One of the more bizarre parts of the Parler debate is the weird insistence among many in the Trumpist set that somehow taking away Section 230 will magically lead to less moderation, rather than more. This is almost certainly untrue, because assuming a shift to more traditional distributor liability rules as were considered in place prior to Section 230, websites would potentially face liability for content that violated the law if they were shown to have knowledge of the law-violating material.
We don't have to look far to see such a system in practice: it's how the DMCA's Section 512 notice-and-takedown regime effectively works today. Under that regime, anyone who wants anything taken offline just files a notice, and if a website wishes to avoid liability, they then need to remove the content. That removal protects them from liability. Prior to the notice, it's unlikely that they would be seen as liable, since they wouldn't have notice of the content in question possibly violating a law. Of course, as we've seen, the DMCA's notice-and-takedown provision is widely abused. Recent studies have shown that the notice-and-takedown provisions are regularly used to target non-infringing works and many sites pull down that content to avoid liability.
It's quite likely that we'd see the same sort of result without 230, leading to significantly more removals of perfectly legal speech -- which seems to be the exact opposite of what Trumpist fans of revoking 230 expect. Last month, we were happy to see that the Trumpist social media site, Parler, seemed to recognize this, and its CEO John Matze correctly pointed out that removing Section 230 would help the big companies and harm smaller competitors (though, hilariously, he tried to lump himself in as a big guy):
Section 230 is actually a really nice thing, because what it does is protect small businesses from liability, who are trying to compete with Big Tech. So I respectfully disagree, to some extent.... I don't think the outright removal of 230 is a good idea, because it promotes competition and it actually helps the small guys more. 230, if it was removed, wouldn't have a big impact on the companies with a large financial balance sheet, like Facebook, Twitter, and even Parler. We'd be okay. But any other competitors would get hurt the most.
He's right (except the bit about him being a big guy -- just because you're co-founded by an ultra-wealthy Trumpist wacko, it doesn't mean you're a big player). Parler would face tremendous liability without 230, and at some point, the Mercers wouldn't enjoy continuing to pay the company's neverending legal bills.
Yet, on Monday, it seems that political pressure won out among Parler senior exec staff, and they put out a truly ridiculous press release, headlined that Parler now "welcomes" a full repeal of Section 230. If you read the actual press release, and not just the headline, you realize that the company's complaint is not so much about 230, but what might happen if any 230 reform is driven by Facebook. And that is the proper concern. If Facebook gets to dictate the terms of 230 reform, it will be massively damaging to companies like Parler. And thus, one can read Parler's press release as saying that if there were only two choices and those two choices were (1) Facebook-led reform or (2) a full repeal of 230, it would prefer a full repeal:
Today Parler executives declared that Parler and other free speech platforms would be better off if Section 230 of the 1996 Communications Decency Act were repealed than they would be under a politically feasible re-write of Section 230. Such a re-write would, they believe, further encourage speech-restrictive, content moderation policies of established tech giants Facebook, Twitter and YouTube. As it stands, the current interpretation of Section 230 already encourages these practices, by providing immunity from liability for removal of any content a platform's leadership finds "objectionable." If Mark Zuckerberg and his cronies in Congress have their way, these practices would be not only protected from liability, they would be mandated. Online platforms would, under a revised Section 230, become de facto censors, restricting speech that would otherwise be protected by the First Amendment. Not only is this morally wrong, it would simultaneously increase barriers to entry while limiting the ability of social media companies to compete by offering different policies.
Much of that paragraph is actually accurate! Many of the reform proposals would push companies to be more proactive in taking down protected content, though if they were actually mandated, it would make any such law infringe upon the 1st Amendment itself, and it would eventually get tossed as such (though that process would take a while).
That said, the framing here by Parler is immensely stupid. Most people took this to mean it wants a full repeal, rather than just preferring one when compared to a Facebook-led reform. And that's how people are going to remember it. I'm also confused about how Parler thinks that Zuckerberg has "cronies" in Congress. Have they not watched the various hearings where both Republicans and Democrats seem hellbent on beating up on Zuck every chance they get? I honestly cannot name a single member of Congress who I think is supportive of Facebook at all.
Even more stupid, Parler CEO John Matze doubled down on this line of thinking on a post on his own feed (I'd link, but Parler makes it impossible to link directly to posts).
That says:
Reflecting on 2020 and revisiting the inauthentic testimonies from Zuckerberg, Sundar and Dorsey, and observing the role social media plays, today I am changing my stance on section 230. This was not an easy change, but thanks to the people on Parler, trusted advisors and our legal team, I am more confident.
Over the past year, Americans have watched and experienced viewpoint discrimination from Twitter, FB and Google. We have seen medical advice blocked and erased from the internet. We have seen climate politics pushed down our throats. We have seen election integrity concerns forcefully invalidated and we have seen tech tyrants attempting to control our democratic republic in the name of "preserving" it.
As it stands, Parler benefits from Section 230 today. We are afforded the same protections. But, overarchingly, 230 is bad for free speech and bad for our country. Parler does not need it, and rest assured we will come out just fine either way. The tyrants not so much.
This... makes no sense at all. If this is truly from Matze's "trusted advisors" and the company's "legal team" he should fire them and get new advisors and lawyers -- and maybe stopping getting his information from idiots. All of the stuff he complains about would be significantly worse without 230. And, no, Parler would not come out fine either way. He may think so, with Rebekah Mercer's big wallet backing him up, but legal fees add up quickly, and Parler would likely discover that faster than most. No one has an endless supply of cash, and the Mercer family, while rich, is not that rich.
Honestly, this stinks of a stupid publicity stunt by Parler, thinking that it's hitting Facebook when it's down. It's pretty clear that Matze and Parler's senior leadership team have little to no experience with how this stuff plays in DC. He's just handed Facebook exactly the ammunition it wants to pressure Congress to reform 230 in the way it wants, because everyone is going to take these statements, ignore the weak and slightly misleading nuance, and remember "Parler thinks 230 reform is fine."
It's a stupid move, but no one said that the company was smart. Remember, these are the same guys who bizarrely claimed they'd only moderate based on "the 1st Amendment and the FCC" (whatever the fuck that means) and then quickly started banning people who made fun of Parler. And Matze is the guy who, while pretending to support free speech, also recently bragged to a reporter that he was sitting around banning leftist trolls who had shown up on his site.
It's honestly not surprising, just disappointing, for Parler to take this self-defeating stance. It had a chance to be a useful participant in these discussions, and has instead decided to simply pull a prank to get itself some attention instead.
