With a federal antitrust suit against Google and Facebook, a single newspaper publisher seeks to level the playing field
By Gretchen A. Peck
Tech giants Google and Facebook aren’t strangers to antitrust litigation and Congressional scrutiny, but in a first-of-its-kind case, the two companies have been named as defendants in a federal antitrust lawsuit filed by a newspaper publisher.
The plaintiff, HD Media Co., LLC, is the West Virginia-based publisher of seven titles, including the Pulitzer Prize-winning Charleston Gazette-Mail and the Herald-Dispatch, a historically significant newspaper that dates back to 1871.
On Jan. 29, the publisher filed its lawsuit in the Southern District of West Virginia. To small community and regional newspaper publishers across the nation, the action may seem like David squaring off against a two-headed Goliath.
Yesterday, the Giants of Social Media stomped their feet down on the President of the United States, who’d abused their platforms all along, leveraging them to spread disinformation, launch attacks, paint targets, fire people, lament TV ratings, race bait, and – his most egregious offenses – to discredit the 2020 election, grift people of their hard-earned cash with promises of an overturn, inciting the most gullible among them to disrupt governance, trash and pillage the U.S. Capitol, plant bombs in the nation’s capital, murder a Capitol Police officer, and attempt to install Donald J. Trump as a second-term President via violent insurrection against their own country.
Indeed, social media had tolerated much from the digitally prolific President, but as conversations of an armed terrorist attack on the nation’s capital began to simmer, they’d had enough.
Immediately came the decries of a “First Amendment infringement” (it’s not), and Trump’s most loyal lawmaker friends calling for a repeal of “Section 230” – a pet peeve for the outgoing Commander in Chief.
What is Section 230?
“Section 230” – more formally known as Section 230 of the Communications Act of 1934 at 47 U.S.C.§ 230, and colloquially as “the 26 words that created the Internet” – was born out of two 1990s lawsuits against ISPs and challenged in the Courts several times since. Each time, it was upheld.
It is fair to say that Section 230 is perhaps the single most important legislation applicable to social media. It is what enabled platforms like MySpace, Facebook, Twitter, and others to grow, flourish, and become a huge, integral part of the American economy and culture.
President Trump’s interest in Section 230 appears to coincide with Twitter’s first fact-checking of the President’s potentially harmful tweets, back in the spring of 2020. At the time, he was undermining his own taskforce with COVID-19 disinformation, and already sowing the seeds of election chaos.
Twitter justified the tags it placed on the President’s tweets by suggesting that virus disinformation could kill people – and it has – and that his election discrediting jeopardized democracy itself. The rest of the President’s political gamesmanship was all fair game, Twitter and Facebook concluded.
From then on, the President became hyper-focused on a Section 230 repeal. He would like to be able to sue the tech companies for denying him a platform and megaphone. He wants to criminalize fact-checking. He has been so intent on this goal, that he was willing to tank two major pieces of legislation – the NDAA and a second sweeping COVID relief Bill – if he couldn’t get his way on Section 230.
For Democrats, this repeal is a non-negotiable dealbreaker, perhaps because they have a better grasp of what’s at stake.
In Congress, some of President Trump’s most lock-step Republicans now champion the repeal in his stead.
Rep. Louie Gohmert (R-TX) sponsored a 2020 bill, known as H.R. 8896 – the AOC Act, which conveniently shares the acronym with a certain Congresswoman perpetually under the skins of her Republican colleagues and its actual title, “the Abandoning Online Censorship Act.” Gohmert was able to get seven co-sponsors to sign on, all Republicans.
It was “dead in the [swamp] water.”
In 2021, and in the wake of the de-platforming of an American President who would not follow the rules, Republicans will make this case: When the platforms began to fact-check, censor, and now ban content from the President and others, they have ceased to be a platform and are instead a publisher, with an editorial due diligence and subjective control over what users see or don’t see.
The tech platforms will argue: As private companies, with clear terms of service (that users agree to when they open their accounts and create their avatars), they should be able to enforce those rules and codes of conduct, which clearly state that users are prohibited from sharing content that will harm or threaten people (other users or otherwise).
It’s worth mentioning that the federal government already has some control over platforms and their users. For example, it is criminal act to distribute certain types of content across the Internet or any platform. Section 230 does not give social media platforms blanket immunity from all forms of civil or criminal prosecutions.
If Section 230 goes away, what happens?
Without Section 230, the platforms, like publishers, would be subjected to defamation and libel laws. The distinction, however, is that publishers own their content. Publishers create, edit, verify and challenge, run it by lawyers, decide what and what not to publish, and then take whatever fallout there is from those choices; they wholly own the content they share.
Conversely, platforms are just that – a technological foundation for users to share the content they and others produce. Without Section 230 shields, platforms could then be held liable for content they do not create and merely host.
President Trump and his Congressional allies vow this repeal will force the tech companies to take an apolitical hands-off approach to users; that it will force them to enable more free expression; and force the platforms to be tolerant of a broader spectrum of ideas and alt-facts.
They feel social media has been unfair to conservative voices and ideas. A simple glance at what trends on Facebook defies this assertion. On any given day, the top 10 trending posts on Facebook are often from Right-leaning media and personalities, or topics deemed of import to conservative-minded users.
I know you’re surprised that politicians would sell you poppycock, right?
Instead, a repeal would likely have a chilling, constricting effect on users most of all.
Now, liable for content they do not create, platforms will be forced to more protective and less likely to tolerate content that could be controversial, debatable or have merit in a Court of law.
Users would have less opportunity for free expression, not more.
It’s a bottomless pit of liability for the social media platforms, which could be named as a Party in every single lawsuit in which a social media comment somehow plays a role – big-dollar cases to petty ones.
The only real winners will be lawyers.
Ultimately, it would hobble the tech companies, just as one notoriously vindictive President hopes. The tech market would be destabilized, fractured. Users would find themselves with fewer options and tighter restrictions on what they can post and share. Online communities will be more insular and more echo-chamber like.
Businesses – especially small businesses that rely heavily on the mostly free marketing perks of platforms like Twitter and Facebook – would be hobbled, too. It doesn’t seem the Republicans like Lindsay Graham and Louie Gohmert have really thought this through.
None of this is to say that social media execs don’t have plenty of atoning to do. There is no shortage of Silicon Valley sin, but repealing Section 230 will not address those in a surgical, effective way.