Over at The Volokh Conspiracy, UCLA law professor and free speech attorney Eugene Volokh calls attention to an op-ed by Senator Ron Wyden published in TechCrunch last week headlined "The consequences of indecency." The Oregon Democrat warned that "There are real consequences to social media hosting radically indecent speech, and those consequences are looming."
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I wrote the law that allows sites to be unfettered free speech marketplaces. I wrote that same law, Section 230 of the Communications Decency Act, to provide vital protections to sites that didn’t want to host the most unsavory forms of expression. The goal was to protect the unique ability of the internet to be the proverbial marketplace of ideas while ensuring that mainstream sites could reflect the ethics of society as a whole.
In general, this has been a success — with one glaring exception. I never expected that internet CEOs would fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography.
Volokh is concerned primarily with the use of the term "indecent" to refer to what amounts to political speech Wyden does not like. That's an understandable concern, given that the Supreme Court has ruled that the government can regulate "indecent" speech in public broadcasts and Congress often tries to ban "indecent" speech in other contexts. The blurring of the line between profane speech people find disgusting and political opinions most people find ethically disgusting is a dangerous one.
But I wanted to draw attention to how low-key sinister the whole piece is. Wyden, as he mentions above, was the author of the amendment that shields social media websites from being held liable for content posted by third-parties. He deserves credit, in my opinion, for enshrining the protections that allow the web to be as free as it today.
In an effort to remain consistent, Wyden never actually threatens to pull social media company's protections. He would never do that. Instead he just suggests they should start banning the speech he doesn't like, because you know, someone else might start censoring them.
Social media cannot exist without the legal protections of Section 230. That protection is not constitutional, it’s statutory. Failure by the companies to properly understand the premise of the law is the beginning of the end of the protections it provides. I say this because their failures are making it increasingly difficult for me to protect Section 230 in Congress. Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms. Even if government doesn’t take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.
Were Twitter to lose the protections I wrote into law, within 24 hours its potential liabilities would be many multiples of its assets and its stock would be worthless. The same for Facebook and any other social media site. Boards of directors should have taken action long before now against CEOs who refuse to recognize this threat to their business.
Listen to me, a government official, because if you don't Congress might step in and strip you of your protections, and if you do your stock would plummet. And I really, really don't want that to happen. If your CEO is in the way, hey, maybe just fire him.
Who does Wyden think he's kidding here? It would only be slightly less subtle if he walked into the Twitter headquarters with a large man in a fine Italian suit and said that he'd sure appreciate a favor, and if he didn't, Gino here might get upset, and Gino has something of a temper.
This is not logic I've ever seen applied to other protections of rights by people who actually support said rights. A true defender of liberties recognizes that when someone practicing a right might lead to public or governmental backlash, the correct response is to defend them and chastise the would-be oppressors, not buckle. I've never heard Wyden argue, say, that news outlets should just consider giving Trump better coverage to avoid the president's threats of loosening libel laws.
Notice how when Wyden shifts the blame for his de facto call for censorship to other members of Congress he singles out "far-right House and Senate leaders" for wanting "government regulation of internet platforms." Huh? Republican members of Congress threaten to regulate Internet platforms to force them not to censor unpopular beliefs. As I've argued in the past, I think that's an equally dangerous proposition. But Wyden's suggestion that social media companies should voluntarily censor more speech would only encourage those Republicans to seek more government regulation.
This would all be troubling enough if Wyden remained vague about the speech he didn't like. But while broad in abstract, "endorsing (or denying) the extermination of millions of people" is rather obviously a reference to Holocaust denial, "attacking the victims of horrific crimes or the parents of murdered children" is rather obviously a reference to Alex Jones. Wyden isn't just wink-winking about the threat of legislation and financial ruin, he's implicitly singling out specific beliefs and actors he wants banned. He's strongly suggesting CEOs get fired if they disagree. Regardless of how reprehensible those beliefs actually are, that's dangerous behavior coming from a government official.
I almost prefer the candor of President Donald Trump who rather openly threatens private social media platforms who take editorial stances he doesn't like. Google's promoting mainstream media sources? Twitter's shadow-banning conservatives? Well, I'll regulate or investigate you unless you stop.
I disagree with that conduct and consider it goonish and beneath his office. But at least Trump has the cajones to own his threats.