October 27, 2020 at 5:00 am ET
It’s no secret that politicians from both sides of the aisle have set their sights on Section 230 as the mechanism for “fixing” any number of things they don’t like about online platforms. Democratic presidential candidate Joe Biden said it should be “revoked, immediately.” President Donald Trump raises his concerns with the law in nearly every conversation he has with senators. Before this year ends, there will be at least half a dozen hearings and twice that number of bills introduced to amend this frequently misunderstood law.
But crucially, the criticisms aimed at the law from the right and left are inherently contradictory, and it is therefore impossible to imagine them leading to productive outcomes. The left claims that Section 230 allows bad actors to misuse online services for illicit purposes unchecked, while the rallying cry of the right is that Section 230 enables private actors to “censor” content with impunity. This bipartisan, but incompatible, set of grievances led the Senate Commerce Committee to bring the CEOs of major tech companies to testify about concerns surrounding Section 230 this week.
Regardless of whether you consider either party’s critiques compelling, they most certainly can’t both be true simultaneously — and amending or “revoking” Section 230 in a misguided effort to both increase and decrease content moderation will have dire consequences. Establishing a legal mandate that platforms must make perfect decisions about what to keep up and take down by imposing immense legal penalties for making a single mistake is bad policy. It also fails to acknowledge that everyone has a different opinion about what “perfect” moderation looks like.
Let’s consider Democratic concerns with Section 230 first. While Democrats claim Section 230 removes any incentive for online platforms to moderate, platforms of all sizes rely on the protection of the law when they remove millions, if not billions, of pieces of harmful, dangerous and illegal content every day. That moderation occurs because of, not in spite of, Section 230. As academics, experts and civil society groups have noted, reverting to the world before Section 230 – where content moderation turned online platforms into the “speaker” of the content posted by others – will lead to less moderation, not more.
Conversely, Republicans decry some of these same moderation efforts by online platforms as “censorship” that unfairly limits free expression online. By their account, Section 230 is a “blanket immunity” for online services to censor whomever they want, whenever they want. But, the First Amendment guarantees freedom of speech — not freedom of reach.
Putting aside the fact that the internet has been the greatest boon to the dissemination of all kinds of speech, including conservative speech, this line of thinking flies into a brick wall of First Amendment precedent. Online platforms are private services, and thanks to the First Amendment, no one has a legal right to use them. Just as a restaurant can impose a “no shirt, no shoes, no service” rule on patrons, online platforms can set community guidelines and then enforce them.
In reality, radically changing Section 230 looks quite different than what lawmakers on both sides of the aisle might be envisioning. When Internet Association examined more than 500 Section 230 decisions, we found the handful of cases involving Section 230 that make the headlines don’t accurately represent the wide variety of entities and individuals that regularly rely on the law’s protections.
Far from protecting just the social media platforms whose content moderation decisions are likely to be litigated ad nauseum during this week’s hearing, our research confirms that Section 230 has often been used to protect the legal rights of newspapers, universities, libraries, employers, bloggers and more. Those are the entities that would be hardest hit by changes to Section 230.
Take for example Allnurses.com, a small networking forum that provides career support and news for nurses. When a company sued the site for defamation because nurses had used the forum to share negative feedback about that company’s services, Section 230 saved the forum’s owners from liability for content they had no part in creating.
Whether they realize it or not, lawmakers are dragging the internet in two contradictory, and equally damaging, directions — and policymaking fueled by contradiction will only harm the public and the diverse array of individuals and entities that depend on Section 230. Until policymakers can agree on what they want online services to look like, and are confident that proposed amendments to the law will achieve desirable outcomes — rather than create a different set of problems — the current debate will remain unproductive.
Jon Berroya is interim president and CEO of Internet Association, a trade organization representing over 40 of the world’s leading internet companies whose mission is to foster innovation, promote economic growth and empower people through the free and open internet.
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