U.S. 11th Circuit Court of Appeals, this week, debunked social media censorship myth.
Of course, the majority conservative US Supreme Court might disagree, but we’ll wager that common sense will prevail, even with three Trump-appointed conservatives in the majority. Having been banned from Twitter, Trump has made content moderation a hot-button issue among many on the right and the left. Who is Twitter to ban a former President simply because he cheered on and then stood by and watched as those who stormed the Capitol on January 6th attempted to overthrow an election, they reason?
It’s been a bar-room free-for-all with the Trump corner and others, including Elon Musk, inferring that social media companies shouldn’t moderate or exclude anyone who has anything to say or write on their platforms. It is unAmerican censorship, they say. Nonsense!
What it is, is responsible stewardship of powerful social media platforms. After the attempted insurrection at the Capitol on January 6th which left a half dozen people dead, Twitter announced, “After close review of recent Tweets from the @realDonaldTrump account and the context around them — specifically how they are being received and interpreted on and off Twitter — we have permanently suspended the account due to the risk of further incitement of violence.” Good for Twitter!
Those on the far right and many on the far left believe that no speech should be restricted on social media. They scream “censorship!” Nothing should be restricted in the marketplace of ideas, they say. Just check your common sense at the door when you enter their dystopian Orwellian world of “free speech.” Indeed, George Orwell must be looking down, his mouth agape. They would actually buy the absurdity of Big Brother’s speech as free speech in the 21st century; he must be thinking.
All speech is free speech on social media and shouldn’t be subject to content moderation, they reason. That, of course, would be tantamount to believing that the vile NAZI rantings of Julius Streicher’s Der Stürmer would be protected speech on today’s social media platforms. Readers with relevant 20th-century historical memory might recall that Streicher was tried, convicted, and, ultimately, sentenced to death at Nuremberg as an accessory to mass murder.
Content moderation is a huge responsibility. Social media platforms shouldn’t simply exclude postings that express opinions or provide information with which they don’t agree. Many in the media business are reluctant to run explosive or controversial news that is released in the days or weeks just before an election. It’s a dicey judgment call that can be quite controversial as it was when many outlets declined to run the Hunter Biden computer story that broke in the New York Post three weeks before the 2020 election.
Because content moderation can be subject to abuse, it is good that the courts are being called upon to determine what latitude social media companies have to host or refuse to host certain content. Well, it seems they, quite appropriately, have quite a bit of latitude. The 11th circuit has determined that to say they have no latitude to moderate content is to restrict social media’s first amendment right not to provide an echo chamber for speech that they consider inappropriate or dangerous. The 11th circuit seems to be saying that while you can’t stop social media from publishing or rebroadcasting any content, you can’t force them to publish or rebroadcast content they deem questionable either. Good for the 11th circuit.
This brouhaha stems from Section 230 of the Communications Decency Act of 1996, which precludes providers and users from being held liable—legally responsible—for information provided by a third party. Courts have generally ruled that Section 230 protects social media from a wide variety of lawsuits and preempts laws that would make providers and users liable for content others post. However, Section 230 does not preclude social media companies such as Twitter or Facebook from making sensible judgments about what content is beyond the pale of responsible communication. This is a crucial point that the anything-goes crowd either doesn’t understand or chooses to ignore.
The “Good Samaritan” provision of Section 230 gives social-media platforms the freedom, if not the obligation, to restrict “objectionable” content posted by third parties. The decision not to run material that a platform considers objectionable isn’t censorship as prohibited by our Constitution. The Good Samaritan provision of Section 230 simply recognizes that social media platforms are free to use good judgment. They can say “No!” to garbage or anything they deem inappropriate, even though they can’t be sued for publishing or rebroadcasting it.
That Twitter dared to permanently suspend former President Trump for his role in the January 6th day of horrors has enraged many on the far right and on the far left and an assortment of misguided would-be exemplars of free speech, including Elon Musk. They are simply wrong. Section 230 recognizes both the freedom for social media to republish or rebroadcast irresponsible or questionable postings, as well as the freedom to determine that what they consider to be junk or otherwise questionable doesn’t have a place on their site.
Those who scream censorship need to understand that yelling “Fire!” in a crowded theater, which is proscribed by law, is simply an analogy. Under the Good Samaritan Provision of Section 230, social media is perfectly free to say “No!” or “Enough!” to what they consider to be questionable, or inciteful postings.
It’s not bad censorship. It’s good stewardship.