Section 230 of the Communications Decency Act is nearly 30 years old. It remains one of the greatest laws — perhaps the greatest law — passed by Congress in the last three decades. It also remains widely misunderstood, frequently demagogued, and in some cases passionately opposed. As has been the case at almost every point during the last five years, there is currently a bill pending before Congress that would repeal the provision in its entirety. Filed by Senator Lindsey Graham (R., S.C.) and Senator Dick Durbin (D., Ill.), this one would “sunset” Section 230 on January 1, 2027, if America’s online giants do not agree to more restrictions on their freedom of action. In Durbin’s words, the changes he and his coauthor seek would “protect kids online and finally make the tech industry legally accountable for the harms they cause, like every other industry in America.”
This is a bad idea. It would be a bad idea for the federal government to impose more restrictions on social media sites and hosting services. It would be a worse idea for the federal government to punish “the tech industry” for the actions of its users. And it would be a downright catastrophic idea to remove all the protections that have allowed Silicon Valley to grow — even if that rescission lasted for just a few months. Implicit in Durbin’s rhetoric is the insinuation that Section 230 is a special carve-out that is not available to other industries. But that is silly demagoguery. There are no other industries like the tech industry, where private speech is conveyed to the public by companies that are completely uninvolved in its composition. The content of magazines, books, newspapers, and pamphlets is reviewed and edited before promulgation. The content of X, Facebook, Instagram, and other platforms is not. To hold an institution responsible for the publication of false or illegal material that it has seen, considered, and amended is reasonable. To hold an institution responsible for the publication of information of which it had no prior knowledge is absurd. In concert with the First Amendment — which, contrary to public opinion, is the main reason that speech online is so free — Section 230 serves to outlaw that absurdity.
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