The law that the left and the right love to hate

Donald Trump and Joe Biden agree: Section 230 has got to go. What is Section 230? It sounds like somewhere the government keeps all the alien spaceships that crashed into the Mojave Desert, but it’s not. It’s a law. 

This law has recently become a popular way for the left and the right to solve what they believe is wrong with the internet.

So what is Section 230, and how has it united our otherwise divided political parties in their desire to get rid of it?

Social media and censorship 

“Section 230” refers to a part of the Communications Decency Act of 1996, and, last year, President Trump vetoed a $740 billion defense spending bill in part because it failed to repeal section 230. During his campaign, Joe Biden said, in no uncertain terms, that Section 230 should be revoked. Now that he is president, many are calling on Biden to act.

If you do approximately ten seconds of Googling on the subject, you’ll find social media at the heart of complaints about Section 230. Many on the right argue that Facebook and Twitter use the law’s protection to censor conservative speech. On the left, many believe Facebook and Twitter are using the law’s protection to avoid censoring misinformation and hate speech. 

Words that “created the internet”

In his 2019 book, Professor Jeff Kosseff called Section 230 “the twenty-six words that created the internet.” Here they are:

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. 

These words, as law, limit the liability that providers like Facebook (or, in 1996, Prodigy or Netscape) have for content that their users post. 

Because Prodigy and other pioneering internet companies weren’t mired in litigation or moderating what their users posted on message boards or sent to one another using their email, they were able to focus on growth. But what applied to Prodigy in 1996 now applies to Facebook in 2021. You couldn’t sue Prodigy in 1996 because someone sent objectionable content using its email, just like you can’t sue Facebook today because your crazy cousin posts false information.

If early providers didn’t enjoy this immunity from lawsuits, it’s highly unlikely the internet would have grown the way it did over the past twenty-five years. We certainly wouldn’t have Facebook or Twitter. 

It’s not just Twitter

If you think social media platforms are biased in what they censor or turn a blind eye to dangerous false information posted on their sites, you might prefer that they didn’t exist.

But the internet is bigger than Facebook and Twitter, and Section 230 protects other platforms, too. Have you ever read useful reviews of a product on a website? Maybe you’ve looked at online forums to get ideas for a trip you’re taking. Repealing Section 230 won’t just affect companies like Facebook and Twitter. It will also affect Amazon, TripAdvisor, AllTrails, and a lot of other sites you probably use. 

This week, on the podcast, I talk with Shoshana Weissman, a fellow at the R Street Institute, who works on Section 230. She shares her point of view on it as someone who also works in digital media. Like so many issues, there’s no easy answer to the question of what to do going forward, and our five links this week will give you arguments for and against changing this law.

5 links worth your time

1. What is Section 230? The Economist – On the 25th anniversary of Section 230, The Economist provides a quick explanation of its origins, the current controversy regarding this regulation, and what legislators are likely to do about the controversy. 
2. Do Our Leaders Believe in Free Speech and Online Freedom Anymore? The Bridge – Recent podcast guest Adam Thierer, a senior research fellow at the Mercatus Center, examines the law that both Donald Trump and Joe Biden want repealed. He cautions, however, that repealing Section 230 will lead to “many fewer jobs, less information distribution, and, frankly, less joy.” 
3. Jeffrey Toobin should be liable for his big reveal, not Zoom, Washington Examiner – Our current podcast guest, R Street Institute’s Shoshana Weissman, cites the online incident that resulted in the firing of author and CNN analyst Jeffrey Toobin in order to explain the importance of Section 230. Without Section 230 protection, Zoom could be sued for Toobin’s indiscretions, and that kind of legal exposure might cripple the videoconferencing tool we’ve all relied on to stay connected during the pandemic. 
4. Finally, an Interesting Proposal for Section 230 Reform, WIRED – On February 5th, a group of Democratic senators introduced the SAFE TECH Act for consideration in Congress. Here, Gilad Edelman, WIRED’s politics writer, looks at the ways in which the bill, though imperfect, may productively move forward debate on proposed Section 230 reform.
5. Social Media Platforms Or Publishers? Rethinking Section 230, The American Conservative – Adam Candeub, a law professor at Michigan State, argues that, because the internet has changed significantly since 1996, we need to revisit Section 230. Though this article was written in 2019, the criticisms raised by Candeub are still relevant because they are the same ones being put forth by critics of the law today.

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