What If All Publishers Were As Immune From Liability For Defamation As Facebook Is?
It’s past time to revise Sec. 230 to increase Facebook’s financial liability for lies and hate content it hosts or recommends
News Before The Internet
Let’s pretend that it’s 1970. There is no Internet. No cell phones. Everyone gets all their news from:
- (1) Daily Newspapers;
- (2) TV News;
- (3) Radio News;
- (4) News magazines (e.g. Time).
What If Newspapers Would Publish Any Article From Anyone
Suppose that all these organizations opened their media to anyone and everyone.
Suppose that the Media had successfully lobbied Congress to make them immune from all defamation laws so that they could never be sued for anything that they published.
If you wanted to tell everyone your theory about the machinations of the International Jewish Conspiracy to secretly control the U.S. government, they would publish it.
If you wanted to claim that the President had Secret Service agents kill homeless people and slip their bodies into the White House kitchen where they were cooked and served at demonic banquets, they would publish it.
Suppose that every publication was driven by the sole principle of maximizing advertising revenue and no matter what defamatory lies, hate, racism, lunacy or propaganda you wanted to promote, every newspaper and magazine would be willing to publish it so long as they thought it would make them money.
Yes, of course, there would be a limit on the number of physical pages that could be included in any one edition, but that was just a matter of picking the most outrageous stories and the writers with biggest checkbooks who would be willing to perhaps to pay a fee, and, of course, the topics that would have the widest potential appeal.
TV news would expand to an hour three or four times a day and follow the same business model.
The Media Transitions To The Internet
Let’s move ahead to a time after the ubiquity of the internet. Now the New York Times, Time Magazine, the L.A. Times, etc. would have unlimited electronic pages so that they could include every article anyone wanted to publish without any regard for the quality, accuracy or truthfulness of its content.
Next, let’s suppose that the NYT watched what stories every subscriber read and created a daily on-line and email edition of the NYT customized to the interests of each subscriber.
How would that be?
I think most people would say that it would be terrible, that exercising the freedom of the press carries with it the obligation to see to it that what you publish is true.
To a great extent this doesn’t happen because defamation laws hold publishers financially liable for lies and hate that they host or distribute.
Back To Reality
In the real world, newspapers are liable for publishing lies. In the real world, discovering the news and reporting it is a profession. People receive degrees from prestigious universities as a step toward getting jobs with top news organizations.
In the real world, major news organizations have rules that govern whether or not a story has been sufficiently vetted to be eligible for publication. Major news organizations will not publish stories that make unsubstantiated leastwise demonstrably false accusations.
Yes, everything you read in the papers is not necessarily true, but almost everything you read in the major newspapers has a core of factual support, and almost nothing you read in the major newspapers is known to be a complete and total lie.
You could call the Media “gatekeepers” but two elements mitigate against that being pejorative term:
- 1) Professional news organizations substantially refuse to publish outright lies, and
- 2) Heated competition between news organizations drives them to search for and aggressively seek to publish stories with a material public interest, e.g. the Pentagon Papers.
Sure there were and are unprofessional media outlets, but most people know that stories that appeared in Weekly World News and The National Enquirer are not to be trusted, that these are sensationalist publications catering to the nut-job fringe. Again, their content gets the level of respect, or disrespect, it deserves.
The Internet & Section 230 Changed The World
Three things changed everything:
- 1) the availability of access to the internet where everyone could contact everyone else
- 2) the rise of social medial platforms that not only created communities of nut jobs, but facilitated them, encouraged them and nourished them.
- 3) Section 230 of the Communications Decency Act exempted internet publishers from any responsibility for any defamatory material they accepted, hosted, posted, duplicated, promoted or distributed.
Social media companies justified this legal immunity with the claim that they were not publishers. “No,” they said, “we’re a platform. We merely facilitate person-to-person communication between our subscribers.”
False. Publishers distribute content. The identity of the content’s creator is irrelevant. Had Section 230 not been enacted, social media companies would absolutely be legally responsible for defamatory content they hosted on their sites.
Facebook is both a platform and a publisher, but Congress gave it a Get-Out-Of-Jail-Free card. Instead of James Bond’s license to kill, Congress gave internet publishers it a License To Lie and Defame.
The False “We’re Just Facilitating Communication” Argument
Social media companies would like to deny that they are publishers and instead portray themselves as the internet version of a phone company, organizations providing the infrastructure that allows their subscribers to merely engage in communications between themselves.
“If Sally makes a conference call to a bunch of her friends and launches into a diatribe against Muslims,” Facebook will argue, “AT&T isn’t liable for her speech just because it provided the telephone lines that carried the call. It would be impossible for it to listen to every phone call and censor what people say to each other over their network.”
That’s a false analogy. Facebook doesn’t just passively allow people to communicate with each other with Facebook having no ability to block or remove their content.
Facebook Is A Publisher
A better analogy would be if AT&T set up a messaging system where anyone could call in to a number that AT&T would issue for free and record a message that anyone else could listen to.
If AT&T was providing the phone numbers and the recording equipment and the software and hardware that allowed anyone to leave any message they wanted on their AT&T free special number and providing the recording hardware where anyone could listen to that message, then, in fact, AT&T would be able to control that content and AT&T would be the distributor, the publisher, of that message.
And what if AT&T monitored those messages, tracked every person who listened to each message, and then sent every listener a daily email promoting similar messages that it thought those subscribers might like?
And what if, like Facebook, AT&T sold advertising spots that it added to all those messages so that the more people who listened to a message the more advertising money AT&T would earn from the popularity of that message?
Of course, AT&T would be the promoter, facilitator, distributor, the publisher of those messages.
Maybe it never occurred social media companies that they were providing content creators with a mass marketing and distribution system in exchange for advertising revenue, that by distributing creators’ content to an audience as the foundation for a money-making business that they were publishing that content.
If I put a story on a page hosted on a Facebook hard disk and Facebook attaches advertising to that story and then sends a thousand people a link to that story and puts an ad next to my story so that the more people who read my story the more ad money Facebook gets then Facebook of course, is the publisher of my story.
A Bazaar Of Lies
Unlike Facebook, newspaper publishers provide a mechanism — internal rules, professional ethics, editors — to filter out lies, hate and propaganda from the material they distribute.
Facebook provides, at best, ineffective filters for the content they distribute. Facebook has built a business model at least partially based on operating a bazaar of lies.
What I Would Change
In July of 2021 I published this column about Facebook:
To Earn Great Wealth, Facebook Has Built Communities Of Morons
The marketplace of ideas has been replaced by the marketplace of lies, anger, and hate because that’s the speech that…
If I could, I would change Facebook so that it no longer promotes, nourishes, and enables communities of liars, haters and morons.
If I had a magic wand and I could make Facebook do whatever I wanted, how would I do that?
- 1) Disable the recommendation engine. No more, “If you liked this, then maybe you will like that.”
- 2) Require a name, physical and email address, and a phone number for every member. Verify that the email works. Require an image of a driver’s license or other identification verifying an individual’s identity. Require an image of an official document, fictitious business certificate, articles of incorporation, etc. for any entity that wants to have a page.
- 3) Add a “Notify Us Of Inappropriate Content” icon at the end of every post. Have humans review any post where that icon gets clicked. Remove any post that violates the content rules, e.g. defamatory, hate speech, falsely labeled material, etc.
- 4) Warn an offending user against further violations of the rules.
- 5) Ban any user who repeatedly violates the content rules.
And while I still have my magic wand, I would revise Section 230 to require websites to reasonably monitor postings and promptly remove defamatory material upon demand.
And, I would require verification of identity before giving anyone the ability to post content or comments. Then, if the material was defamatory the injured party would know who to sue and how to find them.
You have right to free speech. You do not have a right to free anonymous speech.
Yes, these changes would probably reduce Facebook’s membership by at least 50%. So what.
- If you’re on Facebook to keep Grandma and Uncle Jim up to date on Timmy and Sally’s soccer progress, this won’t affect you.
- If you’re a corporation using Facebook to promote your brand, this won’t affect you.
- If you’re a group of guys who love monster trucks or rugby or whatever, this won’t affect you.
- If you’re a bunch of QANON loonies who want to promote your claim that Bill Clinton was having sex with Chelsea in the Oval Office, then good riddance to you.
Go start your own website and self-promote your crap to your equally crazy friends, be your own publisher out there in the Internet wilderness where only other nutjobs like yourself are going to find you.