Explainer Episode 17 – A Big Week for Section 230

In this episode, Jennifer Huddleston and Ashkhen Kazaryan break down the recent news related to Section 230 of the Communications Decency Act, including Justice Clarence Thomas’s statement, controversy over Twitter and Facebook’s moderation practices, and FCC Chairman Ajit Pai’s announcement on rulemaking related to the law.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

Jack Derwin: Welcome to the Regulatory Transparency Project’s Explainer Podcast, which is part of RTP’s Fourth Branch podcast series. My name is Jack Derwin and I’m Assistant Director of RTP. 


Today, I’m happy to be joined by Ashkhen Kazaryan and Jennifer Huddleston to discuss the recent news surrounding Section 230 of the Communications Decency Art.


Ash is Director of Civil Liberties at TechFreedom. And Jennifer is Director of Technology and Innovation Policy at the American Action Forum. Thank you both so much for taking the time to join us today.


Ashkhen Kazaryan:  Thanks for having me.


Jennifer Huddleston:  Thank you for having me, too.


Jack Derwin:  Well, of course. All right. So let’s get right into it. So let’s start, the Section 230 has been in the news a lot this week. And so to get us started, Jennifer, would you mind running us through why that is and what’s happened involving the law in the last week?


Jennifer Huddleston:  We’ve seen a lot of news this week involving Section 230, or where the law, Section 230, has come up. Probably one of the first things that many people who listen to this podcast, or are following FedSoc’s activities noticed, was that Justice Thomas had a statement about Section 230 regarding the Malwarebytes case petition for cert, and how he believed that it was potentially time for some action or reconsideration of this. 


Secondly, we saw that there were — was an incident involving a New York Post article and that was taken down by, both, Twitter and Facebook, and that the link to which was blocked. And as a result of this, several Republican policymakers called for questioning why this was done and started invoking the need to potentially revoke Section 230. 


Finally, the kind of third thing that we saw this week, was that the Federal Communications Commission, the FCC, issued a notice that it was going to take up the NTIA’s petition for rulemaking to potentially change the interpretation of Section 230.


Jack Derwin:  Thank you Jennifer. So let’s start with Justice Thomas’s comment. Can you tell us a little bit more about that, Ash?


Ashkhen Kazaryan:  Sure, so TechFreedom actually has filed an amicus brief in Enigma Software v. Malwarebytes case asking Supreme Court to grant a cert. It was a Ninth Circuit decision. The Court’s decision imported the good faith requirement into Section 230(c)(2)(B). And basically, the whole case was about (c)(2)(B) versus (c)(2)(A) and I’m not going to go into details because those are not relevant for the format of this podcast.


But what’s relevant is, that what Justice Thomas did had nothing to do with (c)(2)(B) or (c)(2)(A). What he did was — I mean, he often issues statements like the one he did in this case, which doesn’t really decide on the case, but just expresses his frustrations about the state of the law. And I mean, some other justices do, sometimes, too. There’s nothing inherently wrong with issuing such statements. But this is the very first time the Court has ever considered reviewing any case involving Section 230. And the briefs in the case did not even address the issues Justice Thomas raised in his vent. 


Justice Thomas is, you know, he’s free to call for fuller briefing on Section 230 and what it means. And he did express that. But we need a fuller briefing on 230 and exactly the implications that would follow from it. But what he also did is, he expressed his own views in extensive dicta without the benefit of the briefing he says we need. 


The views that he expressed basically they track the talking points that had been advanced by the White House and Senator Hawley and a few other Congressional Republicans. And so it’s a little troubling. It is going to be very interesting development if a 230 case actually does reach the Supreme Court and gets a cert.


Jack Derwin:  Interesting. So before we go further talking about criticism of Section 230, can we step back for a moment and talk a little bit about where the law came from and when it was passed and what the purpose of it was, at the time? Jennifer, if you could talk a little bit about that.


Jennifer Huddleston:  Section 230 was part of a package known as the Communications Decency Act. But it was different from the rest of that bill. It was introduced by, then, Representatives Chris Cox, a Republican from California. And then Representative Rob Wyden, now Senator Wyden, a Democrat from Oregon. And while the rest of this package looked at really regulating the internet and putting additional requirements on it, Section 230 noted something that was going on in common law that these two representatives were concerned about.


It noticed that there had been a case recently where an online message board was being held liable for user-generated content. And these two representatives were very forward looking and saw the potential of the internet to really provide a voice to people. And to provide new opportunities for users to have a voice and to have places for their content to go and have conversations, and really be an explosion of speech. And so what this law sought to do was to overcome some of these questionable rulings that were coming out with regards to whether or not online platforms could be liable for third-party content.


Now, one thing that’s going to be very relevant to some of our later conversation around this law, is both during the debate and introduction of Section 230, as well as now with the recent petition for rulemaking at the NTIA, Representatives Cox and Wyden have been very clear that they did not intend to give the FCC authority as part of this — of Section 230. That, in fact, they were concerned about without something like this, that the FCC could become the Federal Computer Commission, rather than the Federal Communications Commission.


Ashkhen Kazaryan:  One other important thing to mention is that, in Reno v. ACLU, the Supreme Court then found that everything in the Communications Decency Act, aside from Section 230, was unconstitutional and Justice Thomas was one of the justices who voted to do that. So it was a little interesting how, you know, now he’s rethinking the text of a statute. But, yeah, that’s the history. And it’s also important because when we point to, and I’ve seen some argument — post-arguments of pointing to “legislative history” and arguing that Section 230 was intended to protect children, or speech online, or shield children from it, it’s completely untrue. Not only because it was a separate bill that, then was merged with what CDA was. But also because CDA was found to be unconstitutional. So looking at legislative history of something that’s unconstitutional seems counterproductive, to say the least.


Jack Derwin:  Thank you. Yeah, so it’s definitely very intense point of contention right now. We certainly see a lot of critics of the law, from Justice Thomas, folks like Senator Hawley, to Presidential Candidate Joe Biden. What is driving all the opposition to the law?


Ashkhen Kazaryan:  So I think it’s important to understand that there are a couple of things that are happening at the same time, here. Number one is that about four or five years ago, regulation of the internet, and many different parts of internet, has become a very complex, intricate question that has created a lot of emotion and passion surrounding it. And part of it had to do with the 2016 election and the polarization of political and policy space, overall. Part of it had to do with different mistakes or scandals, or just stories that happened in different tech companies, that then the feelings about those events would apply to the whole industry. You can just see, overall, when even in Senate or House hearings, when people talking about one tech policy issues, let’s say antitrust, they start talking about Section 230. Or they talk about Section 230 and they start talking about privacy.


So people might have feelings about privacy, but then they start attacking Section 230, and it’s not the way to go when you regulate technology, that’s for sure. So understanding that the technology is not the sweetheart of D.C., or just public opinion, overall, is important. Number two is also kind of tracking this tech-lash mood. And number three is that a couple of years ago, a lot of Republicans, mainstream Republicans, have started stating that there is anticonservative bias on these platforms. 


Now I don’t deny, and I’m not unaware that a lot of the tech companies are staffed primarily with left-leaning staffers and people who run them are Democratic donors. However, I mean, look at any other industry, most — a lot of major industries are Republican donors. And that never stopped us from, you know, not making them partisan. And number two is, so we’re going to talk about the NTIA petition in a second, but when we talking about the NTIA conservative bias and evidence of it, even the petition that talked about the bias, couldn’t point to any data and has acknowledged that. And said that, unfortunately we couldn’t find, basically, any studies or any data that would empirically show the bias.


And this is when we enter the New York Post story that happened this week. And it’s been a very — there have been a lot of contradictions surrounding it. And to start off, we should say that there was this New York Post story about Vice President Biden, candidate for President’s son Hunter that included some photos of him and information that was received through certain sources that received it through accessing it illegally. So that’s the backstory. And then both Twitter and Facebook started restricting sharing of that content, which led to the Streisand Effect, which basically means if you try to stop some information from spreading, it’s going to spread like wildfire. Would you agree, Jenn?


Jennifer Huddleston:  Well, I think let’s jump into this New York Post incident a little bit more, because I do think this has been a real turning point, or a real inflection point for this debate, where we’ve all the sudden seen things really heat up again. And I think it’s important to recognize that you can think that these companies made the right call, or the wrong call on the New York Post article in allowing it or not allowing to stay up, and still think that a Section 230 policy is a good policy.


And what I mean there is, you can believe that companies need to give more of a platform to conservative voices, and you can even look at Section 230 as a way of allowing that to happen. Because Section 230 doesn’t just apply to these large companies. Section 230 protects small companies from liability, too. And what that means is if you’re trying to start a new social media platform, which we have seen new social media platforms pop up in the wake of some of these previous scandals. So things like Parler, that were really trying — are trying to create an alternative that they claim will be more friendly to some of these things that get taken down, they also are protected by Section 230 with their content moderation decisions. And with not being held liable for third-party speech.


There’s another element, too, when it comes to these decisions about what to leave up and take down. Which is where the First Amendment comes into play. Separate from Section 230, in some cases, particularly when we’re talking about fact checks or warning labels, those aren’t necessarily a question around Section 230, so much as that’s also the platform speech. And that’s an area where First Amendment rights come into play. Not necessarily just with regards to free speech in kind of a general concept, but platforms also have First Amendment rights. And when we’re talking about government intervention, we’re talking about, potentially, the government coming in and restricting those rights, as well.


Ashkhen Kazaryan:  Yeah, Jennifer is absolutely right. And basically, this story, and this storm, if anything, I think it energized President Trump’s campaign and its supporters. And it also created a very immense pressure — additional pressure on everyone in the ecosystem of tech policy who has decision making power.


So even before this week, we saw an influx of bills in Congress suggesting amending Section 230. We already were getting information that, again, tech CEOs were being subpoenaed to testify in front of Congress on October 28th, like days before the election. We’re in the middle of a pandemic and economic crisis, and we’re like two days basically — a few days away from the election, and we hear about subpoenaing tech CEOs. Coincidence? I think not.


What’s going on is the tech companies are making a lot of decisions. For example, some of them made decisions to not make any political — take any political ads while the result of the election is still not official. That has been not good news for some of the parties involved who are already questioning the results of the election or the process of the election. 


So the political pressure from both sides on tech companies to get in a favor, or do something that would benefit them, is immense. And all of these hearings and bills and subpoenas are just the proof that it’s going to only continue. And then to get this New York Post story that gets restricted. And then the explanations are kind of jumbled and not very clear, and not very timely. I think we can all agree that the communications departments should have done a better job at communicating what exactly happened and why, when Twitter and Facebook made this decision.


So yeah, when that happened, that just had a chain reaction. And next thing we know, yesterday, on Thursday, we saw a statement from Chairman of the FCC, Ajit Pai, saying that they’re going to take up and look into the question of Section 230 and that they have authority, according to the General Counsel of the FCC to do so.


Jack Derwin:  Well, you did a good job for me there, transitioning into the final big development, which was the FCC action. Jennifer, can you tell us a bit more about how that fits into the bigger picture?


Jennifer Huddleston:  Earlier this summer, President Trump issued an executive order regarding social media. Which, one thing we haven’t mentioned yet, is that Section 230, today we’re talking about it in the context of social media, but user generated content is much broader than that online. Everything from review sites, to comments on blogs, this is not just about social media.


But the executive order was about social media and concerns about anticonservative bias, as well as potential concerns on what the President was experiencing with some fact checking on his tweets, particularly. And in that executive order, it requested that the NTIA consider a petition for rulemaking to the FCC. So the NTIA went forward with that and petitioned the FCC regarding making some changes to Section 230 and its interpretation.


Now, what’s interesting here is kind of a regulatory question that arises, which goes back to what we were talking about a bit earlier with the origins of Section 230. Advocates for the FCC taking up this petition tend to point to the idea that the FCC’s authority is broad enough that the internet falls under the category of information services, and therefore, it has the authority for this rulemaking. 


I argue in a piece that’s posted on FedSoc’s website that we should be concerned about this kind of broad approach to regulatory authority, particularly given what it could mean for a much larger expansion of the administrative state. In this case, we have a pretty clear text — not just pretty clear. We literally have the drafters in comments to the FCC saying, we did not give you authority over Section 230. And not only that, even if you’re concerned that, well maybe they changed their mind, we have floor speeches in which they say, this does not grant the FCC authority. So we should be a little — more than a little concerned about what this could mean for future expansions of the regulatory state if this is allowed to proceed. How other agencies, or other administrations, would be able to claim authority without a clear grant from Congress just by the idea that it falls under a general scope of the agency. 


Additionally, it could also call into question some of the agencies deregulatory actions, like the Restoring Internet Freedom Order, the reclassification of ISPs that were looking at saying, we aren’t the appropriate authority for dealing with this issue. There’s several things that this could raise questions about and be points of contention on in the way the FCC has approached the internet in its light-touch approach, more generally.


Ashkhen Kazaryan:  I’m going to say the part out loud that we haven’t said yet. And that is, if Biden wins the election, nothing happens further on this front. Number two is, that it’s also very questionable how this authority that FCC claims they have over Section 230 would really play out in court. So it’s very likely the court would find that FCC does not have authority over this. But it’s going to take litigation to get there, obviously. You know, nothing stops them right now. Same thing that Tom Wheeler, back when he was Chairman of the FCC, he would just go off and pass a lot of regulations, and then the courts would strike them down. ‘Til this day, that’s happening to regulations that were passed under Tom Wheeler.


So it is just kind of this game of catch-up where admin law, that might be very fascinating when you get into it, but from the outside, it sounds very boring. You know, there are different case law and there are different statutes that already took place. But all you have to know is, basically, we don’t need to get deeply into it. And Jenn and I can maybe start doing that after the election, if President Trump wins. Because then, it’s a real possibility that FCC’s going to interpret Section 230. 


But — okay, sorry. Last thing I was going to say is, in the last, what, how many years it’s been? Almost 25 — I’m bad at math. Almost 25 years since Section 230 past, not a single court that has ruled on 230 and interpreted 230 and created precedent, has said, huh, I wonder what the FCC thinks about this?


Jack Derwin:  All right. Well, to close this out, I’ll just ask you, in the next couple weeks, or months, or even years, are we likely to see any serious change to Section 230? And if so, is that most likely to be legislative, regulatory, or now after Justice Thomas’s statements, through the legal interpretation of the judiciary?


Jennifer Huddleston:  I think we’ll continue to see a lot of conversation around Section 230 and around kind of broader question of online content. As we’ve eluded to, multiple times, on this podcast, there have been calls to reform Section 230 from both the left and the right. Whether it’s Vice President Joe — former Vice President and Presidential Candidate Joe Biden or whether it’s Senator Josh Hawley, this is not something that is only one side of the aisle discussing. But what it is very interesting is the reasons those two sides of the aisle are discussing it very much differ. And that shows part of the reason that it is somewhat unlikely that we see a single proposal truly gain traction. 


The same piece of content that one side is complaining about platforms taking down, the other side will be complaining about platforms leaving up. And that just shows how difficult content moderation is. And why allowing the government to make those calls probably isn’t going to be the best course for speech. And has some real concerns about First Amendment implications, as well as the future of innovation and online user-generated content.


Ashkhen Kazaryan:  I disagree with Jennifer on the first part, that probably nothing is going to happen. Depending on the result of the election, there are going to be Section 230 movements and probably attempts at reform, just in somewhat different directions. As for litigation part of it and precedent, I think that’s obviously the long-term potential change. It just takes longer. So in the near future, we’re looking at Congress, there were like five 230 amendment bills introduced just in September that I can think of at the top of my head, and there probably is more. 


So there is definitely a lot of momentum, I guess, or willingness for some members of Congress to make this their thing. I don’t know why. I’m pretty confident this does not get them reelected. But anti-tech angle definitely does. And when you have an anti-tech angle, what ends up happening is, you hurt free speech online, you hurt civil liberties, and you hurt overall innovation.


Jennifer Huddleston:  And if I can just clarify, it’s not that I think this conversation will go away. I think, regardless of the results of the 2020 election, we will still have a lot of conversations around Section 230 and online content. I’m just not sure that any particular proposal has gained sufficient traction yet, given that we’re seeing so many different calls and so many different complaints that are often at odds with each other.


Ashkhen Kazaryan:  Right. But if President Trump wins reelection, the person they nominated to replace Michael O’Rielly on the Commission, who was one of the drafters of the NTIA petition from NTIA, I believe his name is Nathan Simington, his confirmation hearing is on November 10th. So let’s say President Trump wins reelection, Mr. Simington gets confirmed, before the end of the year, FCC’s going to vote on changing 230. And that’s just one of the scenarios. That’s what I mean. I think there are a lot of possibilities. But there’s also a high chance of change happening, depending on, obviously, how the chips fall.


Jack Derwin:  All right. Well, when any change happens, we’ll have to have you both back to talk about it. And we really appreciate you both taking the time today. And I think it was a great discussion on a really important topic.


Ashkhen Kazaryan:  Thank you so much for having us.


Jennifer Huddleston:  Thank you.


Jack Derwin:  Thank you for tuning into this episode of RTP’s Explainer Podcast. Please check out our website at RegProject.org to learn more about this issue and a host of other regulatory topics.

Jennifer Huddleston

Technology Policy Research Fellow

Cato Institute

Ashkhen Kazaryan

Senior Fellow, Free Speech & Peace

Stand Together

Emerging Technology

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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