Section 230 has come under considerable scrutiny over the last few weeks due to run-ins between Trump and Twitter. Last week the Justice Department proposed that Section 230 be scaled back.
This is all tied to Twitter flagging Trump’s tweets warning people of inciting language. Trump, obviously, was not happy about this and issued an executive order about it. That issue is currently being litigated, but conversations about Section 230 continue.
Before we discuss the ramifications of ‘scaling back’ Section 230, it probably benefits most of us to understand what Section 230 is and what it is designed to protect.
47 USC § 230
Section 230 was passed into law in 1996. The key portion of it reads:
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. 47 USC § 230(c)(1).
It essentially means that websites are not liable for things posted on their sites. It acts as a complete shield against lawsuits based on libel or slander. You can still sue the person who posted the offensive post or tweet but not the service or platform.
Section 230 came about during the Dot-Com Bubble, which existed between 1995 and 2000 and saw the rise (and later fall) of many internet-based companies. It was designed to protect the small start-ups who could not afford to defend themselves in court.
Who does Section 230 protect?
Section 230 does exactly what it was meant to do. It protects internet start-ups from being sued into the ground because of things its users post online.
But it also protects billion-dollar businesses like Twitter and Facebook.
Theoretically, these huge social media companies are not liable for anything posted on their sites, which means that they don’t have to police their users. These companies choose to monitor their users, which can lead to taking down content or banning people, but they are not really required to do anything.
The argument is that Section 230 also protects our freedom of speech because without it these companies would need to police their content with a heavy hand, which would mean that some acceptable content will be lumped into the unacceptable content and be banned unnecessarily.
At least that’s the argument.
Every time Section 230 comes under scrutiny, the social media companies respond that if we remove their protections, they will have to ban everyone or, at least, blindly remove content that is completely acceptable. Then First Amendment activists jump up and down, claiming that by removing Section 230, we all lose valuable speech.
They’re right, of course, if the threat from the social media companies is real.
But what about Twitter flagging Trump’s tweets as inciting language? Isn’t that commentary on what someone is posting? Are they allowed to do that? To be honest, I am not an expert in First Amendment law, but it appears that they can under the current rules.
What happens if Section 230 goes away?
The truth is that no one is talking about getting rid of Section 230. Both parties have discussed how the section needs to be reworked now that it is 25 years old. There is no indication that the protections will be completely removed.
But what if they were? Would Twitter and Facebook do what they said they would do? They certainly could roll out some very heavy-handed policing tactics and start flagging all sorts of reasonable posts. But my guess is that they won’t.
These companies already pour through every post made. That’s the point of what they do. They collect data so that they can sell ads. None of this should be a surprise. Are we really suggesting that they have no way of going through every post and policing for offensive language (or whatever language will get them sued)?
Facebook is currently worth approximately $681.56 billion (per macrotrends). They can certainly spend the money to create a system to manage their responsibilities with or without Section 230. In fact, I have no doubt that they have already considered what happens if Section 230 is abandoned and have a back-up plan for the situation.
I don’t think we’ll see the destruction of Section 230. The section has made the US a haven for tech companies who wish to avoid this specific form of litigation. To torch it would be turning our backs on some of the biggest companies we have.
But I think it behooves us to consider that the companies we are protecting are worth billions of dollars and are the most capable of dealing with shifting rules related to policing their users.
I think threats from these social media giants about restricting free speech is just an effort to mobilize us to defend them, and I think those threats are toothless. These companies make money because we post on their sites. Restricting our posts will impact their bottom line. Even if that is their game plan, the next social media company to tackle the modified Section 230 by accurately policing their users will be the ones to take over the market. These companies are incentivized to make this system (with or without 230) work.