If Big Tech Loses Its Legal Shield, Hollywood Should Worry

If Big Tech Loses Its Legal Shield, Hollywood Should Worry
The Hollywood Reporter Illustration

Over the past quarter-century, for better or worse, one law has played an outsized role in the vibrant internet we know today. Yet amid the fallout of the Capitol Hill riot on Jan. 6, calls to reform Section 230 of the Communications Decency Act have grown louder. Some lawmakers complain about the spew of hatred and legion of disinformation. Others detest the power of Big Tech to choose whose voice is loudest on platforms seen as akin to town squares.

Politicians on both sides of the aisle hold up a repeal of Section 230 as the appropriate response to everything from the Capitol insurrection to the suspension of Donald Trump’s Twitter account two days later. Unfortunately, a Section 230 repeal won’t be enough to achieve what some political leaders are really after — a rebalance of the power structure. And that holds danger for those who traffic in speech, including movie and television producers, plus journalists and TV newscasts. “Section 230 reform is a sign that the forces of censorship are winning the legislative battles,” says Eric Goldman, a professor at Santa Clara University School of Law. “Hollywood should be very, very nervous that they will be the censors’ next target.”

Section 230 is a key 1996 law that allows interactive service providers — like Facebook, Twitter or YouTube — to host third-party content like tweets or videos without fear of bearing liability (with some exceptions) for what users are posting. It also permits these digital services to step in when they see objectionable content and restrict access to such material. As Sen. Ron Wyden (D-Ore.), who co-authored the statute, explains, Section 230 is both “a sword and a shield,” the former so that tech companies can take down “lies and slime,” the latter so that “users, not the website that hosts their content, are the ones responsible for what they post.”

What would the internet look like without Section 230? As reflected in court decisions that precipitated Section 230, any digital service choosing to moderate some distasteful content would gain legal responsibility for everything. As a result, the choice for these websites would be to act overly aggressive when wearing the moderator’s hat or be willfully blind to everything bad on the platform. Most tech companies would likely protect user experience and take an aggressive approach to content deemed objectionable. Do Republican politicians and right-leaning media figures believe otherwise? Of late, Republicans implied that taking away Big Tech’s legal shield would lead to less “censorship,” defined in their eyes by suspended accounts and de-promoted rightwing content.

But the only thing likely to happen upon the removal of Section 230 will be disappointment. That’s because speech can be controversial without being unlawful and because adjusting the incentives on removal of bad content will hardly mean satisfaction when that content goes away. That applies to Democrats as well. For that reason, lawmakers may eventually aim to enforce some sort of attempt at neutrality or even compel social media companies to carry certain speech in an effort to undercut the tremendous power of popular digital platforms. Some in Congress have already made that step. For example, embattled Sen. Josh Hawley (R-Mo.) proposed in June that tech companies prove to the Federal Trade Commission by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.

Traditional media has witnessed this type of controversy play out, to an extent. In the mid20th century, amid the belief that radio stations were hosting one sided attacks against politicians, the Federal Communications Commission required that broadcasters present a balanced perspective on issues of public interest. The so-called Fairness Doctrine survived a 1969 Supreme Court review because of the scarcity back then of radio frequencies, only to be jettisoned during the Ronald Reagan administration under the view that it was infringing upon free speech rights.

Any new attempt by the government to enforce neutrality or compel speech on social media platforms (such as, hypothetically, denying Twitter the authority to ban Trump or requiring Facebook to present multiple sides of an issue) would undoubtedly trigger a legal response. If many lawmakers aren’t quite ready just yet to more directly regulate the speech they see, that’s probably because they know that such attempts would be susceptible to First Amendment challenges.

That’s where Hollywood comes in. While fooling around with user-generated content impacts the entertainment industry on the margins — think talent scouting on YouTube or Facebook- and Twitter-based marketing campaigns — nothing would be as game-changing as the notion that the government gets to lay down broader rules about what speech is disseminated. “If politicians can tell platforms you have to carry President Trump’s speech, there’s a short distance in dictating what op-eds are to run on The New York Times or what perspectives are shown on television,” says Daphne Keller, the director of the program on platform regulation at Stanford University.

In many ways, the talk surrounding Section 230 has obscured the First Amendment dynamic. Many in the creative world may be conditioned to be skeptical about Big Tech’s legal shield given their lingering concerns about copyright infringement (exempted under Section 230) and the way that these digital titans have disrupted Hollywood’s old business models. “There’s certainly been a clash of competition,” says Keller. “But in terms of the values held by many in Hollywood, I imagine there are many who care deeply about the First Amendment and would hardly like the results if Section 230 is crossed out.”

This story first appeared in the Jan. 13 issue of The Hollywood Reporter magazine. Click here to subscribe.