What will a Trump administration do with Section 230?

A famous and contentious clause in the US Communications Act may well come under renewed scrutiny.

by Rob Corbidge

Published: 14:01, 07 November 2024

Will the incoming new US administration abolish Section 230 of the US Communications Act? 

This, as if any publisher needs reminding, is the slice of legislation that provides protection for platforms and enables them to claim they are not publishers or beholden to the rules which govern publishers, and instead claim they are simple intermediaries for the content they surface.

Consequently platforms can do things publishers cannot, such as publish awful things and then say it's got nothing to do with them. 

A powerful example of this can be seen in the use of Facebook in Myanmar, resulting in some terrible real-world consequences. Obviously that's an extreme example, as seen from the comfort of my nice house in leafy England, but the consequences of such content was very real and very extreme for those who suffered because of it.

There's actually little unique about the internet being used as a medium for such incitement. It is just another medium. The initial stage of the Rwandan genocide was largely influenced by the radio broadcasts of Radio Télévision Libre des Mille Collines, which was on air for only a year but built huge malign influence. The pamphlets of 17th century England could also serve such an inciteful purpose.  

I do not believe any publisher wishes for an environment of censorship, but I do believe we would like to enjoy an environment of equality of responsibility, particularly given that while Section 230 might have been helpful in the fledgling days of the web, it's now used to protect companies with financials that dwarf those of many countries.  

Notable was the relative lack of platform controversy over this US election cycle, outside of Elon Musk's X. My own media experience tells me that in the political popularity game, it's a narrow matter between backing the winner or winning the backing, and it's hard to tell which is the most influential.

However, Google and Facebook and TikTok have notably not been howled at much this time around. Using Facebook mostly for groups, I do check it weekly, and my own feed has been entirely free of third-party political content, even given my fairly deep ties to the US and America content. 

It's fair to conclude that a Trump victory was anticipated by all of them to some extent, and keeping a low, or at least bi-partisan profile is good business sense, especially as the determined Lina Khan at the Federal Trade Commission is replaced and Big Tech tries to avoid further anti-monopoly action from the Department of Justice.

Quoted at a pre-election Chicago rally, the now president-elect declared "I'm not a fan of Google. They treat me badly. But are you going to destroy the company by doing that? If you do that, are you going to destroy the company? What you can do, without breaking it up, is make sure it’s more fair."

Being that he's concerned about US tech supremacy, and bigger is better for Trump, it seems unlikely that any action now taken against it will result in the dismemberment of the company. 

Yet what of Section 230? The primary clue we have is in Project 2025. Portrayed by those on the other side of the political divide as a kind of civilian Operation Barbarossa, it's certain that his core team of advisors are somewhat dubious of some of the ideas laid out there. Given that the man himself is rather fond of extemporising, it also does seem unlikely that such blueprints suit him. 

Yet Section 230 has been in the US political sights for some time now, certainly before this new political reality. Project 2025 is clear on a suggested remedy: "The Federal Communication Commission should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute." 

It continues: "As Justice Clarence Thomas has made clear, courts have construed Section 230 broadly to confer on some of the world’s largest companies a sweeping immunity that is found nowhere in the text of the statute," and continues "clarifications might also include drawing out the traditional legal distinction between distributor and publisher liability; Section 230 did not do away with the former, nor does it collapse into the latter."

This points to the current reality that publishers have had to accept: the distribution channel is more powerful than the content channel. Yet those that are distributors are de facto publishers, and do not have to abide by the same rules.

In truth, Section 230 was conceived as a shield, and served as one, yet now that same shield has become a battering ram and serves both purposes too well yet it remains to be seen if measures will be taken that protect the plurality of media, or, as in the case with realpolitik, it's only bad media if it's not your media.