As the Federal Communications Commission considers the Department of Commerce’s Section 230 petition for rulemaking, the Save Journalism Project [1] submits this public comment for consideration.

Section 230 of the Communications Decency Act of 1996 (Section 230) has helped foster the explosive growth of social media platforms that have transformed the way people around the world communicate and connect with one another. But more than two decades later, the liability immunity that Section 230 provides has created a number of unintended consequences. Of particular interest to the Save Journalism Project is that Section 230 creates an unfair playing field between news outlets and social media giants in the online marketplace and is contributing to the hemorrhaging of ad revenue, which is crucial to the survival of the news industry. 

Companies like Facebook use the shield of Section 230 against liability to actively push the most sensational and often deliberately false material and posts to optimize engagement among its users, while exploiting the content produced by news outlets. With the “liability shield” and “algorithmic sword”—neither of which news outlets can use—the journalism industry doesn’t stand a chance. The pen is said to be mightier than the sword, but whoever said that didn’t take into account the shield of Section 230. As big tech companies like Facebook have grown stronger and mightier, the pen has been sapped of its strength [2]. The FCC has the power to enforce the requirements of Section 230 in a manner that levels the playing field and helps preserve The Fourth Estate. If Facebook wants to act like a publisher, it should be treated as such.

Although Mark Zuckerberg claims Facebook’s algorithm is neutral [3], the reality is that it doesn’t give everyone a voice [4]. The social media giant is polarizing [5] and simply offers amplification for outrage [6]. It’s not free speech. Facebook’s algorithm makes editorial decisions about what posts are shown to which people—with the exclusive intention to maximize the time a reader spends on Facebook. The motivation for this is not to create a place for all people to exchange ideas, it’s ad dollars. The company profits by elevating the content that will capture the most attention of readers in order to serve ads to them, safe in the knowledge that it is protected by Section 230 from liability exposure for that content. News outlets are held to a much higher standard but are still competing for readers’ attention in order to deliver ads. This is not a level playing field.

The reach [7] on Facebook of politicians or news content from non-journalistic sources dwarfs the reach of even the largest news publishers [9]. This poses a plethora of problems from the spread of misinformation to the demise of local news. It leaves cracks for fringe sensationalists [10] to gain traction for dangerous ideas and actions often without regard for truth or accuracy. All of which requires Facebook to make aforementioned editorial decisions about content on their platform. 

The business model for Facebook and news outlets are the same. Both use content to capture the attention of readers in order to sell advertising space to companies who want to reach those readers. It’s just that news outlets are held to a much higher standard for their content–standards that we are passionately committed to–while Facebook gets a shield from Section 230 to traffic in sensationalism and outright lies. That is not a level playing field. The news industry is in free fall, with perpetrators like Facebook protected by Section 230 reaping tens of billions in ad revenue that once went to news outlets. 

Facebook does not intend to do the right thing on its own. While the FCC may not be able to end this liability shield, it could require Facebook and other social media giants, exercising this kind of editorial decisions about content, to adhere to clear and transparent guidelines for the content on their websites like news outlets must. There are steps to take that would level the playing field:

• Require social media platforms to prohibit hate speech and incitement to violence from their platforms, and hold them liable if they negligently allow such content.
• Include clear, precise rules that are publicly available, apply to all uses of the service equally, and most importantly, are applied consistently to pages and publishers of all sizes and ideological orientations. A loss of liability protection should occur for the entire service if its rules are not applied equally and consistently.
• Rules should be accompanied by clearly delineated sanctions that can be imposed on users if they are violated, with a requirement on the service to provide specific evidence to users about what content violated the rules and why. 
• Warnings should be given for rule violations along with the opportunity for the accused pages to take corrective action.
• A transparent third-party appeals process must be available that allows the accused party to respond to specific alleged violations.

The FCC should take note that tech giants have frequently used well-intended regulation to strengthen their control of the marketplace, as the United Kingdom’s Competition and Markets Authority recently found in the case of GDPR [11]. As a result, the FCC should take care to ensure that any new rules enforcing Section 230 not be used by social media platforms toward that objective, such as by forcing users to purchase advertising in order to reach audiences they once were able to do so without advertising.

Section 230 permitted companies like Facebook to grow into the behemoths they are today, but now there are no consequences. It held an important place at the foundation of the internet and innovation and has paved the way for the ever-evolving product we see today. But that’s exactly it, through Section 230, the internet has continued to evolve as judge, jury, and executioner with no one to limit its power along the way. The news is a pillar through which our Constitution was crafted, and must be a priority. It is integral to the survival of our democracy, and at present Section 230 is one way to ensure The Fourth Estate survives to help safeguard that democracy.