In 2020, many of us have become accustomed to terms and concepts we never thought we’d be discussing: “social distancing,” mask requirements, and Zoom parties all come to mind.
We can add Section 230 to that list, an obscure provision of the Communications and Decency Act (1996) that was previously unknown to most.
Section 230 is a frequent target of President Trump’s ire, and as such it can now frequently be found trending on Twitter, being debated in Congress, and featured in primetime media coverage. All in all, dozens of bills to repeal or modify Section 230 have been introduced in 2020.
TechDirt journalist Mike Masnick writes, “If you were in a coma for the past 12 months, just came out of it, and had to figure out what had happened in the last year or so solely based on new bills introduced in Congress, you would likely come to the conclusion that Section 230 was the world’s greatest priority and the biggest, most pressing issue in the entire freaking universe.”
But while it is a recurring topic of discussion, it seems the incessant chatter has only left Americans more confused. This explainer is here to break down the code and the debate swirling around it.
What Is Section 230?
So what’s the truth about Section 230? What does it actually say and what are its implications? Fortunately, the original author of the bill, Senator Ron Wyden, is still around and on record when it comes to the current dispute.
“Republican Congressman Chris Cox and I wrote Section 230 in 1996 to give up-and-coming tech companies a sword and a shield, and to foster free speech and innovation online. Essentially, 230 says that users, not the website that hosts their content, are the ones responsible for what they post, whether on Facebook or in the comments section of a news article. That’s what I call the shield.”
“But it also gave companies a sword so that they can take down offensive content, lies and slime — the stuff that may be protected by the First Amendment but that most people do not want to experience online. And so they are free to take down white supremacist content or flag tweets that glorify violence (as Twitter did with President Trump’s recent tweet) without fear of being sued for bias or even of having their site shut down. Section 230 gives the executive branch no leeway to do either.”
It can seem complicated, but it’s actually fairly straightforward. Section 230 simply says that only internet users are responsible for what they write, not the private companies whose websites host the commenters. Secondly, it affirms what the First Amendment already implies—that private companies don’t have to host speech that violates their values.
Section 230 was written early on in the internet age, long before social media companies even existed (although much of this debate has focused on those platforms). Within the bill, the authors explicitly say the law is “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services.”
And it has been successful. The government got out of the way and the internet expanded rapidly. Private companies invested millions to build their online enterprises, encouraged by provisions like Section 230 that secured their rights against unjust legal charges that would have otherwise put those investments in severe jeopardy.
Online companies want and need internet users to interact with their content and share feedback on their platforms. That goes for publishers (like Vox.com and us here at FEE.org), platforms (like Twitter and YouTube), and everything in between. But they shouldn’t be held liable because someone writes something untrue on their pages, nor should they have to host content that they find offensive.
Ronald Reagan once said,“We must reject the idea that every time a law’s broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”
Individuals should be held accountable when they break the law or violate the rights of others. But it would be morally wrong to hold society at large, or even parts of society like private businesses, responsible for the action of an autonomous individual. In fact, this course of action would let the party actually responsible for harm off the hook while punishing a third party who did nothing wrong.
Shoshana Weissmann, the head of Digital Media and Fellow at the R Street Institute, recently wrote a punchy (and hilarious) article illustrating this concept—tying Section 230’s protections to Jeffrey Toobin’s Zoom “reveal” earlier this year. For those who’ve forgotten, Toobin accidentally exposed himself on a work Zoom call. As Weissmann points out, without Section 230, Zoom itself would have been liable for his lewd content rather than Toobin being held responsible.
Thankfully, we have Section 230 which creates a just and sensible legal apparatus for the internet and conduct on it. Without this protection, it is highly unlikely that the internet would have taken off and grown to its current state, much less produced the social media websites, online news outlets, and other user-reviewed services (like Yelp) we all now enjoy.
What Do Both Sides Want To Do About It?
Section 230 became a hot topic in the fall of 2019 when President Donald Trump drafted an executive order requiring the Federal Communications Commission to develop rules that would limit its protections. Ultimately, that order never went through, as even the mention of it was met with confusion and alarm by regulators, legal experts, and First Amendment advocates.
The storm died down until May of this year when Twitter found itself in Trump’s crosshairs after slapping one of his tweets with a violence warning. This feud reignited Trump’s fury and determination to do away with Section 230.
Since then, Trump and his allies have regularly called for the repeal of Section 230. Trump believes that social media companies are unfair to him and his agenda, and his response to that is to use the government to force the private companies to act in a way he deems appropriate. He also believes that doing away with Section 230 would block social media companies from “censoring” information on their websites.
There has, of course, been pushback against all this. Many conservatives and libertarians have pointed out that Trump and his supporters fundamentally misunderstand the legal code and its implications. Supporters of Section 230 say it upholds the right to free speech in the age of the internet, and that it protects the free market as well.
Meanwhile, others like Republican Senator Roger Wicker have called for modifications to the law that would leave the liability shield in place, but that would force companies to host content that may violate their values.
Social media companies, who have incurred the bulk of the derision in this debate, are left between a rock and a hard place. Democratic leaders want them to censor more and guard against “fake news,” while some Republicans want to take away their rights for any content moderation.
True defenders of free speech, limited government, and the free market are largely being drowned out by the tidal wave of politicians and their supporters pushing for big government responses to a societal issue they dislike.
What Would Happen If It Was Repealed?
While opponents of Section 230 think that its removal would force companies to host their content and not “censor” information the company does not like, it would, in fact, have the opposite effect. If companies were liable for content posted on their pages by third parties, they would instead have to censor vigorously.
We’ve already seen a preview of what this would look like with the passage of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTRA). Signed into law in April of 2018, FOSTRA carved out an exception to Section 230 that essentially said websites would be held responsible for content promoting or facilitating sex trafficking or prostitution.
Internet companies reacted quickly, even those whose primary purpose had nothing to do with sex work. Craigslist removed its personals section altogether. Reddit and Google also took down parts of their websites. Notably, these actions were not taken because these sections of their websites promoted prostitution, but rather because policing them against the possibility that someone else might advertise illegal services was an impossible task.
It is almost inevitable that further eroding Section 230 would have similar impacts throughout the internet. Consider, for example, a company like Twitter. If it could potentially be sued for the millions of user posts on its platform, it would have to start censoring many more of them, or even running them through a pre-approval process. This would likely slow down the flow of information on these channels as the companies would be forced to sort through and approve content. Ultimately, these actions would result in all of us having less of a public square, fewer information streams, and a less rich internet experience.
Especially concerning is the impact these actions would have on smaller companies and start-ups, many of whom cannot afford losing liability protections. Ironically, those who seek to harm Facebook or Twitter by repealing this law would actually end up entrenching their power even more by putting their competitors out of business.
Take Parler for example. It is a growing, popular competitor of Twitter’s that many conservatives are flocking to. Should Section 230 be repealed, this new company would almost certainly be put out of business tomorrow as it does not yet have the revenue to withstand litigation. Twitter, on the other hand, would have the resources to survive and adapt.
“If Section 230 were to be repealed, or even watered down, this next generation of platform will likely be thwarted by liability threats. “Big tech” firms have the resources to comply with new mandates and regulations, so erecting this barrier to entry to nascent firms will artificially lock currently dominant firms in their lead positions.”
-An open letter to Congress from a coalition of conservative and libertarian think orgs, including Americans for Prosperity, Competitive Enterprise Institute, Freedomworks, and more
What If It Was Modified?
Some bills seek to modify Section 230 instead of repealing it. There are too many to name in one article, so we’ll focus on the worst and the most prominent: Senator Josh Hawley’s “Ending Support for Internet Censorship Act.”
This legislation would remove liability protections for companies with more than 30 million US users, 300 million global users, or $500 million in annual revenue. The bill also says that these large companies can apply for immunity from the bill if they go through a process that allows the FTC to screen their protocols and attest that their algorithms and content removal policies do not discriminate on the basis of political views.
So Hawley wants to fight “censorship” with – wait for it – actual government censorship of private companies.
Real censorship almost always involves the government, because without this tool of force, it is unlikely information could be totally suppressed. While people like to call social media content moderation “censorship” it really isn’t, not in the true sense of the word. Those who have their posts removed from one platform can easily go post them elsewhere. But what Hawley wants to do, which is use the government to censor the protocols of private companies, actually does constitute censorship as it would force them to allow the government to dictate what speech they would (or would not) host on their websites.
The notion that it would ever be wise to give the government this kind of power is quite jarring to encounter in America. It’s easy to see how this system would quickly eviscerate our fundamental rights to free speech by allowing the government to determine what belongs in the public square of discourse.
And, it’s important to remember that Biden appointees will soon be running these departments. This is an important reminder that the government bureaucrats who decide what counts as “neutral” will not be picked by your team forever. It would be prudent to stop giving the government more power that will only one day be used against you when your “team” is no longer in charge.
What’s next? Will they call to nationalize these platforms? This approach is antithetical to the ideals of limited government, free markets, and free speech.
“This bill forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism,” said Michael Beckerman, president and CEO of the Internet Association.“That shouldn’t be a tradeoff.”
Myths About Section 230
While many seem to think that Section 230 makes a distinction between ideological publishers and neutral platforms, and that companies who act as publishers do not enjoy its protections, this isn’t true. Section 230 applies to all internet companies and makes no such distinction between publishers and platforms.
Section (c.) of Section 230 specifically addresses this point and speaks to the protection of companies who block and screen offensive material. It immediately states that “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. It goes on to say that when it comes to matters of civil liability, “no provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lews, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Publishers can be sued for defamatory language online, just as they can be sued for it in print. So can Twitter or Facebook, if they issue a statement or a post. But that isn’t a relevant scenario to Section 230, which again, merely maintains websites are not liable for content you may choose to write on their pages.
Removing content they find offensive is well within their First Amendment rights, and within their Section 230 rights. It doesn’t change their status as a company or their protections under the law.
Many advocates for repealing Section 230 have hung their cases on the “publisher vs. platform” argument in an attempt to mislead their followers. But the good news is, Section 230 is relatively short. You can literally read it in less than five minutes for yourself and see that the publisher vs. platform discussion is a non-issue.
There are also those who claim that Section 230 is a special protection or an exemption for social media companies. This argument also fails to hold water.
One of the few, legitimate functions of government is to uphold the rights of individuals; when that is done businesses have a secure and just climate to operate within. That is exactly what Section 230 did. When the internet came about, it opened up an entirely new marketplace and one that needed such rights affirmed in order for people to invest in it.
Section 230 merely applied the same types of laws we see in the tangible world to the online marketplace. Would Burger King be liable if you came in and shouted obscenities at their customers? Should they be forced to host you on their premises and allow your attack on their clients to continue? Of course not. The same rules should apply to an internet company, and thanks to Section 230 they do.
Furthermore, without this provision to protect an online free market, the courts would likely be bogged down with frivolous lawsuits, which would cost taxpayers dearly. Even sorting through and throwing out such suits is an expensive and time-consuming process.
The Right Way To Handle Social Media Bias
On this issue, those who believe in limited government and free markets need to put their principles over short-term political expediency. Individuals, whether acting alone or jointly through a business, have the right to free speech, meaning the government has no right to tell them what they can or cannot say. While we may disagree with their choices to remove some users or throttle access to certain content (and I do), it would be a violation of their fundamental rights to force them to host speech they disagree with.
This argument is akin to one that caught the attention of many conservatives years ago: The Christian baker, Jack Phillips, who famously refused to bake a custom cake for a same-sex wedding citing his free speech rights. Just as the baker had a First Amendment right to not endorse a message that violated his beliefs, so too do the owners of social media companies. If we dislike the ways in which they run their platforms, the proper solution is for us to create or fund their competitors—not use big government as a weapon to tread on them.
This is the beauty of the free market. We don’t need the federal government to get involved in this picture outside of creating a fair legal apparatus in which companies can flourish. With Section 230 they got this right, and consumers now enjoy a wide range of options online thanks to its provisions.
If users are unhappy with Twitter or Facebook, they can take their business elsewhere and vote with their feet. If enough users do that, Twitter and Facebook will willingly change their policies to attract users back, or they will cease to exist.
Some have noted that the network effect makes it difficult for social media competitors to attract new customers, referring to the fact that for some products users find more enjoyment in them when a large number of their peers partake in the experience. But MySpace used to have the network effect advantage, and it still lost out to upstart competitors. And the recent (and impressive) success of Parler shows that there is still room for competition in this picture.
As always, free people are far better equipped to solve this problem than the government.
This article was originally published on FEE.org. Read the original article.