According to the Washington Post, our Liar-in-Chief made 16,241 false or misleading statements during his first three years in office. His State-of-the-Union speech was full of half-truths and distortions. His near-daily Tweets feed us a steady stream of insults and false accusations.
Our media publish these untruths as if they were Gospel. About 40% of the public receives them as such, regardless of truth or reality. That’s why, in a little over nine months, Trump may be re-elected, and we may have lost our Republic forever.
The basis of modern civilization is personal responsibility for wrongs, including lies. So who bears responsibility for turning a society formerly based on truth and science into a cesspool of lies?
As it turns out, no one does. Our law lets all the sludge slime by without even a second look. It holds no one legally responsible.
The clearest case is Twitter. Trump can libel an individual, a group or a whole nation on Twitter and get away with it. Why? He’s the President. Under an age-old doctrine of “sovereign immunity” (the king can do no wrong), you can’t sue the President for anything, at least not while he’s in office.
Well, how about the platform that re-publishes the lies? Surely someone must be responsible for all those lies? How about Twitter itself? Does it have to do anything to avoid serving lies to millions?
Not at all. Section 230 of the Communications Decency Act provides Twitter, Facebook and like platforms with blanket immunity for anything created by users of their platforms.
The culprit is subsection (c)(1), a single short sentence. It reads as follows:
“(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
With this single sentence, Congress wiped out the entire centuries-old field of defamation law (libel and slander) for Internet platforms.
You can tell that this blanket immunity was added late in the legislative process, in a so-called “midnight amendment.” How? The title of Subsection (c) is “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” The rest of subsection (c) indeed gives platforms immunity for taking down lies and offensive material. In other words, it protects platforms from the liars, not from those injured by the lies. That self-evidently was the section’s original purpose, until someone slipped in the blanket immunity from responsibility for publishing lies.
The blanket immunity extends far beyond presidential lies. It protects platforms from legal liability for publishing anyone’s lies, whether he be a white supremacist in a prepper tent, a North Korea disinformation expert, or a Russian spook trying to throw our elections.
One rationalization for the immunity is that you still can sue the originator of the lie. But that’s not even theoretically possible with the North Korean or the Russian because our courts have no jurisdiction over them. For the white supremacist, it’s possible in theory, but not in practice, because investigating and suing take time and money. Who’s going to spend time or money tracking down thousands of anonymous Internet trolls, and what lawyer will take a case against penniless extremists?
So Section 230, in effect, legitimizes lying in America, at least on Internet platforms. It allows Twitter and Facebook and their ilk to spread lies, and profit from them, without any responsibility for damage done.
Long before our nation and its First Amendment existed, our English forebears created the common law of defamation as a way to curb lies in a society devoted to free speech. That law worked well for centuries, both in Britain and here at home. But now Section 230(c), in a single midnight sentence, has wiped it off the books even for dominant and enormously profitable platforms like Twitter and Facebook.
If you want know why our society and public discourse are in steep decline, why we are hopelessly divided among ourselves, and why Donald Trump is president despite his allergy to truth and decency, you need look no further than Section 230(c). It may not be all four Horsemen of the Apocalypse, but it’s at least three.
It gets worse. This week one of the most progressive Democratic Senators in America, Ron Wyden of Oregon, published an op-ed defending this legislative abomination. His rationale sounds like something straight out of the mouth of Twitter’s or Facebook’s lobbyists: removing the immunity would expose small start-up platforms, including political ones, to ruinous suits by their enemies.
This rationalization is almost as full of holes as Susan Collins’ (R., Me.) excuses for voting to acquit Trump of extorting Ukraine for personal advantage and covering up his extortion by obstructing Congress. Let me count the ways.
First, laws known mostly to lawyers (or retired law professors like me) protect small firms from frivolous lawsuits. These laws include state anti-SLAP-suit laws and Rule 11 in the federal courts. Second, small platforms, too, ought to bear some of the same legal responsibility to publish truth that small and large newspapers and broadcasters have borne for centuries. Third, Facebook and Twitter utterly dominate their respective industries, so small platforms are often best advised to use, not fight, Facebook or Twitter, through which they can reach a national and global audience at little or no expense.
But the last point is the killer. Which is more important: (1) making it easier for small free-speech platforms, including political ones, to survive or (2) making it possible for our democracy and our Republic to survive by pumping out the cesspool of lies in which they are now drowning?
For centuries, the Anglo-American law of defamation has kept a preferred place for truth in free-speech societies where almost anything goes. Section 230(c) kicks truth off this centuries-old pedestal and gives lies free rein. That’s how our nation has dug itself into a deep hole of lies about everything from general politics, through Trump’s actual record, to climate change and vaccines against measles.
In our current twilight struggle to give truth a chance, the defection of once-progressive icon Senator Wyden is a sign of surrender. His republishing nonsense evidently prepared by Silicon-Valley lobbyists is depressing.
So as you consider whether to vote for a true progressive or a so-called “moderate,” this is an important point to take into account. Without truth, there can be no America as we knew it, and no democracy, let alone a progressive revival. And truth cannot prevail when there is no responsibility for lying.
[We need not repeal Section 230(c)(1) to restore responsibility for lying. We can just amend it to re-impose the centuries-old standards for defamation. For an example of how to do that, click here and scroll down to the bottom.]