Rage, Monitized, Generating Wealth Beyond the Dreams of Avarice


Text of the Communications Decency Act, Section 230

Maureen Dowd, Think Outside the Box, Jack: Trump, Twitter and the society-crushing pursuit of monetized rage.

NPR, As Trump Targets Twitter’s Legal Shield, Experts Have a Warning

Forbes, Why A Repeal Of Section 230 Could Hurt Trump & Help Trolls, Bullies & Pedophiles

Section 230 uses a lot of words, and does a lot of things, but perhaps its main effect is to preempt the laws of defamation of the 50 states, to the extent that these laws might otherwise impose civil liability on Twitter and Facebook and their ilk for disseminating false and defamatory statements, and making gobs of money for doing so.

Thus, as Maureen explains, the law allows Twitter and Facebook to set up their algorithms to gin up, exploit, and monetize rage.

The Right Answer to the Wrong Question

Sometimes we give the correct answer to a legal or public policy question, but we still fall in the shithole, because we asked the wrong damn question.

And this, I believe, is what has happened here.

Traditionally—think back to those golden days of yesteryear, before Al Gore invented the internet—publishers of defamatory material were as liable for defamation as the people whose lies they were spreading. Publishers meaning newspaper publishers, book publishers, etc. Publishers could also include gossipy neighbors, who pass on false and malicious statements they have heard from others.

But distributors—the bookstore, the paper boy, the corner newsstand—are not liable. They perform a useful service, and it would not be practical for the paper boy to read every word in the paper and check for defamatory statements before he tosses the paper onto your lawn.

The Wrong Question

Are firms like Facebook and Twitter more like a newspaper publisher or are they more like a paper boy?

The Right Answer to the Wrong Question

Facebook and Twitter are more like the paper boy because, like him, they do not exercise editorial control over the materials they distribute.

The Right Question

But imagine—still thinking of those golden days of yesteryear—that a new business arises in town. Sam’s Rumor Spreading Service opens its doors. For a modest fee, Same invites folks who hate their neighbors to pass along hateful observations—inflammatory opinions, true but harmful information, totally false “information”—doesn’t matter to Sam. Because, in exchange for a fee, Sam will cheerfully spread the information all over town for you.

So, here’s the right question. As a matter of fairness, logic, and good public policy, shouldn’t we at least hold Same legally liable for the false “factual” information he spreads like manure, in cavalier disregard for its truth or falsehood.

We’ll let old Sam keep on spreadin’ those hateful opinions and those malicious statements of fact that are actually true. But shouldn’t we draw the line at immunity for false and defamatory information?

The right answer to the right answer is that, yes, indeedy, we should do that very little thing.

The Simple Solution

The simple solution would be to amend Section 230 so that defamation suits against Twitter and Facebook are no longer preempted by federal law.

In that scenario, Facebook and Twitter could still publish offensive opinion. They could still publish hurtful but factually true information. And they would still enjoy the strong First Amendment protections afforded by cases like New York Times v. Sullivan and Hustler Magazine v. Falwell.

And, last but not least, Facebook and Twitter would still be free to argue to the state courts that they should be treated more like a paper boy than like a newspaper publisher.

Maybe Wyoming would decide one way, and Massachusetts would go the other way.

But at least there would be some legal disincentive to curb the worst of Facebook’s and Twitter’s  worst behavior.