President Trump, Senate Majority Leader Mitch McConnell, and other GOP leaders suddenly reversed their positions on stimulus payments. Now they insist that the (unrelated) repeal of outdated protections for social media companies is a sudden condition for voting to step up aid to Americans in distress in the face of the coronavirus pandemic.
This is, of course, a duck launched the last week of the year, the House is now out of session. It is a smart public relations maneuver to influence the second round of the Georgia Senate elections. Trump had created the light of day between himself – with a demand for payments of $ 2,000 from Americans – and his fellow GOP leaders who were largely frozen on payments of $ 600. It was one way of trying to close that gap and bypass a Democratic push to vote with Trump on increasing the stimulus check.
Democrats should call the GOP bluff.
At the same time, more tightly regulate social media companies East a good idea. But now – with Americans desperately awaiting relief – now is not the right time to randomize such changes.
Regulating technology is viewed by many on the left and right as a taboo, a bureaucratic attack on entrepreneurship, and a neo-Luddite undermining American competitiveness. However, filtering of Internet communications is common around the world. It is entirely possible to demand private accountability for hate speech and incitement to violence without restricting the First Amendment. No constitutional right is unlimited – and the repeal of section 230 has nothing to do with freedom of expression.
The first US Internet legislation became law under the Communications Decency Act (CDA) of 1996, or more formally, Title V of the Telecommunications Act of 1996, officially codified as Section 230 of the Communications Act of 1934. Section 230 generally provides immunity to website publishers from what is contained in third-party content. Section 230 is an anachronism meant to protect Internet Service Providers (ISPs), not social media companies. Few could have foreseen the rise and eventual domination of these companies in 1996.
Unlike the ISPs of the 90s, the social media platforms of the past 20 years have been primarily electronic publishers – perfectly parallel to publishers and print broadcasters. There is no reason why these platforms should not be subject to the same defamation standards as print media publishers, broadcasters or cable channels.
Why should I Facebook, Google, Apple, Snap, Twitter, and others escape the same responsibility of traditional news publishers now online, such as the the Wall Street newspaper, New York Times, Washington Post, Fortune, and Bloomberg?
The section 230 exemption unnecessarily protects social media publishers with the following wording: “No provider or user of an interactive computing service should be treated as the publisher or speaker of any information provided by another information content provider. “
In fact, social media platforms often host far more pernicious content than that of their fellow unprotected electronic publishers. A trucking company that carries a cargo of cocaine on the highways is responsible for drug trafficking, as would a pharmaceutical company whose products have caused opiate overdoses. Why shouldn’t it be the same for social media platforms?
Since the landmark Supreme Court case New York Times v. Sullivan, the boundaries have been clearly drawn when the public, even public officials, can sue for libel. Specifically, he ruled that if a plaintiff in a defamation action is a public official or a candidate for public office, he must not only prove the normal elements of defamation – publication of a false defamatory statement by a third party – he must also prove that the statement was made with “real wickedness”, which means that the defendant knew that the statement was false or acted with a reckless disregard for the truth.
Like any private publisher, social media companies have the right to edit, censor, or block content at will, whether for legality, truth, political ideology, or taste. They control what happens on their platforms and if they exercise that control responsibly, they shouldn’t have to fear libel lawsuits.
The repeal of section 230 is do not a threat to the First Amendment. As long as anyone is free to launch their own platform, they must also take responsibility for keeping it safe and respectful.
Instead, these platforms have largely given up their editorial duties, encouraging outrage to drive engagement and ad revenue. In the process, they fueled hate speech and division in the swamps of far-right and left-wing fever, sometimes aided by Russian, Iranian and North Korean disruptors. That’s why civil rights groups like the Anti-Defamation League, NAACP, and Color of Change are supporting major reform of Section 230.
It’s time to level the ground rules for print journalists, electronic journalists and social media posters.
Jeff Bewkes is the former President and CEO of Time Warner.
Jeffrey Sonnenfeld is Senior Associate Dean and Professor of Management Practice at the Yale School of Management, where he is Chairman of the Chief Executive Leadership Institute. Follow it on Twitter.
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