WTE: Executive order is a step in the right direction

In 1996, we were experiencing a revolution in the free flow of information. When the world-wide web was still in its infancy, internet service providers (ISPs) like AOL, Prodigy and Geocities began offering users a place to publish their work to the world. They were the precursors of today’s social media giants.

Unlike a newspaper, where every word and picture had to be specifically approved by the editor, this budding technology allowed content to be published without the oversight of a general editor. Unfortunately, indecent and obscene content could be uploaded just as easily as family photos and thoughtful articles.

But libel and obscenity laws that were intended for publishers of print and network media were ill-suited for the burgeoning Internet. ISPs that operated as public bulletin boards faced no liability for user-generated content. But if they deleted even one offensive photo, they made themselves editors. As such, they would be legally and financially responsible for all content posted.

It was a Catch-22. Unless the free-for-all content of this new technology was subjected to the limits of basic decency, it would become a sewer, and useless for public discourse. But if ISPs were placed under the same libel laws as traditional newspapers, the legal exposure would force them to shut down. Again, free public discourse would be the loser.

Section 230 of the Communications Decency Act (CDA) was written to address this problem. Its explicit intent is “(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

Under paragraph (c) titled, “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” Section 230 says, "No provider or user of an interactive computer service shall be treated as the publisher… [or] be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Clearly, the intent of Section 230 is to preserve parental rights and to protect children from “obscene, lewd, lascivious, filthy, excessively violent, [and] harassing” material. Nobody ever envisioned the words, “otherwise objectionable,” to give the platform carte blanche to censor at will.

Print and broadcast media have power of censorship because they are legally responsible for all content. If Twitter, Facebook and YouTube want to be publishers, they are welcome to shoulder all the editor’s responsibilities. But if they refuse the responsibility of abiding by libel and decency laws, they have no business claiming the right of editors to create, stifle or alter the content that their users are generating.

This is where President Trump’s Executive Order speaks. It declares, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher.”

The Executive Order makes no attempt to change the law. It only directs the executive agencies to enforce the entire law—not cherry-picked portions of it. Every news outlet in the country ought to be loudly supporting this order. Abuse of Section 230 by social media giants is a large part of why newspapers are collapsing around the country. Wyoming’s Tribune Eagle no longer publishes daily, and Casper’s Star Tribune has outsourced its printing.

Among other things, the president’s order asks the attorney general to work with the Federal Communications Commission to write clearer rules. Executive agencies are directed to report the amount of taxpayer money funneled to platforms that actively skew the public discourse. The Federal Trade Commission is directed to act on 16,000 complaints of deceptive trade practices filed with the White House in May of 2019.

Are Twitter, Facebook, YouTube, and Google free-for-all public forums? Or, are they simply electronic newspapers, with editors and agendas of their own? Loose enforcement of the Communications Decency Act has allowed these social media giants to play both ends against the middle. They have used this special status to destroy responsible media and to harm public discourse.

Ultimately, it will be the social media giants themselves that decide what they are. It is the job of the U.S. government to give them a clear choice. The Executive Order on Preventing Online Censorship, is a good step toward clarifying that choice.


Also published in the Wyoming Tribune Eagle on  June 5, 2020.