Today, Facebook’s CEO, Mark Zuckerberg, will say this before the House Energy and Commerce Committee:
We believe Congress should consider making platforms’ intermediary liability protection for certain types of unlawful content conditional on companies’ ability to meet best practices to combat the spread of this content. Instead of being granted immunity, platforms should be required to demonstrate that they have systems in place for identifying unlawful content and removing it. Platforms should not be held liable if a particular piece of content evades its detection—that would be impractical for platforms with billions of posts per day—but they should be required to have adequate systems in place to address unlawful content.
Conservatives who oppose Section 230 should understand what this means in practice: It means that Facebook is co-opting their misguided and often demagogic opposition to the provision in order to make itself more powerful at the expense of smaller players.
Section 230’s purpose is both simple and necessary. It exists to ensure that the right person is held liable for defamatory or criminal speech — that is, that individuals who engage in speech that is not covered by the protections outlined in New York Times v. Sullivan and Brandenburg v. Ohio are held personally liable for their decisions. In so doing, Section 230 protects organizations as diverse as as hosting companies, user-driven websites, and even National Review, which, without its shield, would be on the hook for third-party discourse that they neither knew about nor approved. Without Section 230, much of the infrastructure that undergirds the modern web would be impossible. Why? Because fewer people would ever bother to take the risk.
Zuckerberg’s proposals would help to kill Section 230 — but only for Facebook’s rivals. It is easy for Facebook to “demonstrate that they have systems in place for identifying unlawful content and removing it” because they already do. It is much less easy, by contrast, for smaller outfits to do so. In part, this is a matter of cost; it’s expensive to superintend third-party speech. But it is also because the standards involved are, by definition, somewhat vague. Zuckerberg knows full well that, even if his company were to fail spectacularly under the new system, no review board will ever conclude that Facebook lacks an “adequate system.” Facebook is simply too big and well-connected for that to happen. But Parler? Certainly.
Zuckerburg will also say:
Over the past quarter-century, Section 230 has created the conditions for the Internet to thrive, for platforms to empower billions of people to express themselves online, and for the United States to become a global leader in innovation. The principles of Section 230 are as relevant today as they were in 1996, but the Internet has changed dramatically.
This is grotesque. What Zuckerberg really means here is that, having benefited for years from the broad protections accorded by Section 230, he now wishes to change them in such a way as to disadvantage his rivals. This isn’t “reform.” It’s strangulation.