Twitter has allegedly censored a New York Post story alleging possible corruption by Hunter Biden and, by implication, Joe Biden in overseas business dealings.[1]
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.
By this editorial behavior, has Twitter waived its protection as a "platform" or "distributor" and exposed Twitter to potential tort liability as a "publisher" for all its content?[2]
Historically, American law has divided operators of communications systems into three categories.
Publishers, such as newspapers, magazines, and broadcast stations, which themselves print or broadcast material submitted by others (or by their own employees).
Distributors, 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 "For a good time, call __"—are treated similarly to distributors.
Platforms, 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:
Publishers 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.
Distributors were liable on what we might today call a "notice-and-takedown" 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).
Platforms 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.
