There isn’t much the radical right and left share except methods, which was made glaringly clear when the Department of Justice invited no less a knowledgeable scholar on Section 230 of the Communications Decency Act than, wait for it, Mary Anne Franks. It was a smart move by DoJ, as who would be happier to play the “carceral fool” than Franks, together with her sidekick, Carrie Goldberg?

The Justice Department panelists included lawyer Carrie Goldberg, who started a high-profile fight with Grindr over a horrific harassment campaign; University of Miami professor Mary Anne Franks, who helped draft the first “revenge porn” law; and Yiota Souras of the National Center for Missing and Exploited Children. All laid out — sometimes in graphic detail — ways that abusive partners and sexual predators have weaponized the web.

This happened in mid-February, and with a speed unheard of in government movement, the DoJ has miraculously come up with its solutions!

We have been carefully looking at the benefits and costs of Section 230 as part of our broader review of market-leading online platforms.  We recently convened a conference with thought leaders from a wide variety of perspectives in academia, victims’ rights groups, civil society, and technology experts, among others.

Apparently, uncivil society was not invited.

There are some obvious benefits of Section 230. It has been dubbed the “26 words that created the internet,” and it is not hard to see why.  When Section 230 was enacted in 1996, it enabled the growth of platforms that hosted user-generated content without fear that doing so would expose the platform to massive civil liability as publishers or speakers of that content.  Without Section 230, some say, the potential civil liability and cost of litigation could have forced companies to significantly curtail their user-generated content – or even to cease to exist altogether.

And then comes the “but.”

But there is a dark side, too.

People say bad things on the internet. Who knew?

Remember, Section 230 was but one provision in the much larger Communications Decency Act of 1996.  As its name suggests, the primary aim of the Communications Decency Act was to promote decency on the Internet and to create a safe environment for children online.

The name of the USA Patriot Act suggests that if you don’t approve of government surveillance, you’re not a Patriot. Is that how law works? It is when you have the intellectual depth of Mary Anne Franks or the desire to control speech like the DoJ.* With that, Deputy Attorney General Jeffrey Rosen offers the four changes to save polite society from the internet.

First, as a threshold matter, it would seem relatively uncontroversial that there should be no special statutory immunity for websites that purposefully enable illegality and harm to children.  Nor does someone appear to be a “Good Samaritan” if they set up their services in a way that makes it impossible for law enforcement to enforce criminal laws.

Second, the Department of Justice is also concerned about Section 230’s impacts on our law enforcement function, and the law enforcement efforts of our partners throughout the executive branch.

Third, we are concerned about expansions of Section 230 into areas that have little connection to the statute’s original purpose….

But some websites have tried to transform Section 230 into an all-purpose immunity for claims that are far removed from speech.  For example, some platforms have argued that Section 230 permits them to circumvent or ignore city ordinances on licensing of rental properties.  While these types of arguments have not always succeeded, they demonstrate the potentially overbroad scope that some advocates have given the immunity. 

And finally, the government gets to the nitty gritty, the removal of right-wing and conservative accounts from social media, exercising their First Amendment right to not provide a host on their privately-owned platforms to whomever they choose.

Fourth, we are concerned about the extent to which platforms have expanded the use of Section 230 to immunize taking down content beyond the types listed in the statute.  Under the Good Samaritan provision, platforms have the ability to remove content that they have a “good faith” belief is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”  We are told that some platforms treat this provision as a blank check, ignoring the “good faith” requirement and relying on the broad term “otherwise objectionable” as carte blanche to selectively remove anything from websites for other reasons and still claim immunity.

The internet is as bad, or good, as people are, which means that it can be absolutely awful at times. But the alternative is a never-ending series of lawsuits, at private expense, challenging every choice, to post or not to post, by every platform large or small. Section 230 allowed someone like me to post your comments without fear of liability that you defamed someone, or not post your comments because they were batshit crazy and made people stupider. My blawg, my call, and there was nothing you could do about it.

If the government has its way, and any change to Section 230 will have to go through Congress and can’t be implemented by DoJ fiat, it will effectively nationalize the internet, making social media large and small subject to government oversight and control, and exposing every website to the “public safety” demands of law enforcement and litigation and challenge from every unduly passionate person who claims offense.

The problem isn’t that offense doesn’t happen. It’s not that crimes don’t occur and bad actors don’t take advantage of the immunity provided by Secton 230. They do. And they are very harmful. The problem is that once the government becomes your overlord, or makes the likes of Mary Anne Franks the Scold-in-Chief, the only internet that will be left is the one either the government or Mary Anne approves.

That’s the future of the internet in the hands of bipartisanship, and it might just make it through Congress now that both the authoritarian right and left have locked arms in their crusade to make an internet that meets with their approval.

*Notably, most of the CDA was held unconstitutional.

As it turned out, the Supreme Court rejected most of the Communications Decency Act on First Amendment grounds.  The most significant piece that survived was Section 230.