Minnesota Opinion: Twitter legal tussle has no easy answer

Summary: Government regulation would be unconstitutional. Private social media entities can selectively edit and post all they want, just like newspapers and other traditional sources of information. Just like any of us. It’s their freedom of speech protected by the First Amendment.

Minnesota Opinion editorial
Minnesota Opinion editorials
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The protection has long needled at traditional news organizations, ever since 1996 when Congress passed Section 230 of the Communications Decency Act.

Those traditional news organizations carefully monitor comments posted to their websites and edit the letters to the editor and other submissions published on their opinion pages — lest something defamatory or libelous sneak through, eroding their reputation for accuracy and exposing them to expensive legal action.

Meanwhile, Section 230 exempts and protects social-media companies like Facebook and Twitter from any legal liability whatsoever for the posts to their platforms, no matter how nasty, untrue, libelous, or defamatory. In other words, Facebook, Twitter, and others are free of legal responsibility for their content — and seem to care little about any moral or ethical responsibility. They’re completely insulated.

Section 230 actually made a lot of sense a quarter of a century ago when it was first adopted. Back then, there was no Google or Facebook, texting was practically unheard of, “and (Facebook founder) Mark Zuckerberg was 11 years old,” as the New York Times pointed out recently. But there were things like chat rooms, and when they started getting sued, they successfully argued to lawmakers that they couldn’t exist and operate without being shielded from lawsuits for the posts of others not under their control. Kind of the same way phone companies can’t be sued for slanderous statements made during phone calls, they said. Court rulings that followed Section 230 maintained that as long as third-party comments aren’t edited or modified to be made more defamatory, the platforms couldn’t be held liable.

Do Section 230’s protections still make sense? The question is being debated now because, last week, President Donald Trump signed an executive order to attempt to strip Facebook, Twitter, and others of their Section 230 immunity if they choose to chime in on the third-party posts on their platforms. Trump was apparently peeved that Twitter added fact-check labels to two of his tweets and restricted a post of his about violently cracking down on protesters.


While newspapers and other news organizations might cheer Facebook, Twitter, and other platforms being held to the same responsibility as them under the law, and while Trump’s executive order and the legal challenges that already are being filed promise a legitimate and long-overdue policy debate in Congress, “There’s simply no good solution right now” to any of this.

So said First Amendment and press-freedom expert Mark Anfinson, a media lawyer in the Twin Cities, in an exclusive phone interview with the Duluth News Tribune.

“This is the brave new world (of what) technology has inflicted on us,” Anfinson said. “It’s possible our future is a massive avalanche of misinformation, distorted information, propaganda, illusion, and fantasy, and our society just gets lost in it. It is extremely scary. It’s just depressing. There may be no solution to this.”

Even sadder, perhaps, social media, despite being repeatedly hijacked to push modern waves of Orwellian propaganda, is what’s being embraced publicly — while responsible traditional journalism, with its laudable goal to simply inform, is being discredited, castigated, and no longer supported.

A congressional policy debate seems likely because Trump’s executive order “has no traction whatsoever under the current statute,” Anfinson said. “There’s just nothing in Section 230 that supports the claim that if (social media platforms) insert (their) own comments in response to a third-party comment somehow that causes (them) to lose (their) immunity. That’s just isn’t the law.”

So what can or should be done to prevent misinformation and to stop social media from being used as propaganda machines?

Calling on Facebook, Twitter, and others to self-police, to be more responsible with the content on their sites, even without the threat of legal entanglement, has proven ineffective so far. And such self-policing almost certainly wouldn’t be impartial. But all of us can insist, with each individual cry joining a collective command, that the platforms and their users act with more responsibility.

Government regulation would be unconstitutional. Private social media entities can selectively edit and post all they want, just like newspapers and other traditional sources of information. Just like any of us. It’s their freedom of speech protected by the First Amendment.


And while breaking up the giants sounds good in theory — the increased competition compelling platforms to act more responsibly — there’s no way to compel users to embrace alternatives to Facebook, Twitter, and others.

“It’s a serious problem right now for our democracy. The volume of misinformation and distortion out there: it’s a serious problem,” Anfinson said. “And we have to be very careful we don’t adopt a solution that’s worse than the problem. That’s where we are. The cure can be much worse than the current disease. It’s not fatal right now, and so we have time to continue exploring. That’s what we need to do.”

With no easy solution in sight, Trump’s order has at least opened this long-overdue debate.

This editorial is the opinion of the Duluth News Tribune's editorial board.

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