Last month, Attorney General William Barr said, “valid questions have been raised on whether Section 230’s broad immunity is still necessary, at least in its current form.” But the attorney general and other critics should think twice before advocating for altering the crucial law.
Section 230 of the Communications Decency Act was passed as a part of the Telecommunications Act of 1996. It shields online platforms from liability for the content posted by its users. In doing so, it allows platforms to alter or remove content without being categorized as a publisher and, therefore, liable for content the way traditional publishers are. The law was written to empower and encourage online hosts to create and enforce standards and rules for their platforms.
But today, misguided criticisms of Section 230 come from both sides of the aisle.
Critics on the Left feel that online platforms aren’t doing enough moderation of content. This week, Democratic Rep. David Cicilline announced plans to introduce a bill that would remove Section 230 protections from platforms that refuse to police political speech. Last spring, Speaker of the House Nancy Pelosi told reporters that Section 230 “is a gift to (tech companies) and I don’t think that they are treating it with the respect that they should, and so I think that that could be a question mark and in jeopardy … I do think that for the privilege of 230, there has to be a bigger sense of responsibility on it. And it is not out of the question that that could be removed.”
From the Right, the criticism is the opposite. Conservative tech skeptics insist that the same online platforms are doing too much moderation, and are disproportionately silencing conservative voices in the process.
In response to this allegation, Sen. Josh Hawley introduced legislation to amend Section 230. The Missouri Republican’s bill would strip large internet platforms of Section 230 protection until they earned certification from the Federal Trade Commission that their content moderation practices were “politically neutral,” whatever that means. Hawley’s Ending Support for Internet Censorship Act is matched in its heavy-handed name only by its very likely unconstitutional content.
Barr seems to agree with both criticisms.
The attorney general apparently thinks social media platforms aren’t doing enough content patrolling. He said, “criminals and bad actors now use technology to facilitate and expand the scope of their wrongdoing and the victimization of our fellow citizens.”
Barr is being somewhat misleading by not acknowledging that Section 230 does not provide immunity from any federal criminal statute, although the law does immunize platforms from state laws and states often take the lead on pursuing crimes. And it is true that the courts have embraced a very broad interpretation of Section 230’s protections.
Barr also agreed that conservative voices have been over-patrolled when he expressed concern for “those whose speech has been banned or restricted by these platforms.” He wisely stopped short of labeling such actions a violation of the First Amendment, because that standard only correctly applies to government restrictions of citizen’s speech. It’s also worth noting that while there is a lot of anecdotal evidence of platform bias against conservatives, there’s not much hard evidence that proves the existence of any broader trend.
Critics concerned about unwanted content online should not seek to weaken the cover Section 230 gives platforms to remove or edit content without fear of legal retribution. Repeal or weaken those protections and watch online hosts take a hands-off approach to patrolling their platforms, leaving more, not less, undesirable content posted online.
Even if the biggest online platforms could afford to jump through the regulatory hoops and constantly patrol content in anticipation of possible all violations, smaller firms would not be able to, further enshrining industry incumbents and stifling competition. Weakening Section 230 would mean bolstering Google, Facebook, and Twitter’s leading market positions. That’s a curious position for Barr to support, seeing as the Department of Justice is conducting antitrust investigations into several Big Tech companies.
Critics of Section 230 should proceed with caution before destroying the “twenty-six words that created the Internet.” If not, we’ll all live to regret it.
Jessica Melugin is associate director of the Center for Technology and Innovation at the Competitive Enterprise Institute, a free market think tank.
