Adam Candeub, "Reading Section 230 as Written"

More from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article (by Michigan State law professor Adam Candeub) here, but here's the abstract:

Section 230 of the Communications Decency Act gives internet platforms legal protection for content moderation. Even though the statute is 25 years old, courts have not clearly stated which provision within section 230 protects content moderation. Some say section 230(c)(1), others section 230(c)(2). But section 230(c)(1) speaks only to liability arising from third-party content, codifying common carriers' liability protection for delivering messages.

And while section 230(c)(2) addresses content moderation, its protections extend only to content moderation involving certain types of speech. All content moderation decisions for reasons not specified in section 230(c)(2), such as based on material being considered "hate speech," "disinformation," or "incitement," stand outside section 230's protections. More important, because section 230(c)(2) regulates both First Amendment protected and unprotected speech, it does raise constitutional concerns, but they may not be fatal.

Comments

[DaivdBehar]

230(c) (2) covers sujective feongs, biases, fleeting moods, differing between people, between times in the same person. It appears vague, in violation of the Free Speech Clause, and unlawful. Hate speech isprotected. Incitement requires immediacy. All political speech is misinformation. At best, it lies by omission.

[Ben_]

Why read anything "as written" when you could dishonestly read it to give elites another way to make life worse for regular people? Making life worse for regular, working class Americans seems to be the primary mission of Facebook, Twitter, and the vast majority of the news media who are leftists.

If lawyers and judges start reading laws and the constitution "as written" you’ll be betraying these class peers of yours in their life’s work.

[Devin Watkins 2]

What is this about “hate speech” being unprotected? Is he trying to show he doesn’t know what he is talking about?

[Brett Bellmore]

It's not the 'hate speech' that's outside Section 230's protection. It's deletion of 'hate speech' that it doesn't protect.

[David Nieporent]

It does, of course, since hate speech is otherwise objectionable.

[Michael P]

Repeating the same assertion without any real support, and much less any attempt to engage with the counterargument, does not make your position look sound.

[Gandydancer]

The only "real support" that is necessary or relevant is the plain language of the law:

"No provider or user of an interactive computer service shall 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; ..."

Thus if Twitter, e.g., in good faith considers something "objectionable" because TWITTER considers it to be "hate speech" it can't be held legally liable for restricting access to it. There IS no legitimate counterargument. What the law says is plain as day.

[Michael P]

That is the wrong interpretation, for all the reasons that people have already laid out in these articles and others. If Congress meant "material that the provider or user considers to be in any way objectionable", they would have written that and saved a lot of words.

[David Nieporent]

They did write that.

[David Nieporent]

Are you contending that hate speech is not objectionable? More to the point, are you contending that Facebook/Twitter/etc. don't consider hate speech to be objectionable?