The Chairman in the China Shop – A Parable About the Communications Decency Act

Life is complicated. Who needs it?

If you want an accurate inventory of what’s in the china shop, don’t ask the owners. They won’t know. But if you put a bull in the china shop and the bull breaks everything, then the owners will know what was in inventory.

Alas so it is with Chairman Don. He is a bull in our china shop of laws. In his mad rampage, he breaks each and every law he touches, and as he breaks them one by one, we learn how precious those legal protections were.

But sometimes, and this is what makes life complicated, our Chairman gets lucky and breaks one that perhaps should be broken. Even a batter who strikes out all the time might hit a foul ball once in a while.

Chairman Don has hit a foul ball with respect to Twitter and his mad rant about what Twitter should and should not be able to say about him. But don’t fear, Don-o-phobes, he has screwed it up, gotten it back-assward. Because while he may have hit a foul ball, trust me, he hit it right off his ankle, and it is going to ricochet and hit him in the chin, and take him down. Isn’t that a sight for sore eyes?

Here is what I mean. Chairman Don’s rant against Twitter was basically a criticism of the federal statute known as the Communications Decency Act (“CDA”). Of course Chairman Don does not know this, just as the bull does not know what antiques it is destroying. The CDA was landmark legislation passed in 1996. Its purpose in life was to protect our children from the onslaught of pornographic material found on Internet websites. Hence the “decency” part of the law. But in a cruel twist of fate, the Supreme Court struck down that portion of the law in a decision rendered just one year after the law was passed. The Justices ruled that the guts of the CDA were unconstitutional and violated our First Amendment right to  freedom of speech and to freedom to display our private parts on the Internet. Also, don’t underestimate the sway those lobbyists from porn entertainment sites might have had. After all, pornography is an “industry” and up until the ascendancy of Amazon and e-commerce, pornography generated more revenue over the Internet than any other market segment.

But buried deep inside the CDA, like a Trojan Horse (pun intended) is Section 230. And it is against Section 230 that Chairman Don rails. Section 230 survived our Supreme Court’s dismembering of the law in 1997, because Section 230 was not held unconstitutional.

Section 230 grants immunity to interactive Internet hosts who post material created by others. At that time, the prevailing metaphor was that an Internet host was like a telephone company. The host provided the medium through which a message was transmitted. Just as we do not hold the telephone company responsible for the content of a defamatory telephone call, Congress decided that we should not hold Internet hosts responsible for the defamatory content posted by their users. The Internet host is just a platform, not a publisher.  Sounds right.

But here is what it did. It granted immunity to Internet hosts only if they didn’t meddle with the message. Meddle with the message and the host was deemed a co-author of the message and was therefore liable if the message was defamatory. Consequently, Section 230 created a huge incentive for an Internet host to act as a blind monkey to what was being posted. And that is why today, Facebook, YouTube, Twitter, you-name-it, are nothing but a bunch of blind monkeys whose motto is “See no evil, have no liability.” They only get in trouble if they try to help. So why help? Just like the doctor who is present at a car crash. Safer to walk away than to assist. While assisting is morally correct, it could lead to financial disaster. Guess which wins. Nice day for a walk anyway.

Then Chairman Don comes along. He cries foul. How can Twitter comment on his precious, slanderous tweets? After all he is the Chairman. So today he wrote an executive order stating that Section 230 of the CDA must be “narrowly construed.” What does that mean? I have no idea. But I think it means that an Internet host might have to go to an optometrist to have its eyes checked. Because as I read the Chairman’s order, he is saying that an Internet host may now be vulnerable to liability by doing nothing, if, by doing nothing, it permits someone to be defamed. Bye-bye telephone company platform, hello newspaper publisher which is liable for its printed content. Because the editors of a newspaper should have read the content before publishing it, even the content of op-ed columnists. Therefore a newspaper is liable for the content it prints, no matter who wrote the content.

Good point. Maybe an Internet host is no longer AT&T, but more like the New York Times, or more accurately the National Enquirer. Should the Enquirer be afforded the same protection as AT&T? Probably not. Presumably the Enquirer is aware of the content it publishes, more so than AT&T is aware of the conversations transmitted over its wires.

So where does that leave our Chairman, our bull? Here. Namely that the china shop owner can no longer say ignorance is the best defense. If a china shop owner knows there’s a bull in the store, perhaps the owner better act to restrain the bull.  Otherwise the insurance company might say the owner was negligent in letting the bull run amuck.  Given today’s order an Internet host might now be better protected from liability by  proactively taking responsibility for the content it hosts, whether or not it created that content. If it is liable for defamation if it does nothing, it better do something. It needs to act. Against whom? Against slanderers and defamers, just like our Chairman.

Watch out Chairman Don, while you may be a bull, the Internet aint no china shop.  It is a giant arena, more like a ring, filled with spectators numbering in the billions.  Like it or not, the guardians of that arena are our Internet hosts; they are our designated bull fighters.  And now because of your order, you have armed those guardians with a powerful sword to protect us from your verbal assaults.  The power to edit; the power to publish a message that bears some semblance to the truth.

Copyright 2020 – Peter Kelman. All rights reserved.