Magazine June 22, 2020, Issue

Why We Need Section 230

(Dado Ruvic/Reuters)
It places potential liability for social-media speech where it belongs: on the speaker

Section 230 of the Communications Decency Act of 1996 is arguably the best law Congress has passed in the last three decades. So it is only natural that both presidential candidates, all of America’s most outspoken senators, and partisan media outlets of all stripes are trying as hard as they can to destroy it.

Leading the charge in this folly are President Donald Trump, who was convinced to take up the issue after Twitter took the inadvisable step of appending fact-checks to his statements, and Senator Josh Hawley (R., Mo.), who seems actually to believe in the cause. If they get their way, Section 230 either will be repealed completely or will be watered down by the executive branch to the point at which it is no longer useful. Both of these eventualities would lead to a weakened Internet, an emboldened set of trial lawyers, and a strengthened federal government. In its recent “Executive Order on Preventing Online Censorship,” the White House claimed that, by taking aim at Section 230, it was striking a blow for “freedom of expression.” In practice, it was doing precisely the opposite.

Critics of Section 230 like to describe the provision as a “subsidy,” as a “favor,” or even as “corporate welfare.” Making his own case against the measure, Hawley has called it a “special carve-out from the federal government.” But it is no such thing. In fact, Section 230 is nothing more exciting than a legal routing mechanism, the sole purpose of which is to direct defamation suits to the correct place. Under Section 230, the owner of a given website remains fully on the hook for his own speech — and for any speech that he chooses to publish ahead of time — but he is shielded from the liabilities that attach to the third-party content that was neither seen nor approved ahead of time. In design and in intent, Section 230 is similar to the Protection of Lawful Commerce in Arms Act of 2005 — a bipartisan measure that prevents firearms manufacturers from being sued for the unapproved actions of third parties but that does not remove any of the standard liabilities that attach to the manufacturer per se. It is, at heart, a classification tool, contrived to ensure that liability attaches to the responsible party — a conservative sentiment if I ever heard one.

Alas, as time has gone by, this has become less and less clear in the public’s imagination — not least because the critics of Section 230 have invented a phantom version of the law that is wholly unmoored from the statutory text, and elected to debate that version instead of the one that actually exists. The result has been a chaotic mix of half truths, free-floating gripes, culture-war mainstays, and sloppy and inchoate thinking. Point me to a debate over Section 230, and I’ll show you a terrible hodgepodge of demagogic falsehood and misplaced indignation.

There are two core myths surrounding Section 230, which, when taken together, lead critics to conclude that it is being abused. The first of these myths is that Section 230 requires the entities to which it applies to be in some way politically neutral. This is false. As it is written, the law protects National Review and The New Republic in precisely the same way as it protects Twitter and Facebook — and, indeed, in the way that it has to protect them in order to comply with the content-neutrality obligations imposed by the First Amendment.

The second myth is that Section 230’s liability shield applies only when the entity it is protecting refrains from curating third-party content. This, too, is false. Per the plain terms of the law, Twitter may remove, curate, or even respond to third-party comments without losing its protection, without being reclassified as a “publisher,” and without transferring liability from the third party to itself. Naturally, the protected entity remains legally responsible for anything it says in the course of its engagement: If, for example, Twitter responds to or “fact-checks” another user’s defamatory tweet with a defamatory tweet of its own, it can be sued for its response. But whatever happens subsequently, the liability for the original libel remains firmly with its progenitor.

When presented with these facts, critics often try to muddy the water by insisting that there is no practical difference between speech that is not protected by Section 230 (for example: an opinion piece published in the New York Times) and speech that is protected by Section 230 (for example: an unsolicited opinion written by a third party in the New York Times’ comments section), and that social-media companies are therefore being accorded special treatment. But this, too, is misleading. Under the standard laid out by the Supreme Court in New York Times v. Sullivan, a publisher has to do a great deal more than merely “publish” defamatory material; it has to publish defamatory material knowing that the material is defamatory — with “actual malice,” to borrow the ruling’s key term. Such a standard can clearly not be applied to social-media companies, which do not so much as see what their users post until it has been posted. And if such a standard cannot be applied, then the notion that Section 230 selectively protects identical behavior must fall.

Factual inaccuracies notwithstanding, it is unclear what the Right’s endgame is here. Suppose that a majority in Congress agreed to repeal Section 230 and thereby to render Twitter, Facebook, and every other website that permits third-party comments liable for their users’ defamatory speech. What do conservatives imagine would happen next? All of a sudden, Twitter would be more, not less, nervous about speech that appeared inciteful or libelous. Moreover, it would now have a slam-dunk excuse for intervening in almost every conversation conducted on its site. Twitter declined to remove President Trump for his tweets accusing Joe Scarborough of murder on the basis that it did not want to set such a precedent. What do we imagine Twitter’s calculation would be if, by declining to take action, it were inviting an army of trial lawyers into its offices? Conservatives have correctly observed that Silicon Valley is dominated by progressives who share neither their values nor their assumptions. According to whose preferences do they think that litigation-skittish censorship decisions will be made if, thanks to the removal of Section 230, the social-media giants are liable for their users’ hyperbole? Even the most unprincipled political operator should be able to see that the populist Right’s drive to repeal Section 230 is suicidal. Thirty years ago conservatives had one mass-media outlet, talk radio, and the Left did its level best to reimpose a “fairness doctrine” that would have killed it stone dead. Is that the settlement to which they are hoping to return?

None of this is to say that social media are beyond reproach. Nor, indeed, is it to propose that social media are an unalloyed good — or even a good at all. As it happens, I am on board with the idea that consumers should be appalled by the transparent bias with which Silicon Valley’s self-appointed arbiters of taste tend to conduct their business. But a respect for limited government necessitates the drawing of distinctions between one’s own opinions and the text of our laws. It is no doubt the case that President Trump and those in his amen chorus wish that Congress had granted the executive branch the responsibility to weed out bias on the Internet. But it has not, and proceeding as if it had does violence to the textualist cause that, as Senator McConnell never tires of reminding us, is one of the driving justifications for this presidency.

Is Section 230 perfect? No. No law is. Does it cover every possibility that may arise in the future? No. No law does. But the distinctions drawn by 230 are not only still relevant, they are more relevant than ever. The extraordinary explosion in computing that we have seen over the past 30 years would have been downright impossible if those who provided the infrastructure were held hostage by each and every malevolent soul who wandered onto their system. That any president would seek to tip the scales in favor of the litigious and the censorious is a disgrace. That this president — Mr. Twitter himself — would do so pushes the affair into parody.

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