Can Section 230 Be Reformed?

Trump may have demanded the repeal of Section 230 of the Communications Decency Act as part of the defense spending bill, but that was just Trump being self-serving Trump, his twits labeled as false and his ridiculous claims being rejected for being ridiculous. Not that progressives disagree, except that they want Section 230 repealed so they can dictate their own flavor of censorship. Bipartisanship at its best, everybody wants to control people’s speech.

But while the First Amendment doesn’t apply to private entities, and Section 230 enables those entities to both publish and moderate as they see fit, there is an unpleasant fact that remains: the normal channels of communication, newspapers, broadcast television and radio, have been supplanted by social media and search engines. No, Zuck isn’t a government official. Yes, Zuck has a lot to say about what others get to say. No, we don’t want or trust government to decide what ideas are permissible. But let’s be real. Do you trust Facebook, Google or Twitter to decide either?

The congressional committee that drafted the 1996 act’s final language knew that Section 230 was a critical law at the dawn of the internet, and we passed it for a specific reason: to protect the internet’s role as a free marketplace of ideas. What went wrong? We succeeded too well.

Much of what we enjoy on the interwebs exists because of the freedom from liability platforms enjoy. I’m liable for defamation for whatever I write, but not for what you write. Yet I can still moderate comments so you don’t have to suffer the hundreds of exceptionally false ones I endure regularly. I keep this place mopped up so people aren’t misled by wildly misguided legal claims. I can do that because of Section 230 without fear, despite some regularly claiming that I have violated their rights or might be liable to the aggrieved because some commenter hurt their feelings. But you already know this.

Nearly a quarter century ago, we couldn’t have anticipated today’s internet, where one private company, Facebook, controls most of the public forums that Americans use to express their views, and another, Google, controls most of the information Americans receive when they search the internet.

We need to re-evaluate Section 230 in light of today’s very different internet. But there’s one thing we shouldn’t re-evaluate: the provision’s role in supporting and nurturing an open and free marketplace of ideas.

Is there a problem? Many think so, mostly having to do with what others are allowed to do, because they, of course, offer only gems of truth, wisdom and goodness. If Section 230 were to be repealed, it would wreak havoc with platforms large and small. Forget FB and Twitter, which would be sued a few million times daily, and there isn’t a chance in hell I would let anyone except Judge Kopf comment here, plus my senior cultural advisers, Guitar Dave and Howl. I’m not getting sued for your deepest thoughts.

Another option that won’t work is the public-utility model. In this scenario, once a platform reaches a certain size, it would be subject to regulation by a public commission, which would decide whether the platform is allowing a free and fair flow of content. Americans don’t want the government acting as an arbiter of truth, deciding what speech is fair or not. This is precisely what the First Amendment is designed to prevent.

Want Trump deciding what content is true? Want Biden either? Some will, and you’re wrong. You might not realize it now, but when you get canceled from social media for the heinous crime of misgendering some rando or questioning how it’s possible Hugo Chavez isn’t a zombie, the message will sink in.

There are better ways to fix Section 230. Normally, the First Amendment doesn’t protect against speech restraints imposed by private entities, but if two or three companies own the entire marketplace of ideas, they should be held liable for failing to post speech that citizens have a constitutional right to express. We have lots of experience and case law about what speech is protected in public parks, state universities and other public places. We may need to modify the rules to a small extent, as we have done for radio and television broadcasting, but they present a good framework.

There’s a certain superficial attraction to this proposal, both because it seems at first blush to have worked for radio and television, and because it relies on First Amendment guarantees. How could anyone not believe in the First Amendment’s right to free speech?

Neither TV nor radio let you comment. They decide what stories air and what’s said about them, and so they’re responsible just as I’m responsible for my posts. You don’t get a vote or a chance to put in your two cents. Plus, they are constrained to avoid using the seven words (which, if some have their way, would be a slightly longer list of evil words that must not be spoken).

Among the most significant lessons learned from social media is how many people out there know so little and say so much (to the delight of their fellow travelers), are dedicated to lying to you and, sadly, are crazy. The promise of offering a broad spectrum of ideas to the marketplace was a wonderful one, and one that I’ve long supported very strongly. The hope is that people would be smart enough to distinguish between sound ideas and bad ones, which may be a bit unrealistic.

So would harm befall the major players, assuming small guys like me were left out of the mix, on the internet if they were constrained by Free Speech requirements like the government? There would be lawsuits, of course, but after the first few million, which Zuck could afford to defend out of pocket change, lawyers would stop wasting their time on nuisance suits because a third of nothing is nothing.

Would this work? Bear in mind, we got to this point with Section 230 because it existed, and what would happen if we tinkered with it remains something of a mystery. There are always unintended consequences, but is the problem bad enough that a tweak is needed and consequences be damned?

19 thoughts on “Can Section 230 Be Reformed?

  1. Grant

    You need censorship, er, moderation, for any online platform to be usable because of wonderful, automated spam.

    When private entities censor beyond this, the marketplace solution that appeared after the last election is fragmentation. The completely mature, enlightened individuals that I am in no way referring to sarcastically move to a new service when they don’t like the moderation of the service that they have been using.

    There is no such escape valve for government regulation. People have already shown they are still free to use other services more to their liking. The alternative to a bad situation is not necessarily better. So no, I do not think the problem is bad enough a tweak is needed.

  2. Howl

    Esteemed Admiral,
    I am humbled by the title bestowed upon me. You can be assured of my most dutiful loyalty.
    Sincerely yours,
    Senior Cultural Adviser at Simple Justice

  3. Jerry

    Could this reform be declared a descendant of pruneyard?

    I’ve been told many times that pruneyard is dead, but to this layman, it seems very similar in spirit to pruneyard

      1. Jerry

        No, I am sure it doesn’t.

        It’s just that given the numbers of times I’ve advocated on social media along these lines to be chastised that pruneyard is dead, well, it brightens my morning a little

        1. SHG Post author

          It is dead, but there was some conceptual merit to it. When the public square is in private hands, where does the public take its soapboxes? But that’s the public’s problem and not the private entity’s, which is still beyond the reach of the First Amendment.

  4. Ahaz01

    As usual….there’s nothing I could argue against. I’ve made many of the same arguments to my Sens. Cardin and Sarbanes in MD. This move to repeal 230 is madness. “Everyone wants free speech so long as it fits within their own political ideology.” That’s the scariest of all.

      1. El_Suerte

        Consider letters to the editor. On the newspaper’s website, the newspaper can host that kind of content in a comments section and be protected by 230. They can even highlight or give extra prominence to any particular comment and still be protected by 230 if they get sued over that comment.

        However, if the newspaper publishes the same comment in the print edition, they aren’t covered by 230 because it’s print media and not an interactive computer service.

  5. Pedantic Grammar Police

    Section 230 isn’t the problem. The problem is functional monopolies that have been able to use their market dominance to destroy or buy out competitors. That is the problem that the government should be working on. The recent DOJ actions against Facebook and Google give me hope that the we might see another round of useless Congressional hearings and the hiring of more lobbyists. Fixing the problem will probably remain off the table.

    1. SHG Post author

      They’re not monopolies. Being popular, even dominant, is not a crime in America. We are a capitalist economy and businesses are allowed to be successful, comrade.

  6. Andrew Cook

    There’s an additional aspect that has me worried. You mention having to restrict comments on your blog to Judge Kopf, Guitar Dave and Howl, because you couldn’t trust that no one will sue you over anyone else’s posts. However — as many comments demonstrate — some people find your blog posts themselves objectionable. With Section 230, the only person they can go after and have a hope of a prayer of surviving a motion to dismiss is yourself. But without… Would Cloudflare risk legal liability by continuing to publish for you? Would WordPress or some other hosting company assume that risk? You could say that you’d host it yourself if you had to, but since most ISPs went out of the way to be classified as publishers instead of pipes they’d be just as wide open to suit; they’re not going to let that happen. The potential damage doesn’t just flow downwards, it flows upwards as well.

    1. SHG Post author

      Would Cloudfare or WordPress be liable for what I write? Not seeing how that could be possible, and haven’t got the slightest clue what you’re talking about when you say they’re “classified as publishers.” There is no such thing.

      1. Andrew Cook

        Just as Section 230 protects you from suit over stuff your commenters post, it also protects Cloudflare/WordPress from suit over what you post — they’re the “interactive computer service” for you as an “information content provider”, just as your blog is the “interactive computer service” for your commenters as “information content provider[s]”. Without that protection, I don’t see how they *wouldn’t* be liable.

        I apologize for the commentary on ISPs; I hadn’t read something correctly, and I now realize it isn’t related.

  7. PseudonymousKid

    So it’s time to release the kraken because you didn’t list me as one of your favorites. And here I thought you’d take a bullet for me. Guess I was wrong. And this is even after the embarrassing tale of my tele-dating failure. Think of this wonderful comment and all the others that could be lost. Save Section 230!

    1. SHG Post author

      At least I didn’t tell the story of when your mom and I found you in your room with the Victoria’s Secret catalogue. Or was that Monkey Ward?

  8. MelK

    You don’t need the tummy rub, but I appreciate how well focused your post is regardless.

    One of the quote you use declares “we must reevaluate section 230…” which brings along the assumption that Something Must Be Done. But one of the available conclusions of such an evaluation is “it is working as intended, leave it be.” That seems to be missing from most such discussions.

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