Have you ever found yourself in a heated debate over whether or not “a Platform” can be treated as “a Publisher” of someone else’s content? The recent revelations in the so-called Twitter Files only add more fire to the heated discussion around a part of law called Section 230 that has been used by courts to give nearly total immunity to these Big Tech Oligarchs for their actions that have harmed users and content creators, opposing opinions or not, reputations and financially.
My guest this week recently wrote in Human Events “If Section 230 is applied correctly (i.e., harmoniously, reconcilably, and as a whole text), the answer is surprisingly: YES, albeit with a caveat. A Platform is generally understood to be a passive distributor of third-party information and a Publisher is generally understood to be an active content moderator or editor. A Publisher makes publishing decisions, for example to allow, disallow, or edit content, whereas a Platform is a mere conduit of third-party information.
In other words, a Platform unknowingly (i.e., passively) disseminates information and a Publisher knowingly (i.e., actively) distributes information. Their differences, knowingly vs. unknowingly, or passive vs. active are very important in understanding Section 230’s distributor liability. Justice Clarence Thomas recently noted: “… Section 502 of the Communications Decency Act makes it a crime to ‘knowingly . . . display’ obscene material to children, even if a third party created that content… It is odd to hold, as courts have, that Congress implicitly eliminated distributor liability in the very Act in which Congress explicitly imposed it.” Justice Thomas is correct, it is “odd” (i.e., disharmonious) to both impose and eliminate distributor liability, in the very same statute (i.e., the CDA). To understand and apply Section 230 protections correctly, it all comes down to whether the platform knowingly (i.e., actively) or unknowingly (i.e., passively) distributes the materials at issue.
Jason Fyk is the founder of the Social Media Freedom Foundation and the Online Freedom Caucus, and co-author of the Online Freedom Act. Jason, welcome back to the Rob Maness Show!