The Supreme Court is about to decide the future of online speech(theverge.com)
theverge.com
The Supreme Court is about to decide the future of online speech
https://www.theverge.com/2024/2/23/24080521/supreme-court-netchoice-florida-texas-social-media-laws-arguments
7 comments
Is the content hosted on social media platforms considered to be the speech of the companies that own said platforms? If yes, wouldn't that undermine the case for their immunity from liability from that content?
Section 230 explicitly makes them not liable.
> It's in our interest to safeguard and preserve rights that protect our speech.
In this context, 'our' includes people who (I fervently believe) use their speech to make the world a worse place. Because that's what it means.
It also means that I do not have to carry, parrot, amplify or provide a space for their speech.
In this context, 'our' includes people who (I fervently believe) use their speech to make the world a worse place. Because that's what it means.
It also means that I do not have to carry, parrot, amplify or provide a space for their speech.
> It also means that I do not have to carry, parrot, amplify or provide a space for their speech.
You don't, if you're a private individual, but if you're a huge company that provides a space that's become a de-facto public square then you do, because if you don't, you're affecting freedom of speech in a meaningful way by providing everyone apart from a certain few individuals with a giant megaphone, pushing up the background noise level.
To clarify: Twitter and FB are de-facto public squares, this is fact.
Free speech includes the freedom to be heard, and giving everyone a vuvuzela apart from a few prevents those people from having the freedom to be heard.
Of course - if you're such a company - you also have the freedom to not do business at all. Which would probably be better.
You don't, if you're a private individual, but if you're a huge company that provides a space that's become a de-facto public square then you do, because if you don't, you're affecting freedom of speech in a meaningful way by providing everyone apart from a certain few individuals with a giant megaphone, pushing up the background noise level.
To clarify: Twitter and FB are de-facto public squares, this is fact.
Free speech includes the freedom to be heard, and giving everyone a vuvuzela apart from a few prevents those people from having the freedom to be heard.
Of course - if you're such a company - you also have the freedom to not do business at all. Which would probably be better.
Freedom comes with a cost, but using a bludgeon like the US Supreme Court to outlaw "bad speech" today may have severe repercussions tomorrow. We should look for other solutions. Social solutions for social problems.
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If the States win this case, it will be amusing to watch social media sites try to comply with laws banning political censorship in USA also complying with laws in EU mandating political censorship.
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This is gonna be a weird ruling if it goes in favor of the states. If you run a public bulletin board tearing down fliers is absolutely a form of speech, and if you do it to people you disagree with it becomes political speech. I can't imagine even this court ruling that the government is allowed to regulate political speech. That would kick the door open to an easily constitutional broadly applied national hate speech law, and reintroduction of the fairness doctrine.
So the unintended consequence I expect will be that censoring people for their political views will be the only strongly protected moderation actions.
So the unintended consequence I expect will be that censoring people for their political views will be the only strongly protected moderation actions.
> If you run a public bulletin board tearing down fliers is absolutely a form of speech
I'd say where the protection starts is that the board is yours. You can make it as open or restricted or curated or nonsensical as you wish. Other individuals can put up their own boards and they can display whatever they wish.
This is what the 1A protects.
In a reality where an opinion can be displayed from millions of boards - I suggest that one individual removing it their own board is a fairly poor use of the term censorship.
I'd say where the protection starts is that the board is yours. You can make it as open or restricted or curated or nonsensical as you wish. Other individuals can put up their own boards and they can display whatever they wish.
This is what the 1A protects.
In a reality where an opinion can be displayed from millions of boards - I suggest that one individual removing it their own board is a fairly poor use of the term censorship.
You're portraying it as if there's not a small number of de-facto public square "boards" that the vast majority of people get almost all of their information from. Manipulation of those boards has an absolutely massive effect, and saying "well, you could go out in the woods and create your own public forum that a handful of people would ever see" isn't really an acceptable alternative.
You're assuming that the vast majority of people want to hear your message. Maybe they like that site because it doesn't allow messages like that.
This is why I wish there was a megaforum where anyone can isolate themselves into smaller forums as they wish. Then no one gets deplatformed by the feds or corporations or whatever (unless they call for violence or doxx someone, something like that), and yet no one has to see what they don't want to. Still but a stopgap to foster better communities, alas.
Isn't that essentially reddit?
I suppose, but more general ways to structure the forum, moderation, how to do upvotes or likes, and so on. Maybe decentralized and federated. Make the whole Internet message passing, even!
>I'd say where the protection starts is that the board is yours. You can make it as open or restricted or curated or nonsensical as you wish. Other individuals can put up their own boards and they can display whatever they wish.
As mentioned in the article, Pruneyard Shopping Center v. Robins ruling rejected that logic. The government can regulate your conduct. The speech in your bulletin board is that of those who wrote it, not your's. Thus not 1A issue.
The underlying issue is if social media is a platform (like a bulletin board) or a publisher (like a newspaper).
As mentioned in the article, Pruneyard Shopping Center v. Robins ruling rejected that logic. The government can regulate your conduct. The speech in your bulletin board is that of those who wrote it, not your's. Thus not 1A issue.
The underlying issue is if social media is a platform (like a bulletin board) or a publisher (like a newspaper).
> Pruneyard Shopping Center v. Robins ruling rejected that logic. The government can regulate your conduct
Pruneyard “was possible because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech” [1].
[1] https://en.m.wikipedia.org/wiki/Pruneyard_Shopping_Center_v....
Pruneyard “was possible because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech” [1].
[1] https://en.m.wikipedia.org/wiki/Pruneyard_Shopping_Center_v....
Unfortunately, I think it's inevitable. Both parties have talked themselves into a justification for regulating speech on the internet. One side wants to force platforms to publish speech against their will, the other wants to force platforms to police speech against their will. Both positions fall afoul of the spirit of the First Amendment, which is that only the people have the right to abridge freedom of speech (and explicitly not the federal government, except in certain narrowly-defined circumstances.) And the Supreme Court is stacked with ideologues who seem dedicated to defederalizing the government and ceding power to the states, whose restrictions on speech would be far more radical than the federal government would be capable of.
> So the unintended consequence I expect will be that censoring people for their political views will be the only strongly protected moderation actions.
That's entirely intended. Look at what happened during COVID, the race riots post George Floyd, the election in 2020 and 2024, etc. Social media platforms are defacto content curation websites and not "free speech zones" in the sense of a soapbox in a public park. It was especially egregious during COVID and the race riots because the platforms made certain that you could not so much as criticize the political zeitgeist even when it was deserved.
The law really should make it clear that, illegal activity excluded, if you engage in any form of censorship you are not given section 230 protections. Places like twitter are left-wing content curation websites. It's no problem to have these - except for the fact they are still given section 230 protections. Under no circumstance should social media, engaging in one-sided censorship, be given any protection under the law for their content they curate. This would go for a similarly censored right-wing content curation website. It just so happens those are extremely small in reach by comparison, and thus significantly less important.
As always, the squeaky wheel gets the grease. The chronically offended, terminally online losers tend to get what they want.
That's entirely intended. Look at what happened during COVID, the race riots post George Floyd, the election in 2020 and 2024, etc. Social media platforms are defacto content curation websites and not "free speech zones" in the sense of a soapbox in a public park. It was especially egregious during COVID and the race riots because the platforms made certain that you could not so much as criticize the political zeitgeist even when it was deserved.
The law really should make it clear that, illegal activity excluded, if you engage in any form of censorship you are not given section 230 protections. Places like twitter are left-wing content curation websites. It's no problem to have these - except for the fact they are still given section 230 protections. Under no circumstance should social media, engaging in one-sided censorship, be given any protection under the law for their content they curate. This would go for a similarly censored right-wing content curation website. It just so happens those are extremely small in reach by comparison, and thus significantly less important.
As always, the squeaky wheel gets the grease. The chronically offended, terminally online losers tend to get what they want.
> The law really should make it clear that, illegal activity excluded, if you engage in any form of censorship you are not given section 230 protections.
Say I run a forum for pet fish discussion. Would my removal of content derailing the discussion into a flatearther one constitute my loss of 230? What if only logged in members can see the content?
It seems odd that we don't let private property operate as it wants.
Say I run a forum for pet fish discussion. Would my removal of content derailing the discussion into a flatearther one constitute my loss of 230? What if only logged in members can see the content?
It seems odd that we don't let private property operate as it wants.
Have a scale or a topic carveout. Your pet fish message board doesn't have the same social relevance as the twitters and facebooks of the world that are intended to be generic communications platforms. Despite what people like to claim, these sites are de facto public squares and should be treated as such. It's clear people resist this idea because they like the fact that these companies censor speech in the direction they prefer.
> Have a scale or a topic carveout
This (topic) is a sign your framework is flawed. Unless there is a fabulous reason to believe this is the sole legitimate carve-out.
This (topic) is a sign your framework is flawed. Unless there is a fabulous reason to believe this is the sole legitimate carve-out.
You know, you could just offer additions to the list of carveouts, or give your alternative take, instead of whatever this comment is.
> you could just offer additions to the list of carveouts, or give your alternative take
I don't see one. It's DOA. The point is starting with a list of carve-outs to any framework is an early sign it's fucked.
I do believe we have a problem with free speech in modern America. But we also have an unprecedentedly broad amount of it. Given the elementary issue of spam, it's unclear we have any consensus around what censorship means on social media.
I don't see one. It's DOA. The point is starting with a list of carve-outs to any framework is an early sign it's fucked.
I do believe we have a problem with free speech in modern America. But we also have an unprecedentedly broad amount of it. Given the elementary issue of spam, it's unclear we have any consensus around what censorship means on social media.
> The point is starting with a list of carve-outs to any framework is an early sign it's fucked.
While I think this is a fair point in general, in specific cases it can be legitimate. We should not be powerless to legislate unless we're able to articulate some ideal discriminator that picks out only the intended target and nothing else. The world is almost never that tidy. We can probably agree in broad strokes what spam is, even if we can't articulate a sufficient decision criteria to identify it with 100% accuracy. We can also agree that one man's passion project shouldn't be powerless to ensure his forum remains on-topic. We can also agree that mega communications platforms have become so engrained into modern society that being censored or removed from them can have outsized effects on one's ability to effectively engage with society (e.g. losing access to your email, kicked off payment platforms).
There are a lot of grey areas in between, and identifying carveouts are one way to handle the messiness while still working towards the overarching goals. It's not perfect, but doing nothing in this case is worse in the sense of how far we are from our ideals.
While I think this is a fair point in general, in specific cases it can be legitimate. We should not be powerless to legislate unless we're able to articulate some ideal discriminator that picks out only the intended target and nothing else. The world is almost never that tidy. We can probably agree in broad strokes what spam is, even if we can't articulate a sufficient decision criteria to identify it with 100% accuracy. We can also agree that one man's passion project shouldn't be powerless to ensure his forum remains on-topic. We can also agree that mega communications platforms have become so engrained into modern society that being censored or removed from them can have outsized effects on one's ability to effectively engage with society (e.g. losing access to your email, kicked off payment platforms).
There are a lot of grey areas in between, and identifying carveouts are one way to handle the messiness while still working towards the overarching goals. It's not perfect, but doing nothing in this case is worse in the sense of how far we are from our ideals.
> in specific cases it can be legitimate. We should not be powerless to legislate unless we're able to articulate some ideal discriminator that picks out only the intended target and nothing else
Sure, but there should be a guiding principle. The point isn't we're powerless to act. It's that we should act thoughtfuly. Defaulting to carve-outs indicates the idea is inchoate.
Even in this thread, we've expanded from major social media platforms to e-mail providers and payment platforms. We're still brainstorming the general scope of the idea.
Sure, but there should be a guiding principle. The point isn't we're powerless to act. It's that we should act thoughtfuly. Defaulting to carve-outs indicates the idea is inchoate.
Even in this thread, we've expanded from major social media platforms to e-mail providers and payment platforms. We're still brainstorming the general scope of the idea.
That the problem is big and requires care doesn't strike me as a substantive objection to the effort of addressing it using the tools that we have (legislation, however imperfect).
> That the problem is big and requires care doesn't strike me as a substantive objection to the effort of addressing it using the tools that we have (legislation, however imperfect)
Again, not disagreeing. Just saying the solution as presented is obviously flawed. And I haven't seen a solution whose proponents don't similarly throw their hands up with generalities the moment it's poked.
Again, not disagreeing. Just saying the solution as presented is obviously flawed. And I haven't seen a solution whose proponents don't similarly throw their hands up with generalities the moment it's poked.
"Throw my hands up" doesn't seem like a fair characterization. I wasn't offering legislation, I was offering a framework within which the details can be fleshed out that perhaps would lead to practical legislation (I mean, this is an HN comment after all, there's only so much you can reasonably expect). You seemed to disagree with the effort entirely, but your critique merely points to difficulties inherent in legislating nebulous phenomena. I certainly don't disagree, but I fail to see why that should short-circuit the effort. If that wasn't your intention, then perhaps we don't disagree much at all.
Well with that sort of thinking, why not sit back while I kill this mosquito with a nuclear weapon?
There must always be a floor of reasonability and articulability before legislation is the answer. Especially where Federal legislation is concerned.
There must always be a floor of reasonability and articulability before legislation is the answer. Especially where Federal legislation is concerned.
> public squares and should be treated as such.
What does this mean?
What does this mean?
It means the principles that constrain how governments engage with society (e.g. free speech in the public square) should also constrain how these new government-sized institutions engage with society. We've got to the point where so much of governance is pushed off to the private sector that these entities should be bound by the same rules. E.g. private companies shouldn't be able to do widespread content scanning of private data that would be illegal for the government to do.
> It means the principles that constrain how governments engage with society (e.g. free speech in the public square) should also constrain how these new government-sized institutions engage with society
I think you're missing the distinction between public and private entities.
We constrain governments because they have a defacto monoploy by law and by definition. This means there are no alternatives. Additionally, our government is granted power through its citizens, not vise versa. Rights are negative meaning the government doesn't let us say what we want, the government isn't allowed to prevent us from saying what we want.
The fact that a company is large in employees or has many users shouldn't impact its ability to moderate. Forcing private companies to not moderate in the name of the public good would be a 5A violation: seizure of private property for public use. It is different if you uniformly rescind 230, but then you kill all third party commentary on the web in general. Look at Craigslist's response to fosta/sosta, for example.
> e.g. private companies shouldn't be able to do widespread content scanning of private data that would be illegal for the government to
The government isn't allowed to do this because the Constitution forbids it. Private companies can only get your data if you transact with them.
That transact line is usually blured on the web, but there are defensive measures one can take to help evade them. The simplest of them is to choose not to use a business or service.
I don't have a meta account. I don't have a tiktok or X. In fact, I have a HN, lobsters, and Blur Dwarf account. That's it. So easy to opt out of what concerns you. Additionally, I run both clearnet domains and hidden services. While what I say on the clearnet may get me kicked off a domain registrar, that can't happen on the government-invented-and-implemented tor.
I think you're missing the distinction between public and private entities.
We constrain governments because they have a defacto monoploy by law and by definition. This means there are no alternatives. Additionally, our government is granted power through its citizens, not vise versa. Rights are negative meaning the government doesn't let us say what we want, the government isn't allowed to prevent us from saying what we want.
The fact that a company is large in employees or has many users shouldn't impact its ability to moderate. Forcing private companies to not moderate in the name of the public good would be a 5A violation: seizure of private property for public use. It is different if you uniformly rescind 230, but then you kill all third party commentary on the web in general. Look at Craigslist's response to fosta/sosta, for example.
> e.g. private companies shouldn't be able to do widespread content scanning of private data that would be illegal for the government to
The government isn't allowed to do this because the Constitution forbids it. Private companies can only get your data if you transact with them.
That transact line is usually blured on the web, but there are defensive measures one can take to help evade them. The simplest of them is to choose not to use a business or service.
I don't have a meta account. I don't have a tiktok or X. In fact, I have a HN, lobsters, and Blur Dwarf account. That's it. So easy to opt out of what concerns you. Additionally, I run both clearnet domains and hidden services. While what I say on the clearnet may get me kicked off a domain registrar, that can't happen on the government-invented-and-implemented tor.
These are all choices we make. We can simply make different choices. Nothing you've said argues against making choices that are more in line with our ideals given the reality of the size and power that modern corporations have over our social lives.
> if you engage in any form of censorship you are not given section 230 protections.
I disagree that governments should punish people who fail to amplify the messages of powerful political parties.
I disagree that governments should punish people who fail to amplify the messages of powerful political parties.
Selective amplification is editorialization when the decisions are content sensitive. It being algorithmic doesn't change the substance of this.
> Selective amplification is editorialization
Editorialisation as in the press?
Editorialisation as in the press?
As in the status that renders a service not subject to section 230 protections.
Exactly like the press. The press that is held liable for what they publish.
The entire purpose of section 230 was to protect platforms from being sued for censorship. You are talking about repealing it, not changing it.
I feel like, if we are to obligate message boards to host all messages posted on them, then we should also obligate businesses to provide their service to any customer that walks in the door.
Yep, that means a bakery would be required by law to provide wedding cakes to people they don't like.
Anything less than this is straight up hypocrisy. If you think that a business should have the right to refuse business to anyone... this is what that is lol.
Yep, that means a bakery would be required by law to provide wedding cakes to people they don't like.
Anything less than this is straight up hypocrisy. If you think that a business should have the right to refuse business to anyone... this is what that is lol.
The answer to all of this is to create a federal social media framework modeled after the USPS. This allows private corpos to do their curation but creates an actual public square where speech is free.
That wouldn't be the answer for the simple reason that no one would use such a network.
The government wants to regulate private social media because that's where the people are, and thus that's where the influence is.
The government wants to regulate private social media because that's where the people are, and thus that's where the influence is.
I don't think they should be able to have it both ways.
Social media companies have speech? If they have speech then why aren't they liable for that speech?
Social media companies have speech? If they have speech then why aren't they liable for that speech?
This Supreme Court case is about whether social media sites can be forced to host users' speech, not whether the sites are liable for the users' speech. On the latter subject though...
> I don't think they should be able to have it both ways.
> Social media companies have speech? If they have speech then why aren't they liable for that speech?
The state governments trying hold social media sites liable for users' harmful speech want to "have it both ways": Hold social media sites liable only for certain speech, yet pretend that the proposed laws instituting that liability regulate conduct without regulating speech.
Most of the speech targeted by proposed third-party liability laws such as KOSA is protected by the First Amendment (LGBTQ information, eating disorder discussions, body image posts, etc.). Without some evidence of causal harm on a case-by-case basis, not even first-party liability - liability on the users who posted the speech on social media - would pass the First Amendment, and third-party liability would not apply in such cases. But assume that first-party liability would apply. What about third-party liability for social media sites' moderation of user speech?
The First Amendment can prohibit both direct and indirect restrictions on protected speech. Strict scrutiny [1] requires laws impacting constitutional rights to use the methods least restrictive of those rights. Moderation of user posts by social media sites is a First Amendment right, just as posting by users of social media sites is a First Amendment right. Holding the social media site liable for First-Amendment-protected user speech violates strict scrutiny because a method less restrictive of protected speech is holding the respective users liable for posting that speech.
[1] https://en.wikipedia.org/wiki/Strict_scrutiny
And before anyone brings up republication liability on newspapers: defamation is unprotected speech. Defamation does not have First Amendment protection. But holding a party liable for defamation in the US requires that the party distributing the allegedly defamatory speech know that the speech exists. Newspapers tend to check even their op eds before deciding whether they should stay. But the humans managing social media sites don't necessarily know that any particular post exists, especially when the moderation system includes automatic processes. Section 230 declares that social media sites are not liable for defamation even if they know about it. Without Section 230 in place, social media sites would have an incentive to stop manually moderating posts, because you can't know about specific defamatory posts if you don't look at them.
> I don't think they should be able to have it both ways.
> Social media companies have speech? If they have speech then why aren't they liable for that speech?
The state governments trying hold social media sites liable for users' harmful speech want to "have it both ways": Hold social media sites liable only for certain speech, yet pretend that the proposed laws instituting that liability regulate conduct without regulating speech.
Most of the speech targeted by proposed third-party liability laws such as KOSA is protected by the First Amendment (LGBTQ information, eating disorder discussions, body image posts, etc.). Without some evidence of causal harm on a case-by-case basis, not even first-party liability - liability on the users who posted the speech on social media - would pass the First Amendment, and third-party liability would not apply in such cases. But assume that first-party liability would apply. What about third-party liability for social media sites' moderation of user speech?
The First Amendment can prohibit both direct and indirect restrictions on protected speech. Strict scrutiny [1] requires laws impacting constitutional rights to use the methods least restrictive of those rights. Moderation of user posts by social media sites is a First Amendment right, just as posting by users of social media sites is a First Amendment right. Holding the social media site liable for First-Amendment-protected user speech violates strict scrutiny because a method less restrictive of protected speech is holding the respective users liable for posting that speech.
[1] https://en.wikipedia.org/wiki/Strict_scrutiny
And before anyone brings up republication liability on newspapers: defamation is unprotected speech. Defamation does not have First Amendment protection. But holding a party liable for defamation in the US requires that the party distributing the allegedly defamatory speech know that the speech exists. Newspapers tend to check even their op eds before deciding whether they should stay. But the humans managing social media sites don't necessarily know that any particular post exists, especially when the moderation system includes automatic processes. Section 230 declares that social media sites are not liable for defamation even if they know about it. Without Section 230 in place, social media sites would have an incentive to stop manually moderating posts, because you can't know about specific defamatory posts if you don't look at them.
I made two serious mistakes. Both my parent comment and 2OEH8eoCRo0's grandparent comment conflated the speech of the users (the actual posts) and the speech of the social media sites (the moderation decisions, and anything the company workers write while representing the company). Additionally, I incorrectly believed that the Florida and Texas laws were only about forcing social media sites to host speech, even though the case also involves questions of liability for users' speech. (However, the Florida and Texas laws are not like KOSA, which focuses on the supposed harm caused by the actual social media posts.)
I read an article [1] that cleared up my confusion about which speech is third-party and which speech is first-party. The grandparent comment by 2OEH8eoCRo0 said this:
> I don't think they should be able to have it both ways.
> Social media companies have speech? If they have speech then why aren't they liable for that speech?
There are "both ways" because there are two different kinds of speech at issue. The first kind of speech is the posts themselves, the content of which were written by users. The second kind of speech is what the social media website does with the post (boosts, downranks, deletes, marks with tags, bans the user of, etc.). (The second kind also includes whatever else someone representing the company writes, but that's not relevant to the confusion about Section 230.) Section 230 declares that the social media site cannot be held liable for the first kind of speech. Social media sites can still be held liable for the second kind of speech. Any harm caused by the very content of the post is actually harm caused by the first kind of speech, even if the social media site boosted the post; holding the social media company liable for boosting such a post would violate the social media company's First Amendment right to moderate. The right to moderate comes from the First Amendment, not from Section 230.
Suppose that I make a post about eating disorders on social media. The social media site boosts my post. Some kid sees it and later develops an eating disorder (correlation, with the question of causation to be decided in court). The parent sues the social media site and argues that the social media site should be liable because the social media site boosted the post.
Scenario 1. If Section 230 didn't exist, then the social media company would have to go through the entire court process. The social media site argues that "First, social media websites have a First Amendment right to moderate. Second, our moderators could not be expected to foresee that a mere discussion of eating disorders would cause more harm than help. Third, the liability should fall on the user who posted the speech". The social media company loses a lot of money, but the court rules that the social media company was not liable for the post.
Scenario 2. Since Section 230 does exist, then the social media company can say, "This lawsuit attempts to hold someone online liable for distributing speech made by someone else. Section 230 says that this liability will not exist." The court declares that the social media company cannot be held liable for the post, and dismisses the case early.
Either way, the social media company would not be liable. But Section 230 is still necessary to prevent social media companies from being overwhelmed with having to go through entire court cases. The parent could sue me. There's still no guarantee that I would be held liable for the specific example post I came up with. (And obviously, there can be no third-party liability on the social media website if the court in Scenario 1 decides that there would be no first-party liability on me.)
[1] https://www.techdirt.com/2024/03/01/we-cant-have-serious-dis...
I read an article [1] that cleared up my confusion about which speech is third-party and which speech is first-party. The grandparent comment by 2OEH8eoCRo0 said this:
> I don't think they should be able to have it both ways.
> Social media companies have speech? If they have speech then why aren't they liable for that speech?
There are "both ways" because there are two different kinds of speech at issue. The first kind of speech is the posts themselves, the content of which were written by users. The second kind of speech is what the social media website does with the post (boosts, downranks, deletes, marks with tags, bans the user of, etc.). (The second kind also includes whatever else someone representing the company writes, but that's not relevant to the confusion about Section 230.) Section 230 declares that the social media site cannot be held liable for the first kind of speech. Social media sites can still be held liable for the second kind of speech. Any harm caused by the very content of the post is actually harm caused by the first kind of speech, even if the social media site boosted the post; holding the social media company liable for boosting such a post would violate the social media company's First Amendment right to moderate. The right to moderate comes from the First Amendment, not from Section 230.
Suppose that I make a post about eating disorders on social media. The social media site boosts my post. Some kid sees it and later develops an eating disorder (correlation, with the question of causation to be decided in court). The parent sues the social media site and argues that the social media site should be liable because the social media site boosted the post.
Scenario 1. If Section 230 didn't exist, then the social media company would have to go through the entire court process. The social media site argues that "First, social media websites have a First Amendment right to moderate. Second, our moderators could not be expected to foresee that a mere discussion of eating disorders would cause more harm than help. Third, the liability should fall on the user who posted the speech". The social media company loses a lot of money, but the court rules that the social media company was not liable for the post.
Scenario 2. Since Section 230 does exist, then the social media company can say, "This lawsuit attempts to hold someone online liable for distributing speech made by someone else. Section 230 says that this liability will not exist." The court declares that the social media company cannot be held liable for the post, and dismisses the case early.
Either way, the social media company would not be liable. But Section 230 is still necessary to prevent social media companies from being overwhelmed with having to go through entire court cases. The parent could sue me. There's still no guarantee that I would be held liable for the specific example post I came up with. (And obviously, there can be no third-party liability on the social media website if the court in Scenario 1 decides that there would be no first-party liability on me.)
[1] https://www.techdirt.com/2024/03/01/we-cant-have-serious-dis...
It's in our interest to safeguard and preserve rights that protect our speech.