That may have been true in 1996. But today, not only are social media companies publishers, they are the biggest publishers in the history of the world. The Library of Congress was created in 1800 and has more than 39 million books. Every day, the internet as a whole generates 100 times that amount of data every 10 seconds. No, the platforms aren’t publishers in the sense of creating, commissioning, and editing content. They are publishers in the original sense of the word: disseminators and sharers of information, someone who makes information public. They are what publishing has become in the 21st century. They may not be crossing out dangling modifiers with a red pencil, but their structure and design, their menu choices, and their algorithms decide what content you see, how it is ranked and displayed and arranged. Those are all editorial functions. Algorithms are editors—the fastest, most efficient, and most influential editors in history.
When they passed the law, Congress’s motivation wasn’t to restrict free speech but to protect it. Congress worried that if the platforms were considered publishers, they would be too draconian in policing their services. And it worked, way better than they could ever have imagined back when your computer chirped: “You’ve got mail!” At the same time, they gave the platforms a “safe harbor” to screen harmful content. The services are responsible for removing pornography, child pornography, and the buying and selling of illegal drugs and services. Pretty much every major court decision since 1996 has said if they make “good faith” efforts to remove such illegal material, they can keep their immunity.
Nor is that the only guardrail. All social media companies have terms of service agreements and community standards that outline what is permitted on their platform and what is not. Because those companies are private, these standards are stricter and more circumscribed than anything federal or state governments could impose. The Twitter Rules say users cannot “threaten violence against an individual or a group of people.” They forbid “the glorification of violence.” They ban the promotion of “terrorism or violent extremism.” In short, you may not “threaten, or harass other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.” Trump violates many of these proscriptions regularly.
The unintended consequence of Section 230 is that platforms have also become the hosts of colossal amounts of misinformation, disinformation, conspiracy theories, hate speech, terrorist jeremiads, and vast oceans of nasty speech. When I was at the State Department combating Russian and ISIS propaganda and disinformation, I came to see Section 230 as an open door to all kinds of speech that was detrimental to American security. I came to believe that Section 230 needed to be…
Read More: Revoking the Law That Protects Twitter Could Backfire on Trump