Matt Gaetz, Lauren Boebert and Tomi Lahren Lead Parade of Dreadful Legal Takes After Facebook Upholds Trump’s Ban

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On Wednesday Facebook upheld its ban of Donald Trump on its platform, angering conservatives and setting off a flurry of misguided takes about the First Amendment and an obscure but vital provision in a piece of 25 year old legislation.

Our first contestant is Rep. Lauren Boebert (R-CO), who took to Twitter soon after Facebook upheld Trump’s ban. The first-term congresswoman attempted to cast the decision as a free speech issue.

(For what it’s worth, the top nine Facebook posts of the last 24 hours as of this writing are from conservative accounts.)

The First Amendment protects the right of individuals and groups to engage in speech without fear of government censorship or reprisal. It does not prevent private entities from enforcing their own rules regarding speech.

If I call Mediaite’s editor in chief Aidan McLaughlin a “lying dog-faced pony soldier” and he fires me because it violates the company’s code of conduct, I can’t claim my First Amendment rights have been violated. The reason is that Mediaite is not bound by it. It’s the same reason pro sports leagues can legally fine players and coaches for criticizing the officiating in a game. They’re private entities with their own standards of behavior that, if violated, may constitute a (legally) fireable offense.

Occasionally, you may hear someone argue that Facebook, Twitter, Google, etc. are publicly traded companies, which means they must afford their users First Amendment protections.

This is a very stupid argument.

Being a publicly traded company (or public company, if you will), simply means shares in the company can be bought and sold by the public. Taking a company public with an IPO does not mean the company is a suddenly a government entity. These companies are run by boards of directors and C-suite level executives. To the extent the government is involved at all, it is in a regulatory capacity.

Speaking of regulation, let’s talk about Section 230 of the 1996 Communications Decency Act, which for some reason conservatives have been screaming about for a few years now. After Trump’s ban was upheld, those who weren’t decrying Facebook’s nonexistent First Amendment violation, turned to Section 230.

Unhappy with what they see as unfair treatment of conservatives on social media (see: Donald Trump, suspensions by Facebook and Twitter of), many conservatives – including Sens. Ted Cruz (R-TX), Josh Hawley (R-MO), and a host of other Republicans – have demanded that Section 230 be repealed. Trump himself even said on his now defunct Twitter account last year, “REVOKE 230!

Now, if you didn’t know anything about Section 230, you’d be forgiven for thinking that, given the way conservatives talk about it, its repeal would mean conservatives would be able to post more freely on social media websites without having to worry about their posts taken down or their accounts being suspended.

You would be wrong.

In fact, if Section 230 were repealed, conservative users – along with everyone else – would almost certainly see their content moderated more, not less.

Why? Let’s look at a key part of Section 230:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

If you run a website of any kind, whether it’s a behemoth like Facebook, a tiny blog just a handful of people comment on, or an upstart social media company like the conservative platform Parler, you love Section 230. And it’s easy to see why. Section 230 prevents website hosts and operators from being held liable for illegal content a user or a commenter posts. Whether it’s copyrighted material, or defamatory language, or revenge porn, or some other legally dubious content, the proprietor of the site is not legally responsible for what their users and readers post. Rather, the poster is.

Repealing Section 230 would be a nightmare not only for Facebook and Twitter, but for any site, big or small, that allows users to post or comment. Removing this protection would have fairly predictable consequences, namely, websites erring on the side of more content moderation and not less, and more account bans and not fewer. Indeed, it’s possible many websites would decide to ban comments or users altogether because they simply can’t moderate the volume of user-generated content. For many sites, the threat of legal liability would simply outweigh the benefits of having an active and engaged community of users.

Section 230 is what makes so much of the internet the internet. It would even protect Trump’s much rumored social media platform, if it ever comes to fruition. Trump’s website even says as much:

Additionally, in the event that we offer a message board or any other interactive or social-type feature on a website administered directly by us, please be aware that these areas may allow you to publicly post, and share with other users, certain messages, content, or other information (e.g., stories, pictures, etc.). Although we may take certain precautions to protect those who use these areas of one of our websites, we encourage you to be wary of giving out any personal information in such public forums. The information you post can be collected and used by people you do not know. We cannot guarantee the privacy and safety of these areas and are therefore not responsible for any information you choose to post. Your use of these features is fully at your own risk.

That sounds like an operation that fully expects to enjoy some sweet Section 230 protection in the event Trump ever gets such a site off the ground.

And really, that’s how it should be.

So that’s a layman’s overview of Section 230. For a deeper dive about the law’s “good faith” provision and whether companies can lose 230 protection (hint: they can’t), I highly recommend Mike Masnick’s deep dive at techdirt.

This is an opinion piece. The views expressed in this article are those of just the author.

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