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Social Media Immunity in 2021 and Beyond: Will Platforms Continue to Avoid Litigation Exposure Faced by Offline Counterparts

By: Peter J. Pizzi

Peter J. Pizzi, CIPPE/US, is a business trial lawyer with decades of experience in commercial litigation, internal investigations, technology litigation, eDiscovery, and labor and employment . A Certified Civil Trial Attorney, Peter represents corporate clients in a broad array of industries, including healthcare, pharmaceuticals, financial services, information technology, cosmetics, industrial equipment, food service and others. Recent highlights include a federal court jury verdict on a contract claim arising from an acquisition and pre-discovery dismissals of consumer class actions in the convenience store retail and private aviation industries. A member of the New Jersey, New York and Pennsylvania bars, Peter is former Chair of IADC’s Cyber Security, Data Privacy and Technology Committee.

URING the 2020 election cycle, companies from being held liable for both the United States transmitting or taking down user- D presidential candidates generated content (UGC). Twice in called for changes to of 2020, the Senate held hearings, with the Communications Decency Act of both sides demanding change to the 1996, which protects online service statute and to platform moderation providers like practices.1 Then, following the

1 Cat Zakrzewski and Rachel Lerman, The election was a chance for and to show they could control misinformation. Now lawmakers are grilling them on it, WASH. POST (Nov. 17, 2020), https://www.washingtonpost.com/techno 2 DEFENSE COUNSEL JOURNAL | JULY 2021

January 6, 2021 Capitol Hill riot, I. Origins and others within his circle were de-platformed by actions brought in Twitter, Facebook, and YouTube. 2 the New York courts in the 1980s Participants used these same against two different online platforms, as well as others, to plan platforms, and CompuServe, the incursion into the Capitol, which created concern that the internet millions around the world watched would be awash in litigation before in real time.3 As we move further it had achieved its full potential. One into the 117th Congress, a court granted CompuServe continuation of the status quo summary judgment based upon that hardly seems possible, as demands service’s showing that CompuServe for change to Section 230 appear did not police its bulletin boards and continue to intensify, especially with therefore had no “publisher” or the large platforms advertising in “distributor” liability for the favor of change. defamatory utterances in question.4 This article will describe the A second court, however, found that elements of the statutory immunity because Prodigy portrayed its granted by Section 230 and service as “actively utilizing summarize complaints against the technology and manpower to delete current scope of Section 230 as notes from its computer bulletin interpreted by the courts. We will boards on the basis of offensiveness also explore whether the problems and ‘bad taste,’” the service was observed with social media have “clearly making decisions as to resulted from Section 230 itself. In content” and therefore was a other words, would the world have looked a lot different today had online industries faced litigation, and the threat of litigation, in the same way as traditional businesses? logy/2020/11/17/tech-hearing-dorsey- Suspended for Two Years; Will Only Be zuckerberg/; Sara Morrison, Republicans Reinstated if Conditions Permit, FACEBOOK accuse Twitter’s and other Big (June 4, 2021), https://about.fb.com/ Tech CEOs of violating their free speech rights, news/2021/06/facebook-response-to- (October 28, 2020), https://www. oversight-board-recommendations-trump/. .com/recode/2020/10/28/21536780/f 3 Rebecca Heilweil and Shirin Ghaffary, How acebook-twitter--zuckerberg-dorsey- Trump’s internet built and broadcast the pichai-senate-section-230-hearing. Capitol insurrection, RECODE (Jan. 8, 2021), 2 Following a decision supporting the de- https://www.vox.com/recode/22221285/t platforming by the Facebook Oversight rump-online-capitol-riot-far-right-- Board, the company extended the ban twitter-facebook. through January 2023. See Nick Clegg, In 4 Cubby, Inc. v. CompuServe, Inc., 776 F. Response to Oversight Board, Trump Supp. 135, 139 (S.D.N.Y. 1991). Social Media Immunity in 2021 and Beyond 3

“publisher” of the offending speech information content provider. for the purpose of libel law.5 Section 230(c)(2) states that no ISPs The two lawsuits, each of which which voluntarily restrict access to involved instances of actionable content will be held liable for its speech, led lawmakers to include in own “moderation” decisions. The the soon-to-be-misnamed discretion granted by the latter Communications Decency Act of provision is broad, immunizing 19966 a provision that would actions “taken in good faith to protect internet service providers restrict access to or availability of from liability. This provision did not material that the provider or user eliminate lawsuits, but certainly considers to be obscene, lewd, made an adverse outcome far less lascivious, filthy, excessively violent, likely. According to its sponsors, the harassing, or otherwise principal goal of Section 230 was to objectionable, whether or not such establish “Good Samaritan” material is constitutionally protection so that those platforms protected.”8 which chose to exercise some There are several exceptions to degree of editorial control over Section 230 immunity. Section 230 content on their platforms would does not bar liability for lawsuits: (1) not thereby be subject to publisher under federal criminal ; (2) liability. The statute contains under laws; (3) several “findings” and “policy” based upon any state law that is statements that extol the virtues of “consistent with” Section 230; and the internet and the desire to (4) under the Electronic promote its “continued Communications Privacy Act of development”.7 1986. In 2018, Congress created an exception to immunity for certain II. The Communications civil actions or state prosecutions Decency Act of 1996 where the underlying conduct violates specified federal laws As enacted, Section 230 contains prohibiting sex trafficking, which two primary provisions that create was added by a 2018 statutory immunity from liability. Section change called the Allow States to 230(c)(1) states that interactive Fight Online Sex Trafficking Act, service providers and users may not known as SESTA/FOSTA. The 2018 be held liable for publishing access amendment demonstrates the to material posted by another

5 Stratton Oakmont, Inc. v. Prodigy Servs. Co., struck down in Reno v. ACLU, 521 U.S. 544 No. 31063/94, 1995 WL 323710 (N.Y. Sup. (1997); Section 230 was not. Ct. May 24, 1995). 7 47 U.S.C. § 230 (a) and (b). 6 The provisions of the CDA which sought to 8 Id. at § 230(c)(2)(A) (emphasis added). prohibit obscene and like content were 4 DEFENSE COUNSEL JOURNAL | JULY 2021

challenge of revising Section 230, as Twitter added labels that read “Get many asserted that SESTA/FOSTA the facts about mail-in ballots” to did little to help solve the problem of two tweets by President Trump sex trafficking and only served to predicting mass ballot fraud, further marginalize an already at- causing Trump to issue an executive risk community.9 order calling the labels “selective censorship that is harming our III. Critiques of Section 230 national discourse.”11 Of course, the latter criticism – Attacks on Section 230 by that platforms “censor” speech and political leaders break down that practice somehow violates free according to party lines. Critics on speech rights of those affected – the Left fault platforms for distorts, rather than advances, inadequate moderation measures understanding of Section 230. The leading to the spread of , First Amendment proscribes misinformation, and calls to interference with speech by violence including against political government actors, not by private leaders. individuals or businesses, so neither Republicans in the Senate the First Amendment nor “free accuse the platforms of using the speech” rights enter into the statutory immunity to “censor” equation. 12 A vast array of courts conservative voices.10 In May 2020,

9 In the 116th Congress, the SAFE SEX 11 See Preventing Online Censorship, 85 Fed. Workers Study Act sought to study the Reg. 34,079 (May 28, 2020). A just-released unintended effects of SESTA/FOSTA. See study from NYU’s Stern School of Business H.R. 5444. The “Findings” discusses those attempts to test the conservative complaint adverse impacts. See id. at Sec. 2, available at of excessive moderation aimed at https://www.congress.gov/bill/116th- conservative voices and found that statistics congress/house-bill/5448/text. do not bear out the claim. See Paul M. 10 See supra note 1. Barrett and J. Grant Sims, False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives, NYU STERN CENTER FOR BUSINESS AND HUMAN RIGHTS (Feb. 2021), https://static1.aquarespace.com/ static/5b6df958f8370af3217d4178/t/601 87b5f45762e708708c8e9/161221718524 0/NYU+False+Accusation_2.pdf. The report collected the results of numerous studies of Facebook, Twitter, and YouTube content. The report found that, on Facebook, “right- leaning U.S. Facebook pages dominate the list of sources producing the most-engaged- with posts containing links.” Id. at 14. 12 “Congress shall make no law … abridging the , or of the press ….” See Social Media Immunity in 2021 and Beyond 5

have held that the removal of a user First Amendment rights. The so- from a platform is not a violation of called “Good Samaritan” protections the user’s First Amendment rights, provided by Section 230(c)(2), because the platforms are private therefore, replicate protections corporations and not state actors.13 already granted by the First The First Amendment would Amendment, although those same apply, however, if Section 230 were provisions make it procedurally altered to mandate specific content more expedient for platforms to exit moderation outcomes. By virtue of misguided lawsuits.16 the First Amendment, neither the state nor the courts may interfere in IV. Legislative Proposals decisions by private actors regarding the speech that they Literally dozens of proposed choose to display.14 At least one changes to Section 230 have court has held that platform search surfaced over the past several results are protected from court years.17 Some were proposed as interference by the First acts of political theater; a few are Amendment and, therefore, a more well thought out. lawsuit for damages based upon The SAFE TECH Act search results could not proceed.15 (Safeguarding Against Fraud, Platform decisions about which Exploitation, Threats, Extremism messages to leave on a platform and and Consumer Harms Act), which to take down is an exercise of sponsored by three Democratic senators, would create a series of also Mary Anne Franks, The Free Speech 15 Jian Zhang v. Baidu.com Inc., 10 F. Supp.3d Black Hole: Can the Internet Escape the 433, 438 (S.D.N.Y. 2014) (Baidu.com’s Gravitational Pull of the First Amendment? refusal to display Chinese dissident content KNIGHT FIRST AMENDMENT INSTITUTE AT COLUM. in search engine is protected speech under UNIV. (Aug. 21, 2019), the First Amendment). https://knightcolumbia.org/content/the- 16 See Manhattan Community Access Corp. v. free-speech-black-hole-can-the-internet- Halleck, 139 S. Ct. 1921, 1930 (2019) and escape-the-gravitational-pull-of-the-first- Mary Anne Franks, Section 230 and the Anti- amendment. Social Contract, LAWFARE (Feb. 2021), 13 See generally cases collected at https://assets.documentcloud.org/docume TECHNOLOGY & MARKETING LAW BLOG, available nts/20489870/section-230-and-the-anti- at https://blog.ericgoldman.org/archives/ social-contract.pdf. 2021/01/google-and-twitter-defeat- 17 Eric Goldman, While Our Country Is lawsuit-over-account-suspensions- Engulfed by Urgent Must-Solve Problems, terminations-delima-v-google.htm. Congress Is Working Hard to Burn Down 14 Miami Herald Pub. Co. v. Tornillo, 418 U.S. Section 230, TECHNOLOGY & MARKETING LAW 241 (1974) (invalidating a Florida statute BLOG (Aug. 4, 2020), https://blog. granting a political candidate a right to equal ericgoldman.org/archives/2020/08/while- space to reply to newspaper’s editorial our-country-is-engulfed-by-urgent-must- criticism). solve-problems-congress-is-working-hard- to-burn-down-section-230.htm 6 DEFENSE COUNSEL JOURNAL | JULY 2021

exceptions to Section 230. content defined as any content According to the authors, the determined by a state or federal legislation would eliminate Section court to violate federal criminal or 230 protection for “ads or other paid civil law or a state libel law; (iii) content,” injunctive relief, actions requiring online platforms to based upon civil rights laws or laws explain their content moderation that address stalking/cyber- practices in an acceptable use policy stalking or harassment and that is easily accessible to intimidation based upon protected consumers; and (iv) calling for classes, wrongful death actions, or quarterly reporting. actions under the Alien Claims The PACT Act’s biggest impact Act.18 likely would be its designation of During the last Congress, the Section 230 as an affirmative Platform Accountability and defense which the platform bears Consumer Transparency Act19 drew the burden of proving by a bipartisan support of Sens. Brian preponderance of the evidence. Schatz (D-HI) and (R- That language change means that SD). Key provisions include: (i) Section 230 would no longer be a imposing a requirement that large ticket out of litigation at the motion online platforms have a defined to dismiss stage, enabling plaintiffs complaint system that processes to gain the fruits of discovery and, reports and notifies users of thereby, peek behind the curtain to moderation decisions within 14 examine intermediary business days, and allows consumers to practices. Justice Thomas advocated appeal online platforms’ content for such a change in Section 230 moderation decisions within the jurisprudence in a “statement” relevant company; (ii) Amending accompanying a denial of review Section 230 to require large online during the recently concluded platforms to remove court- Supreme Court term.20 Such a determined illegal content and activity within 24 hours, with illegal

18 Sen. Mark R. Warner, Press Release, Accountable for Moderation Practices,” “Warner, Hirono, Klobuchar Announce the (June 24, 2020), https://www.schatz.senate SAFE TECH Act to Reform Section 230,” (Feb. .gov/press-releases/schatz-thune- 5, 2021), https://www.warner.senate.gov/ introduce-new-legislation-to-update- public/index.cfm/2021/2/warner-hirono- section-230-strengthen-rules- klobuchar-announce-the-safe-tech-act-to- transparency-on-online-content- reform-section-230. moderation-hold-internet-companies- 19 Sen. , Press Release, “Schatz, accountable-for-moderation-practices. Thune Introduce New Legislation to Update 20 Malwarebytes, Inc. v. Enigma Software Section 230, Strengthen Rules, Grp. USA, LLC, 141 S. Ct. 13, 208 L. Ed. 2d 197 Transparency on Online Content (2020). Moderation, Hold Internet Companies Social Media Immunity in 2021 and Beyond 7

change alone could have a postings to generate traffic. transformative impact.21 Imagine a local restaurant which One ill-conceived provision encourages visitors to post reviews which would deprive platforms of or the many retailers which seek immunity against enforcement “by product reviews. Both kinds of sites the Federal Government’’ of any are currently protected by Section “Federal criminal or civil statute, or 230, and both would be within the any regulations of an Executive scope of legislation like the PACT agency as defined in section 105 of Act. title 5, .” Even apart from the challenge of trying to V. Algorithmic boosting as the understand how this immunity villain carve-out would work,22 one has to be concerned about the potential The use of algorithms by major on internet content if platforms for microtargeting a government official exploited this segments of users they want to exemption to achieve political goals, reach has become a major focus for especially when most government those seeking to reform Section 230. agencies are led by political At a recent industry conference, appointments or susceptible to Apple’s Tim Cook decried what he political pressure.23 called Facebook’s “a theory of While the PACT Act would allow technology” that prizes engagement small online platforms more and algorithms which help spread flexibility in responding to user disinformation and conspiracy complaints, removing illegal content, theories in order to collect user data and acting on illegal activity, there is for advertising. 24 Through an up- no doubt that the statute would date to its operating system, Apple impose burdens on a vast number of recently implemented a system sites that rely upon user content or change that enables users to block

21 See Jayne Ponder and Madeline Salinas, has-problems-it%E2%80%99s-talking- SAFE TECH Act Would Limit Scope and about-right-things. Redesign Framework of Section 230 23 Laurenz Ennser-Jedenastik, The Immunity, COVINGTON & BURLING (Feb. 14, Politicization of Regulatory Agencies: 2021), https://www.insideprivacy.com/ Between Partisan Influence and Formal united-states/congress/safe-tech-act- Independence, J. OF PUB. ADM. RESEARCH AND would-limit-scope-and-redesign- THEORY 507–518 (2016), https://water framework-of-section-230-immunity/. mark.silverchair. com/muv022.pdf. 22 Daphne Keller, CDA 230 Reform Grows Up: 24 Tim Higgins, Apple, Facebook Trade Barbs The PACT Act Has Problems, But It’s Talking Over Privacy-Focused Business Models, WALL About The Right Things, STANFORD LAW SCHOOL ST. J. (Jan. 28, 2021), https://www.wsj.com/ CENTER FOR INTERNET AND SOCIETY (July 16, articles/apple-to-roll-out-privacy- 2020), https://cyberlaw.stanford.edu/blog/ measures-despite-facebook-objections- 2020/07/cda-230-reform-grows-pact-act- 11611810002?mod=hp_lead_pos11. 8 DEFENSE COUNSEL JOURNAL | JULY 2021

the ability of platforms to track publishing material or online activity for the purpose of connecting users.28 microtargeting.25 Section 230’s protections for The Second Circuit declined to content posted by others does not impose liability on Facebook in a apply if the site becomes an case involving victims of an act of “information content provider” terrorism who sued Facebook for through the “creation or connecting perpetrators with each development” of the content in other. The majority held that question.26 In one of the most depriving the site of Section 230 famous decisions under Section 230, immunity for “organizing and an online roommate matching displaying content exclusively service which asked discriminatory provided by third parties” would questions of users forfeited eviscerate protection for an immunity because the “essential result of publishing.” questionnaire was its own content Judge Katzmann criticized the and caused the development of majority for holding that Section discriminatory responses from 230 “immunizes … providers for users.27 allegedly connecting terrorists to Some have argued that one another.”29 Facebook’s personalization of Multiple bills in Congress seek to content through machine-learning alter Section 230’s protections for algorithms should be deemed the sites which rely upon algorithms to “development” of content and, as deliver to users the kind of content such, should not qualify for calculated to promote engagement. immunity: Examples include the Protecting Americans from Dangerous Many of the most Algorithms Act (H.R. 8638) and the successful internet Biased Algorithm Deterrence Act of companies, … design their 2019 (H.R. 492, Gohmert). The applications to collect, former would eliminate Section 230 analyze, sort, reconfigure, protection for a site which “used an and repurpose user data algorithm, model, or other for their own commercial computational process to rank, reasons, unrelated to the order, promote, recommend, original interest in amplify, or similarly alter the

25 Id. 28 Olivier Sylvain, Intermediary Design Duties, 26 47 U.S.C. § 230(f)(3). 50 CONN. L. REV. 204, 217 (2017). 27 Fair Hous. Council of San Fernando Valley 29 Force v. Facebook, Inc., 934 F.3d 53, 66, 74 v. Roommates.Com, LLC, 521 F.3d 1157, (2d Cir. 2019), cert. denied, 140 S. Ct. 2761, 1170 (9th Cir. 2008). 206 L. Ed. 2d 936 (2020). Social Media Immunity in 2021 and Beyond 9

delivery or display of information perversely, extends that same (including any text, image, audio, or immunity to providers who actively video post, page, group, account, or profit from or solicit harmful affiliation) provided to a user of the conduct.”32 Thus, Dr. Franks writes, service if the information is directly “Section 230(c)(1) has been invoked relevant to the claim.” to protect message boards like The constitutionality of such (now 8kun), which provide a legislation is questionable light of platform for mass shooters to First Amendment issues around spread terrorist propaganda, online search discussed earlier, although firearms marketplaces such as the pernicious effect of algorithms is Armslist, which facilitate the illegal not really debatable. Companies sale of weapons used to murder like Facebook and Google spend domestic violence victims, and to spectacular sums on content classifieds sites like (now moderation, and employees defunct), which was routinely used performing that function suffer from by sex traffickers to advertise the work itself,30 but that aspect of underage girls for sex.”33 By the business is at war with the other protecting platforms which glean side of the business – advertising revenue from illegal and harmful revenue driven by user engagement. conduct, Section 230(c)(1) creates a classic “’moral hazard,’ ensuring VI. Welcoming Litigation that the multibillion-dollar corporations that exert near- Among many others, a Professor monopoly control of the Internet are of Law at the University of Miami protected from the costs of their Law School, Dr. Mary Anne Franks, risky ventures even as they reap the would restructure Section 230 to benefits.”34 right a perceived colossal imbalance Professor Franks argues that the created by the statute.31 Professor absence of litigation, and the threat Franks posits that the 230(c)(1) of it, has spawned behaviors by protection is vastly overbroad as it social media platforms that has has been “read to provide the same given rise to the examples she cites immunity to providers who do above and created a two-track nothing at all to stop harmful system of liability whereby online conduct – and, even more conduct receives vastly greater

30 Casey Newton, Bodies in Seats, CENTER (2021), https://fsi-live.s3.us-west- (June 19, 2019), https://www.theverge. 1.amazonaws.com/s3fs-public/cpc- com/2019/6/19/18681845/facebook- reforming_230_mf_v2.pdf. moderator-interviews-video-trauma-ptsd- 32 Id. at 10. cognizant-tampa. 33 Id. 31 Mary Anne Franks, Reforming Section 230 34 Id. and Platform Liability, STANFORD CYBER POLICY 10 DEFENSE COUNSEL JOURNAL | JULY 2021

protection than afforded to generates revenue from businesses in the physical space. In this speech.35 the latter, if operators fail to take care of their products, customers, or The language added at the end of premises, lawsuits get filed and the above sentence would also businesses may be held liable. withdraw liability for platforms Social media platforms face no such which shape or profit from the exposure. Indeed, Section 230 offending content in question, demands precisely the opposite thereby creating exposure for sites outcome. It is refreshing, to say the which produce harm or injury least, to come across a commentator through algorithmic boosting. explaining how exposure to litigation risk may achieve a societal VII. Whither antitrust? good, whereas the complete freedom from adverse lawsuit Where do recently filed antitrust outcomes can be shown to have actions fit into the analysis? The contributed societal harms, e.g., state antitrust plaintiffs argue that mass shootings, pandemic Facebook’s gargantuan size likely misinformation, an attempted contributed to its outsized impact government insurrection, and on the 2016 election and others. disinformation efforts in advance of Professor Franks would modify the 2020 election. Had it not Section 230(c)(1) to make sure only acquired or snuffed out actual and speech of others falls within the potential competitors, a greater immunity, not other behaviors that number of credible sources of do not qualify as speech. information and social media discourse might have dissipated (1) Treatment of Facebook’s singular impact. One publisher or speaker commentator summed up the No provider or user of an analysis as follows: interactive computer service shall be treated as The first part of the the publisher or speaker of problem is that Google and any information speech Facebook compete against wholly provided news publishers for user by another information attention, data, and ad content provider, unless dollars. They both have such provider or business incentives to user intentionally keep users within their encourages, solicits, or digital walls.

35 Id. at 11. Social Media Immunity in 2021 and Beyond 11

The second part is that because Google and VIII. Time for a Digital Regulatory Facebook lack competition, Agency? two dominant algorithms control the flow of The PACT Act, described above, information. So, purveyors calls for disclosure of content of only have to moderation policies and practices exploit the weaknesses of and imposes sanctions for a failure one algorithm to to adhere to those requirements. potentially deceive NYU’s Center for Business and hundreds of millions of Human Rights issued a proposal that people. Facebook has 2 applauds the requirement of billion active monthly disclosure in exchange for Section users. Google accounts for 230 immunity, then goes several 80 percent of internet steps further, requiring platforms to searches worldwide.36 “explain publicly how their content moderation policies work and On the other hand, the provide far more detailed statistics concentration of platforms made de- than they do now on items removed, platforming Trump and others down-ranked, or demonetized.”38 following the events of January 6, The Center’s report calls upon 2021, immediately impactful. There platforms to disclose “what content were not two dozen social media is being promoted to whom and outlets to be concerned about. more about how platform Instead, there were Facebook, advertising works in practice.” Twitter, Google, YouTube, and AWS. Finally, immunity should be granted Given the choice, a proliferation of only to platforms that “remove, credible platforms would appear rather than merely label or down- preferable over having one rank, content that their fact- gargantuan platform 2.8 billion checkers have determined is users.37 demonstrably false.”39 To track

36 Sean Illing, Why “fake news” is an antitrust 37 STATISTA, Number of daily active Facebook problem, VOX (July 18, 2018), users worldwide as of 1st quarter 2021 (April https://www.vox.com/technology/2017/9 2021), https://www.statista.com/statistics /22/16330008/eu-fines-google-amazon- /346167/facebook-global-dau/. monopoly-antitrust-regulation, quoting 38 Paul M. Barrett, Regulating Social Media: Sally Hubbard, Director of Enforcement The Fight Over Section 230 — and Beyond, Strategy, Open Markets Institute. NYU STERN CENTER FOR BUSINESS AND HUMAN RIGHTS, at 16 (Sept. 2020), https://bhr. stern.nyu.edu/section-230-report-release- page?_ga=2.260451469.1686657636.1612 015447-581250165.1612015447. 39 Id. 12 DEFENSE COUNSEL JOURNAL | JULY 2021

compliance with these directives, regulatory scheme.42 Because of the the Center advocates the creation of unfathomable scale of online a Digital Regulatory Agency whose content, individualistic decision- job would be to “oversee and making is impossible, the author enforce the new platform argues. She calls for “systemic responsibilities just mentioned.”40 balancing,” the central point of which “demands transparency and IX. Application of International candor so that trade-offs can be Human Rights Principles meaningfully debated, experimented with, and ultimately The foregoing discussion has a accepted, or at least acquiesced to, decidedly United States-centric cant. including by those who disagree As creatures of U.S. law, the major with substantive outcomes.”43 platforms have flourished under the Towards that end, the PACT Act, U.S. protectionist regime’s hands. among other pending legislative Each platform operates globally, proposals, would mandate greater which raises the question whether disclosures by platforms of international law might suggest a algorithmic decision structures. regulatory approach worthy of examination. Non-U.S. democracies X. Conclusion may not have a First Amendment, but these democracies certainly It is difficult to address Section value speech rights of every citizen 230 without the exchange becoming and organization operating within a political debate. Eliminating their borders. One author, Evelyn Section 230 would not eliminate Douek, marries the international misinformation or illegal or law norm of proportionality41 with otherwise actionable speech, nor digital age capabilities in assessing would it bridge the political chasm probabilities to argue for which has characterized the United emphasizing continued advance- States in recent years. The forces ments in the use of artificial giving rise to these phenomena intelligence (AI) tools to improve would persist. content moderation outcomes, Outright elimination of platform coupled with transparency imposed immunity would expose sites of all by focused adjustments to the kinds to lawsuits based upon

40 Id. as one of the requirements for “State 41 See, e.g., David Kaye, Report of the Special limitations on freedom of expression”). Rapporteur on the Promotion and Protection 42 Evelyn Douek, Governing Online Speech: of the Right to Freedom of Opinion and From “Posts-As-Trumps” To Proportionality Expression, at 4, U.N. Doc. A/HRC/38/35 and Probability, 121 COLUM. L. REV. 759 (Apr. 6, 2018) (identifying “proportionality” (2021). 43 Id. at 821. Social Media Immunity in 2021 and Beyond 13

content of users and moderation policing platforms, a responsibility decisions made by the platforms that the legislative branch has with respect to that content. declined to undertake. Perhaps the larger platforms could withstand any resulting litigation pressure, but smaller sites hosting user content likely could not. Consider, for example, a small-town newspaper’s comments section,44 a restaurant site encouraging patron responses, or a retailer inviting users to comment about product offerings. Professor Franks’ language changes – which seek to limit immunity to genuine “speech” and not to acts of wrongdoing which happen to be carried out with words – strike at the heart of Section 230’s overbreadth by attempting to reduce the protections for internet companies, which are now gargantuan and nothing like what Congress had in mind in 1996. Professor Franks’ changes seek to use recourse through the judicial system as a motivational tool to force online platforms to police their sites and refrain from seeking to monetize actionable content. In this manner, litigation, and the threat of litigation, can serve as an ameliorative force, just as the plaintiffs’ bar would argue that threats of product liability actions lead to safer consumer goods. Courts will play a central role in

44 Tim Wu, Why Both Liberals and ls-conservatives-wrong-section-230- Conservatives Are Completely Wrong About reform-repeal/. Section 230, PROMARKET (Dec. 13, 2020), https://promarket.org/2020/12/13/libera