The Corner

Science & Tech

Twitter and the Libel Exemption

(Kacper Pempel/Reuters)

A few thoughts about our current debate on Twitter, a vast sewer that I am not naturally inclined to defend.

  1. The value that Congress tried to protect by giving technology companies limited protection from libel suits isn’t a product of those platforms’ being politically neutral, which they aren’t. It is a product of the fact that they do not generally exercise prior restraint on speech. Which is to say, Twitter doesn’t generally stop you beforehand tweeting whatever you like, although it may remove tweets after the fact or ban you after the fact for what it believes to be abuse. If Twitter itself can be sued for libel every time some jackass libels somebody on Twitter, then Twitter can’t operate. Neither can Facebook. Neither can the comments section at National Review.
  2. Parties who are libeled on Twitter or other social media do have recourse — the can sue the party that actually libeled them rather than the platform, although Facebook would be a lot more attractive target than most actual slanderers, because it has a lot of money, and you always want to sue the party that has the most money.
  3. Twitter and Facebook do exercise editorial discretion and maintain what amount to editorial policies, despite their nonsensical insistence that these are “community safety” rules. That shouldn’t matter to the question of whether we want them to be able to provide a generally unmediated voice to ordinary people, which they cannot do without the libel immunity. I don’t think there is actually a lot of real value in that unmediated voice, but millions of Americans and Congress disagree.
  4. The fact that Twitter and Facebook exercise some after-the-fact judgment makes them less like a newspaper publisher and more like a rental venue. Think of it this way: If a guy who owns an event space rents it to x, y, and z, discovers that x is a Soviet-apologist group, decides that he doesn’t want to rent to x thereafter — that does not make him legally responsible for what y and z say, even though he is providing them with a (literal) platform. He isn’t politically neutral, and he is exercising editorial power. And a healthy free-speech culture should be perfectly satisfied with that.
  5. It would be better if Twitter and Facebook went about their business is a politically evenhanded way. It would be better if the New York Times did, too. But the relevant question for the libel immunity is not really which editorial decisions are made but when they are made. If you value the ability that Twitter and Facebook give people to reach the general public without having to go through an editor and a publisher, then you should understand that this will evaporate without the exemption.
  6. And that means that the effect of taking that exemption away from social-media companies will not be to empower conservatives online — it will be to empower the New York Times and the Washington Post and CNN, to which there would be fewer alternatives without social media.

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