from the because-i-got-section-230 dept
The internet has been rightfully enjoying videos from the defamation trial against Afroman, a musician known for his humorous songs including “Because I got high.” The lawsuit involves songs he wrote about a 2022 raid police conducted on his house, which was based on flimsy evidence. The songs justifiably mock the officers involved. Mike Masnick wrote a recap of the case here, which is worth reading for many reasons, but the songs and Afroman’s testimony are true highlights.
After the raid, Afroman released his songs on YouTube and they went viral initially on TikTok, both massive platforms for users to share their speech and that of other users. The officers who raided his home, seeking to silence someone making fun of them, sued Afroman for defamation, emotional distress, and other causes in 2023.
Spoiler: Afroman won. The songs are not defamatory. But we didn’t know that for sure until a jury told us so this week. For three years, from the moment the lawsuit was filed until the jury issued its verdict, the songs were allegedly defamatory. And their continued “publication” ran the risk of liability.
So why could we still see the songs on YouTube, TikTok, Bluesky, and whatever other online platforms where we first encountered them? One big reason is Section 230 of the Communications Decency Act.
Section 230 says that interactive computer service providers, like online platforms, cannot be treated as the publisher or speaker of information content provided by other information content providers. That means that YouTube could not be liable for the content of Afroman’s songs, even if they were defamatory. That’s the balance Section 230 strikes. Under 230, there is still accountability for the speaker, but online platforms are not liable for their users’ illegal speech.
By and large this balance has been incredibly beneficial to free expression online, supporting speech about everything from the profoundly consequential (#MeToo and Black Lives Matter) to the somewhat silly (a song about a cop who got distracted from a raid by a delicious looking “Lemon Pound Cake”). But now, members of Congress like Senator Lindsey Graham and Senator Dick Durbin want to repeal or replace Section 230 without much of a plan for what comes next.
On March 18, Daphne Keller, a professor of law at Stanford and expert in intermediary liability laws around the world, testified before the Senate Commerce Committee. She tried to explain to the Senators that Section 230 may not be perfect, but it’s still better than any of the options she has seen. To understand why Daphne’s right, let’s think about what Afroman’s case might have looked like without Section 230. The moment Afroman was allowed to distribute his songs about the raid on YouTube, the company could have been liable for any potentially illegal speech they contained. That means YouTube probably also would have been a co-defendant in the cops’ suit. At the scale many online platforms operate at, these kinds of accusations of defamation and lawsuits related to user posts would happen hundreds of thousands, if not millions, of times a day.
That’s a lot of litigation.
Staring down the barrel of that many potential lawsuits every day, no reasonable platform would have allowed Afroman’s speech to stay up. The moment an accusation of illegality surfaced, a platform acting reasonably would likely take the speech down. And to be clear, we have evidence that this is how they would react: That’s the incentive structure currently in place under the Digital Millenium Copyright Act (DMCA). The DMCA creates a notice and takedown system for alleged copyright violations and evidence suggests that improper takedown requests are common and, even with the safeguards for speech built into that law, result in over-censorship. Replicating a version of the DMCA for all content on the internet writ large would likely produce the same overcensorship result. At a minimum, the platforms certainly wouldn’t allow their algorithms to recommend posts linking to the defamatory songs, effectively “shadowbanning” them, which is probably one of the main ways many people came across the songs to begin with.
The upshot is: Section 230 created the conditions that allowed us to hear Afroman’s songs, and allowed platforms to recommend them, even while their status was in legal limbo.
There are millions of similar situations, large and small, every day where Section 230 ensures that online platforms do not have to try to make context-specific legal judgment calls. Section 230 may not be perfect. No law is. But it’s the best and most effective protection for free expression online we have, allowing online services to simply let their users speak. Congress should be very cautious about changing it, let alone eliminating it altogether.
Kate Ruane is the Director of the Free Expression Program and the Center for Democracy & Technology, where she advocates for the protection of free speech and human rights in the digital age.
Filed Under: afroman, defamation, intermiediaries, section 230
