

In addition to the vagueness of the term “otherwise objectionable”. Some promoters of free speech argued that 230(c)(2)(A) is an explicit condition/clause. In other words, a platform can ban things considered “obscene, lewd, etc…” without being defined as a publisher (exerting control) but as soon as they begin to exert control over content that does not meet these criteria explicitly listed, then they are risking moving into publisher territory and no longer immune from lawsuits based on the content posted on their website.

Trump’s executive order is attempting to clarify the interpretation of the law and the enforcement of the law. The executive order is basically saying, if you begin to ban or control content that is not under the list in 230(c)(2)(A) then you’re going to be considered a publisher. So social media companies have a choice, they can back off and allow free public discourse to take place on the internet, all the while enjoying their (very generous) lawsuit immunity, or they can exercise their free speech rights of association and ban everything to hell, but then they no longer have the immunity.

For those of you that want to read my 35-page thesis on the topic (Written Summer of 2019):

Having It Both Ways- The CDA and Free Speech