Section 230 is why political debate can take place on the internet. Some Republican lawmakers think internet platforms censor too much user content, especially conservative political content. Democratic lawmakers tend to say internet platforms should censor more content to combat fake news and other malicious behavior.
Both groups believe rewriting Section 230 of the Communications Decency Act will produce the kind of internet governance they want. But, as Elizabeth Nolan Brown writes, both groups of lawmakers mistakenly see Section 230 as some kind of special benefit for internet platforms:
Santa Clara University law professor Eric Goldman argues that Section 230 is “better than the First Amendment,” at least where modern communication and technology are concerned.
“In theory, the First Amendment—the global bellwether protection for free speech—should partially or substantially backfill any reductions in Section 230’s coverage,” Goldman wrote on his blog recently. “In practice, the First Amendment does no such thing.”
To be legally shielded on First Amendment grounds, offline distributors like bookstores and newsstands must be almost entirely ignorant about materials found to be illegal. A store is legally protected so long as its owners don’t know about specific offensive material in a publication, even if they know they are stocking the publication. But legal blame can shift if a court determines that owners should have known something was wrong.
And all it can take to reach that should have known threshold is an alert that something might be off. Once a distributor is alerted, by anyone, that a work is problematic or that those involved with it have a problematic history, the distributor may be legally liable for the content—possibly as liable as the work’s creator and the parties directly responsible for its very existence.
In an analog world—with limited content suppliers and limited means of distribution—this expectation may effectively balance free speech and preventing criminality. Because a bookstore cannot hold infinite books, we expect bookstore owners to know what they have in stock. But that expectation doesn’t scale to the digital world, where users are continuously uploading content and companies receive notice about thousands (or more) of potentially problematic posts per day. […]
Without Section 230, any complaint could thus be sufficient to make a company liable for user-created content. Companies would have every incentive to simply take down content or ban any users whom others flagged. Platforms are already overly deferential to companies and parties that file copyright takedown requests, since Section 230 does not protect against intellectual property law violations. Repealing Section 230 could cause them to show the same deference to people who complain about political or cultural content they don’t like. The result would be a dramatically less permissive environment for online speech.
[Elizabeth Nolan Brown, “Section 230 Is the Internet’s First Amendment. Now Both Republicans and Democrats Want to Take It Away.” Reason, July 29]
