The Internet and the Limping Truth

26 Pages Posted: 22 Mar 2021 Last revised: 24 Apr 2021

See all articles by David McGowan

David McGowan

University of San Diego School of Law

Date Written: March 19, 2021

Abstract

Constitutional doctrine protects false speech and even lies in certain circumstances. The doctrine also endorses non-literal interpretation of speech that can cause statements implying factual assertions to be treated as non-factual, non-actionable opinion. These doctrines limit the degree to which laws may counteract falsity. Historically publishers exercised discretion, through ex ante review, that limited the dissemination of false statements, including those that would have been protected speech had they been published.

As the Internet has lowered the cost of disseminating expression, speech has been democratized radically. Many more people say many more things, many of them untrue. 47 U.S.C. Section 230(c)(1) provides that social media outlets are not publishers of user-generated content, thus immunizing such outlets from, for example, tort liability such as for defamation. Outlets' terms of use typically grant them discretion to decline to post or to remove content. These outlets thus exercise ex post the sort of discretion formerly exercised ex ante by traditional media outlets.

Political dissatisfaction with the exercise of such discretion has led to calls to treat social media outlets either as state actors or common carriers. Neither option is desirable. Social media outlets do not satisfy the legal criteria for state action, and misguided claims that Section 230 gives them a subsidy provides no logical basis for treating them as state actors. Nor is common carrier treatment warranted. If the relevant market is publicly available expression, as critics seem to assert, then even the largest outlets have no plausible claim to market power. Normatively, to treat social media outlets as either state actors or common carriers would subject them to falsity-protecting constitutional rules and thus lead to a net increase in harmful conduct--lies, among other things. Public discourse would be better served by allowing media outlets to continue to refine their content moderation practices, as private speech outlets historically have done.

Suggested Citation

McGowan, David, The Internet and the Limping Truth (March 19, 2021). San Diego Legal Studies Paper No. 21-013, Available at SSRN: https://ssrn.com/abstract=3808232 or http://dx.doi.org/10.2139/ssrn.3808232

David McGowan (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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