Twitter and Facebook blocked a NY Post report that was damaging to a US Presidential candidate, leading to renewed calls to remove their Section 230 protection.

The Post report alleged corruption on the part of Joe Biden, the Democrat Presidential candidate. Almost immediately Facebook moved to ‘reduce its distribution’ and Twitter even went so far as to completely block any attempts to share the story.

This wholesale, and apparently coordinated, blocking of a story written by one of the biggest US newspapers was unprecedented. The political sensitivity of the matter, with the US general election less than a month away, added to a sense of outrage from all but the most blindly partisan, leading to an immediate backlash.

A popular counter from people who approve of a piece of social media censorship is that they are private companies and thus can do what they want. Leaving aside that everyone is subject to the law of the land, social media companies receive an extra level of privilege in the US, covered by a piece of legislation called Section 230, which grants them legal protection from the material their users publish.

Section 230 exists to distinguish internet platforms from publishers, on the reasonable grounds that the former have no control over the content they host. As they take an increasingly active editorial role, however, the line between internet platforms and publishers becomes blurred and thus the rationale for Section 230 is weakened.

Ajit Pai, Chairman of the US comms regulator, the FCC, has added to recent DoJ efforts to reform Section 230. “Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act,” he said in a statement.

“There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’  And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision.

“As elected officials consider whether to change the law, the question remains:  What does Section 230 currently mean?  Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230.  The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230.  Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.

“Throughout my tenure at the Federal Communications Commission, I have favoured regulatory parity, transparency, and free expression.  Social media companies have a First Amendment right to free speech.  But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

Social media companies have been accused of political bias in their censorship for some time, but this hostile action against a major newspaper has taken that suspicion to the next level. Two Republican Senators have already called for the CEOs of Twitter and Facebook to testify before the US Senate next week, to explain what they’re playing at. Ahead of that, Twitter is fighting a rear-guard action, apparently acknowledging its over-reach in this case.

Both companies, but especially Twitter, seem to have seriously over-reached this time. The problem isn’t so much the censorship itself, but its selective enforcement. Both have allowed all manner of media attacks on President Trump, many far more tenuous than the Post report, to proliferate freely on their platforms. But as soon as something comes along that may benefit him, they squash it immediately.

Section 230 obviously needs reforming, ideally with much clearer guidelines on the level of editorial activity allowed while retaining the ‘platform’ designation. YouTube’s banning of the conservative QAnon ‘conspiracy theory’ while permitting equivalent slanders against Trump is yet another proof point. Whether or not the Democrat party would be as keen in such reform, were it to win the election, is highly debatable.

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