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The ongoing feud between the White House and the media shows no sign of stopping anytime soon, and this time the feud is escalating to include social media companies like Facebook and Twitter, and not just the CNNs of the world. A leaked draft proposal from the White House would vastly expand the power of both the FCC and FTC to crack down on allegations of social media censorship.
The Communications Decency Act of 1996
At the heart of the proposal (which will most likely be turned into an Executive Order signed by President Donald Trump and called “Protecting Americans From Online Censorship”) is a new interpretation of Section 230 of the Communications Decency Act of 1996. Until now, social media companies have basically had legal immunity for any user content posted on their platforms, and have had broad freedom to handle objectionable content as they want. In short, social media companies can’t be held legally accountable if one of their users goes on a hate-filled tirade.
Under the “old” interpretation of Section 230, social media companies are basically given carte blanche to take down or remove anything that they find repulsive or hateful, without any fear of legal action being taken against them, as long as they act as neutral public forums. (As one U.S. senator described it, this content is basically “slime and hate” and is pretty easy to identify.) Thus, if social media sites discover that some sicko user has posted a racist or homophobic manifesto on their platform, they can take down that content immediately without being called out for censorship.
Under the “new” interpretation of Section 230, though, social media companies will lose some of their legal immunity if they are unable to show that they are acting as neutral public forums. If they are simply taking down content that they don’t like, then they would no longer be neutral public forums, and they would be held legally accountable for what happens on their platforms.
And here’s where things get tricky, because any allegations of bias are notoriously hard to prove. If Facebook or Twitter are shown to have an anti-Republican or anti-Conservative bias, is it really possible to argue that they are acting as neutral public forums? Thus, if they decide to take down or block certain content because they are ideologically opposed to it, that would not be a strong enough grounds to avoid falling into legal jeopardy as a result of Section 230. (In other words, posting a very unflattering review of Hillary Clinton might be “hateful” to some, but probably would not pass the test of being deemed “hate speech” by the Supreme Court).
Ending social media bias and partisanship
Ok, Ok, this probably sounds like a lot of legalese and corporate lawyer-speak. But that’s the reality we’re facing today. You can’t just change a law or rule because you don’t like it – you have to have some sort of legal basis for it, and your legal arguments need to make sense. That’s why, back in May, the White House solicited feedback about anti-conservative bias on social media – and received more than 15,000 complaints in response. They were building the case for bias, and looking for ways to remove blanket legal immunity from social media companies.
So, even if you are filled with, umm, hate speech, for anything the Trump White House does, you have to give them credit on this one – they’ve lined up all their legal ducks in a row, and are now ready to hold social media companies accountable for any censorship that takes place on their platforms. If nothing else, all the commotion and hullabaloo the new Executive Order might cause will cause a lot of people to wake up and pay attention.