By Adi Robertson , a senior tech and policy editor focused on VR, online platforms, and free expression. Adi has covered video games, biohacking, and more for The Verge since 2011.
Nov 2, 2022, 2:00 PM UTCThe First Amendment is one of America’s most distinctive pieces of law. But as the midterm — and, quickly, the presidential — elections approach, free speech has become one of the most fundamentally imperiled parts of American life. Both sides of the political aisle are attacking long-accepted principles of speech law, frequently in ways that are both logically incoherent and deeply concerning.
Thanks to the internet, the free speech clause of the First Amendment is bearing a level of strain that few other legal doctrines face in modern times. The modern internet touches virtually every aspect of our lives, and at some level, virtually every part of the internet is speech. Even more than many other large industries, its lack of geographical boundaries has eroded the barriers between local governments: a law regulating websites in Florida might dictate how businesses behave in California or Europe, while conversely, a web business that runs afoul of one country’s laws can quickly hide abroad. And a human-run legal system struggles to keep up with the vast scale of automated digital connections.
The concerns and concern-trolling around “cancel culture” and “illiberalism” have never been louder. Yet, at the same time, the freedom of speech — the actual civil liberty protected by the First Amendment, not just a theoretical Enlightenment value — is being gutted by legislatures and judges.
Rather than seriously grappling with technology’s effects on democracy, many lawmakers and courts have channeled a cultural backlash against “Big Tech” into a series of glib sound bites and political warfare. Scratch the surface of supposedly “bipartisan” internet regulation, and you’ll find a mess of mutually exclusive demands fueled by reflexive outrage. Some of the people most vocally defending the First Amendment are the ones most open to dismantling it — without even admitting that they’re doing so.
Virtually every American politician professes to love the First Amendment. Many of them profess to hate another law: Section 230 of the Communications Decency Act. But the more they say about 230, the clearer it becomes that they actually hate the First Amendment and think Section 230 is just fine.
The heart of Section 230 is famously just 26 words:
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.
The law was passed in 1996, and courts have interpreted it expansively since then. It effectively means that web services — as well as newspapers, gossip blogs, listserv operators, and other parties — can’t be sued for hosting or reposting somebody else’s illegal speech. The law was passed after a pair of seemingly contradictory defamation cases, but it’s been found to cover everything from harassment to gun sales. In addition, it means courts can dismiss most lawsuits over web platform moderation, particularly since there’s a second clause protecting the removal of “objectionable” content.
The oft-neglected key here is illegal speech. Many well-deserved critiques of the internet and social media — that it helps spread false stories about covid or QAnon-style Satanic panics, that it lets huge crowds of people dogpile teachers or nurses with angry messages, or that it facilitates hate speech at a large scale — don’t actually involve illegal speech. There are a few cases still in flux, like the defamation lawsuits against Fox News for provably false and unsupported statements about voting machine manufacturers. But defamation is a difficult bar to meet. Joe Biden, for instance, claimed on the campaign trail that Section 230 let Facebook host disinformation. Last year, he took Facebook to task for “killing people” by allowing the spread of covid vaccine misinformation; shortly thereafter, Democratic senator Amy Klobuchar proposed stripping Section 230 protections for health misinformation.
Removing Section 230 protections is a sneaky way for politicians to get around the First Amendment
But making false claims about pandemic science isn’t necessarily illegal, so repealing Section 230 wouldn’t suddenly make companies remove misinformation. There’s a good reason why the First Amendment protects shaky scientific claims. Think of how constantly our early understanding of covid shifted — and now imagine researchers and news outlets getting sued for publishing good-faith assumptions that were later proven incorrect, like covid not being airborne.
Removing Section 230 protections is a sneaky way for politicians to get around the First Amendment. Without 230, the cost of operating a social media site in the United States would skyrocket due to litigation. Unable to invoke a straightforward 230 defense, sites could face protracted lawsuits over even unambiguously legal content. And when it comes to categories of speech that are dicier, web platforms would be incentivized to remove posts that might be illegal — anything from unfavorable restaurant reviews to MeToo allegations — even if they would have ultimately prevailed in court. All of this would burn time and money in perhaps existential ways. It’s no wonder platform operators do what it takes to keep 230 alive. When politicians gripe, the platforms respond.
Threatening to repeal 230 is a shakedown racket, a way for lawmakers to quietly put their thumb on the scale — a back door to imposing government speech regulations.
There are some proposed changes to speech law that are upfront about their aims, like New York Attorney General Letitia James’ call to ban distributing live videos filmed by mass shooters. Legal experts like Danielle Citron have also proposed fixing specific problems created by Section 230, like its de facto protections for small sites that solicit nonconsensual pornography or other illegal content. There are serious criticisms of these approaches, but they’re honest attempts to address real legal tradeoffs.
When lawmakers do take up serious issues around platform regulation, it’s often with the blatant ulterior motive of punishing “Big Tech” for perceived political misdeeds. Debate over the EARN IT Act targeting child sexual abuse material, for instance, was peppered with claims that Section 230 was a gift to Facebook or Google — when groups like NCMEC acknowledged that the popular “Big Tech” targets were some of the most responsive at reporting CSAM. Omnibus Section 230 reform bills are bizarre chimeras from lawmakers with conflicting goals, pushing sites to moderate more and less at the same time.
The thing is, these complaints get a big thing right: in an era of unprecedented mass communication, it’s easier than ever to hurt people with illegal and legal speech. But the issue is far bigger and more complicated than encouraging more people to sue Facebook — because, in fact, the legal system has become part of the problem.
Last month, longtime fabulist Alex Jones was hit with a judgment for nearly $1 billion for lying about the 2012 shooting at Sandy Hook, Connecticut. His behavior — and I say this as a reporter, one of the groups most leery of libel lawsuits — is exactly why defamation isn’t protected by the First Amendment. Jones targeted private citizens who’d suffered a horrific loss with absurd, protracted, totally unsupported claims. His lies caused tangible harm that continues a decade later, and in theory, the damages outweigh even the tens of millions of dollars he made off those claims.
It’s also not clear whether it matters. Jones declared corporate bankruptcy during the procedure, tying up much of his money indefinitely and leaving Sandy Hook families struggling to chase it. He treated the court proceedings contemptuously and used them to hawk dubious health supplements to his followers. Legal fees and damages have almost certainly hurt his finances, but the legal system has conspicuously failed to meaningfully change his behavior. If anything, it provided yet another platform for him to declare himself a martyr.
Contrast this with the year’s other big defamation case: Johnny Depp’s lawsuit against Amber Heard, who had identified publicly as a victim of abuse (implicitly at the hands of Depp). Amber Heard’s case was less cut-and-dried than Jones’, but she lacked Jones’ shamelessness or social media acumen. The case turned into a ritual public humiliation of Heard — fueled partly by the incentives of social media but also by courts’ utter failure to respond to the way that things like livestreams contributed to the media circus. Defamation claims can meaningfully hurt people who have to maintain a reputation, while the worst offenders are already beyond shame.
The First Amendment doesn’t work if the legal system doesn’t work
Everything is content now, and the legal system is no exception. Influencers — up to the former president — have honed the art of filing absurd speech-related legal complaints to grab headlines from an ecosystem of media reporters. They’ve figured out how to barrage targets with lawsuits that are laughably weak. But they don’t even want to win. They want to gin up social media outrage, incite harassment, and discourage people who can’t pay legal fees from speaking out. There’s a welcome and helpful movement to address bad-faith lawsuits through anti-SLAPP (or Strategic Lawsuits Against Public Participation) laws, but even these only partially address what makes the state of US speech so poisoned.
To put it bluntly, the First Amendment doesn’t work if the legal system doesn’t work. Arguing over the rare exceptions to free speech doesn’t matter if people can’t be meaningfully censured for serious violations or if verdicts are vestigial afterthoughts in cases filed mostly for clout. And it’s especially useless if the courts themselves won’t take it seriously.