Testimony to Congress from “Big Tech” CEOs like Jack Dorsey of Twitter represent the height of the debate around Section 230,[1] the part of the U.S. code regulating speech and liability on the internet. Even the Federal Communications Commission is investigating whether to “clarify” Section 230.[2] In a rare case of bipartisanship, there seems to be consensus between the political parties on repealing and/or reforming Section 230.[3]
Given all this noise in the media, it is worthwhile to take a step back and explore the origins and purposes of Section 230, the reform proposals put forth, and whether, actually, the most prudent decision is to leave the law as is.
One of the early challenges of the internet was balancing free speech online while simultaneously preventing the Internet from becoming “a cesspool.”[4] One of the main points of contention was how internet sites handled user-generated content and two court cases from the 1990s provided an unsatisfactory solution.[5]
In 1991, in Cubby, Inc. v. CompuServe, Inc.,[6] Judge Leisure of the Southern District Court of New York dismissed the lawsuit brought by plaintiff on the grounds that CompuServe “had no more editorial control over . . . content than a book store or public library.”[7] Given this, the court stated that “First Amendment guarantees have long been recognized as protecting distributors of publications. . . .”[8] In short, “CompuServe couldn’t be held liable for users’ speech because they didn’t exercise any control at all over posted content.”[9]
In 1995, in Stratton Oakmont, Inc. v. Prodigy Services Co.,[10] Justice Ain of the Supreme Court of Nassau County ruled that Prodigy, another internet service-provider, could be held liable for a user comment because unlike CompuServe, Prodigy was “clearly making decisions as to content” on its bulletin boards and “such decisions constitute editorial control”.[11]
These two decisions formed what is now known as the moderator’s dilemma[12]: “either engage in content moderation and be considered the publisher of third party content or take a hands-off approach to third party content and be treated like a distributor.”[13] Put more bluntly,
Let everything in and your service would be quickly swamped with the worst, most vile forms of expression. But if you imposed even modest controls on user content, then you’d be liable for their words. Internet companies were on the verge of being forced to make a stark choice – dive into the sewer or dive into censorship.[14]
To solve this problem, Rep. Chris Cox (R-CA) teamed up with Rep. Ron Wyden (D-OR) to form appropriate legislation, which resulted in the creation of Section 230.[15]
So what does Section 230 do? Two provisions of Section 230 are key.
Section 230(c)(1) 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.” [16]
Section 230(c)(2) states that:
“No provider or user of an interactive computer service shall be held liable of (A) 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; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).”[17]
Section 230(c)(1) is a “repudiation of Stratton Oakmont”[18] codifying that websites can’t be considered “publishers” of user-generated content. Section 230(c)(2) “allows websites to take down racial slurs [or other material they find obscene]– all without suddenly also becoming liable for all of their users’ speech”[19] – fulfilling Rep. Cox’s goal of “clean[ing]up the Internet.”[20]
On its face, it seems Section 230 accomplished exactly what the representatives wanted. Even author Jeff Kosseff, in his book The Twenty-Six Words That Created the Internet, contends that Section 230 is “responsible for much of America’s multibillion-dollar online industry.”[21] Yet, there is momentum from both political parties to modify Section 230. Senator Josh Hawley from Missouri has proposed legislation that will withhold Section 230 protections from companies unless they can prove to the Federal Trade Commission that the provider “does not moderate information . . . in a manner that is biased against a political party, political candidate, or political viewpoint.”[22] Presidential candidate Joe Biden went as far to say he would revoke Section 230.[23]
However, the prudential path may be to leave the law as is. While correlation doesn’t imply causation, the U.S. Bureau of Economic Analysis shows that there was an explosion in economic value created by “internet publishing” and “Information-communications-technology” industries following the passage of Section 230 in 1996.[24] Revoking or strictly limiting these protections may hinder this growth.
Furthermore, some think tanks argue that Section 230 reform will result in much more government control.[25] Jim Harper at the American Enterprise Institute asserts that making companies responsible “for moderation could easily swamp a platform in potential liability.”[26] In plain English, lawsuits—lots of them. A Brookings Institution report bluntly concluded: “Proposals that seek to force platforms to engage in more monitoring—especially analysis before content is publicly available—will push internet firms to favor removing challenged content over keeping it. That’s precisely the chilling effect that Section 230 was intended to avoid.”[27] Moreover, a stricter regulatory environment will hurt small businesses competing with “Big Tech.” Not only will this create a barrier to entry for new competitors, but companies with massive resources can comply with new regulations much easier than small businesses who may have no alternative but to shut down.[28] Finally, a lack of innovation will cause harm to consumers.[29]
As the debate around Section 230 moves to the next stages, it might be worthwhile to ask: “Should we do anything at all?”
[1] See Queenie Wong & Richard Nieva, Zuckerberg, Dorsey, and Pichai face off with Congress over internet law, content decisions, CNET (Oct. 29, 2020), https://www.cnet.com/news/facebook-twitter-google-ceos-to-defend-section-230-before-senate-panel/.
[2] Ashely Cullins, FCC Chairman Ajit Pai Will “Clarify” Section 230 Protections, The Hollywood Rep. (Oct. 15, 2020), https://www.hollywoodreporter.com/thr-esq/fcc-chairman-ajit-pai-will-clarify-section-230-protections.
[3] See Robby Soave, Trump Tweets ‘Repeal Section 230,’ Something He Couldn’t Do if Section 230 Were Repealed, Reason (Oct. 6, 2020), https://reason.com/2020/10/06/donald-trump-repeal-section-230-twitter/; Robby Soave, Elizabeth Warren Absolutely Wants the Government To Punish Facebook for Spreading Disinformation, Reason (Feb. 3, 2020), https://reason.com/2020/02/03/elizabeth-warren-free-speech-facebook-pen-america/.
[4] See Alina Selyukh, Section 230: A Key Legal Shield For Facebook, Google Is About To Change, NPR (Mar. 21, 2018), https://www.npr.org/sections/alltechconsidered/2018/03/21/591622450/section-230-a-key-legal-shield-for-facebook-google-is-about-to-change (recalling the story of how Section 230 came about).
[5] See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y 1991); Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995).
[6] See Cubby, 776 F. Supp. at 140.
[7] Matthew Feeney, Defending the Indispensable: Allegations of Anti-Conservative Bias, Deep Fakes, and Extremist Content Don’t Justify Section 230 Reform, 4 (The C. Boyden Gray Ctr. for the Study of the Admin. State, 2020); Cubby, 776 F. Supp. at 140.
[8] Cubby, 776 F. Supp. at 140.
[9] David French, The Growing Threat to Free Speech Online, Time (Jan. 24, 2020), https://time.com/5770755/threat-free-speech-online/.
[10] See Stratton Oakmont, 1995 WL 323710, at *4.
[11] Id.
[12] Matthew Feeney, Conservative Big Tech Campaign Based on Myths and Misunderstanding, Cato (May 28, 2020), https://www.cato.org/publications/commentary/conservative-big-tech-campaign-based-myths-misunderstanding?queryID=580acebd08f15c68a4c2ed7c72416865#section-230.
[13] Id.
[14] French, supra note 9.
[15] Selyukh, supra note 4.
[16] 47 U.S.C. § 230.
[17] Id.
[18] Feeney, supra note 7, at 6.
[19] French, supra note 9.
[20] Selyukh, supra note 4 (Quoting Rep. Cox: “The original purpose of this law was to help clean up the Internet . . .”).
[21] See Jeff Kosseff, The Twenty-Six Words That Created the Internet, Cornell Univ. Press, April 15, 2019; see also Elizabeth Nolan Brown, Section 230 Is the Internet’s First Amendment. Now Both Republicans and Democrats Want To Take It Away, Reason (July 29, 2019), https://reason.com/2019/07/29/section-230-is-the-internets-first-amendment-now-both-republicans-and-democrats-want-to-take-it-away/ (explaining that “practically the entire suite of products we think of as the internet . . . have benefitted from the protections offered by Section 230.”).
[22] Ending Support for Internet Censorship Act, S. 1914, 116th Cong. § 2 (2019).
[23] Joe Biden: Former vice president of the United States, N.Y. Times (Jan. 17, 2020), https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html?smid=nytcore-ios-share.
[24] Industry Economic Account Data: GDP by Industry, U.S. Bureau of Econ. Analysis (Sept. 30, 2020), https://apps.bea.gov/iTable/iTable.cfm?reqid=150&step=2&isuri=1&categories=gdpxind (follow to line item 53 & 100 in table).
[25] See Feeney, supra note 12.
[26] Jim Harper, Liability for wrongs online: Should Section 230 be reformed?, AEI (Sept. 9, 2019), https://www.aei.org/technology-and-innovation/liability-for-wrongs-online-should-section-230-be-reformed/.
[27] Derek Bambauer, How Section 230 reform endangers internet free speech, Brookings (July 1, 2020), https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/.
[28] Id.; see also Eric Goldman, Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope, 1 (Balkinization, New Controversies in Intermediary Liability Law, 2019) (displaying the various benefits that accrue to small businesses which help them compete in the industry).
[29] See Erik Brynjolfsson & Avinash Collis, How Should We Measure the Digital Economy?, 5 (Brookings Inst. Hutchins Ctr., 2020) (explaining how consumers enormously value digital goods). A modification or repeal of Section 230 may cause severe harm to consumers as well.
