Candace Owens, Cardi B and Section 230
For anyone hoping that Washington will allow the next generation of start-ups to benefit from the same rules that enabled the creation of American social-media giants—and also allow these giants to face consequences for becoming America’s new ideological censors—there may be a good test case at hand.
Confused politicians want to eliminate a provision of federal law known as Section 230 because they mistakenly believe it has provided Silicon Valley giants with an all-purpose liability shield. But it doesn’t protect them from the consequences of misguided decisions to become the new arbiters of America’s public discussions.
The law allows “interactive computer services” to make good-faith efforts to block obscene, violent or otherwise objectionable material posted by users without being treated as publishers of all user-generated material, and therefore liable for its content. The law does not protect these services when they cease being merely communications platform providers and step into the role of publishers.
Eliminating the law would transfer wealth from tech shareholders to trial lawyers. It would also prevent the creation of new rivals to the social-media titans. A better solution is to demand that judges interpret the law as written and allow plaintiffs to perform cashectomies on Silicon Valley firms if they publish libelous content.
Best-selling author Candace Owens might wish to explore the limits of Section 230 following this week’s online kerfuffle with rapper Cardi B.
Alex Heigl notes in the New York Post:
A run-of-the-mill Twitter squabble between Cardi B and Candace Owens on Tuesday evening ended with Owens claiming she plans to sue Cardi for posting a digitally altered tweet suggesting that Owens’ husband had cheated on her with her brother.
Ms. Owens says the claim is untrue and that Ms. B is circulating a photoshopped fake. If this is correct, then the rapper would be liable for libel. Ms. B says she will be suing Ms. Owens for claiming that the tweet was photoshopped. Perhaps eventually they will both have their days in court and will be free to present defenses just like everyone else.
If Cardi B’s tweet was photoshopped, the fact that the popular Ms. Owens is a well-known public figure would probably not provide Ms. B with any extra legal protection. Since Cardi B’s tweeting clearly seems to have been intended to humiliate Ms. Owens, if the Twitter-published statement turns out to be fabricated then this example would seem to meet the high standard of “actual malice.”
If Ms. Owens has a good case she may wish to consider suing not just Cardi B but also Twitter. An en banc panel of the Ninth Circuit Court of Appeals has previously found that a website can be both a service provider and a content provider, even if it plays only a part in the creation or development of content. In other words, Twitter can be considered both a platform and a publisher under the law.
On the general subject of Candace Owens, Twitter appears to have done some editing. Ms. Owens reported last year that the site blocked her tweet encouraging Michiganders to defy lockdown orders issued by the state’s Democratic governor, Gretchen Whitmer.
As for Cardi B, Twitter did not simply choose to block her content, which some users may find objectionable. Instead, her Twitter account carries a warning that it “may include potentially sensitive content.” Some may view this as akin to a headline describing the published material. Was it entirely Cardi B’s idea and initiative to label her content in this way or does Twitter have some role in the application and maintenance of the label? Has Twitter ever monitored or examined her content in any way?
Twitter maintains that it is not a publisher, but simply the distributor of information posted by others.
A lawsuit might help clarify the responsibilities of communications service providers, speakers and publishers in social media.
Extra Credit for Essays on Abolishing the Filibuster?
Many colleges have responded to Covid by sharply reducing the role of standardized testing in this year’s admissions process. This requires admissions officers to make more subjective judgments than is customary. Given the political orientation of the average college admissions officer, we can only guess the results. The Journal’s Melissa Korn and Douglas Belkin report:
Ivy League schools and a host of other highly selective institutions waived SAT and ACT requirements for the class of 2025, resulting in an unprecedented flood of applications and what may prove the most chaotic selection experiment in American higher education since the end of World War II…
Interviews with college-admissions officials and public and private high-school counselors point to an epic effort behind the scenes to make tough judgment calls at the highest speed.
In Other News
Let Kids Learn
“Florida Schools Reopened Without Becoming Covid-19 Superspreaders,” The Wall Street Journal, March 17
“Covid-19 Vaccines Reach the Most Remote Americans,” The Wall Street Journal, March 17
Mr. Freeman is the co-author of “The Cost: Trump, China and American Revival.”
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