Struck down for being unconstitutional, congress revisits a bill to police the internet which would make platforms and end users both liable for content.

June 29, 2020

By: Bobby Casey, Managing Director GWP

police the internetThe United States has become a sociological tinder box.

Lock downs ushered in depression level economic hardship. The portrayal of the pandemic has been clumsy at best, with people frustrated with stay-home and mask-wearing measures. Compound all that with mounting ire toward systemic injustices.

It’s a veritable mine field out there, with advertisers, news outlets, and politicians gingerly tip toeing with their messages toggling between tedious and offensive.

It’s a very disjointed conversation out there. The calls for an end to police brutality is met with political pandering and collective rebukes of artifacts. The calls for freedom are met with phased rationing of re-opening.

This is a sensitive time, which makes society vulnerable to even more government intervention.

There are calls to hold individuals accountable for their actions and words. Some have led to people losing their jobs, others have led to people making public apologies, and others still have led to overhauling marketing gimmicks.

It’s important to keep in mind the difference between market corrections and censorship. It’s a delicate line. Social backlash for your actions is fair game. Government backlash, on the other hand, is not.

That being said, no one obscures the lines of constitutionality like the government.

In 1996, a Nebraska senator by the name of James Exon, put forth legislation called the Communications Decency Act. It put the “federal government in the role of speech police, threatening every user of the Internet and Internet service providers alike with fines and prison for posting content that was constitutionally protected.”

It passed, believe it or not. It was a non-starter, as the Supreme Court struck it down as unconstitutional. Section 230 was passed at the same time as a response to the Communications Decency Act, which laid the responsibility on the users of the internet platforms, not the platforms themselves.

Basically, Section 230 says: Bobby Casey posts something on Facebook, Bobby Casey is responsible for that post. Not Facebook.

Legislators are now looking to repeal Section 230, which makes Facebook and Bobby Casey are responsible for Bobby Casey’s posts.

This is a very intricate work-around. First, it’s a fascistic maneuver around the constitution and government censorship, mandating private businesses do the government’s dirty work.

As a libertarian, of course I respect the rules of any privately held establishment. If it’s a 5-star restaurant, and they require me to wear a blazer, then either I wear a blazer, or I don’t go. That’s fair.

Where the lines get blurred is when the business never wanted to impose a rule, but the government mandates that they do on their behalf. Mask-wearing might fall into that category. Some businesses don’t care if you wear a mask or not, but the local government insists they impose that rule on their customer base.

It’s tyranny laundering. The government can’t make you wear something at a private establishment, so they mandate the private establishment require it on their behalf.

This is what is happening with censorship. The second work-around is that Section 230 and the Communications Desency Act were passed at the same time as amendments to the same larger bill.

The argument goes: because the Section 230 was a response to the Communications Desency Act in the form of an amendment, and the latter was shot down, the former should likewise be repealed on those grounds.

That’s the logic, for better or worse.

“The Exon dragnet was cast wide: Not only would the content creator — the person who posted the article or image that was unsuitable for minors — face jail and fines, the intent was to make “online services” and even “access software providers” liable as well. Meanwhile, Internet service providers would be exempted from civil or criminal liability for the limited purpose of eavesdropping on customer email in order to prevent the transmission of potentially offensive material.”

Could you imagine where we’d be had this become law? The internet would not be the thriving social and free-ish market stomping grounds it is now. The liability and risk would be too high for the platforms to operate.

“This neo-regulatory mood is fueled by the same passions and concerns as it was 25 years ago, including protecting children, as well as the more recent trend toward restricting speech that may be offensive to some segments of adults. The New York Times has fired its opinion editor, ostensibly for publishing an op-ed by a sitting Republican U.S. senator on a critical issue of the day. Supporters of the president are inflamed that Twitter is purporting to fact-check and contextualize his tweets, while progressives are inflamed that Facebook is not doing this. Senators and representatives are writing legislation that would settle these arguments through force of law rather than private ordering, including legislation to walk back the now prosaically named Section 230.”

Of course they trot out the usual victim of children, and the usual offense of porn. It would never just stop there though. I’m reminded of the various congressional testimonials in the late 80’s from Dee Snider, John Denver, and Frank Zappa about music censorship. Or the heated discussion on Oprah between Jello Biafra and Tipper Gore about rating systems on music.

The fix for bad speech is more speech. There is no free society when people are afraid to speak ideas, no matter how bad those ideas might be. If nothing else, they identify themselves as people not deserving an ear. Shoving ideas or words underground like any other black market can get dangerous.

I’m already bothered by people losing their jobs like the NYT opinion editor, James Bennett over the Tom Cotton article that called for the deployment of federal troops to reign in the George Floyd protests. I don’t agree with deploying federal troops, but I also don’t agree with holding James Bennet accountable for the opinions of a sitting senator… in the OPINON section of the New York Times no less!

This is not going to end well. With government looking to private platforms to censor people, and people looking to businesses to avenge political incorrectness, it’s getting dangerous out there.

People are turning on one another, and siccing the government on them. It’s not okay. Where there’s censorship, there’s privacy issues close by. Please try to remember, and remind others, defending someone’s right to say something isn’t a defense of what they say.

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