united-states liability tort libel
Is Twitter liable for its content?
<p>Twitter has allegedly censored a New York Post story alleging possible corruption by Hunter Biden and, by implication, Joe Biden in overseas business dealings.<a href="https://nypost.com/2020/10/15/ted-cruz-slams-twitter-censorship-of-another-hunter-biden-story/" rel="nofollow noreferrer">[1]</a></p>
<blockquote>
<p>Sen. Ted Cruz on Thursday said Twitter blocked him from sharing a story from The Post that describes Hunter Biden’s pursuit of a China business deal described by documents on an alleged hard drive formerly belonging to the Democratic presidential candidate’s son.</p>
</blockquote>
<p>By this editorial behavior, has Twitter waived its protection as a &quot;platform&quot; or &quot;distributor&quot; and exposed Twitter to potential tort liability as a &quot;publisher&quot; for all its content?<a href="https://reason.com/2020/05/28/47-u-s-c-%C2%A7-230-and-the-publisher-distributor-platform-distinction/" rel="nofollow noreferrer">[2]</a></p>
<blockquote>
<p>Historically, American law has divided operators of communications
systems into three categories.</p>
<ol>
<li><p><em>Publishers</em>, such as newspapers, magazines, and broadcast stations,
which themselves print or broadcast material submitted by others (or
by their own employees).</p>
</li>
<li><p><em>Distributors</em>, such as bookstores, newsstands,
and libraries, which distribute copies that have been printed by
others. Property owners on whose property people might post things
—such as bars on whose restroom walls people scrawl &quot;For a good time,
call __&quot;—are treated similarly to distributors.</p>
</li>
<li><p><em>Platforms</em>, such as
telephone companies, cities on whose sidewalks people might
demonstrate, or broadcasters running candidate ads that they are
required to carry. And each category had its own liability rules:</p>
</li>
</ol>
</blockquote>
<blockquote>
<ol>
<li><p><em><strong>Publishers</strong></em> were basically liable for material they republished the
same way they were liable for their own speech. A newspaper could be
sued for libel in a letter to the editor, for instance. In practice,
there was some difference between liability for third parties' speech
and for the company's own, especially after the Supreme Court required
a showing of negligence for many libel cases (and knowledge of
falsehood for some); a newspaper would be more likely to have the
culpable mental state for the words of its own employees. But, still,
publishers were pretty broadly liable, and had to be careful in
choosing what to publish. See Restatement (Second) of Torts § 578.</p>
</li>
<li><p><em><strong>Distributors</strong></em> were liable on what we might today call a
&quot;notice-and-takedown&quot; model. A bookstore, for instance, wasn't
expected to have vetted every book on its shelves, the way that a
newspaper was expected to vet the letters it published. But once it
learned that a specific book included some specific likely libelous
material, it could be liable if it didn't remove the book from the
shelves. See Restatement (Second) of Torts § 581; Janklow v. Viking
Press (S.D. 1985).</p>
</li>
<li><p><em><strong>Platforms</strong></em> weren't liable at all. For instance, even
if a phone company learned that an answering machine had a libelous
outgoing message (see Anderson v. N.Y. Telephone Co. (N.Y. 1974)), and
did nothing to cancel the owner's phone service, it couldn't be sued
for libel. Likewise, a city couldn't be liable for defamatory material
on signs that someone carried on city sidewalks (even though a bar
could be liable once it learned of libelous material on its walls),
and a broadcaster couldn't be liable for defamatory material in a
candidate ad.</p>
</li>
</ol>
</blockquote>

<p><strong>No.</strong> Twitter is traditionally a platform, not a distributor or a publisher. Blocking linking is not editorializing like in a publisher.</p>
<p>They don't act as an editor in mounting warnings or deleting posts, they enforce their rights under the Communications Decency Act, Section 230 (emphasis mine):</p>
<blockquote>
<p><strong>No provider</strong> or user <strong>of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider</strong> or user <strong>considers to be</strong> obscene, lewd, lascivious, filthy, excessively violent, <strong>harassing, or otherwise objectionable, whether or not such material is constitutionally protected</strong>.</p>
</blockquote>

<p>There has been no change in the law since the <a href="https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/" rel="nofollow noreferrer">May 28 executive order on section 230.</a> The Sec'y of Commerce in consultation with the DoJ were ordered to file a petition for rulemaking with the FCC, requestion the FCC to propose clarificatory regulations. This was done, see <a href="https://www.ntia.gov/fcc-filing/2020/ntia-petition-rulemaking-clarify-provisions-section-230-communications-act" rel="nofollow noreferrer">here</a>. The topic of the rule making is about the interpretation of the statute – you can see the proposed rules at the end of the petition. The most applicable aspects of the proposed rule regard the interpretation of &quot;good faith&quot;, and the interpretation of §230(f)(3), specifically interpreting the statutory language “responsible, in whole or in part, for the creation or development of information” so that it</p>
<blockquote>
<p>includes substantively contributing to, modifying, altering,
presenting with a reasonably discernible viewpoint, commenting upon,
or editorializing about content provided by another information
content provider</p>
</blockquote>
<p>The point of these proposed rules relates to the civil immunity granted to &quot;interactive computer services&quot; as opposed to being a publisher. The theory is that under the new rules, a platform that restricts content based on viewpoint fails to be an interactive computer service, and instead is a publisher. <a href="https://www.fcc.gov/ecfs/search/filings?proceedings_name=RM-11862&amp;sort=date_disseminated,DESC" rel="nofollow noreferrer">This page</a> has the collected comments on the proposed rules.</p>
<p>If the rules are finalized, Twitter might in the future be held quasi-liable for content that it makes available, but only within the realm of FCC's administrative power to sanction an internet stuff provider: this would not enable you to sue Twitter for libel. The courts might defer to the administration's new rules, if they find that the rules are reasonable and Congress had not spoken directly to issue. But this is all &quot;what might happen&quot;: the existing law does not support Twitter liability.</p>
<p>The petition lays out the legal history of this question, if you want details.</p>
