There’s a piece of legislation that has been invaluable in the rise of social media, the Communications Decency Act. In particular, Section 230 of the Act says “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.” Without Section 230, it’s hard to fathom that Facebook or Twitter would ever have been able to surmount the potential legal liability they would otherwise face from civil lawsuits over IP infringements, libel claims, or threats that are posted to their websites on a regular basis. They’d be potentially liable for whatever anyone decided to post on their sites.
Interestingly, though, the provision wasn’t even created with social media in mind. The Act was passed in 1996, before social media was even a glint in Mark Zuckerberg’s eye. The provision was included in the Act ensure that internet service providers or e-mail providers weren’t liable for anything that anyone decided to transmit on their services. And that makes sense. You wouldn’t hold Verizon or AT&T responsible for anything anyone says on the phone. They don’t control what people say on the phone, so they shouldn’t be responsible.

The internet shouldn’t be any different.

But, as the internet advanced, the logical extension of this principle went to websites themselves. And that still sort of makes sense, at least conditionally. If the owners of the website don’t control what is posted or not, they shouldn’t be liable for what people do post. The key distinction is whether the owners of the website are providing an internet service or whether they are providing internet content. In Fair Housing vs., the courts said you couldn’t claim to be a service provider if you weren’t a passive pass-through of information provided by others or simply a facilitator of expression, you had moved on to become a content provider and weren’t immune from lawsuits under Section 230.

Today, many conservatives, and even libertarians are concerned about the editorial lines that are increasingly taking hold in the social media universe. In their attempts to filter out “fake news” or “Russian bots” or “disruptive voices” or “hate speech”, they are increasingly deplatforming conservatives and libertarians for behaviors that they show no concern with coming from the left. We know that the social media giants are culturally very much aligned with the “woke” left and many claim that they’re rigging the public discourse in favor of the left.

While some conservatives have suggested addressing this by breaking up the social media giants or subjecting them to regulation, an alternative that many of us have advocated is reform of Section 230 to make it clear that you’re a publisher if you’re pushing an editorial line. You can have rules of the road and can forbid threatening, harassing, or inciteful posts, but your rules have to be objective, viewpoint-neutral, and universally applied for you to retain Section 230 protection. Otherwise, you’re a publisher and should be treated as such.

This isn’t an idea without some controversy. As believers in the free market, many argue, conservatives and libertarians should let the market sort itself out and take their business elsewhere. As private businesses, Facebook, YouTube and Twitter shouldn’t be under any obligation to provide a voice for those whose views they find abhorrent. And, as Ken White of Popehat argues, it’s a stretch to suggest that the social media providers are the people creating the content. Even many of the advocates of Section 230 reform suggest the move goes against the grain of their libertarianism, arguing that this is a situation just to rife with abuse.

I think these concerns are misguided. Far from being a violation of libertarian principle, Section 230 reform would be a move to impose free market discipline on the social media giants. The question of whether the social media giants are original content creators is utterly beside the point. Of course they aren’t! But, Section 230 itself doesn’t address whether the service provider is the creator of the original content. It’s about whether they are to be treated as publishers.

And it’s clear that they are acting as publishers If you’re maintaining an editorial line, you’re not acting simply as a passive pass-through or a facilitator of expression. You’re doing pretty much the opposite. You’re acting to define what is acceptable and what is unacceptable expression on your platform. If you’re demonetizing Stephen Crowder for making a side reference to homosexuality while maintaining a guy like Carlos Maza after he specifically encourages assaulting conservatives, you can’t honestly say you’re just an open platform for people to exchange ideas. If you’re banning Carl Benjamin while giving Antifa a pass, the last thing you’re doing is acting as a neutral pass-through. You’re acting as a publisher deciding what they will and will not publish.

And that is and should be their right. On that, I completely agree with Section 230 reform sceptics. If you believe in free speech, then you have to believe that people cannot justly be compelled to speech any more than they can be censored. And demanding that social media provide a platform to conservatives is just as much a compulsion of speech as insisting Rush Limbaugh devote a show to singing the praises of Elizabeth Warren or that MSNBC devote a day to critiques of climate change.

What the social media giants don’t have a right to is special favor from the government. If they’re acting as a publisher, then they should be subject to the same laws and same standards as any other publisher. To treat them more favorably is to grant a subsidy to established and entrenched interests over brick-and-mortar competitors, as well as new entrants in the social media space.

For just about any other industry the injustice of such a policy would be glaringly obvious. Imagine if the government said the hotel industry or the movie theater industry would be exempt from labor laws or health and safety laws. Or worse still if the government said that certain hotels and certain movie theaters would be exempt from those laws. Libertarians would rightly be up in arms about such a policy. They’d rightly note such behavior as just the sort of crony capitalism that libertarianism rejects. The same applies to the social media giants acting as publishers. You might say that the laws holding publishers responsible for any libel or IP infringement or harassment they publish are bad laws. A libertarian case can be made for or against them. But, holding some publishers liable and exempting others is the least libertarian response. It is, simply put, the government openly picking winners and losers.

Moreover, the social media giants’ hidden imposition of an editorial line has poisoned so much of social media culture. To understand this, imagine that, rather than the fashionable progressive causes of the day, the social media giants took an editorial line that was “pro-seltzer”. They’d happily let commentary advocating the benefits of drinking seltzer and actively deplatform anyone arguing to the contrary. The public relying on social media for information, believing they were getting truly decentralized discussion about seltzer would only see discussions about how great seltzer is and how terrible those awful people who want to suggest people might want to drink milk are. Without understanding that the social media are only telling you the pro-seltzer position, a good many readers would become convinced, not only of the pro-seltzer position, but also of the social media morality in advocating for seltzer. The non-seltzer people, unsurprisingly, only militate when they realize the public is being lied to about them and their positions. And the less radicalized, lacking a means to evaluate the claims of the genuine anti-seltzer extremists, since the entire anti-seltzer argument has been excised from the public discussion where ideas can be tested, tend to be pushed to the more radical position.

I respect the social media giants. They took an ambiguity in the law and leveraged it to build a whole new means of communication that offers tremendous opportunity for public discourse. But, with success comes hubris. For the social media giants, that hubris has led them to abandon any claim to that ambiguity. They’re now acting as publishers in the most obvious and clear-cut manner one can find. And, in addition to being an injustice in its own right, that preferential treatment is leading them to behave in a way that is rendering our public discourse increasingly toxic. To set things right, we don’t need to regulate the social media giants and we don’t need to break them up. We simply need to resolve that ambiguity to make clear that they’re either publishers, with all the legal liabilities that any other publisher faces, or they’re public fora where they don’t get to dictate what viewpoints deserve an audience.