Is the antidote to bad speech more speech or more regulation?

The internet needs reform. Section 230 of the Federal Communications Decency Act insulates internet companies from content liability. Its famous 26 words are that: “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.”

The immunity is not specific. If your teen-age daughter is the target of internet bullying, “slut shaming,” a sex crime or even murder, the platform on which she met her tormentor is immune from responsibility. If you are the victim of fraud on the internet, cyberstalking, blackmail or extortion, the vehicle for criminal communication is immune from responsibility. If your privacy is invaded because you have given Facebook or Google too much data, it’s on you. You traded your data for a free membership.

Section 230 has its roots in common law principles. The proprietor of a kiosk or bulletin board was never liable for defamatory content tacked or pasted to its surface. Only when the distributor authored or edited the posted content did it become liable as a publisher. The principle sired Section 230. Courts have indicated that if the platform regulates or edits content, it will lose its immunity. But if it does not, case dismissed.

Everyone agrees that internet companies should not lose immunity if they regulate violence, terrorism, child pornography or sex trafficking. That’s a no-brainer. But what about filtering their content for truth?

Can the inscrutable algorithms of Twitter, Google or Facebook regulate lies without losing their immunity? The courts have never definitively decided the issue.

So, who wants to amend Section 230? Such anomalous proponents of free speech rights for unpopular ideas as Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) claim that Facebook, Google and Twitter are biased against conservative views. They have introduced curative legislation that would dilute Section 230 immunity. The proposed legislation is unlikely to go anywhere in the foreseeable future. And even Democrats have talked about amending Section 230, arguing that the immunity disincentivizes preventive action against those plotting violence.

The regulation, censorship or prohibition of speech by the government would obviously raise free speech issues. But the internet platforms are not agencies of the government. They have the right to regulate speech on their platforms in accordance with their user agreements.

Following the November election, when Trump falsely claimed he had won, Twitter and other social media companies marked these posts as potentially misleading. Trump was so incensed that he vetoed the defense spending bill for 2021 because it did not contain language to repeal Section 230. Both Houses of Congress overrode the veto without adding any Section 230 provisions.

After Jan. 6, Twitter and Facebook shut down Trump’s accounts entirely on account of the possibility of further violence. Although Trump loves to bring lawsuits, can you imagine him suing the internet companies, claiming he had a First Amendment right to incite violence? The First Amendment was intended to protect the people from the government, not the other way around.

So, what are the contours of internet free speech? The First Amendment, ratified in 1791, guarantees that Congress shall make “no law abridging the freedom of speech, or of the press.” Judges have stated that the Constitution guaranteed a “marketplace of ideas” where the truth would win out. The antidote to bad speech and false statement is more speech, not suppression of speech. Or as Justice Holmes put it, “free thought—not … for those who agree with us but freedom for the thought that we hate.” 

The First Amendment is narrowly qualified in its application to free speech. For example, child pornography, copyright infringing speech, speech involved in illegal conduct like conspiracies, defamation and calls for imminent violence receive no First Amendment protection. 

Hate speech, generally defined as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, gender or sexual orientation” is generally okay in the United States, although the protections have had their limitations. 

It is banned, however, in many countries, including Canada, England, Germany and Russia. The Canadian Supreme Court said why: “The Holocaust did not begin in the gas chambers,” said the court, “it began with words.”

An action for defamation may not be predicated on the expression of an opinion, only upon the falsity of a factual assertion. But what is fact and what is opinion? Was it an expression of fact or political opinion when Rep. Marjorie Taylor Greene (R-Ga.) promoted the conspiracy theory that no airplane hit the Pentagon on 9/11 or that the horrific school shootings in Parkland, Fla., were faked?

Some of the most horrific crimes can occur using the facilitates of the internet: election fraud, disinformation, child sex trafficking, child pornography, insurrection and even murder. We can crack down on the internet companies or we can rely on them to self-regulate. There are perils in either course. Is the antidote to bad speech more speech or more regulation?

James D. Zirin is a former federal prosecutor and the author of three books.