One Source of Our Social Media Problem: 47 U.S.C. §230

In 1996, Congress adopted what looks like today as a starry-eyed approach to social media. Take a look at a few of the preamble clauses found in subsection (a) of the Communications Decency Act, aka 47 U.S.C. §230:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

See, https://www.law.cornell.edu/uscode/text/47/230

Based on that rosy view of social media expressed in the law’s preamble, Congress proceeded to grant future mega-conglomerates such as Facebook (Meta), Twitter, Linked-In, and other platforms with an amazing grant of legal immunity. It can be found in subsection (c)(1) of Section 230 and reads as follows:

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.

In other words, although companies like Facebook (Meta), Twitter, Linked-In are clearly “publishing” information provided by every one of us who post that information online (in the same manner that a newspaper like the New York Times publishes letters to the editor and op-eds contributed by private citizens) the new law elevated social media providers to a level above that of traditional publishers. Unlike newspaper publishers, radio and TV stations, who had learned that they needed to be careful about the truthfulness of the content they were publishing, Congress decided that the new social media platforms should be immune to suits for libel or defamation in spite of any false or misleading information they might be spreading to their customers.

Perhaps we can excuse our lawmakers for their failure to foresee the intrusive use of computer algorithms designed to amplify posts (and thereby enhance profits) that encouraged our “engagement” by appealing to our base emotions of fear, anger, and hate, whether or not these posts contained statements of fact that were demonstrably false. Who could have imagined in 1996 that so many seemingly intelligent adults would allow themselves to fall victim to so many fraudulent conspiracy theories?

Now, in the year 2021, we know better—thanks in part to the recent testimony of former Facebook employee Frances Haugen. Now we know the extent to which at least one social media behemoth has shown itself willing to sacrifice truth on the altar of corporate greed.

Critics of stripping social media platforms of the legal immunity they now enjoy thanks to Section 230 will argue that companies like Facebook (Meta), Twitter, and Linked-In could not possibly continue their operations if they were forced to police every post. Wouldn’t they face thousands of deep-pocket lawsuits bound to arise based on defamation of character?

The response of Spirited Reasoners is that traditional publishing companies faced this very same problem prior to 1996 and managed to deal with it. Our social life got along just fine. In fact, Spirited Reasoners would argue that we were much less polarized as a society prior to 1996, perhaps because we received our national, state, and local news, not to mention news from our friends and family, in chronological order, just the way it was sent. We did not receive it in a manner that was sprinkled with spam, then rearranged in accordance with a multinational corporation’s favorite profit-enhancing algorithm.

Could we possibly exist as a society without our daily doses of information and disinformation as filtered through our favorite social media echo chambers? Many Spirited Reasoners now believe we might actually thereby improve our social discourse.  

It’s time to re-examine Section 230.