'We've Got 30 Years Of The Courts Getting It Wrong': Lizzie Fletcher Bemoans Section 230 Shortfalls

5 months ago

During a House Energy and Commerce Committee hearing, Rep. Lizzie Fletcher (D-TX) questioned witnesses about Section 230 of the Communications Decency Act, and called for major reforms to protect minors from harmful online content.

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00:00Texas' 7th district for five minutes for questions.

00:04Thank you so much, Chairman Latta.

00:06Thanks for holding this hearing.

00:08This is a really important hearing.

00:09It's been very useful and helpful,

00:12I think, for all of us here.

00:14Certainly, I've appreciated the testimony of all

00:16of the witnesses and appreciate you taking your time

00:18and sharing such detailed recommendations and thoughts

00:20in your written testimony as well.

00:22I want to follow up on a couple of things

00:24that we've heard today or things that were in your testimony.

00:26And, Dr. Franks, I want to start with you.

00:29Your testimony, I would say suggests,

00:31but I think your testimony just says

00:33that the courts have basically just gotten it wrong.

00:35And now we've got 30 years

00:37of the courts getting it wrong consistently.

00:39And that has become now precedent.

00:41And that is what's being followed.

00:43And so, I really appreciate the specificity

00:46of your recommendations at the conclusion

00:48of your written testimony about specific changes

00:52to the provisions to potentially address the existing issues

00:56that we see.

00:57I guess it seems to me like part of the issue is

01:00that the very plain language of Section 230

01:02in the first place, the courts have gotten wrong.

01:05So, what do you suggest or can you share

01:08with us other things you think we can or should do to avoid

01:11that problem in whatever we try to craft

01:14to address the situation now?

01:16Thank you.

01:17And I think the most important aspect is to really focus

01:21on C1 because that seems to be where the problems are coming

01:24from and to largely leave C2 where it is.

01:26And I think in terms of the problems that we've seen over

01:29and over again from the courts in C1 is,

01:32I think there's two major issues.

01:33One is that even though protections under C1

01:37and Section 230 generally are often touted

01:40as free speech issues, they're often touted as protections

01:44for free speech that are necessary to foster dialogue

01:48and encourage public discourse,

01:51the terms in C1 say information.

01:54And I think companies have really taken advantage

01:57of that ambiguity to really invoke Section 230

02:00for any number of actions.

02:02When you look at the text of C1, it says publisher, speaker,

02:05information, that should be speech.

02:08But a lot of these things would not be considered speech

02:10if they were coming up outside of the online context

02:13or at least they would be contested.

02:15So, I think clearly what needs to be limited there is take

02:17out the word information and put in speech and make it clear

02:20that as an initial threshold matter,

02:22a company cannot invoke Section 230's protections unless we're

02:25talking about speech and it's the obligation

02:28of the company itself to actually show that it is

02:31in fact speech that they are talking about.

02:33And the other is that there needs to be a limitation

02:35on this kind of immunity if it's going

02:37to be given at all under C1.

02:39It's got to be limited to those kinds of social media companies

02:42and platforms that are not soliciting, encouraging,

02:46profiting from, or being deliberately indifferent

02:48to what they know is harmful content.

02:51Okay, thank you for that.

02:53I think it's very helpful.

02:55And again, I appreciated your recommendations.

02:57I want to turn now to Professor Leary because I appreciate

03:04in your testimony and discussion that because of Section 230,

03:08we really haven't developed the case law as envisioned.

03:13And so, I guess I'm wondering as part of this process,

03:17what you think that we could try to do

03:19or what you suggest we might try to do to fill that gap

03:22and address kind of the gap in the 30 years of case law

03:25as a part of what we're doing here.

03:29I think a key part of the gap is to get rid of immunity

03:33that says we're not having the lawsuit.

03:35You can't come in.

03:36You can't prove your case.

03:37We don't have to give discovery over to you

03:39and the public cannot learn and get answers to some

03:43of these questions that this committee is struggling with.

03:45It's a defense.

03:47And we go in a court and sometimes plaintiffs will be

03:50able to prove their case and sometimes they won't.

03:53But that jurisprudence will come up.

03:55And currently, we have information

03:58about these websites almost entirely

04:02from either a two-year investigation of Backpage

04:05from over on the Senate side or from the whistleblowers

04:08that have come forward, not from litigation.

04:10And typically, we have them from litigation.

04:13That's where we learn about product design,

04:14about what's happening in these algorithms, et cetera.

04:17So I think that that's a key space

04:19where we could develop that jurisprudence.

04:22Okay. Thanks.

04:23And I have about 40 seconds left.

04:26I also wanted to follow up with Professor Stanger.

04:29You just mentioned in your opening

04:30that you had some thoughts on national security.

04:32So do you want to share more with the 30 seconds?

04:34You piqued my interest.

04:35I've got about 30 seconds for you

04:36to share your thoughts on that.

04:39Some of them.

04:39Sure. Just in summary, I think some

04:42of our enemies are very much interested

04:44in subverting our infrastructure

04:47and also influencing public opinion in the United States

04:51by working through and exploiting Section 230

04:56and limited content moderation.

04:59So that's something that I think we need to stop.

05:03Okay. Perfect timing.

05:05Mr. Chairman, I yield back.

05:06Thank you all so much.

05:07Thank you.

'We've Got 30 Years Of The Courts Getting It Wrong': Lizzie Fletcher Bemoans Section 230 Shortfalls

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