Section 230, the legal shield that gives Facebook and Twitter the ability to moderate content as they see fit, will once again be under the microscope
Former President Donald Trump’s new lawsuits against tech giants Facebook, Twitter and Google face long odds in court, according to legal experts. But even if his lawsuits come up short, Trump could land a severe body blow to Big Tech.
Trump’s lawsuits will force a judge to reexamine Section 230 of the Communications Decency Act — the 25-year-old law that offers tech platforms protection against being sued for what users post.
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“You could have a ruling that — even if it doesn’t entirely rule in favor of Donald Trump and put him back on Twitter next week, or leave him with a large monetary reward — still narrows the confines of Section 230 protections and make things far less favorable for the tech platforms,” Matt Bilinsky, a tech and media-focused attorney at Weinberg Gonser LLP, told TheWrap.
Any changes to how Section 230 is interpreted could lead to major financial ramifications and change how the companies police their sites.
Last week, Trump filed class action lawsuits against Facebook, Twitter and Google-owned YouTube, claiming they’ve unfairly censored him and other conservatives. The three platforms had all taken action against Trump’s accounts back in January, after Trump supporters stormed the U.S. Capitol. Twitter permanently banned Trump “due to the risk of further incitement of violence,” while Facebook hit Trump with an indefinite suspension, before recently ruling he can return to the platform in 2023 — if he behaves well.
Trump’s lawsuits boil down to a key claim: that the tech giants violated his First Amendment rights by acting as “state actors” that suppressed his speech. As Trump said during a news conference last week, his lawsuits call for “an immediate halt to social media companies’ illegal, shameful censorship of the American people.”
On that claim, Trump’s lawsuits face apparently impossible odds. NYU Law Professor Paul Barrett told NPR Trump “has the First Amendment argument exactly wrong,” since the “First Amendment applies to government restrictions on speech, not the actions of private companies.” From this standpoint, it’s fairly cut and dry: These are private companies — albeit massive, trillion-dollar companies (when it come to Facebook and Google) with billions of combined users — that are allowed to police their own platforms however they see fit.
Bilinksy agreed it’s “unlikely” Trump will get a court to side with him on First Amendment grounds: “That’s more of a public relations move on Trump’s part.”
But there’s another point where things could get interesting. Trump’s lawsuits call on the court to rule Section 230 unconstitutional, and simply by filing the lawsuit, the law will be under the microscope. The tech giants will likely point to Section 230, Bilinksy said, as the reason they can give Trump — or any other users — the boot: it’s their platform and they can do what they want.
“And anytime that that is used as a defense, there is the prospect of the court’s handing down an additional interpretation of Section 230,” Bilinksy said. “Those who too-easily dismiss the lawsuits or criticisms against the tech platforms based on First Amendment concerns don’t acknowledge Section 230 is being constantly interpreted by the courts — because it was passed when the internet didn’t resemble what it resembles now.”
That opens up the possibility that the broad legal immunity Section 230 provides Facebook, Twitter and YouTube could be “curtailed,” he added. That wouldn’t be good for the tech giants. Right now, they’re essentially exempt from being held liable for their content moderation decisions or what their users post. But even a small tweak to the current interpretation of the law could open them up to new lawsuits from angry users. That’s more money going towards the courtroom, rather than hiring new employees or developing new products.
And it’s important to keep in mind this interpretation isn’t being made in a vacuum.
There is growing bipartisan support for regulating Big Tech, and the FTC recently appointed a chairwoman who is a well-known critic of Amazon. President Biden also signed an executive order last week aiming to help companies compete against Silicon Valley’s elite, and on top of that, the American people are increasingly turning their backs on the Facebooks and Googles of the world. A recent Gallup survey found a 45% plurality of Americans have a negative view of Big Tech — up from 33% less than two years ago — while the number of Americans with a “very negative view” of the industry more than doubled to 22% during that same time.
In other words: Public sentiment could shade how a judge interprets Section 230 — and that’s not good for Mark Zuckerberg, Jack Dorsey and Sundar Pichai. Trump’s lawsuits likely won’t win him back his old accounts, but it could end up restricting the very law that his rivals at Facebook, Twitter and Google used to take action against him in the first place. And that result — the long-term impact on how these tech giants operate — could be victory enough for Trump.
“Can this move the ball forward in terms of legal precedent and additional pressure [on Big Tech], and create interim rulings that, along with new legislation being proposed by Congress, could make things more uncomfortable for the tech platforms?” Bilinsky said. “The answer is yes.”