Just over two months ago, I posed the question: When the COVID-19 dust settles, what will become of Section 230 of the Communications Decency Act? As it turns out, we may be getting our first hints of the answer to that question while the dust from the pandemic is still clouding the air.

On May 28, President Donald Trump signed the “Executive Order on Preventing Online Censorship,” days after having one of his tweets flagged as “potentially misleading” by Twitter.

More recently, U.S. Senator Josh Hawley (R-Mo.) introduced the “Limiting Section 230 Immunity to Good Samaritans Act,” a bill intended to “empower Americans to sue Big Tech companies who act in bad faith by selectively censoring political speech and hiding content created by their competitors,” according to its sponsors.

In seeking to curb the immunity afforded to operators of interactive web services with respect to expression published by third-party users of their platforms, both Trump and Hawley want to tie the grant of immunity to a promise of political neutrality.

In remarks he made upon signing the executive order, Trump asserted that a “small handful of powerful social media monopolies controls a vast portion of all public and private communications in the United States” and that to this point, thanks to Section 230, those monopolies have “had unchecked power to censor, restrict, edit, shape, hide, alter virtually any form of communication between private citizens and large public audiences.”

“There’s no precedent in American history for so small a number of corporations to control so large a sphere of human interaction,” Trump continued. “And that includes individual people controlling vast amounts of territory. And we can’t allow that to happen, especially when they go about doing what they’re doing, because they’re doing things incorrectly.”

In a statement announcing the introduction his “Good Samaritan” legislation, Hawley echoed Trump’s claims.

“For too long, Big Tech companies like Twitter, Google and Facebook have used their power to silence political speech from conservatives without any recourse for users,” Hawley said. “Section 230 has been stretched and rewritten by courts to give these companies outlandish power over speech without accountability. Congress should act to ensure bad actors are not given a free pass to censor and silence their opponents.”

As noted repeatedly, not only by courts but many First Amendment attorneys and scholars, the likes of Facebook and Twitter are private companies, not government entities. As such, they’re simply not constrained by First Amendment considerations in the same way a government entity is when it comes to moderating content posted by users.

Some critics of social media, as well as some litigants who have sued them over their alleged political bias and related censorship, have sought to invoke cases like Marsh v. Alabama, in which citizens have prevailed against “company towns” like Chickasaw, Alabama – the town at the heart of the Marsh case.

The details of the Marsh case are beyond the scope of this post. For a basic rundown of the issues involved and why the town of Chickasaw isn’t analogous to social media platforms, refer to the “Deplatformed: Social Media Censorship and the First Amendment” of the Make No Law podcast published last year. In any event, the idea that the precedent set Marsh shouldn’t apply in a social media context is not some fringe, liberal point of view – or if it is, then someone needs to explain to me how and when Justice Brett Kavanaugh became a fringe liberal.

As Kavanaugh observed last year in Manhattan Community Access Corporation v. Halleck, simply performing a function or offering a service that is also sometimes offered by government entities does not magically transform a private company into a government entity bound by the First Amendment.

“Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed; therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor,” Kavanaugh wrote. “After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards, comedy clubs host open mic nights.”

Trump’s executive order references another case, Pruneyard Shopping Center v. Robins, in which the California Supreme Court found “found that the State Constitution protected the right to collect signatures on petitions at a privately owned mall,” as they summarized it on Make No Law.

“The court said that under the California Constitution the mall had thrown its doors open to create a space where people congregated and socialized and that therefore was bound by the State Constitution’s Free Speech Clause,” attorney and Make No Law host Ken White explained.

As White noted though, “just like Marsh v. Alabama, the courts have been steadily retreating from Pruneyard for the last 40 years, constantly narrowing it and adding exception after exception.”

“Now, like Marsh, (Pruneyard has) been limited to its own facts and on several occasions the California Supreme Court has come within one vote of overturning it entirely,” White added. “There is absolutely no indication that it can be extended to social media sites.”

Regardless of whether you believe that social media platforms are actively engaged in censoring, deplatforming or shadow-banning users based on those users’ political views, the question of whether the law permits them to do so is separate from the question of whether you or I think they should be allowed to do it.

If you favor stripping immunity from social media platforms, ask yourself this question: If you were Facebook or Twitter and you suddenly faced the prospect of being held liable for, say, defamatory posts published by users of your platform, would you still want to offer the platform at all?

More to the point of the executive order just signed by Trump and the bill presented by Hawley, do you think Facebook (or any other privately owned online platform) should be disallowed by law from taking down a page promoting the American Nazi Party, or the Ku Klux Klan? Would your answer be any different if the hypothetical page was created by a group called Well-Armed Communists for the Forceful Redistribution of American Wealth?

While I recoil at the idea of the government forcing the silencing groups like those mentioned above, the operators of social media platforms have First Amendment rights, too — and disallowing them from removing content they find objectionable, subjective thought that criterion may be, would be to violate the platform operators’ rights, at least as I see it.

I suspect Trump’s executive order and Hawley’s bill are just the beginning of the proposals to amend, or even rescind, Section 230. Democrats who favor gutting the bill (which include the party’s presumptive nominee for President) have their own reasons for taking aim at Section 230, so I’m sure they’ll get in on the fun too, soon enough.

Crosshairs photo by Benjamin Earwicker from FreeImages.com