Limiting Section 230 immunity: It isn’t a speech constraint; it’s a free market issue

About the only thing we can seem to collectively agree on when it comes to Section 230 of the Communications Decency Act is that it is deeply flawed. Ask someone why, though, and they will offer a different answer nearly every time.

No case better exemplifies this contrast than the recently filed Parler v. Amazon Web Services. Parler, a social media platform that marketed itself as a free speech alternative to Facebook and Twitter, had its web-hosting services yanked by Amazon on Jan. 10. Amazon justified the revocation by assigning Parler — the preferred soapbox of the far right in recent months — blame for the Jan. 6 riot on Capitol Hill.

Parler filed suit within hours of its ban, requesting a federal judge in Seattle issue an emergency order restoring their web service, citing violation of antitrust laws. Predictably, Amazon cited Section 230 as its primary defense against the case in response. Parler LLC v. Amazon Web Services Inc., 21-cv-0031-BJR (W.D. Wash., filed Jan. 11 2021)

On Thursday, U.S. District Judge Barbara Rothstein declined to reinstate Parler’s web platform, citing the site’s failure to remove violent and threatening content even when made aware of the content.

“At this stage, on the showing made thus far, neither the public interest nor the balance of equities favors granting an injunction in this case,” Rothstein wrote.

Rothstein’s decision is chiefly drawn up around the failures of Parler’s antitrust claims, rather than the merits of Amazon’s Section 230 defense. But she did acknowledge that the abusive conduct by Parler’s users — and the company’s failures to act — more than merited Amazon’s decision to deny them web service.

“The Court explicitly rejects any suggestion that the balance of equities or the public interest favors obligating AWS to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol,” Rothstein wrote. “That event was a tragic reminder that inflammatory rhetoric can — more swiftly and easily than many of us would have hoped — turn a lawful protest into a violent insurrection.”

On Jan. 5 — ironically, just one day ahead of the Capitol riot — Parler issued a statement supporting the repeal of Section 230.

“If Mark Zuckerberg and his cronies in Congress have their way, these practices would be not only protected from liability, they would be mandated,” the company wrote in its statement. “Online platforms would, under a revised Section 230, become de facto censors, restricting speech that would otherwise be protected by the First Amendment.”

The truth is that neither Amazon nor Parler are qualified to police themselves about what should or should not deserve First Amendment protection. Neither are objective enough to make those determinations because both appear to be swayed by their favored political agenda.

I’d expect that most would agree that social media content distributors and search engines need more oversight than Section 230 of the Communications Decency Act provides. Placing limitations on Section 230 immunity isn’t a speech constraint; it is a free market issue.

Congress understood this point well when it sought to address abuse of Section 230 by companies like Backpage.com, a site accused of facilitating sex trafficking, through the passage of the FOSTA-SESTA package in 2018. A failed lawsuit against Backpage, which the U.S. Supreme Court declined to hear, prompted bipartisan action in Congress, despite heavy criticisms from free speech advocates and sex worker coalitions the laws had ostensibly been drawn to protect. Jane Doe No. 1 et al v. Backpage.com, LLC, et al., 16-276, (U.S. 2017)

This unilateral action was necessary because history has proven that corporations will not police themselves. When the government provides the proper restraints crafted by neutral lawmakers, the best interests of the public are protected. Government enforcement bolstered by private civil lawsuits are the most effective way to convince corporate wrongdoers to improve their behavior.

Thanks in no small part to the renewed attention to Section 230 brought by Parler’s lawsuit, Congress will soon turn its attention to once again addressing the controversial protections. And despite fears of a “chilling effect” on free speech and well-funded opposition from tech giants like Amazon, I think most would agree that it can’t happen soon enough. Social media provider lawsuits against each other about free speech constraints and accusations of antitrust violations is the fox guarding the henhouse.

An advocate of Section 230 asked me how further stripping the power of the protections wouldn’t devastate websites like Wikipedia, a generally well-managed website that relies almost entirely on user contributions to function. But FOSTA-SESTA did not cause the sky to fall. While I agree that concerns about a “slippery slope” aren’t invalid, we can continue the debate about the limits of hateful and violent speech. But lawmakers need to act to curb the most harmful and egregious content, and soon. 

Christa Ramey represents plaintiffs in personal injury matters. Her areas of expertise include bullying and abuse of children, civil rights, catastrophic personal injury, and CDA Section 230 and online defamation.