Federal law is a license to defame

Published 7:05 pm Tuesday, June 7, 2022

Section 230 of the Communications Decency Act was intended to provide cover for internet access providers who won’t allow users of their sites to post messages that are obscene, lewd, excessively violent or “otherwise objectionable” to the provider.

That was the legislative intent. Instead, the law protects internet providers from libel suits, even when their sites are used for grossly libelous purposes. It declares that no internet provider “shall be treated as the publisher or speaker of any information provided by another information content provider.”

In other words, put anything you like on the internet, and the “enabler” of that message — Facebook, Twitter, you name it — cannot be held responsible.

Subscribe to our free email newsletter

Get the latest news sent to your inbox

In one sentence, Section 230 erased centuries of accountability that made publishers responsible for that which they published and ensured that they could be sued for that material.

Defamation is the single greatest bar to publishing abuses, and it has essentially been removed by Section 230 as an effective weapon to fight abuse on the web.

That’s not a universal opinion. A very powerful and effective lobbying group known as the Electronic Frontier Foundation embraces Section 230 as one of the most valuable tools for protecting freedom of expression and innovation on the internet.

Those folks get downright excited when talking about 230, which they readily acknowledge made the internet a no-holds-barred avenue for whatever you want to say. Tell whatever lies you want and they should be protected as free speech.

It is still possible, though extraordinarily tedious, to sue the writer of defamatory material. It’s happened, in fact. In 2016, a federal court jury in Nevada awarded $38.3 million to a business owner in his successful claim of internet defamation and false light invasion of privacy.

That was a rare case, however, and even in the cases that are successfully brought, only the direct source of the defamation — the guy sitting in front of his computer writing trash — can be sued. The “deep pockets” of internet providers — who also happen to be among the world’s richest folks, these days — are completely shielded by Section 230.

Personal defamation is among the least damaging impacts of Section 230, however. The section is what allows, and even encourages, the kind of dark net hatred that’s driving violent actions by Americans against other Americans, including the recent Buffalo shootings. There seems to be no way of shutting down hate-filled speech, but corralling Section 230 would be a good starting point.

This blanket shield was erected by Congress and can be removed or reformed by Congress — if, of course, Congress was capable of doing so, which it doesn’t seem to be.

There have been attempts to reform the section. It may come as a surprise that the most recent serious effort at reform was introduced on behalf of the Justice Department by Attorney General William Barr in September 2020, during the final months of Donald Trump’s administration.

In a letter sent to Vice President Mike Pence and House Speaker Nancy Pelosi, Barr wrote that “ensuring that the internet is a safe, but also vibrant, open, and competitive environment is vitally important to America.”

Barr wrote that Section 230 was intended to protect internet providers who selectively remove content from their sites. The absence of such protection implied that if content providers began removing content, they could be held liable for any that remained.

“(Internet) platforms have also used Section 230 immunity to evade laws and regulations applicable to brick-and-mortar competitors,” he wrote.

The reforms Barr proposed are complex, and in some instances could end up making matters worse. For example, he considered the language that gives internet providers license to take down material that they consider “otherwise objectionable” is probably too broad and may lead to selectively censoring material.

If they are declared publishers, of course, they must clearly have that right. Nevertheless, the proposed Barr reforms deserve careful study and congressional debate.

Unfortunately, in today’s hyperpartisan climate, neither is possible, and it is altogether likely that Section 230, written in 1996 when there remained some bipartisan restraint and cooperation within the halls of Congress, will remain as it was written — a blanket protection for defamatory material to find its way onto the internet.


John Edwards is publisher emeritus of The Smithfield Times. His email address is j.branchedwards@gmail.com.