Section 230 Faces A Two-Front War

It’s worse than shocking that the Wall Street Journal would publish the op-ed, not because of its author, but because its core message is well known to be utterly false. Yet, there it was.

Congress gave Google and other social media an exemption from such lawsuits in 1996, with the Communications Decency Act. Section 230 of that bill provided these companies with immunity against defamation and some other legal claims. The clear intent of Section 230—the bargain Congress made with the tech companies—was to promote free speech while allowing companies to moderate indecent content without being classified as publishers.

Like too many lies built on putatively logical claims, the arguments makes some sense. The only problem is it’s false. Completely, utterly, untrue. It never happened. It was never meant to happen. It’s just a basic lie wrapped in a bow of seriousness that’s being repeated, as the lesson of propaganda is to repeat lies enough and people who want to believe them will. But it’s still a lie.

This is not true. Congress did not pass Section 230 on the understanding that Internet companies would engage in minimal moderation and “respect free speech.” In fact, §230(c)(2)(A) of the CDA states the following:

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, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” (emphasis mine).

This portion of Section 230 explicitly states that companies as large as Facebook and those as small as a local bakery that includes a comments section on its WordPress site can take “any action” to remove content they consider objectionable.

Without § 230, I wouldn’t let you comment here. You can comment anonymously or not, but I’m easy to find and sue if someone gets butthurt. Much as I love you, I’m not going to fight lawsuits for your sake, win or lose. And I, or any blog, could be sued out of existence, not because of any wrong but by attrition, the cost and effort of my days filled with fighting lawfare. Nor would any other “platform.”

I can be sued for what I write, because I wrote it, but not for what you write. And I cannot be sued for editing, trashing or not trashing your comments. That’s § 230, which allows me to be your host, to do what a host does, and still not be sued. Without it, there would be no SJ. No Google, Facebook or Twitter. Without § 230, the internet would have no user content.

While Dennis Prager is busy spewing the right wing narrative, because they’re pissed that private companies aren’t treating them “fairly,” (and it makes no difference whether they are or aren’t; it has no place in this issue), the left side, which has historically hated its inability to dictate what you should be allowed to see and read, is no better friend to § 230.

The safe harbor laws were created for what is known as passive (or neutral) intermediaries. Verizon, for example, is a passive intermediary platform: It makes no attempt to edit or alter the bits flowing through its fiber optic cables. Facebook and YouTube, however, are active intermediaries; they present you with content different from what they present to me. They filter pornography and jihadist videos off their networks using artificial intelligence. As such, they should not be shielded from liability by safe harbor laws in the same way that Verizon is shielded.

This is every bit as nonsensical as Prager’s claim. Notice the lack of a cite for § 230 being created for “passive (or neutral) intermediaries”? That’s because there is none, because it’s a very rational sounding lie, but just as much of a lie as Prager’s. Except this time, the complaint isn’t that conservative voices are deplatformed, but that the “hateful” content the left hates isn’t deplatformed enough.

Some may argue that deciding what counts as toxic video content is a slippery slope toward censorship. However, for the past 75 years, since the first television broadcasts, the Federal Communications Commission has been able to regulate offensive content on television. I believe we can all agree that mass murder, faked videos and pornography should not be broadcast — not by cable news providers, and certainly not by Facebook and YouTube. Since broadcasters do not have the protection of “safe harbor,” they engage in a certain level of self-regulation, to avoid being sued. The Federal Communications Commission rarely has to intervene. And there is no reason to believe that the largest corporations in the world — Google, Apple, Facebook and Amazon — would behave differently from CBS, Fox, NBC or ABC.

Analogies are great tools for persuading people who may not realize how absolutely nonsensical they are, and § 230 has, of necessity, been a magnet for monumentally dumb analogies. Comparing the internet to broadcast television, where the few networks leased wavelengths from the government with conditions, easily monitored and only content they created or specifically chose to broadcast, is dumb. So, unsurprisingly, USC’s Taplin throws in the other common analogy from the left for good measure.

When Johnson & Johnson removed all the Tylenol from American stores in the wake of a poisoning scandal, it did so because of the liability it would face if anyone got hurt. But 8chan, Reddit, Facebook and YouTube are totally protected from being sued for content on their networks because of this unique set of laws created at the beginning of the internet.

The failure of this analogy is astounding, as J&J’s liability was based on its failure to take known precautions in its packaging to prevent tampering, but its removal was a public relations move, Nothing about it bears on the internet in any conceivable way, not that most people will think hard enough to realize just how inane the analogy is.

But more to the point, real arguments begin with facts, and analogies may later come into play to illustrate the point. There are no facts, none, that support the contentions of either the left or right that § 230 was intended as some deal with the devil with a secret agreement that platforms would police content for . . . well, both sides use similar lies to achieve their opposing ends.

The real fight here isn’t about their lies to the public about what § 230 “means,” but who gets to be Censor in Chief when the war is won. Both right and left hate §230 as it denies them the ability to control the information you get to see and hear. Once they’ve destroyed the safe harbor, there will be a fight to the death over which side gets to own the internet.

21 thoughts on “Section 230 Faces A Two-Front War

      1. Guitardave

        I also wanted to thank you for covering this issue so well…”You tore it up and nailed it down like an Amish roofing crew on speed.”

  1. B. McLeod

    230 protects “editing” when the editing is simple removal of material. It might not always if the editing involves actual re-writing of any portion of the material. This is why many sites restrict their ‘”moderation” to simply deleting whole posts or deleting whole sentences or particular references with the posts.

    As far as some “active” platforms selectively providing different content to different users, Congress surely understood that and could have addressed it had they wanted to (but did not).

    1. LocoYokel

      As far as some “active” platforms selectively providing different content to different users, Congress surely understood that and could have addressed it had they wanted to (but did not).

      You have far more faith it the intelligence and technological understanding of the average congress-critter than I do.

        1. B. McLeod

          Not of sufficient vintage to be the origin of “down the tubes,” but very amusing all the same.

        2. D-Poll

          The sad truth is, his metaphor was spot on: wires really do behave like tubes in important ways, and internet congestion is a real problem we’re still dealing with — but the ridicule he got from the educated set for putting it that way pretty much killed any chance of getting wide recognition or respect for that problem.

          1. SHG Post author

            He wasn’t using it as a metaphor, and your attempt to rationalize his idiocy does not do much to add to your cachet.

  2. Fubar

    There are no facts, none, that support the contentions of either the left or right that § 230 was intended as some deal with the devil with a secret agreement that platforms would police content for . . . well, both sides use similar lies to achieve their opposing ends.

    I’m shocked, shocked! that Mssrs. Prager and Taplin have not availed themselves of the most recent results on internet ownership made by my Department of Unprecedented Findings and Unabashed Speculation (DUFUS):

    The internet is a deal with the devil,
    Wherein marks, hoodwinked masses, all revel.
    Behind the green curtain,
    Sits the man who makes certain
    That it always appears on the level!

  3. Ben

    “That’s § 230, which allows me to be your host, to do what a host does, and still not be sued. Without it, there would be no SJ. No Google, Facebook or Twitter. Without § 230, the internet would have no user content.”

    Are you sure?

    Most of the world does not have CDA § 230, but they have Google, Facebook and Twitter, which doing business in multiple countries, must abide by the laws of each.

    You rely heavily on a counterfactual. What would have happened without § 230? Nobody knows.

    1. SHG Post author

      Google, Facebook and Twitter now have the assets to deal with laws, and lack of law, outside the US, and they’re adopting to the censorious ways of the EU, not to mention China. But why did they start here, grown here, become established here, before being elsewhere? Do they have reddit in France? Bloggers in other parts of the world are routinely arrested. Do you think they’d let you comment if they can’t be sure they won’t be imprisoned for their own writing?

      While it’s true that we can’t say what would have been without § 230, that doesn’t mean we’re compelled to make irrational or ignorant assumptions. The same can be said if there was no First Amendment; we might have free speech anyway, because Americans are just swell open-minded folks, but all reason suggests otherwise and why would we really want to find out how much of a disaster it could be?

      So yes, I’m quite sure.

      1. Ben

        There are plenty of other possible reasons internet giants started in the USA, such as its size, speaking English and having widespread internet access earlier.

        You might be open to the idea that something less than an absolute, sweeping immunity might possibly serve as well, as it does for copyright under the DCMA.

        Unless you are going to go with “all reason suggests otherwise” in which case it’s just “common sense”, and I give up.

        1. David

          “Open to the idea”? Why not? Let’s give it a try, come up with “good” censorship and it we destroy the internet, we can say “oopsy. at least we tried.” Brilliant idea, Ben.

          1. SHG Post author

            Ben suggests DMCA takedown rule, which failed miserably so would certainly do better multiplied by the billions. There is no tepid alternative, as much as some would wish for unicorns prancing on rainbows.

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