Section 230

How Press Freedom—and Section 230—Led to Derek Chauvin's Conviction

Imagine a world in which media outlets were unable or afraid to post video of police and other authorities acting reprehensibly.


When Minneapolis Police Officer Derek Chauvin was found guilty on all counts of killing George Floyd, it was a victory not just for justice but for free speech—a freedom currently threatened by a bipartisan coalition of federal legislators.

That's the compelling argument made by Michael Socolow, a communications and journalism professor at the University of Maine:

It was the culture and tradition of U.S. civil liberties and media freedom that played an essential role in protecting Frazier's ability to record and retain possession of the video, and the capability of commercial corporations to publish it.

Had the same events transpired in China, Saudi Arabia, Russia, Singapore or elsewhere, nobody might ever have learned of Floyd's fate.

Socolow appreciates how the ubiquity of cell phones and other recording devices has made it easier to capture official malfeasance, but he stresses that the real difference-maker is citizens' ability to distribute what they capture over platforms such as Twitter, Facebook, and YouTube. These sites are protected by Section 230, the 1996 law that gives websites legal immunity for most user-generated content while also giving them maximum latitude to moderate content as they see fit. Section 230 is often called the "26 words that created the internet" and "the internet's First Amendment."

Socolow notes that both Joe Biden and Donald Trump have called for the repeal or evisceration of Section 230, as have such strange bedfellows as Sens. Elizabeth Warren (D–Mass.), Ted Cruz (RTexas), Josh Hawley (R–Mo.), and Vice President Kamala Harris.

Socolow also tells a fascinating story from a century ago. In Minneapolis (of all places), Jay Near, the rabidly anti-Semitic editor of The Saturday Press, thought the police were part of a Jewish cabal. Near and his partner were blocked under Minnesota's "public nuisance law" from publishing their admittedly fact-free and defamatory charges, but they ended up winning a landmark Supreme Court case. In Socolow's words, the Court ruled that "the U.S. Constitution allowed the abuse of press freedom in order to protect the most vibrant and robust public discussion possible."

Modern press freedom was born with that decision, says Socolow. "Had Minnesota's Public Nuisance Law survived Near's challenge," he writes, it "very well might have prevented publication of [Darnella] Frazier's video [of Chauvin murdering George Floyd]. Those images could easily have been deemed 'obscene,' or a 'malicious' or 'scandalous' incitement to violence." Under Section 230, he adds,

defamatory accusations, negligent misrepresentation, intentional nuisance, dangerous misinformation and even content intended to incite emotional distress can be posted without Facebook, Twitter, Instagram or other companies being sued or held civilly liable.

For better or worse, Section 230 establishes media freedom across the internet in the U.S. And it is this law, built on the traditions of media freedom, that allowed Darnella Frazier—and all citizens who follow in her footsteps—to stand up to the government in ways previously unimaginable.

Publishers and individuals can be sued for libelous and false allegations once they are made public, but the onus is heavily stacked against presumptively banning such speech, especially when it involves public officials. Socolow's account shines a harsh light on government actors' attempts to limit what can be shared online: It's not about protecting the little people, but those in power.

As Socolow concludes,

The direct line from Minneapolis in the 1920s to Minneapolis in the 2020s is the notion that protecting people's rights promises to foster an active, aware and engaged citizenry—and that violating those rights by repressing or censoring information is deeply anti-American.