A version of this essay was first published in the July 26, 2021 Epoch Times.
This is the first in a three part series explaining legal and constitutional issues in former President Donald Trump’s lawsuit against Twitter. This installment focuses on how social media censorship abuses federal law.
Trump’s lawsuit, filed on July 7, 2021, alleges that Twitter abridged Trump’s First Amendment free speech rights by censoring his tweets and canceling his account. Joining the lawsuit is another individual plaintiff canceled by Twitter, as well as the American Conservative Union, which alleges that Twitter has shadow banned it.
The plaintiffs ask the court to permit them to represent a class of all individuals whom Twitter has banned improperly. They seek damages and reinstatement of their accounts. They further seek a ruling that Section 230 of the Communications Decency Act (U.S. Code, title 47, Section 230) (pdf) is unconstitutional. Section 230 immunizes Twitter from liability for censoring certain kinds of content.
One hurdle the lawsuit must overcome is that judges do not declare statutes to be unconstitutional if there’s a way to avoid doing so. This is especially true in the era of the Roberts Supreme Court, which is highly deferential to Congress.
So although there’s nothing wrong with asking a judge to declare a dubious law unconstitutional, it’s wise to offer a less dramatic option as well. In this case, the plaintiffs should contend that even if Section 230 is constitutional, it doesn’t authorize Twitter’s political censorship.
Section 230 Immunity, In Plain English
If a person makes a defamatory statement in a newspaper, on the radio, or other traditional medium, the medium (as well as the speaker) may be liable for damages. For example, if Complete Colorado publishes a defamatory letter-to-the-editor about Mary Smith (which, of course, Complete Colorado would never do), then Smith usually can recover from Complete Colorado as well as from the author of the letter. If Complete Colorado has to pay, it can seek compensation from the author.
But Section 230 gives social media companies unique protection. Section 230 says in part:
“No provider … of an interactive computer service [such as Facebook, YouTube, or Twitter] shall be treated as the publisher or speaker of any information provided by another information content provider.”
So if I write on Twitter a statement about Mary Smith that is false and harmful, Smith may be able to collect damages from me—but not from Twitter. Lawyers say that the social media company is “immune from liability.”
This immunity makes sense only if the social media platform functions as a town square (pdf) or hired hall. Everyone understands that, absent special circumstances, the town is not responsible for what someone says in the square, and neither is the owner who rents out his hall liable for what might be said there.
On the other hand, if the social media platform selects or edits content as a newspaper or magazine does, then immunity is less defensible.
Section 230 Censorship
Yet, Section 230 does allow social media companies to censor certain kinds of material. I’ll explain why in a moment, but first let’s look at that part of the law:
No provider … of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider … considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected …. [Emphasis added.]
Social media companies claim their power to censor political comments is based on their right to censor material that is “otherwise objectionable.”
Trump claims this is unconstitutional because (1) Congress may not ban constitutionally protected speech and therefore (2) Congress may not delegate that power to social media companies.
But before a court accepts that argument, it will try to interpret the law in a way that renders it constitutional. In this case, that’s easy to do. The truth is that “otherwise objectionable” really doesn’t mean “anything the social media company doesn’t like.” The term is much narrower than that.
There’s a standard principle for construing legal documents known by the Latin phrase ejusdem generis (classical pronunciation: e-YOOS-dem GHEN-air-iss). It means “of the same kind”—or, more loosely, “Birds of a feather flock together.”
Ejusdem generis tells us that if you have a list of items followed by a catchall phrase, then you should interpret the catchall phrase to include only items similar to those listed. Suppose, for example, your spouse sends you to the market to buy “carrots, spinach, lettuce, and other vegetables.” Does the catchall phrase “other vegetables” include a Christmas tree?
You might argue that a Christmas tree is a vegetable because it’s classified as such in the game Twenty Questions (“Animal, vegetable, or mineral?”). That’s cute, but no cigar. The specific items before the catchall phrase tell you that “other vegetables” means edibles like cabbage or radishes. It doesn’t include a tree.
So you’ll have to take the consequences from your spouse for not intuitively understanding the ejusdem generis rule.
Now, let’s go back to Section 230 and look at the list of censorable material: (1) obscene, (2) lewd, (3) lascivious, (4) filthy, (5) excessively violent, (6) harassing, and (7) otherwise objectionable.
One appeals court has pointed out (pdf) that items (1) through (6) cover a lot of ground. They tell us that the catchall includes bullying, pornography, threats, extortion, and vulgar Anglo-Saxonisms. But they also tell us what is not in the “otherwise offensive” catchall. For example, the same appeals court ruled that the catchall did not justify a social media company censoring merely to hurt a business competitor. I think it’s equally clear that ordinary political discussion does not qualify as “objectionable” under the statute.
At the beginning of Section 230, Congress included explanatory material (recitals) telling us how to interpret it. The recitals further clarify that “otherwise objectionable” does not refer to ordinary political disagreements. Pay particular attention to the words I’ve italicized:
The Congress finds the following:
(2) These [Internet] services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse …
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
It is the policy of the United States … to encourage the development of technologies which maximize user control over what information is received …
These recitals inform us that Congress enacted Section 230 to increase the “variety” and “diversity” of political discourse, not to constrict it. They also inform us that Section 230 is designed to expand user control, not provider control.
Why Section 230 Included Power to Censor
But when a child accesses the internet, who is the “user” to whom Section 230 gives “control”? In the eyes of the law, parents are the natural guardians of their children and, therefore, the child’s parents are the “users.” So if Congress wished to empower “users” then Section 230 should empower parents. And sure enough, here’s another recital in the statute:
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material ….
In other words, social media’s immunity for censorship was bestowed to help parents protect their children. And the only reason social media can block some constitutionally protected material is because some constitutionally protected material—soft porn, for example—is unsuitable for children.
In sum: Social media’s power to censor must be exercised only to empower parents in protecting their children. It’s akin to a duty of trust. It’s not a license for a company’s civic ignoramuses to impose their political prejudices on the rest of us.
Next installment: How can Twitter violate the First Amendment?