On October 3, the Supreme Court of the United States agreed to hear a case, Gonzalez v. Google, concerning Section 230 of the Communications Decency Act that provides wide-reaching immunities for online platforms for third-party content on their services. The case concerns an American woman killed in a terrorist attack in Paris with the victim’s family arguing that Google, through YouTube, provided material assistance to and aided and abetted ISIS by promoting ISIS recruitment videos through its algorithms in violation of the Antiterrorism Act. The District Court and the U.S. Court of Appeals for the Ninth Circuit had previously found Section 230 to protect Google against the suit. Originally adopted in 1996, Section 230 provides online platforms with broad immunities from civil liability for all third-party content they publish – including from defamation, invasion of privacy, and misappropriation claims. The law has become controversial in recent years due to its central role in facilitating various online harms. Justice Clarence Thomas stated two years ago that the Supreme Court should review whether the text of the statute aligns with the “current state of immunity.” In addition to Gonzalez, the Court also agreed to hear another case, Twitter v. Taamneh, concerning the Islamic State’s use of online platforms. Read more about the two cases here.

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Reacting to yesterday’s congressional hearing and testimony by Facebook whistleblower Frances Haugen, in an opinion piece for The New York Times, former Facebook data scientist Roddy Lindsay agreed with Haugen’s proposed solution to address the problem of big tech platforms spreading harmful misinformation and fake news – make the platforms liable for content they promote via their algorithms. Lindsay and Haugen suggest that Congress reform Section 230 of the Communications Decency Act, which currently protects the tech platforms from such liability.

News Media Alliance President & CEO, David Chavern, made a similar suggestion last year in an op-ed in WIRED, stating, “Limiting Section 230 and making the platforms responsible for content they decide to promote and amplify would, at the very least, require the platforms to carefully track and filter what they promote, and introduce incentives to support known sources of quality information.”

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Arlington, VA – The News Media Alliance today sent recommendations to President-Elect Joseph Biden and Vice President-Elect Kamala Harris’s transition team outlining policy positions on regulations and existing laws that deter investment and limit growth in the news media industry.

The Alliance continues to lead the news sector’s efforts to protect the constitutional right to a free press. That objective also requires government policies that support a vibrant and growing news industry.

“Quality journalism is the foundation of a fully functional democracy, and our members have proven again and again how essential they are to the communities they serve,” said David Chavern, president and CEO of the News Media Alliance. “Unfortunately, the current environment has made continuing to deliver vital information to the public significantly more challenging than it has been in years past. From a complicated and unfriendly digital ecosystem that favors big tech over local news to limited government engagement with the press, publishers have had to fight to constantly evolving challenges. We encourage the new Administration to revisit these policies and practices as it charts a new course for our nation’s future.”

The Alliance’s recommendations outline key public policy positions that involve such issues as: the passage and enactment of a limited antitrust safe harbor allowing news publishers to collectively negotiate with the tech platforms; a comprehensive revision of Section 230 of the Communications Decency Act of 1996 that holds the platforms accountable and is not exported in international trade agreements; taking an active role in passing a COVID relief package that includes PPP affiliation exemption and tax benefits for local news; reigning in the overly expansive “fair use” defense to copyright protections that have been continually eroded by the courts in recent years; developing privacy policies that respect a consumer’s right and are proportionally targeted at platforms who financially benefit from flagrant use of consumer data across the web; and protecting press access and freedom to assure the government is open and accountable to the public.

You can read the full list of policy recommendations here.

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Media contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org
571.366.1009

The News Media Alliance is a nonprofit organization representing more than 2,000 news organizations and their multiplatform businesses in the United States and globally. Alliance members include print, digital and mobile publishers of original news content. Headquartered near Washington, D.C., in Arlington, Va., the association focuses on ensuring the future of news media through communication, research, advocacy and innovation. Information about the News Media Alliance (formerly NAA) can be found at www.newsmediaalliance.org.

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From November 6–10, the Lincoln Network hosted the Reboot Conference, a series of virtual conversations about the intersection of technology and policy. Day three of the conference focused on the future of online news, and included conversations with leaders of the Knight Foundation, the American Journalism Project, Substack, The Washington Post, and The Texas Tribune, among others.

Included in the November 10 discussions was a conversation between the Lincoln Network’s Marshall Kosloff and Alliance CEO David Chavern. Chavern and Kosloff discussed the state of online media, the overwhelming power of the digital duopoly over news publishers, the role of Section 230, and the profitability of digital news as we move to an even more online future.

You can watch the conversation between Chavern and Kosloff below. You can learn more about the Reboot Conference here.

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The First Amendment enshrines fundamental freedoms so core to our democracy that they must be honored. But the First Amendment has limits, and non-government entities that are granted the ability and power to spread speech must not be immune to the repercussions of their actions. The most powerful market actors should not be allowed to censor or silence free speech, or promote false, potentially harmful information with no accountability.

Digital platforms, like Facebook and Google, have escaped liability for publishing misinformation for decades, despite looking more like publishers than platforms. Even with radical digital advancement, there has not been any change to regulation of big tech, to the detriment of consumers, free markets and the marketplace of ideas.

The Communications Decency Act (CDA), housing Section 230, was established by Congress in the late 1990s to limit access to obscene materials on the internet. However, through incentivizing the big tech platforms to remove obscene content by giving them immunity, Section 230 actually protects them from liability for publishing such content. Meaning, even if a third party knowingly publishes obscene content on their platforms that is obviously false, they don’t have to (and often do not) remove it unless they are paid to do so.

The current lack of liability of the platforms threatens the core First Amendment freedoms of speech and of the press. Online media, including social media, has become a primary a source of news, according to Pew Research Center. News publishers, which produce quality, investigative journalism, are held liable for any false or defamatory statements they publish, in print or online. The platforms frequently share and vet news content, as well as publish content of their own, making them moderators of public forums and therefore responsible to uphold First Amendment. Internet platforms have essentially been granted the protections of a private residence, while having the reach and substantive effect of a public forum, with nearly 70 percent of adults in the United States using Facebook. Yet, they are protected by Section 230 immunity.

Digital platforms’ expansive forums should entitle their users to experience the marketplace of ideas, free from cumbersome censorship. The First Amendment protects free speech and provides for recourse when that freedom is violated or abused.

Self-regulation, the option for which the platforms advocate, is not working, with documented cases of violence, harassment and stalking, child pornography and predatory behavior resulting from online dating apps and other platforms, such as YouTube and Uber. Section 230 only limits innocent victims’ already-scarce resources to protect their First Amendment rights. While Facebook and Twitter have more latitude than the government to restrict certain material on their platforms, because Section 230 protects them from liability, attempts by individuals seeking restitution for discriminatory censorship or predatory behavior by big tech would not be successful.

Facebook, Google and other digital platforms continue to be shielded by laws that are over two decades removed from the rapidly advancing technology, and we are seeing the disastrous effects from years of inaction to correct this oversight in the law.

The best application of the Constitution in this case would be to impart on digital platforms the liability that accompanies the First Amendment protections they already enjoy. If digital platforms truly champion the principles of Free Speech and Free Press, as they claim they do, then they will accept the accountability that comes with their role as publishers and arbiters of content.

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On  February 19, 2020, Alliance President & CEO David Chavern will testify at the Department of Justice (DOJ) Workshop on Section 230 of the Communications Decency Act.

According to the DOJ website, the workshop, titled “Section 230 – Nurturing Innovation or Fostering Unaccountability?,” will discuss the evolution of Section 230 from its original purpose in granting limited immunity to Internet companies, its impact on the American people, and whether improvements to the law should be made.

Read Mr. Chavern’s testimony here.

View the DOJ Workshop Agenda here.

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