No Port In The Storm For Tony Ortega: Ending The Hate Speech Safe Harbor

In a recent piece we wrote a little about a very exciting proposal just announced by the FCC suggesting that it may saoon be reconsidering the controversial ‘safe harbor’ provision of Section 230 to the Communications Decency Act (CDA) which was first enacted in 1996. 

Way back in 1996, no one foresaw that in less than a decade unscrupulous operators like Backpage would abuse the rules laid out by the FCC designed to help promote tech startups. Less still, did anyone anticipate craven opportunists like Tony Ortega, — or his rule-breaking wife Arielle Silverstein — who would both use similarly exploitative loopholes to advance their agenda of anti-religious intolerance and online hate speech. 

But it is a very different world these days. We have seen the countless victims Backpage has left in its wake. We’ve been first hand witnesses to the pain and hurt and bigotry online trolls like Tony and Arielle have continued to foment. And we’ve had enough.

For too long the legal immunity of Section 230 has been used by online platforms and bad faith users like the Ortega family to protect themselves from alleged illegal activity, fake news or hate speech.

 Now, it seems, the federal government agrees. Enough is enough, the torrent of unchecked hate speech and the very real possibility of future Backpage underage sex trafficking knock-offs has finally pushed them to action.

We remind our readers that Backpage itself relied heavily on Section 230 for legal immunity despite the fact that up to a staggering 99% of its income came from human trafficking and escort ads.

It was only when the U.S. government enacted the Fighting Online Sex Trafficking Act and amended Section 230 to exclude legal immunity for criminal activities (specifically sex trafficking) that Backpage lost its legal immunity and was shut down.

As we have reported, Backpage CEO, Carl Ferrer, has already pleaded guilty to money laundering and facilitating prostitution on the platform.

And yet, as of this writing, Twitter and other social media sites face no liability for allowing hate speech groups to proliferate on its platform because of Section 230.

In the view of Conservative U.S. Supreme Court Justice Clarence Thomas, online content providers and platforms should be treated as publishers given their apparent role in internet censorship of fake news which. This, we pointed out in our previous post, would be dire news for Tony Ortega’s hate-spewing Twitter feed.

In his statement in “Malware Bytes vs. Enigma Software,” Justice Thomas indicated his interest in veering to an interpretation of Section 230 that the provider of online content would be considered a publisher, making it liable for that content, as opposed to being a platform or a neutral content provider.

Importantly, the USMCA and a subsection of Section 230 already allow for the exercise of lawful authority and the enforcement of criminal law which, under the newly proposed FCC re-interpretation, could strengthen and amend its hate speech laws by making online platforms and information content providers responsible for screening extremism and hate speech.

While intentionally incendiary activity of the sort Ortega trades in online may drive profits from likes, shares and views, there is a greater social responsibility to society that online platforms must be called upon to bear. 

Curtailing those like Tony Ortega and Arielle Silverstein who would misuse their free speech to abuse others is a crucial first step.

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