By Ashkhen Kazaryan
Rand Paul is furious. That’s because someone posted a video falsely accusing the Kentucky senator of taking money from Venezuela’s Maduro regime.
Paul should know that the First Amendment sets a deliberately high bar for defamation of public officials like him. Under New York Times v. Sullivan, he must show not just falsity, but that the speaker knew it was false or had serious doubts about the validity and published it anyway That demanding standard known as “actual malice” exists for a reason — to ensure that fear of lawsuits does not silence criticism of those who hold power, even when the speech is offensive, wrong, or deeply unfair.
Instead of fighting this battle in court against the person who created this video, Paul has redirected his anger toward Section 230, the law often described as the 26 words that created the modern Internet. Although he once defended the law’s provisions that shield online platforms from liability for user speech, Paul now argues in a recent New York Post op-ed that the only solution is to tear it down.
At the heart of Paul’s argument is a simple demand: YouTube should have stepped in, judged the accusation against him to be false, and removed it. Once notified that the video was false, the platform should have been legally responsible for leaving it up. Section 230, he argues, prevents that from happening.
But who decides what is false? Who decides what is defamatory? And how quickly must those judgments be made — under threat of crushing lawsuits — by platforms hosting speech from millions of users around the world?
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Ashkhen Kazaryan is a Senior Legal Fellow at The Future of Free Speech, where she leads initiatives to protect free expression and shape policies that uphold the First Amendment in the digital age.