When Facebook CEO Mark Zuckerberg testified before a Senate Judiciary Committee and Commerce Committee joint hearing Tuesday, I asked a relatively simple question: does Facebook consider itself a neutral public forum?
Zuckerberg said that Facebook is a “platform for all ideas,” but declined to give a “yes” or “no” answer. The problem is, this is not merely an academic distinction between words. Facebook’s answer to the question could affect millions of users, and attract (or prevent) a lot of attention from federal regulators.
Section 230 of the Communications Decency Act (CDA) states: "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."
This is a good provision. It means that, for example, if you run a blogging platform and someone posts a terrorist threat in the comments section, you’re not treated as the person making the threat. Without Section 230, many social media networks could be functionally unable to operate.
In order to be protected by Section 230, companies like Facebook should be “neutral public forums.” On the flip side, they should be considered to be a “publisher or speaker” of user content if they pick and choose what gets published or spoken.
As I expressed to Mark Zuckerberg, as a private business Facebook has a clear First Amendment right to publish whatever it wants on its website within the bounds of the law. The company can support political causes and oppose ones it disagrees with, just like a private citizen can speak his or her mind or agitate against opposing views.
But if Facebook is busy censoring legal, protected speech for political reasons, the company should be held accountable for the posts it lets through. And it should not enjoy any special congressional immunity from liability for its actions.