Bill Barr’s DOJ wants to end immunity for social media companies

A change to the laws giving internet companies the ability to censor conservative speech is on the way.

The Wall Street Journal reports that the Department of Justice (DOJ) on Wednesday put forth a proposal that would weaken some of the legal protections that internet companies – including social media websites – currently enjoy. 

Section 230 – the problem

To understand the proposal, it could help to know a little something about the law that the DOJ is targeting – Section 230 of the Communications Decency Act (CDA). Passed back in 1996, Section 230, as Breitbart reports, addresses the liability of online companies for user-generated content. What it does is make these companies immune from lawsuits that otherwise could be brought against them for the actions of their users.

Normally, outside of the internet, publishers are held responsible for what they publish, and this brings us to the first problem that the DOJ and others have with Section 230: when online companies go through user content, as they have been more and more – else how are so many people getting censored – they begin to look a lot more like typical publishers, and the argument is that accordingly, they ought to be treated as such.

Then there is another part of Section 230 with which many take issue, known as subsection c-2, which grants these online companies further immunity from lawsuits that might be brought against them for the censoring of “objectionable” content.

The Changes

The DOJ proposal addresses both of these issues with Section 230 removing online companies’ immunity in a variety of situations.

According to the Wall Street Journal, some examples of when immunity would be removed would be “when platforms facilitate or solicit third-party content or activity that violates federal criminal law, such as online scams and trafficking in illicit or counterfeit drugs”; when internet companies “have knowledge that unlawful conduct is taking place on their platforms or show reckless disregard for how users are behaving on their sites”; and when there is “online child exploitation and sexual abuse, terrorism or cyberstalking.”

The Journal reports that the DOJ proposal would also look “to prevent platforms from taking down content without offering reasonable rules and explanations—and following them consistently;” it would “strike from federal law a provision that allows platforms to delete content that they merely deem to be ‘objectionable'”; and it “would give some teeth to an existing ‘good faith’ standard that platforms are supposed to use in their content-moderation decisions” by requiring online companies “to adhere to their terms of service” and “their public claims about their practices” and by making them “provide reasonable explanations of their decisions.”

Can’t do it alone

This proposal follows and builds on an executive order that President Donald Trump signed at the end of May. In that order, Trump sought to limit the legal immunities of social-media companies that unfairly censor the speech of its users.

Neither that order nor the DOJ’s proposal, however, can be implemented without the participation of Congress. While both Republican and Democratic members of Congress have taken issue with Section 230 in recent years – with some working on their own Section 230 reforms – it is unclear whether they would consider, let alone pass, the DOJ’s proposal.

And then there is the issue of whether the DOJ’s proposal is lawful, with an online advocacy group already challenging it in a federal court.

With all this being said, there are many people out there who would agree that social media outlets unfairly censor conservative voices and that something ought to be done. This may be so, but how to address this situation, given the Constitution’s protection of free speech, is a tricky subject, and perhaps the best solution going forward would be for conservatives to boycott such platforms. This is certainly a story to keep our eyes on going forward.

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