The power of Big Tec to control the messaging on their platforms is the pivotal issue before the senate Judicial hearing that was going on today. Indeed, the censoring or suppressing of articles and opinions distributed through the platforms of Big Tech is on the minds of over 73 million Americans who supported President Trump. Unfortunately, this issue is not of the type that can undo the election results. However, the privileges granted to these entities under Sec 230 are under attack.
Essentially, the law provides immunity from civil liability from actions arising from postings made on their platforms. The law does promote the dissemination of free speech. However, the manipulation of this privilege is the problem. Big Tech cannot expect immunity if they publish their own articles; they would be treated like publishers.
But Big Tech does not directly publish their own opinions and articles; they use ghostwriters to do this for them. This is accomplished by selecting postings and Tweets they agree with, suppressing those they don’t condone, and placing warnings on Twitter postings. This messaging system enables these entities to have their cake and eat it too; by using ghostwriters, they continue to receive the statutory immunity and get their messages out to millions of people.
But there is a new sheriff in town: The United States Supreme Court.
Consider the Statement of JUSTICE THOMAS respecting the denial of certiorari in a case where the petitioner sought an interpretation of the Sec 230 law.
First Justice Thomas noted that “When Congress enacted the statute, most of today’s major Internet platforms did not exist. And in the 24 years since, we have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the world’s largest companies.
“The decision is one of the few where courts have relied on purpose and policy to deny immunity under §230. But the court’s decision to stress purpose and policy is familiar. Courts have long emphasized nontextual arguments when interpreting §230, leaving questionable precedent in their wake. I agree with the Court’s decision not to take up this case. I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” MALWAREBYTES, INC. v. ENIGMA SOFTWARE
Originalism (interpreting the Constitution) and textualism (interpreting statutes) are methods that the newly formed court will almost certainly use in challenges to Sec 230 cases. In other words, the rule of law will prevail as opposed to evolving trends. Words mean what they say.
Using this analysis method could impact the legitimacy of Big Tec’s enjoyment of immunity given their ghostwriters’ use. A literal reading of the law does not support the use of publishing through clandestine means.