Section 230 and the Millstone
Mark Edward Blankenship Jr.
The millstone was an integral tool needed to grind grain to make bread and sustain life, and during Biblical times, it was deemed that taking someone’s millstone would be like taking his or her life in pledge. It has been analogized as an instrument of death, a wrath of severe judgment, and/or heavy burden. For example, the book of Judges tells the story of the woman of Thebez dropping a millstone on the head of Abimelech, killing him.
Jesus Christ would take this chilling tale of a millstone even further in perhaps one of His most gruesome illustrations in the New Testament, giving this warning to those who led His children astray:
“It is impossible for the stumbling blocks not to come, but woe to him by whom they come! It is better for him if a millstone is hung around his neck and he is thrown into the sea, than that he should cause one of these little ones to stumble.” (Luke 17:1-2)
During the time that Jesus made this warning, the Pharisees’ and Sadducees’ lack of accountability and misapplication of Mosaic Law resulted in great harm to the public. In addition, Jesus’s millstone illustration would be recorded threefold in the Gospels of Matthew, Mark, and Luke. This goes to show that Jesus did not jest when it came to the suffering of His people, especially to children. And although he was merciful, loving, kind, and gentle, he was no pushover either.
Long before the Me Too Movement, it was already a universal concept that our words and actions matter, especially in how they influence the next generation. In the physical world, the public usually views sex crimes as outrageous, and punishment for such crimes necessary. But when it comes to the Internet, a realm regulated by code, markets, laws, and norms, the notion of holding an interactive computer service accountable for the facilitation of harmful content toward our youth is still regarded as controversial. This is mystifying. Like the millstone, the Internet is integral in communicating with others, both for work and social purposes. Instead of Mosaic Law, however, the issue with interactive computer service liability is a matter of Internet Law – specifically Section 230 of the Communications Decency Act (CDA).
I. CDA Section 230
Back in 1996, when Congress enacted the CDA, which eventually would include Section 230, it had two main goals in mind: the encouragement of the growth and development of online businesses; and the prevention of minors from gaining access to indecent and pornographic online material. One year later, the Supreme Court in Reno v. ACLU would strike much of the CDA, but nevertheless keep Section 230 intact. Under Section 230, a provider or user of an interactive computer service, such as a social media platform, is not to be considered the publisher or speaker of information created by an information content provider.
Prior to Section 230, interactive computer services could be held liable, even if they only exercised editorial control, for the content posted by others who used the service.1See Stratton Oakmont, Inc. v. Prodigy Services, 1995 WL 323710 (N.Y. Sup. Ct. 1995). However, after Section 230 was passed, the court in Zeran v. America Online, Inc. held that an interactive computer service can be immune from liability, even if it knew that the posting was false and acted unreasonably under the circumstances.2Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Furthermore, internet computer services were allowed to make editorial actions, such as simply selecting posts for publication or providing commentary (that by itself is not defamatory) on the content of a third party, without being held liable.3See Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014). However, immunity is only provided if the interactive computer service does not create or develop the information in whole or in part.4See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).
One case that heavily questioned the benefits of Section 230 was Doe v. Myspace. Plaintiff, who was a minor, began communicating on social media with someone who was over the age of 18. Once the two met up in person, the man sexually assaulted her. Plaintiff files a lawsuit against Myspace, but not over anything that the social media platform said. Instead, she alleged that because she lied about her age on the site, her profile was susceptible to sexual predators, and that Myspace had no safety features in place to prevent such a situation from happening. Thus, Plaintiff’s claim was that Myspace did not do enough to protect her. However, the court held that the crux of Plaintiff’s complaint still concerned the contacts made through Myspace, which would position Myspace as a publisher or speaker of the content of another. Myspace was not held liable in that case.5Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008).
Thus, Section 230 provides interactive service providers very little incentive to regulate what content appears on their platforms, since the act shields these tech companies, regardless of the amount of effort they make – if any – in removing offensive material. Furthermore, the act is applicable in more than just tort claims like defamation and invasion of privacy. However, Section 230 does not apply in copyright and trademark infringement and certain criminal claims.
II. Amending Section 230 and the Issue of Sex Trafficking
Since then, Section 230 has seemed ineffectual in its initial purpose of protecting minors from harm. In 2018, President Donald J. Trump signed the Fight Online Sex Traffickers Act (FOSTA), which carved out an exception to civil and criminal charges of sex trafficking. Yet the act seemed to aim less at social media giants and more at classified ad sites, such as Craigslist and Backpage, that had incredible tolerance for ads displaying adult services. Additionally, this measure did not stop platforms from enabling the distribution of nonconsensual pornography, harassment, and child sexual abuse imagery. A recently filed federal lawsuit accuses the social media platform Twitter of being complicit in sex trafficking by knowingly distributing and profiting from child abuse of a minor. Plaintiff, a minor who was initially trafficked on Snapchat, was coerced into providing a sexually exploitative video. The video was then released on Twitter, where it was retweeted thousands of times. Plaintiff and his mother contacted Twitter to remove the video, but it was alleged that the company failed to do anything in preventing the video’s dissemination, until a federal agent from the Department of Homeland Security eventually stepped in and forced them to do so. Additionally, Section 230 still provides safe haven to companies like Pornhub, who have been accused of profiting off of video of child rape, revenge porn, and egregious sexual abuse.
Last year, several senators created a bipartisan legislative effort to further amend Section 230. Under the Eliminating Abuse and Rampant Neglect of Interactive Technologies (EARN IT) Act, companies would have to “earn” the protection by showing that they are following the recommendations for combating child sexual exploitation laid out by a 16-person commission. Essentially, this would seem to reduce the incredible flexibility on content-moderation, which was criticized in Zeran and other cases, since the act would incentive interactive computer services to make diligent efforts in removing sexually exploitative content.
Several proponents will continue to argue that Section 230 is not broken, and that enacting the EARN IT Act or repealing Section 230 altogether will be incredibly detrimental to online free speech and innovation. In reality, the statute has been broken for decades; we have just reached the point where an overemphasis on markets poses great harm in terms of social norms.6See generally Lawrence Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (Basic Books 2d. ed., 2006). But after reflecting on Jesus Christ’s horrific illustration of the millstone, perhaps people might decide to shift their focus onto what matters more. It is paramount that the welfare of our nation’s future generations should come before the political and financial interests of big tech companies and political parties. ♦
Mark Edward Blankenship Jr. is an attorney licensed in Missouri and is an LL.M. Candidate (Intellectual Property Law emphasis) at the Benjamin N. Cardozo School of Law at Yeshiva University. He received his J.D. from the J. David Rosenberg College of Law at the University of Kentucky and his B.A. from Georgia Southern University. Additionally, he is the author and founder of The Holy Cross Xaminers, a blog on modern and contemporary issues pertaining to Judeo-Christianity, policy-making, and the law.
Blankenship Jr., Mark Edward. “Section 230 and the Millstone.” Canopy Forum, March 4, 2021. https://canopyforum.org/2021/03/04/section-230-and-the-millstone.