House Republicans for years have railed against a provision in federal law granting legal liability protection to websites for posts by outside commenters and contributors. Now they’re in a position to do something about it.
At issue is Section 230, a wonky-sounding part of the 1996 Communications Decency Act that protects the online hosts of third-party content. Though much of the broader law was struck down as unconstitutional by the Supreme Court, Section 230 has, for a generation now, remained on the books.
SUPREME COURT WILL REVIEW SECTION 230 PROTECTIONS IN BIG TECH
It assigns legal liability of third-party content online to the person or entity that posts it, not to the platform or website that hosts that speech. For example, if you tweet, you’re legally responsible for that tweet and Twitter is not, with some exceptions for intellectual property and federal criminal claims. Section 230’s liability shield remains even if the digital host removes other third-party content, an important point that previous liability law did not afford other distributors, such as bookstores.
Internet service providers say they rely on Section 230 to stay in business. There’s no way they could operate properly without legal protections against what some random online poster says, per statements and congressional testimony by industry representatives.
House Republicans aren’t swayed by that argument. GOP lawmakers see Section 230 as part of a broader control scheme that liberal forces like Big Tech have used to drown out views from the Right. Some Republicans charge that content is being moderated unfairly and that conservative content is being discriminated against.
And that will be a driving force in efforts to pare back Section 230. House Republicans are set to take the majority when the 118th Congress convenes on Jan. 3, even with a narrow 222-213 majority over the Democrats. And expect repeal, or at least reform, of Section 230 to be a high legislative priority for the first GOP House majority in four years.
In this outgoing Congress, there are 23 House proposals to amend or repeal Section 230. In Washington, expect House Republicans to “jawbone” Big Tech platforms into leaving up more conservative content by threats of curtailing or withholding Section 230’s legal protections. Also, look for House Republicans at congressional hearings to drill down on past controversial moderation decisions by social media sites and, more generally, the perceived liberal bias at these digital companies.
More concretely, the new Congress is likely to feature the reintroduction of bills from the current session, such as Arizona GOP Rep. Paul Gosar’s “Stop the Censorship Act,” which would strip Section 230 protections for the removal of so-called “lawful but awful” content.
Also ripe for reintroduction are bills similar to Georgia Rep. Marjorie Taylor Greene’s “21st Century Free Speech Act,” which would designate platforms with at least 10 million monthly users as “common carriers,” applying regulatory burdens similar to those placed on utilities.
House Republicans might also take up the mantle of Missouri Republican Sen. Josh Hawley and his bill that would require government certification of politically even-handed content moderation in order for platforms to retain the legal safeguards for Section 230.
Senate Democrats, who kept their majority in the 2022 midterm elections, will use similar theatrical hearings with high-profile witnesses — but, conversely, in an attempt to get platforms to take down more third-party content in order to hide, flag, or remove content deemed “dangerous misinformation” by many on the Left.
The Democrats’ objection to Section 230 is that the legal protections make it too easy for platforms, such as Facebook or Twitter, to leave up and circulate conspiracy theories, extreme-right propaganda, and scientific opinions they find objectionable. Accordingly, Democratic efforts to alter or eliminate Section 230 protections seek to subject online platforms to costly (and possibly crippling) legal exposure.
In the Democratic-majority Senate, look for the reintroduction of bills from the previous session, such as the bipartisan “Platform Accountability and Transparency Act,” which would mandate more transparency from platforms. The also-bipartisan “EARN IT Act” will surely be reintroduced: It would limit the use of Section 230 protections in court cases involving the proliferation of child sexual abuse material, but it might also have privacy-degrading implications for encryption technologies. Minnesota Sen. Amy Klobuchar’s “Health Misinformation Act” could also be reintroduced if controversies around COVID-19 misinformation online continue in Democratic circles.
Alongside whatever happens in the 118th congressional session, the Supreme Court will weigh in on the limits of Section 230’s protections in Gonzales v. Google. The case goes beyond the settled question of protecting digital hosts from liability for third-party content and asks the court to decide if that protection extends to the platforms’ ranking of content and algorithmic recommendation.
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It’s likely that the highest court will weigh in again on content moderation when it considers the contradictory findings from the U.S. Court of Appeals on Florida’s and Texas’s social media laws. (Florida’s laws were struck down in the 11th U.S. Circuit Court of Appeals, while Texas’s laws were upheld in the 5th Circuit.) The state laws are not identical, but they are similar enough that legal clarification is needed. That’s because states that went very politically red in the midterm elections will likely introduce bills along these same lines next year. State legislators would benefit from knowing definitively if those bills run afoul of the platform’s First Amendment rights to control the speech they carry, promote, or remove.
Very blue states, on the other hand, are more inclined to mimic a California law that obligates platforms to make public their policies for actual moderation of hate speech and misinformation. While those laws also may face court challenges on First Amendment grounds, don’t expect any slowdown in the number of online speech bills being introduced in Washington and in state capitals around the country.
