Among political conservatives, there is no hotter potato at the moment than the civil liability protections afforded by Section 230 to online operators. Unless Republicans learn to love it again and reject the censorship lawfare complex favored by Democrats, they risk dooming our tech leaders and everyone who uses their products to the sharks circling our legal system.
The twenty-six words tucked into the Communications Decency Act of 1996 shielded publishers from liability so they could host and moderate content and still allow a wide range of speech without fear of lawsuits. Since then, Section 230 has evolved to be one of the most powerful legal shields in the nation against civil litigation in U.S. courts. This gave the early digital economy the guardrails it needed to thrive by incentivizing creatives and disruptors to bring their big ideas to life.
Nothing ices a good idea like the fear of a lawsuit.
Yet, to be a rising star in the Republican Party today conveys some kind of fealty to the idea that Section 230 is antiquated – a relic of the early Internet that has outlasted its usefulness.
Last month, Sen. Josh Hawley (R-MO) called on his colleagues to “fully repeal Section 230” to cut the knees of AI companies and thwart their LLM training models. “Open the courtroom doors. Allow people to sue who have their rights taken from them, including suing companies and actors and individuals who use AI,” said Hawley.
He’s joined in these efforts by fellow Republican Sens. Lindsey Graham and Marsha Blackburn, not to mention Democratic Sens. Dick Durbin and Amyâ?¯Klobuchar.
According to the Section 230 Legislation Tracker maintained by Lawfare and the Center on Technology Policy at UNC-Chapel Hill, there have already been 41 separate bills aimed at curbing some aspects of the law by both Democrats and Republicans in the last two sessions.
The principal motivation for Democrats, including former presidential candidate Hillary Clinton, has always been to force censorship of social media platforms to stop “disinformation,” a pretext for muting opposing views. The coordination of Democratic officials pressuring platforms to censor, as revealed in the Twitter Files, proves this beyond dispute. --->READ MORE HERE
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| AP Photo/J. Scott Applewhite |
Section 230 of the Communications Decency Act, passed in 1996 as part of the Telecommunications Act, has become a political lightning rod in recent years. The law shields online platforms from liability for user-generated content while allowing moderation in good faith.
Lawmakers including Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., now seek to sunset Section 230 by 2027 in order to spur a renegotiation of its provisions. The senators are expected to hold a press event before April 11 about a bill to start a timer on reforming or replacing Section 230, according to reports. If no agreement is reached by the deadline Section 230 would cease to be law.
The debate over the law centers on balancing accountability for harmful content with the risks of censorship and stifled innovation. As a legal scholar, I see dramatic potential effects if Section 230 were to be repealed, with some platforms and websites blocking any potentially controversial content. Imagine Reddit with no critical comments or TikTok stripped of political satire.
The law that built the internet
Section 230, often described as “the 26 words that created the internet,” arose in response to a 1995 ruling penalizing platforms for moderating content. The key provision of the law, (c)(1), states that “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.” This immunizes platforms such as Facebook and Yelp from liability for content posted by users.
Importantly, Section 230 does not offer blanket immunity. It does not shield platforms from liability related to federal criminal law, intellectual property infringement, sex trafficking or where platforms codevelop unlawful content. At the same time, Section 230 allows platform companies to moderate content as they see fit, letting them block harmful or offensive content that is permitted by the First Amendment.
Some critics argue that the algorithms social media platforms use to feed content to users are a form of content creation and should be outside the scope of Section 230 immunity. In addition, Federal Communications Commission Chairman Brendan Carr has signaled a more aggressive stance toward Big Tech, advocating for a rollback of Section 230’s protections to address what he perceives as biased content moderation and censorship.
Censorship and the moderation dilemma
Opponents warn that repealing Section 230 could lead to increased censorship, a flood of litigation and a chilling effect on innovation and free expression.
Section 230 grants complete immunity to platforms for third-party activities regardless of whether the challenged speech is unlawful, according to a February 2024 report from the Congressional Research Service. In contrast, immunity via the First Amendment requires an inquiry into whether the challenged speech is constitutionally protected.
Without immunity, platforms could be treated as publishers and held liable for defamatory, harmful or illegal content their users post. Platforms could adopt a more cautious approach, removing legally questionable material to avoid litigation. They could also block potentially controversial content, which could leave less space for voices of marginalized people. --->READ MORE HERE
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