Bench-Bar Media Event: Cancel Culture and the Modern Media 

If cats were discovered to be Communists, would they be cancelled on the Internet? 

To answer such a question, you could call on the panelists from this year’s annual Bench-Bar Media Event: “Social Media Regulations and Cancel Culture: Free Speech and the Modern Media.” 

The event, held August 10 via Zoom, was presented by the San Diego Superior Court, San Diego County Bar Association and San Diego Society of Professional Journalists, and featured cyber lawyer and policy advocate Catherine Gellis, UCLA School of Law professor Eugene Volokh, and San Diego Union-Tribune columnist Charles T. Clark. Jodi Cleesattle, supervising deputy attorney general at the California Department of Justice, moderated the event which discussed the responsibility and liability associated with social media companies’ moderation, or lack thereof, of their platforms and how “cancel culture” has been riding on the razor’s edge of free speech. 

The law at the center of this issue is Section 230 of the Communications Decency Act of 1996, or, as cyber lawyer Gellis calls it, “The law everyone seems to get wrong.” 

Section 230 of the CDA immunizes interactive computer services providers from liability for third-party content unless the provider develops it in a way that materially contributes to its illegality. So, Internet service providers, website hosts, and other online intermediaries, such as Facebook, Twitter, and Google, are generally immune from liability for republishing defamatory and objectionable statements made by third parties.  

Known as “the 26 words that created the Internet,” the key provision of Section 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  

“And the Internet as we know it,” Gellis says, “is made of cats—user-generated cats.” 

She explained: “The overall goal of Section 230 to make sure we get enough good stuff online along with the bad, but perfection is not the goal. We’re never going to get 100 percent of good stuff online, especially because we can’t all agree as to what that looks like. Section 230 is designed to get us as close as possible.” 

The statute defines “content provider” as “any person that is responsible, in whole or in part, for the creation and development of information provided through the Internet or any other interactive computer service.” Immunity does not apply if the service provider itself produces the content.   

What’s at the crux of Section 230?  

“It’s about power,” Gellis says. “Who can make you not say what you want to say and how.”  

And the “who” is wide open.  

The first “who” is the government. It is well known that under the First Amendment, the government cannot impinge upon the freedom of speech, with certain exceptions like defamation, pornography, etc. A grayer area is whether public political figures are permitted to block users, delete comments, or otherwise restrict online speech without violating the First Amendment. This issue, most infamously brought to light by former President Trump’s @realdonaldtrump account, has been hotly debated as previously reported on in For the Record.  

The second “who” is the social media platforms. Social media websites, like traditional journalism outlets, are not government entities and thus are not bound by the First Amendment. As a result, sites like Facebook and Twitter are free to draft their own content policies and remove or promote certain posts based on their own self-made guidelines, without concerns of violating the First Amendment.  

The panelists discussed whether social media websites can or should have an active role in regulating, altering, or censoring more than just obviously unlawful content—for example, by censoring or blocking individuals who express “bad” or “harmful” ideas. Volokh, who runs the blog The Volokh Conspiracy, illustrated this debate by contrasting a common carrier telephone company that hosts all speech by just delivering it over their wires with a daily newspaper that delivers speech through an editorial board that picks and chooses what to publish.  

As exemplified by the famous Supreme Court Citizens United case, corporations are entitled to free speech rights, and social media websites are no exception. However, a problem with the editorial board model as applied to social media sites is when it puts the free speech rights of the social media “editorial board” and the public into conflict. Given the difficulty, if not impossibility, of judging what content is “bad” or “good,” Volokh is not sure whether it is a good idea to let private businesses decide who gets to speak online.  

“Maybe you say, ‘That’s great, I for one welcome my new robot overlords. This is fantastic that these companies are going out there and blocking people’s speech.’ Or maybe we don’t really want Mark Zuckerberg or Jack Dorsey or Sergey Brin deciding who gets to speak in these tremendously important platforms, especially when things are so interconnected,” Volokh said. “Maybe the answer is we don’t want them to be socially responsible.” 

Columnist Carter believes social media companies have become akin to newspapers, in terms of having a hand in content management, and they’re likely going to continue to be. Although this is not necessarily a bad thing, Carter cautions that with great power comes great responsibility.  

“I do believe social media companies have an ethical obligation to at the very least be a bit more mindful of how they police their platforms,” he said. “I do feel like they do have to take some kind of approach, hopefully one that is objective in process.” 

The third “who” is the public. Social pressures and norms have a powerful role in shaping online discourse, as exemplified by the apparent rise of “cancel culture.” Burgeoned by the Me Too movement and Black Twitter, cancel culture has the effect of chilling speech. 

As Carter explained, “cancelling” someone, usually a celebrity or public figure, means boycotting that person and pushing them out of a social or professional circle, or social platform, because they did something perceived as offensive or harmful. Arguably, the effect of cancel culture is a fear that everyone is out to police or punish people for the things they do. Comparing today’s cancel culture to Hollywood’s 1950s blacklisting of Communists, Volokh said that cancel culture isn’t a new concept, but it is a dangerous one. 

“Some people starting their careers are too afraid to speak on anything,” Volokh said, “and that’s destructive.” 

Sara Gold contributed to this reporting.