Mercer Law Review Volume 73 Article 7 Number 2 Lead Articles Edition 3-2022 Social Media and Democracy a --- ter the Capitol Riot, or, A Cautionary Tale o --- the Giant Gold --- ish Seth Oranburg Follow this and additional works at: https://digitalcommons.law.mercer.edu/jour_mlr Part o --- the First Amendment Commons, and the Internet Law Commons Recommended Citation Oranburg, Seth (2022) "Social Media and Democracy a --- ter the Capitol Riot, or, A Cautionary Tale o --- the Giant Gold --- ish," Mercer Law Review: Vol. 73 : No. 2 , Article 7. Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol73/iss2/7 This Article is brought to you --- or --- ree and open access by the Journals at Mercer Law School Digital Commons. It has been accepted --- or inclusion in Mercer Law Review by an authorized editor o --- Mercer Law School Digital Commons. For more in --- ormation, please contact repository@law.mercer.edu. Social Media and Democracy a --- ter the Capitol Riot, or, A Cautionary Tale o --- the Giant Gold --- ish Seth Oranburg* Lately, people have been --- inding giant pet gold --- ish in lakes across America.1 You may see these tiny --- ish swimming in bowls at the county --- air, but le --- t alone in a lake or large pond, where they are dropped perhaps by a well-meaning child, they can grow to 20 pounds or more— and destroy ecosystems.2 The gold --- ish is a cautionary tale that has been told time and again in di --- --- erent --- orms, like Pandora’s box. On January 6, 2021, a somewhat organized group o --- rioters overran and brie --- ly took control o --- the U.S. Capitol.3 Social media clearly played a role in the riots at the Capitol that occurred on January 6, 2021.4 Those riots were deeply troubling --- or all who love America and the --- reedoms --- or which it stands.5 But the reactions by corporations to *Associate Pro --- essor o --- Law, University o --- New Hampshire Franklin Pierce School o --- Law. University o --- Florida (B.A., 2006); University o --- Chicago School o --- Law (J.D., 2011). Member, State Bar o --- Cali --- ornia; Member, District o --- Columbia Bar. 1. Caitlin O’Kane, Giant, Invasive Gold --- ish are Taking Over Lakes and Ponds Around the Country. One Minnesota County Pulled out 100,000 Last Year, CBS NEWS (Jul. 13, 2021), https://perma.cc/9QYT-4WGF. 2. Giant Gold --- ish Problem in US lake Prompts Warning to Pet Owner, BBC (July 13, 2021), https://perma.cc/B74D-RAAM. 3. U.S. Capitol Riot, THE NEW YORK TIMES, https://perma.cc/Q43P-7RQN. 4. Rory Cellan-Jones, Tech Tent: Did Social Media Inspire Congress Riot?, BBC (Jan. 8, 2021), https://www.bbc.com/news/technology-55592752 (discussing the theory that Donald Trump’s own Twitter --- eed played a part in the Capitol attack as many o --- his tweets appear to instigate his supporters). 5. Emily Cochrane, Luke Broadwater, Ellen Barry, & Jason Andrew, ‘It’s Always Going to Haunt Me’: How the Capitol Riot Changed Lives, NEW YORK TIMES (Sept. 16, 2021), https://www.nytimes.com/interactive/2021/09/16/us/politics/capitol-riot.html 591 592 MERCER LAW REVIEW Vol. 73 cancel social media accounts and even entire social media plat --- orms is troubling, too.6 We must now --- ace the reality that we have entrusted some o --- the most --- undamental civil liberties to corporations that have obligations only to their shareholders, not to democracy.7 We the people are guaranteed --- reedom o --- speech in the public square.8 But we do not enjoy those same --- reedoms on the private social media networks that have replaced the town hall.9 As more and more o --- our communications and daily lives happen on private property—and make no mistake that Facebook’s website is its private property—10we increasingly trust corporations to protect our “inalienable” rights. It may surprise many that Twitter, Facebook, Instagram, YouTube, TikTok, Reddit, Discord, and other social media plat --- orms are not subject to First Amendment constraints, because they are not state actors.11 These plat --- orms do not “censor” speech in the technical sense, because only governments can censor.12 Private actors merely exercise editorial discretion, and they may do so virtually at will.13 In --- act, our --- ederal government has e --- --- ectively deputized social media corporations to censor speech on their plat --- orm—even when plat --- orms do so --- or pure pro --- it motives. (covering interviews with individuals who experienced the Capitol siege --- irsthand and the lasting trauma it has in --- licted upon them). 6. See Kevin J. Du --- --- y & Richard H. Brown, Shouting Fire! (or Worse) on Social Media: The Interplay o --- the First Amendment and Government Involvement in E --- --- orts to Limit or Remove Social Media Content, 33 Intell. Prop. & Tech. L.J. 3, 3 (2021). 7. David L. Hudson, In the Age o --- Social Media, Expand the Reach o --- the First Amendment, 43 Human Rights Magazine, no. 4, at 2. (discussing how private organizations that wield a lot o --- power and money can in --- ringe upon civil rights o --- individuals as i --- they were actors o --- the state). 8. U.S. Const. amend. I. 9. Compare Stanley v. Georgia, 394 U.S. 557, 568 (1969) (legal --- or the owner o --- private property to possess obscene material on private property). This case stands --- or the proposition that citizens have the greatest rights o --- --- ree speech when on their own private property) with R.A.V. v. City o --- St. Paul, 505 U.S. 377, 395–96 (1992) (third party has no right to burn a cross on someone else’s property). The latter case stands --- or the principle that a third party’s speech rights may be limited where the owner o --- the property on which the speech takes place disagrees with the speech. R.A.V., 505 U.S. at 395–96. 10. Trevor Puetz, Facebook: The New Town Square, 44 SW. L. REV. 385, 394 (2014) (discussing how Facebook, a privately owned organization, assumes --- ull control over the non-tangible website). 11. Du --- --- y & Brown, supra note 6, at 3. 12. See U.S. Const. amend. I. 13. Manhattan Cmty. Access Corp. v. Halleck, 139 U.S. 1921, 1928 (2019) (discussing how private entities are not subjected to the restrictions that state actors are in regard to the --- irst amendment and may exercise their own editorial discretion). 2022 SOCIAL MEDIA AND DEMOCRACY 593 Social media plat --- orms can exercise editorial discretion without incurring liability --- or third-party content (users’ tweets, posts, grams, videos, hashtags, threads, etc.) thanks to so-called “Section 230 immunity,” which provides that “[n]o provider or user o --- an interactive computer service shall be treated as the publisher or speaker o --- any in --- ormation provided by another in --- ormation content provider.”14 This means social media plat --- orms like Twitter are not liable --- or de --- amatory or in --- lammatory tweets posted on their plat --- orms.15 What, then, constrains social media plat --- orms? Revenue and quarterly earnings reports drive corporate decision making. Plat --- orms need to keep social media users plugged in, so users view as many advertisements as possible. Sometimes re --- erred to simply as “eyeballs,” users are targeted by armies o --- digital marketing teams whose only job is to keep things interesting. A --- ter the capitol riots, some cheered when Twitter suspended Donald J. Trump, or when Amazon suspended Parler --- rom its web services. Parler has since sued Amazon, although Parler is likely to lose due to Amazon’s immunity and discretion.16 But some worry about what this means --- or civil rights. The American Civil Liberties Union—an organization that called --- or Trump’s impeachment—expressed concerns that these suspensions “should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people --- rom plat --- orms that have become indispensable --- or the speech o --- billions.”17 These actions are certainly counter to the “ --- ree and open internet” principles that Google, Amazon, Facebook, and other tech giants have espoused since their --- ounding.18 In --- act, they argued that internet service providers should “treat . . . all 14. 47 U.S.C. § 230(c)(1) (2018). 15. Bobby Allyn, As Trump Targets Twitter’s Legal Shied, Experts Have a Warning, NPR (May 30, 2020), https://perma.cc/VNM5-T87F. 16. Bobby Allyn, Judge Re --- uses to Reinstate Parler A --- ter Amazon Shut it Down, NPR (Jan. 21, 2021), https://perma.cc/ARY7-APK2 (discussing how a judge denied Parler’s Motion --- or Temporary Restraining order to reinstate Amazon’s web-hosting services to Parler). 17. Kevin Roose, In Pulling Trump’s Megaphone, Twitter Shows Where Power Now Lies, THE NEW YORK TIMES (Jan. 9, 2021), https://www.nytimes.com/2021/01/09/technology/trump-twitter-ban.html. 18. These principles are perhaps best exempli --- ied by Facebook CEO Mark Zuckerberg’s opinion pieces on the topic. E.g., The Internet Needs New Rules. Let’s Start in These Four Areas, THE WASHINGTON POST (Mar. 30, 2019), https://perma.cc/92KV-ZCKE (“By updating the rules --- or the Internet, we can preserve what’s best about it—the --- reedom --- or people to express themselves and --- or entrepreneurs to build new things.”); Mark Zuckerberg, Is Connectivity a Human Right?, FACEBOOK (Aug. 21, 2013), https://perma.cc/3JP4-ZJ72 (arguing that society’s goal should be to give internet access to the entire human population). 594 MERCER LAW REVIEW Vol. 73 bits equally,” giving the same bandwidth to C-SPAN (which broadcasts public hearings) and PewDiePie (a popular YouTube personality whose videos contain misogynist and racist slurs).19 Now that the tech giants won the battle (but not the war) --- or so- called “net neutrality,” they are using their vast “editorial discretion” to decide which speech they promote, and which speech they silence. On January 11, 2021, Adam Mosseri, Facebook’s head o --- Instagram (yes, Facebook owns Instagram) tweeted, “We’re not neutral. No plat --- orm is neutral, we all have values and those values in --- luence the decisions we make.”20 This admission begs the question, what i --- social media corporations value wealth and power, and that in --- luences their decisions as to who may speak and who may not? And i --- so, how do we protect democratic --- reedoms in a world where speech is dominated by social media corporations? These are questions we will have to answer in the 2020s i --- American democracy is to survive. To answer this question, we --- irst need to understand how we got to a legal status in which the world’s largest social media corporations have privileges and immunities that exceed what traditional newspapers and reporters enjoy. Part I discussed below explains how the seeds o --- § 230 immunity were planted by the Supreme Court o --- the United States during the backlash against McCarthyism. Part II explains the inception and early development o --- § 230 itsel --- , including its legislative intent. Part III discusses how the internet has changed radically since § 230 was promulgated in the 1990s, and why the law now distorts the market --- or social media and creates perverse incentives --- or social media corporations that make it less likely --- or these plat --- orms to --- unction as e --- --- ective replacements --- or the public square. Part IV brie --- ly concludes with a discussion on what a social media world without § 230 immunity might look like. The Capitol Riot is America’s giant gold --- ish moment. We have let social media grow too large by protecting the industry with § 230 immunity. We caught social media running amok in a big way in the Capitol Building. Crowd-think led people to believe they could save American democracy by trampling through its institutions. Twitter, the world’s largest social media corporation, blamed President Donald Trump --- or instigating the rioters—and as a result banned the sitting President --- rom the plat --- orm. Facebook --- ollowed suit. People called --- or 19. Thuy Ong, Tech Giants Rally Today in Support o --- Net Neutrality, THE VERGE (July 12, 2017), https://www.theverge.com/2017/7/12/15957800/day-o --- -action-protest-net- neutrality. 20. Adam Mosseri (@mosseri), TWITTER (Jan. 11, 2021, 2:27 PM), https://twitter.com/mosseri/status/1348713108127309824?lang=en. 2022 SOCIAL MEDIA AND DEMOCRACY 595 the President o --- the United States to --- ace charges --- or his tweets. Meanwhile, Facebook and Twitter are not liable --- or any harms caused by his viewpoints. In general, social media plat --- orms are not liable --- or any views or obscenities expressed on their plat --- orms, even i --- they are dangerous, because they are protected by § 230 immunity. This Article explores whether Facebook still merits this power --- ul immunity, or whether society would be better o --- --- i --- Facebook (now Meta) was responsible --- or spreading lies and hate. Section 230 immunity began conceptually in 1959 as a protection --- or booksellers, who could never be expected to read all the books they sell, and thus gained immunity --- rom obscenity code violations regarding any books in their store they did not know were obscene. In the 1990s, Congress re --- ormed the Communications Act o --- 193421 to extend this immunity --- or third-party distributions o --- publications to internet social media plat --- orms (Facebook, Twitter, etc.). Section 230 grants social media plat --- orms immunity --- rom harms caused by content posted on their site, just like Smith v. Cali --- ornia22 grants booksellers immunity --- rom obscene books in their stores.23 The problem is the logic does not --- it because, unlike booksellers, social media plat --- orms can and do read all the content on their plat --- orms, via algorithms. Moreover, social media plat --- orms prioritize the display o --- this content and even remove content its human editors dislike. Even i --- the motive is not sinister, it is still designed solely to maximize ad revenue by selling “eyeballs” (social media users are re --- erred to as eyeballs) to advertisers. Social media plat --- orms are not designed to create a public --- orum --- or well-reasoned debate, no matter what they claim, because they all have shareholders who demand the business meet quarterly revenue targets. We should not rest our --- aith in democracy upon social media plat --- orms. Like the gold --- ish in the lake, social media plat --- orms are overgrown because we have placed them in an under-competitive sanctuary via § 230 immunity --- rom liability. Now the social media plat --- orms have grown too large and are crowding out other less pro --- itable ( --- rom the perspective o --- internet eyeball ad revenue) sources o --- news and discussion. The traditional print media sources have gone bankrupt or gone digital, and even the digital ones must literally beg users to turn o --- --- their ad blockers so their journalists can get some share o --- the ad revenue. Put simply, government regulation protected social media plat --- orms (the gold --- ish in this story), which grew overlarge 21. Communications Act o --- 1934, 75 Pub. L. No. 97, 50 Stat. 189. 22. 361 U.S. 147 (1959). 23. Id. at 155. 596 MERCER LAW REVIEW Vol. 73 and wrecked the ecosystem including the niche --- or traditional news media online. The solution is to severely restrict and pull back on § 230 immunity --- or social media plat --- orms. The law has created a set o --- incentives that led Facebook and Twitter to --- acilitate the Capital Riot and then totally escape any liability. With a liability regime like that, something similar is bound to happen again. And nothing like the Capital Riot should ever happen again. This Article attempts to explore where this immunity came --- rom, whether it is still merited, and how we might move --- orward in this social media era. I. THE FOUNDATION OF IMMUNITY FOR THIRD-PARTY PUBLISHERS One o --- the --- undamental principles o --- American democracy is --- reedom o --- the press. Protecting --- reedom o --- speech was one o --- the reasons America went to war against --- ascist Germany. But America’s celebration o --- the triumph o --- democracy over Nazi --- ascism was short- lived. Although World War II technically ended in Europe around May 1945, the collapse o --- the Third Reich le --- t a huge power vacuum in geopolitics. Therea --- ter, a temporary alliance between the Soviet Union and the United States persisted in the --- ace o --- their common German enemy. The enemy’s de --- eat undermined the basis --- or this tentative peace between the competing ideologies o --- Western Capitalism and Eastern Socialism. By the end o --- the 1950s, most o --- the Northern Hemisphere was divided into the North Atlantic Treaty Organization (NATO, which included the U.S. and its allies) on the one hand, and the Warsaw Treaty Organization (WTO, more commonly known as the Warsaw Pact, which included the Soviet Union and other socialist or communist states). Battle lines were drawn along the Iron Curtain, a barrier physically separating the WTO and NATO countries. The Cold War had begun. Although the Iron Curtain limited physical movement between the East and West during the Cold War, ideas moved --- ar more --- reely. America developed a deep --- ear that communist and socialist ideas would in --- iltrate and in --- luence American society. With that --- ear came censorship, repression, and even persecution o --- le --- t-wing individuals. The era, known as the Second Red Scare, 24 was most predominately 24. The color red was o --- ten associated with communism, perhaps because the --- lags associated with major communist revolts and revolutions were red, or perhaps because the movement claim to relate to the blood o --- workers everywhere. Palash Ghosh, Why Is the Color Red Associated with Communism?, INTERNATIONAL BUSINESS TIMES (Jun. 30, 2011), https://perma.cc/V2GL-FG9A (noting the irony that in modern America “red” states 2022 SOCIAL MEDIA AND DEMOCRACY 597 characterized by U.S. Senator Joseph McCarthy (R-Wisconsin), whose ultra-aggressive e --- --- orts to root out communist in --- luences in American government was compared to the Salem Witch Trials in Arthur Miller’s play The Crucible. Despite the promises o --- the First Amendment, which guarantees --- reedom o --- the press, members o --- the press were not immune to “McCarthyism,” as the --- ervor --- or rooting out communists became known. In Dark Days in the Newsroom: McCarthyism Aimed at the Press,25 Edward Alwood chronicles how Senator McCarthy and the House Committee --- or Un-American Activities (HCUA)26 cast a spotlight on the press by holding public hearings that would “place the entire newspaper industry under an anti-Communist microscope, as McCarthy had threatened earlier.”27 In 1956, he caused --- our journalists to be indicted on --- ederal charges—mainly related to obstruction o --- justice --- or re --- using to reveal sources and to espouse other press workers as communists or sympathizers to the HCUA.28 One o --- the indicted, Alden Whitman, an outspoken obituary columnist and known member o --- the Communist Party, argued that the HCUA was clearly in --- ringing upon the --- reedom o --- the press: Can a Congressional committee, on pain o --- contempt, --- orce a newspaper man to disclose the names o --- --- ellow newspaper men (and [Newspaper] Guild members) who, at some time in the past, may have shared what are now discredited political opinions? Since disclosures are --- ollowed by --- irings—among other consequences—it is clear that e --- --- ective press --- reedom—the right o --- members o --- the press are associated with right-wing as opposed to le --- t-wing politics). Communist leader Mao Zedong promoted the phrase “The East is Red” [东方红], which was the title o --- an o --- --- icial communist anthem, available at https://youtu.be/OZiEVspHVDU. It was the second such scare, the --- irst having occurred in response to the Bolshevik Revolution in which Vladamir Lenin’s political party overthrew the Russian monarchy at the Winter Palace in Petrograd, on November 7, 1917—which accords to October 25 on the Julian calendar (which was in use in Russia at the time), hence the term “October Revolution” also re --- ers to this coup. 25. Edward Alwood, Dark Days in the Newsroom: McCarthyism Aimed at the Press, TEMPLE UNIVERSITY PRESS (2007), https://www.jstor.org/stable/j.ctt14bt0 --- d. 26. The 79th Congress established The House Committee on Un-American Activities (HCUA) in 1945 to investigate disloyal and subservice activities by private citizens, especially those suspected o --- having communist or --- ascist connections. One o --- the more --- amous chapters o --- the HCUA involves the Hollywood Blacklist, where the HCUA’s 1947 hearings on Hollywood’s alleged communist in --- luences resulted in more than 300 artists being boycotted by the movie studios. 27. Alwood, supra note 25, at 82. 28. Some alleged sympathizers included Alden Whitmen, Seymour Peck, Robert Shelton, and William Price. Alwood, supra note 25, at 122. 598 MERCER LAW REVIEW Vol. 73 to practice their pro --- ession without political restrictions—is abridged.29 It took Whitman over a decade to clear himsel --- o --- the charges. Meanwhile, many o --- McCarthy’s other charges had already --- allen --- lat. American public support o --- McCarthy and his policies peaked in January 1954, when 50% o --- the public supported him and only 29% had an un --- avorable opinion.30 But his popularity and in --- luence diminished as his sensational tactics (which smartly leveraged the newest communication technology o --- the day, television) appeared increasingly shame --- ul. Famously, Special Counsel --- or the Army Joseph Nye Welch asked McCarthy on live television, “Have you no sense o --- decency, sir, at long last? Have you le --- t no sense o --- decency?”31 The political tide turned against McCarthy, with his political nadir --- ixed by an o --- --- icial condemnation by vote o --- the Senate (67 to 22) on December 2, 1954, on conduct “contrary to Senate traditions.”32 It took a --- ew more years --- or some o --- the McCarthy-era --- ree-speech cases to matriculate to the Supreme Court, but when they did, those cases were met by Justices who were prepared to de --- end the Constitutional right to --- ree speech in a series o --- cases dealing with --- reedom o --- expression.33 Among the litany o --- critical cases --- rom this post-McCarthy era o --- renewed emphasis o --- civil liberties, a seminal case in the history o --- § 230 immunity is Smith v. Cali --- ornia.34 Smith involved a Los Angeles County city code that makes it unlaw --- ul “ --- or any person to have in his possession any obscene or indecent writing, [or] book . . . in any place o --- business 29. Alwood, supra note, at 123. 30. Robert Gri --- --- ith, THE POLITICS OF FEAR: JOSEPH R. MCCARTHY AND THE SENATE 263 (2d ed. 1987). 31. Britannica, The Editors o --- Encyclopedia, Joseph McCarthy, BRITANNICA ENCYCLOPEDIA, https://www.britannica.com/biography/Joseph-McCarthy (last visited: Feb. 19, 2022). 32. Britannica, The Editors o --- the Encyclopedia, supra note 31. 33. From 1955 through 1969, the Supreme Court made several decisions which restricted the ways in which the government could en --- orce its anti-communist policies, some o --- which included limiting the --- ederal loyalty program to only those who had access to sensitive in --- ormation, allowing de --- endants to --- ace their accusers, reducing the strength o --- congressional investigation committees, and weakening the Smith Act. Alien Registration Act o --- 1940, 76 P.L. 670, 54 Stat. 670 (1940). In Yates v. United States, 354 U.S. 298 (1957), and Scales v. United States, 367 U.S. 203 (1961), the Supreme Court limited Congress’s ability to circumvent the First Amendment, and in United States v. Robel, 389 U.S. 258 (1967), the Supreme Court o --- the United States ruled that a ban on communists in the de --- ense industry was unconstitutional. 34. Smith, 361 U.S. at 147. 2022 SOCIAL MEDIA AND DEMOCRACY 599 where . . . books . . . are sold or kept --- or sale.”35 Eleazer Smith owned and operated a bookstore that sold, among many other books, the pulp --- iction novel Sweeter than Li --- e by Mark Tyrone.36 The book about a ruthless lesbian businesswoman was deemed obscene by the City o --- Los Angeles, although Smith did not know that.37 Nor had he ever read the book.38 The Appellate Department, Superior Court o --- Cali --- ornia, upheld the conviction regardless o --- Smith’s intentions in possessing the novel, opining: Until one o --- our supreme courts declares otherwise, we are o --- the opinion that a book seller may be constitutionally prohibited --- rom possessing or keeping an obscene book in his store and convicted o --- doing so even though it is not shown he knows its obscene character, nor that he intends its sale. He may not, with impunity, adopt as his rule o --- conduct: “Where ignorance is bliss, ‘Tis --- olly to be wise.” Those who are engaged in selling articles o --- a particular class to the public, have the --- irst and best opportunity to know or be on notice o --- their characteristics, even though possession and not sale is involved.39 The Supreme Court o --- the United States answered the Appellate Department with an 8-1 reversal and declaration that the L.A. Code was unconstitutional. Justice Brennan, writing --- or the Court, declared: The --- undamental --- reedoms o --- speech and press have contributed greatly to the development and wellbeing o --- our --- ree society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring --- ederal and state intrusion into this area cannot be le --- t ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. This ordinance opens that door too --- ar. The existence o --- the State’s power to prevent the distribution o --- obscene matter does not mean that there can be no constitutional barrier to any --- orm o --- practical exercise o --- that power. It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to 35. Id. at 148. 36. People v. Smith, 327 P.2d 636 (1958). 37. Elizabeth R. Purdy, Smith v. Cali --- ornia (1959), THE FIRST AMENDMENT ENCYCLOPEDIA (2009), https://perma.cc/V8XY-HMYJ. 38. Purdy, supra note 47. 39. Smith, 327 P.2d at 640. 600 MERCER LAW REVIEW Vol. 73 inhibit constitutionally protected expression that it cannot stand under the Constitution.40 In rendering this decision, the Supreme Court laid the --- oundation --- or the legal principles that a third party should not be liable --- or the content o --- speech.41 I --- a bookseller cannot be liable --- or the content o --- the books he sells, can a publisher be so liable? One might distinguish a traditional publisher like a newspaper --- rom a bookstore because a newspaper might be assumed to have actual knowledge o --- the content its sta --- --- chooses to print on its presses, whereas a bookstore would not be expected to read and know the contents o --- all the books that come and go through its doors. But what i --- there was a publisher that was more like a bookstore in that the publisher did not have actual knowledge o --- what it published? I --- people could sel --- -publish their ideas, should not the plat --- orm they publish on enjoy the same immunity --- rom liability as the bookstore that sells the same publication? For about thirty years, case law drew a clear line between publishers o --- content, like newspapers, who were presumed to be aware o --- the content published and thus to be liable --- or any harms caused by that content, and distributors o --- content, like bookstores, who were unaware o --- the content distributed and thus immune --- rom any harms caused by the content thereo --- . This clear line between publishers and distributors, however, became hazy as a new modality o --- publishing emerged: the Internet. II. IMMUNITY FOR THIRD-PARTY PUBLISHERS ON THE INTERNET In the early 1990s, the world emerged --- rom the Cold War with a renewed appetite --- or globalization and a new home --- or democracy across the world. The Iron Curtain o --- --- icially opened on November 9, 1989, when East (Communist) German Lieutenant-Coloner Harald Jäger opened Bornholmer Straße border crossing, allowing --- amilies who had not seen each other --- or almost --- i --- ty years to reunite --- rom East Berlin to West Berlin. It ceremoniously --- ell on June 13, 1990, when East German troops began demolishing the hodgepodge o --- walls, --- ences, gates, ditches, signal systems, and barriers that had divided a nation and indeed the entire western world --- or a generation. Amid the zeitgeist o --- reuni --- ication and the apparent triumph o --- democracy over communism, an innovative technology emerged that would accelerate the connectivity o --- the world. The internet does not have a single birth place or a moment o --- inception, but the scale and 40. Smith, 361 U.S. at 155 (quoting Roth v. United States, 354 U. S. 484, 488 (1957)). 41. Id. 2022 SOCIAL MEDIA AND DEMOCRACY 601 scope o --- the network that we know today as the World Wide Web (WWW) may have begun with the development o --- HyperText Trans --- er Protocol (HTTP) in the late 1980s. Scientist Tim Berners-Lee invented a web browser that allowed people o --- ordinary technical skill to access in --- ormation on the internet in 1990, and websites --- or the general public became widely available by the mid-1990s. The internet changed speech --- orever. Prior to the internet, most people could only share a message with their local community. A particularly avid person might holler --- rom a soap box in the park, or even publish a “zine” or newsletter that could enjoy some limited distribution. Sometimes, however, a public pronouncement could result in jeers or even a beating --- rom the police. It was not easy to get a message out to the wider world—except --- or the --- ew who controlled the sources o --- in --- ormation in the pre-internet era. Remember that in the 1950s, Senator McCarthy attempted to stop communism by targeting members o --- the print media and the movie industry, and he did so by using his ability to get hundreds o --- hours o --- --- ree airtime on one o --- just a --- ew public television channels. In the pre- internet era, there were --- ew enough choke points on news that repressive government o --- --- icials --- rom Senator McCarthy could limit the spread o --- in --- ormation. Only the rich and power --- ul could access the airwaves and the mainstream press. But the internet made it possible --- or just about anyone with a computer and a telephone line—or today, just a --- ree smartphone and a cellular data plan—to speak to just about everyone else. From the perspective o --- a person who wants to repress “dangerous” speech, the internet opened Pandora’s box. Suddenly, anyone could be heard. Without getting too technical, the innovation that allowed the internet to trans --- orm --- rom a tiny research network was called the WWW. The WWW is an in --- ormation system where resources are identi --- ied by plain-text locators (URLs, such as http://www.oranburg.com). Users access these resources via web browsers, which display web pages. Web pages are written in HyperText Markup Language (HTML), which allows web pages to include text, images, videos, apps, and links to other resources. This system o --- identi --- iers and links became more accessible as search engines like AltaVista, Yahoo!, and Google devised increasingly more accurate ways to “crawl” the web, indexing the various pages, and better ways to search the results. These search engines, in turn, encouraged more people to create content on the web, since that content would potentially be seen by others. This made it possible --- or anyone with a computer and a phone line to develop a web page and post it on 602 MERCER LAW REVIEW Vol. 73 the WWW, where it would get indexed and could be --- ound by others through search. In the early days o --- the WWW, several Online Service Providers (OSPs) carved out portions o --- the internet that could only be accessed by subscribers to that service. For example, CompuServe, one o --- the --- irst major commercial OSPs in America o --- --- ered users access to each other and to the WWW through its plat --- orm. Subscribers would log on to CompuServe, where they could access email, --- orums, and chat rooms hosted by CompuServe. Users could also access the WWW through the portal. The --- irst legal challenges against OSPs like CompuServe regarded the content hosted on the CompuServe plat --- orm itsel --- . Plainti --- --- s who were upset about de --- amatory or libelous content on an OSPs’ --- orum or chat room might sue the OSPs along with the creator o --- that content, as the OSPs o --- ten has deeper pockets than an individual subscriber. The early cases, however, created con --- usion that threatened to stop the growth o --- the nascent internet in its tracks, prompting congressional action. In the early-to-mid 1990s, two similar legal challenges against web service providers --- or objectionable content that users posted on their websites came out di --- --- erently. Cubby, Inc. v. CompuServe Inc.,42 related to CompuServe’s electronic library, which is a combination o --- several hundred --- orums that --- eature electronic bulletin boards on which users can post text, interactive online con --- erence where people can meet and chat in real time, and topical database. Don Fitzpatrick Associates o --- San Francisco (DFA) created a --- orum on CompuServe called Rumorville, where he posted a daily newsletter reporting on journalism and journalists. DFA was simply a CompuServe subscriber that was not employed or paid by CompuServe in any way. DFA posted on this --- orum statements related to its competitor, Cubby, Inc. (which was doing business as Skuttlebut) describing Skuttlebut as a “scam.” Cubby sued not only DFA but also CompuServe, arguing that CompuServe was vicariously liable --- or harm caused by DFA’s statement because DFA is CompuServe’s agent.43 The United States District Court --- or the Southern District o --- New York held that DFA and CompuServe were not in any sort o --- agency relationship; there --- ore, the vicarious liability claim --- ailed, and the court granted de --- endant CompuServe’s motion --- or summary judgment.44 42. 776 F. Supp. 135 (S.D.N.Y. 1991). 43. Id. at 137–38. 44. Id. at 143. 2022 SOCIAL MEDIA AND DEMOCRACY 603 Just a --- ew years later, however, in Stratton Oakmont, Inc. v. Prodigy Services Co.,45 a plainti --- --- succeeded in a similar case by presenting a di --- --- erent argument. Prodigy operated an online bulletin board, much like CompuServe’s --- orums, where users could post content. An unidenti --- ied user posted on the “Money Talk” --- orum that Stratton Oakmont was a “cult o --- brokers who either lie --- or a living or get --- ired,” along with other allegedly de --- amatory statements.46 But instead o --- claiming that the unidenti --- ied user was Prodigy’s agent (recalling that argument --- ailed in CompuServ), the plainti --- --- o --- Prodigy argued that Prodigy acted as a publisher, not a distributor, o --- that content. In support o --- this claim, the plainti --- --- demonstrated three things. First, that Prodigy had “content guidelines” that allowed Prodigy to remove objectionable content. Second, that Prodigy employed a so --- tware screen to automatically prevent posting o --- o --- --- ensive language. Third, that Prodigy employed people to monitor the --- orums and ensure the guidelines were observed, and that these monitors had a tool known as an “emergency delete --- unction” whereby a monitor could delete an objectively --- alse posting.47 Prodigy argued that it employed these policies, algorithms, and people to ensure it was cultivating a sa --- e online environment.48 Un --- ortunately --- or Prodigy, however, doing this proved to be the basis --- or the Supreme Court o --- New York, Nassau County to distinguish between Prodigy and CompuServe and to impose liability on the --- ormer.49 The key distinction between CompuServe and Prodigy is two --- old. The Prodigy court explained: First, PRODIGY held itsel --- out to the public and its members as controlling the content o --- its computer bulletin boards. Second, PRODIGY implemented this control through its automatic so --- tware screening program, and the Guidelines which Board Leaders are required to en --- orce. By actively utilizing technology and manpower to delete notes --- rom its computer bulletin boards on the basis o --- o --- --- ensiveness and “bad taste”, --- or example, PRODIGY is clearly making decisions as to content (see, Miami Herald Publishing Co. v. Tornillo, supra), and such decisions constitute editorial control. (Id.) That such control is not complete and is en --- orced both as early as the notes arrive and as late as a complaint is made, does not minimize or 45. 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995). 46. Id. at 1794. 47. Id. 48. Id. 49. Id. 604 MERCER LAW REVIEW Vol. 73 eviscerate the simple --- act that PRODIGY has uniquely arrogated to itsel --- the role o --- determining what is proper --- or its members to post and read on its bulletin boards. Based on the --- oregoing, this Court is compelled to conclude that --- or the purposes o --- plainti --- --- s’ claims in this action, PRODIGY is a publisher rather than a distributor.50 This case caused a crisis on the nascent world wide web. I --- web services like CompuServe and Prodigy go --- rom being immune distributors to liable publishers simply by moderating content, the clear incentive is --- or plat --- orms not to engage in any content moderation. The results would be a web without rules, where anything goes. This was not the --- amily --- riendly web that companies like CompuServe, Prodigy, and America Online wished to cultivate. The decision against Prodigy and in --- avor o --- Stratton Oakmont appeared even more dangerous and absurd when Stratton Oakmont was shut down --- or --- raudulent trading practices in 1996. In 1999, its --- ounders pled guilty to multiple counts o --- securities --- raud. The “de --- amatory content” was true. Money Talk could have shed light on a sinister organization and saved people --- rom being --- leeced. United States Representative Christopher Cox (R-Cali --- ornia) --- elt that the Prodigy decision created a perverse incentive --- or web plat --- orms to ignore user-posted content. “It struck me that i --- that rule was going to take hold then the internet would become the Wild West and nobody would have any incentive to keep the internet civil,” Cox said.51 Cox connected with United States Senator J. James Exon (D-Nebraska), who played a leading role in pushing through the Telecommunications Act o --- 1996. This includes as its Title V the Communications Decency Act o --- 1996, which related to the regulation o --- pornography, indecency, and obscenity on the internet by amending the Communications Act o --- 1934. This, in turn, was a New-Deal era statute that originally created the Federal Communications Commission to regulate wire, radio, telegraphy, telephone, and broadcast communication. Together, the two co-sponsored another amendment to the Communications Act, then known as Section 509 o --- the Telecommunications Act o --- 1996, and now --- ound in the Code o --- Federal Regulations at Section 230 o --- the Communications Act o --- 1994, as amended. Section 230 has been called “the 26 words that made the internet,” and it reads as --- ollows: “No provider or user o --- an interactive computer service shall be treated as 50. Id. 51. Matt Reynolds, The Strange Story o --- Section 230, the Obscure Law That Created Our Flawed, Broken Internet, WIRED (May 24, 2019), https://perma.cc/L9K5-9ANN. 2022 SOCIAL MEDIA AND DEMOCRACY 605 the publisher or speaker o --- any in --- ormation provided by another in --- ormation content provider.”52 This rule meant that web service providers would no longer have to avoid moderating content to avoid liability. A --- ter the promulgation o --- § 230, the internet quickly expanded --- rom about 16 million users (about the population o --- New York) to over 4 billion users.53 Meanwhile, traditional media, which did not enjoy the same protections, dwindled. Newspaper revenues declined 62% --- rom 2008 to 2018.54 Employment at newspapers --- ell by 47% over that same period.55 Circulation o --- newspapers—including digital editions— --- ell in 2018 to its lowest level since circulation numbers were recorded.56 From 1959 to 2020, the entire landscape o --- public discourse had dramatically changed. The situs on conversation had shi --- ted --- rom newspapers and bookstores to online web servers. The COVID-19 pandemic only hastened the demise o --- the public square, as nearly all o --- human social li --- e moved online. Where once media moguls like Rupert Murdock stood at the epicenter o --- power over popular opinion, now a new class o --- social media “in --- luencers” vied --- or attention --- rom an increasingly --- ractured and --- ragmented America. The once nascent and novel concept o --- internet bulletin boards has become the dominant way in which Americans get news and share opinions. The questions we must ask now are, do these social media giants really need the immunities granted to them by § 230? Has § 230 accomplished its purpose o --- creating a more civil and honest internet? Or is it time to roll back some o --- the protections that these social media giants no longer need? The next section will discuss how § 230 played a signi --- icant role in creating the social media giants, and then this Article will conclude with some thoughts about how the internet might --- unction without this immunity. 52. Reynolds, supra note 51; 47 U.S.C. § 230(c)(1). 53. Max Roser, Hannah Ritchie & Esteban Ortiz-Ospina, The Internet’s History Has Just Begun, OUR WORLD IN DATA (2021), https://ourworldindata.org/internet. 54. Elizabeth Grieco, Fast Facts About the Newspaper Industry’s Financial Struggles as McClatchy Files --- or Bankruptcy, PEW RESEARCH CENTER (Feb. 14, 2020), https://perma.cc/J54J-6KD7. 55. Id. 56. Id. 606 MERCER LAW REVIEW Vol. 73 III. HOW § 230 CREATED THE SOCIAL MEDIA GIANTS Whether the internet was a Pandora’s box,57 meaning something which appears good but is a curse, depends on one’s point o --- view. One the one hand, a --- ree and open internet makes it impossible to control an entire population’s access to in --- ormation. From the perspective o --- --- ree speech, that is a good thing. On the other hand, some speech is dangerous. Screaming “ --- ire” in a crowded theatre, --- or example, is illegal58 because people could be trampled in the resulting rush to escape danger. Speech like this is directly harm --- ul. Shouting those words in that place is likely to result in mayhem, chaos, and injury. Social media has ampli --- ied the ability to scream “ --- ire” to a worldwide audience. Let us assume that a person who wrong --- ully screams “ --- ire” in a crowded theatre is liable --- or the resulting harms. Should the theatre also be liable? No, the theatre does not control what private people might shout on its premises. Then what i --- someone shouts “ --- ire” in bookstore? Again, the bookstore should not be liable --- or this unexpected outburst. What happens i --- such an outburst occurs via the internet? For example, on January 6, 2021, thousands o --- people tuned to the social media plat --- orm DLive, where users made comments including “TRUMP GAVE YOU AN ORDER STORM THE CAPITOL NOW,” “SMASH THE WINDOW,” and “HANG ALL THE CONGRESSM[E]N.”59 Thousands o --- people, many o --- them armed, who gathered in protest on the Capitol steps that day, received these messages simultaneously.60 It is not di --- --- icult to associate the clear demands --- or violence, made via a medium designed to directly and immediately reach a radicalized and angry crowd o --- armed protestors, some o --- who were already attempting to breach or had already breached the Capitol building, with screaming “FIRE” in a crowded theatre.61 In both cases, the speech is 57. Pandora’s box --- rom the Greek myth was originally --- rom a large storage jar or pithos [πίθος]. The 16th century Dutch humanist philosopher Desiderius Erasmus Roterodamus changed it to “box” is his translation o --- proverbs, Adagia (1508). 58. Unless there is actually a --- ire, o --- course. 59. Rebecca Heilweil & Shirin Gha --- --- ary, How Trump’s Internet Built and Broadcast the Capitol Insurrection, VOX (Jan. 8, 2021), https://perma.cc/33UU-H7JW. 60. See id. 61. In --- airness, the use o --- this analogy has itsel --- come under --- ire. Trevor Timm, It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote, THE ATLANTIC (Nov. 2, 2012) (“Oliver Wendell Holmes made the analogy during a controversial Supreme Court case that was overturned more than 40 years ago.”). Without taking a position on whether the statement is law, dicta, or merely a poetic turn o --- phrase, I use it here because it gets the point across that there are obvious limits to --- ree speech when speaking impinges on other liberties o --- li --- e. 2022 SOCIAL MEDIA AND DEMOCRACY 607 not protected by the Constitution, pursuant to the Supreme Court o --- the United States’ decision in Brandenburg v. Ohio,62 which held that the government may prohibit speech advocating the use o --- --- orce or crime i --- (1) the speech is “directed to inciting or producing imminent lawless action,” and (2) the speech is “likely to incite or produce such action.”63 But the plat --- orms that “distribute” this speech, however, remain immune --- rom its harms thanks to § 230. Some scholars, such as Pro --- essor Eric Goldman, argue that this immunity remains essential because otherwise these plat --- orms would “either not publish at all or they’d look --- or ways to turn over responsibility to other people.”64 This claim will be explored in the conclusion to this Article which explores what an internet without § 230 immunity might look like. Be --- ore that concluding conversation, however, it is important to understand how § 230 changed the --- uture o --- the internet. The next section argues that § 230 created the social-media-heavy internet that we experience today. Understanding this will help us conclude on whether maintaining this immunity is likely to produce a better or worse internet --- rom the perspective o --- civil society. When Yahoo! debuted in 1994, there were 2,738 web sites and about 25,454,590 web users.65 Google entered the search engine market in 1998, when the web had grown to 2,410,067 sites and 188,023,930 users.66 Facebook (then called The Facebook) went online in 2004 amid 51,611,646 other sites and 910,060,180 users.67 As o --- January 2021, over hal --- (59.5%) o --- the world’s population is online, where there are 4.66 billion web users68 that, as o --- June 18, 2021, have access to over 1.86 billion web sites.69 In the early days o --- the internet, it made sense to analogize web servers like CompuServe and Prodigy to bookstores, who simply provided a place where others could publish their content. The lack o --- clarity around whether a web site was a “publisher,” or a “distributor” needed clari --- ication. Otherwise, web sites might be a --- raid to delete obscene, dangerous, vulgar, or simply inappropriate content --- or --- ear 62. 395 U.S. 444 (1969). 63. Id. at 447. 64. Reynolds, supra note 51, at 5. 65. Total Number o --- Websites, INTERNET LIVE STATS, https://perma.cc/RU5R-N5FY (last visited: Feb. 19, 2022). 66. Total Number o --- Websites, supra note 65. 67. Total Number o --- Websites, supra note 65. 68. Joseph Johnson, Global Digital Population as o --- January 2021, STATISTICA (Sept. 10, 2021), https://perma.cc/CY2N-3CRY. 69. Ogi Djuraskovic, How Many Websites Are There?–The Growth o --- the Web (1990– 2021), FIRSTSITEGUIDE (Jul. 5, 2021), https://perma.cc/5VXD-5YAZ. 608 MERCER LAW REVIEW Vol. 73 that maintaining a --- amily --- riendly environment invited massive legal liability. But the resulting clari --- ication, in the --- orm o --- § 230, did not --- ul --- ill the same purpose that Smith did. The point o --- Smith was not to impose an undue burden on distributors --- or the content o --- their distributions. Section 230, on the other hand, seemed to go much --- urther, as it appears to be designed to motivate web plat --- orms to moderate their content. Although much o --- the rhetoric around § 230 is about creating a “ --- ree and open internet,” --- ree --- rom government control and political manipulation, so that political speech can occur online, in truth, the law was never designed to create a new public town square online. It was designed to create a sort o --- Disneyland version o --- the public square, a cleaned-up version o --- main street that was --- ree o --- ugly ideas or uncom --- ortable perspectives. In other words, § 230 was never designed to promote content neutrality.70 Rather, it was designed to promote moderation, which means the moderators will decide what speech gets heard and what gets suppressed. Section 230 incentivized web plat --- orms to moderate speech, not necessarily to promote --- ree speech. I --- web plat --- orms’ incentives in displaying content were aligned with society’s goal o --- having a place --- or --- ree and --- air discussion, then this moderation might generate desirable results. But web plat --- orms are not primarily motivated by exposing people to new views with which they may disagree and challenging their priors with added in --- ormation and arguments. Rather, web plat --- orms are primarily motivated by revenue. Unlike the public square, these private --- or-pro --- it companies must answer to shareholders by hitting revenue targets. Revenue on these “ --- ree” web plat --- orms comes --- rom advertising revenue. The plat --- orms are paid to serve advertisements to people who are likely to be interested in the advertised products and services. That means the plat --- orm’s goal is to get people online and keep them there, where they will see more advertisements and buy more product. The results, unsurprisingly, are social media plat --- orms that moderate content to maintain user engagement. It turns out that users 70. Adi Robertson, Why the Internet’s Most Important Law Exists and How People Are Still Getting it Wrong, THE VERGE (Jun 21, 2019), https://perma.cc/XLN4-UX4Y (interviewing Je --- --- Kosse --- --- , author o --- The Twenty-Six Words that Created the Internet, who said: But I spoke with both [§ 230 architects] Sen. Ron Wyden (D-OR) and --- ormer Rep. Chris Cox (R-CA) extensively, and I spoke with most o --- the lobbyists who were involved at the time. None o --- them said that there was this intent --- or plat --- orms to be neutral. In --- act, that was the opposite. They wanted plat --- orms to --- eel --- ree to make these judgments without risking the liability that Prodigy --- aced.) 2022 SOCIAL MEDIA AND DEMOCRACY 609 like to hear their own views and belie --- s rein --- orced more than they like to engage in a --- ree exchange o --- ideas in pursuit o --- the truth. Groups --- orm around conspiracy theories, like the absurd --- alse claim that Bill Gates put microchips in the COVID-19 vaccines in order to track our thoughts, then Facebook pro --- its by serving ads that members o --- those groups are likely to click, such as --- or-home remedies or --- irearms.71 Facebook even allowed advertisers to bid on search key words such as “How to burn Jews,” and it would serve ads that were designed to appeal to an anti-Semitic audience.72 Traditional newspapers, which do not have the same immunity, are not able to post such proposal --- or hate and violence and then collect revenue --- rom the subscribers who are interested in this sort o --- speech. This problematic e --- --- ect is exacerbated by the echo chamber e --- --- ect that is inherent to social media. By ranking content based on what the plat --- orm thinks the reader will like, readers tend to see an increase o --- things they already agree with, which compounds any prior views o --- being right in those convictions.73 Companies like Facebook and Twitter are using their immunity to moderate content without incurring liability --- or that content to become extraordinarily wealthy. Alphabet, Google’s parent company, is the twenty- --- irst largest company in the world by revenue in 2021.74 Facebook is number eighty-six.75 None o --- the traditional media companies even made the top, except --- or ViacomCBS, which ranked number 465 a --- ter its merger.76 Put simply, social media has come to dominate the media sector, and the result is that news in our world comes --- rom the echo chambers that are designed to keep us online where we will buy things. Media moguls have long known that crime, sex, violence, and scandal sell newspapers.77 The same is true online, where advertises gear commercials to the eighteen to thirty- --- our age group, who tend to be 71. Julia Carrie Wong, Revealed: Facebook Enables Ads to Target Users Interested in ‘Vaccine Controversies’, THE GUARDIAN (Feb. 15, 2019), https://perma.cc/92Y9-RCXM. 72. Wong, supra note 71. 73. See Matteo Cinelli et al., The Echo Chamber E --- --- ect on Social Media, 118 PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES OF THE UNITED STATES OF AMERICA (Mar. 2, 2021), https://doi.org/10.1073/pnas.2023301118. 74. Global 500, FORTUNE MAGAZINE (2021), https:// --- ortune.com/global500/. 75. Global 500, supra note 74. 76. Global 500, supra note 74. 77. Seth Faison, Politics May Be Serious but It’s Crime and Sex that Sell Newspapers, NEW YORK TIMES, Sec. A, p. 6 (Jun. 30, 1997), https://www.nytimes.com/1997/06/30/world/politics-may-be-serious-but-it-s-crime-and-sex- that-sell-newspapers.html. 610 MERCER LAW REVIEW Vol. 73 attracted to content with strong sexual and violent content.78 Making Twitter and Facebook immune --- rom the explicit content they distribute incentivizes them to prioritize such content. Traditional media like television and newspapers cannot sa --- ely show this content, so the social media plat --- orms have a competitive advantage. They do not bear the cost o --- liability, and so are incentivized to engage in the activity. Social media corporations simply could not act in this way but --- or § 230 immunity. The extreme degree to which Facebook, Twitter, and the other plat --- orms rank, moderate, screen, remove, ban, insert, upvote, and monetize content is clearly editorial in nature. The result is that the news has grown increasingly polarized because echo chambers keep people online and clicking ads. In retrospect, this result was inevitable. The question is, can and should we limit or repeal § 230 to reverse the social media reality distortion --- ield? Or would removing § 230 immunity simply kill the internet? IV. CONCLUSION: SOCIAL MEDIA WITHOUT § 230 IMMUNITY In summary, the statutory immunity --- rom publishers’ liability that social media giants enjoy today stems --- rom a real but outdated --- ear. Amid the Red Scare o --- the 1950s, government actors would censor and control the distribution o --- politically unpopular in --- ormation. This censorship strikes at the heart o --- cherished First Amendment --- reedoms, which include the right to hold and share unpopular and even some “un-American” views. With so much --- ree speech threatened by the spirit o --- McCarthyism, the United States Supreme Court in Smith v. Cali --- ornia made it unconstitutional --- or third-party book resellers to be liable --- or the contents o --- books they had no reason to know about or read. This e --- --- ectively granted booksellers and other distributors o --- content immunity --- rom any harms caused by the content—unless, o --- course, they had knowledge o --- distributing something harm --- ul. In the early days o --- the WWW in the 1990s, the same immunity was applied to online service providers like CompuServe and Prodigy. In --- act, the immunity --- or OSPs exceeded that o --- booksellers: § 230 granted immunity to OSPs --- or third-party content even i --- the OSPs had actual knowledge o --- those contents. But even though the immunity is similar, the reason --- or granting it was not. While Smith immunity is designed to prevent censorship, § 230 immunity is designed to encourage censorship. The statute’s principal dra --- ters acknowledged their 78. Romeo Vitelli, Does Sex and Violence Really Sell Products, PSYCHOLOGY TODAY (Jul. 27, 2015), https://perma.cc/XX5R-KHEH. 2022 SOCIAL MEDIA AND DEMOCRACY 611 legislative intent was to allow and encourage OSPs to monitor, screen, and block obscene and inappropriate content. Section 230 e --- --- ectively deputizes OSPs to do the same censorship work in removing obscenity that the Los Angeles City code authorized its police to do. In this sense, Smith, which --- ound the L.A. code unconstitutional, stands --- or the opposite o --- what § 230 does. Section 230 does not and was never designed to create a --- ree and open internet, where the marketplace o --- ideas would reach new heights o --- equality, accessibility, and inclusion. Rather, § 230 was designed to keep the internet sanitary—and it delegated the de --- inition o --- obscenity to the OSPs. I --- OSPs were incentivized to create the most productive civic space possible, this might be a wonder --- ul thing. But OSPs are --- or-pro --- it corporations whose primary motivation is pro --- it. Pro --- its come --- rom advertisements, and advertisements come --- rom “eyeballs.” To do this, OSPs need users to generate content that will be appealing to other readers. This alone generates a sort o --- echo chamber, since the system is designed to show people what they want to see --- rom people who think and look like them. Echo chambers are good --- or ad revenue because they make it easy to --- ind a common group o --- people who are likely to want a certain good or service. But echo chambers are bad --- or democracy because they prevent people --- rom hearing new viewpoints and rein --- orce the idea that their own view is correct. OSPs use § 230 immunity to --- acilitate echo chambers where they serve advertisements to generate massive revenues. There are no guarantees, however, that § 230 will make the internet sa --- er or less obscene. Sometimes OSPs work to create a sanitized environment. Facebook, --- or example, seems authentically committed to getting rid o --- “ --- ake news.” And their ambition --- or a Facebook Kids channel requires them to --- ind a way to police online communication even more e --- --- ectively. But alternative social media channels, like Gab, Rumble, and 4chan, have a much spottier record o --- prohibiting hate speech.79 Even worse, some social media channels now --- eature encryption. Extremist groups are --- locking to Signal and Telegram, where law en --- orcement cannot monitor their hate speech. During the Capitol Riot, one o --- the insurrectionists used the walkie-talkie app Zello to coordinate the attack. 79. The Pittsburgh synagogue shooter, --- or example, posted anti-Semitic messages on Gab, which remained up until public pressure --- orced Gab to take them down. See Kevin Roose, On Gab, an Extremist-Friendly Site, Pittsburgh Shooting Suspect Aired His Hatred in Full, NEW YORK TIMES (Oct. 28, 2018), https://perma.cc/5MRL-2TLF. 612 MERCER LAW REVIEW Vol. 73 At the end o --- the day, even with § 230 immunity, OSPs are --- ree to become an “anything goes” channel. Some social media maps already advertise themselves in this way. Parler, --- or example, markets itsel --- as the “ --- ree speech app,” where no one will be “deplat --- ormed” (kicked o --- --- or banned) because o --- their views.80 I --- promoting extremist views or not banning obscene ones is pro --- itable, then some OSPs will do it. Section 230 lets them do it. O --- course, § 230 also allows Wikipedia to exist. This crowdsourced dictionary runs on a shoestring budget. It would not be economically possible --- or Wikipedia to exist as an ad- --- ree, subscription- --- ree resource i --- the company was legally required to police its tens o --- millions o --- user- generated web pages (which are in dozens o --- languages). Many other small sites would likewise be destroyed quickly by lawsuits --- or de --- amatory content posted therein. The solution cannot be to suddenly go back to the CompuServe days. Critics are correct that, without any immunity, web sites would not be able to edit content to ensure a sa --- er web experience without risking legal liability. I --- social media plat --- orms truly intend become stewards o --- a sa --- e and public web, instead o --- simply mining view eyeballs --- or ad revenue pro --- its, such plat --- orms will need protection --- rom legal liability as a means o --- subsidizing behavior that does not lead to revenue and pro --- it. Otherwise, large and established tech companies, who can more easily a --- --- ord the risk o --- litigation, will continue to dominate the social media space.81 For this reason, many scholars do not necessarily support the total abolition o --- Section 230.Various intermediate solutions have been proposed, including a revenue limit on § 230 immunity, such that it would not apply to social media giants like Facebook and Twitter. The problem with any solution like this is it becomes hard to get the dollar amount exactly right. How big is too big? Moreover, whenever a regulation is designed around a sharp dollar cut o --- --- , it distorts behavior right around that amount. A better solution is simply to reserve § 230 immunity --- or corporations who --- ul --- ill a social purpose o --- creating a public square. Ideally, such corporations would be non-pro --- its, which are not subject to quarterly demands --- rom shareholders to increase revenue. In this way, we would continue to have a --- ree and open Internet. We would not have a 80. Laura Romero, ‘Free Speech’ Social Media Plat --- orm Parler is a Hit Among Trump Supporters, but Experts Say it Won’t Last, ABC NEWS (Nov. 17, 2020), https://abcnews.go.com/US/ --- ree-speech-social-media-plat --- orm-parler-hit- trump/story?id=74245251. 81. Seth C. Oranburg, Encouraging Entrepreneurship and Innovation through Regulatory Democratization, 57 SAN DIEGO L. REV. 757, 759 (2020). 2022 SOCIAL MEDIA AND DEMOCRACY 613 hundred microcosms in the --- orm o --- apps that --- eature echo chambers. And that may make it easier --- or us to --- inally hear each other.