Controlling the Narrative: How Social Media Companies Exploit Section 230 Immunity to Censor Online Speech

37 Pages Posted: 27 Feb 2024 Last revised: 1 Mar 2024

See all articles by E. Forrest Carman IV

E. Forrest Carman IV

University of Mississippi School of Law

Date Written: February 1, 2024

Abstract

Freedom of Speech was the single most important right that our nation’s founders sought to protect. However, in today’s increasingly online world, the federal government has created a censorship system to prevent information that they deem to be incorrect or false from being spread. Under the current state of immunity in place via Section 230, agencies have joined forces with social media platforms to create a censorship scheme to remove disfavored, though protected speech, from platforms to advance the administration's political agenda. Therefore, we must amend through the legislature or clarify Section 230 civil immunity through the courts, which provides for the broad protection of the platform censoring a user opting to conduct discourse through their platform. This broad protection disguises ex-post censorship as ex-ante editorial discretion.

This article explores the history of Section 230, the Freedom of Speech, and proposes several solutions to protect Americans engaging in the marketplace of ideas in a digital forum. Current law must change to recognize that constitutionally protected speech must be allowed to continue into the metaverse. Further, this article explores how current law protects social media companies and explains that Section 230 is, in current practice, unconstitutional because it is being used as a backdoor for censorship. It is obvious that the internet has outgrown the need for the broad, sweeping immunity that it has been given in Section 230. These social media platforms should not receive billions of dollars worth of protection from the government as it provides in Section 230. Therefore, it is imperative to the foundation of our nation that we find a solution to prevent Section 230 from being further exploited to censor Americans.

Keywords: constitutional law, free speech, the First Amendment, state action, statutory interpretation, legislation, and public policy.

Suggested Citation

Carman IV, E. Forrest, Controlling the Narrative: How Social Media Companies Exploit Section 230 Immunity to Censor Online Speech (February 1, 2024). Available at SSRN: https://ssrn.com/abstract=4724997 or http://dx.doi.org/10.2139/ssrn.4724997

E. Forrest Carman IV (Contact Author)

University of Mississippi School of Law ( email )

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