What Is Section 230 And Why Does It Matter?

Few bigger questions are pervading political circles right now than that about the role free speech should play on the Internet. Just as all roads long ago once led to Rome, the legal framework of this question leads back to Section 230 -- a twenty-six-word stipulation added to the Communications Decency Act of 1996 that underpins the basis of Internet free speech law [1]. 

Before detailing the legal framework of this statute and explaining why it is integral to answering today’s question of free speech on the internet, it is important to consider why this topic is relevant in our national conversation. 

After the election of Donald Trump in 2016, many Democrats embraced the narrative that Hillary Clinton’s unexpected loss was due to targeted fake news campaigns carried out against her on platforms like Twitter and Facebook. This accusation pervaded throughout the Trump Presidency, as exemplified by a 2018 Washington Post article entitled, “A new study suggests fake news might have won Donald Trump the 2016 election” [2]. Here, the author references an Ohio State University study attributing 4% of the disparity in vote-share between Clinton in 2016 and Barack Obama in 2012 to malign fake news. Moreover, many Democrats, including House Intelligence Chairman Adam Schiff, advocated for the regulation of content on social media platforms during the 2020 election [3]. Many Democrats now wish to reform or to abolish Section 230, since it is clear that any effort to materialize their campaign against Internet disinformation must target this legal provision.

For Republicans, their intent to nix Section 230 is just as fervent, but their rationale is drastically different. To understand the gripe of Republicans, one must consider why Section 230 came to be and how it works. 

The underpinnings of Section 230 concern questions about free speech on the Internet. According to the First Amendment to the U.S. Constitution, “Congress shall make no law...abridging the freedom of speech, or of the press,” which prohibits the government from censoring any type of speech in the public forum, and by extension, on the Internet [4]. However, publishers of information like newspapers are still subject to penalty by law if they promote content that is illegal (e.g., copyright infringements, sex solicitation, etc.). As the usage of social media websites, online forums, and the Internet in general expanded during the late 1990s, lawmakers carefully took steps to create legislation that offered liability protection to publishers of third-party content. Part 3 of Section 230 establishes, “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” [5]. To protect the Internet’s free flow of ideas and perspectives, lawmakers deemed it necessary to pass Section 230 to ensure that these interactive computer services (i.e. social media websites) could permit robust third-party content creation without the fear of being sued for illegally posted third-party content. In layman’s terms, Section 230 guarantees that social media websites like Instagram, Facebook, and Youtube cannot be sued for displaying false or illegal content. If this law were not in place, these websites would be forced to regulate more stringently their users’ content or to incur exorbitant legal costs from lawsuits over illegal content. 

According to many Republicans, and more particularly President Trump, today’s social media websites are abusing Section 230. While they benefit from Section 230’s legal protection, which allows them to keep their content unregulated, they still significantly censor content that violates their “community guidelines.” Buzzwords like “hate speech,” “disinformation,” and “conspiracy theories” are, according to many Republicans, used to justify a targeted effort to censor prominent conservative voices on social media. Mr. Trump, who has notably been banned from Twitter and Instagram, among other platforms, contends that if social media companies are to censor content in this manner, they violate the spirit of Section 230. Moreover, Mr. Trump argues that these companies should be held liable for what they publish, just as any publisher would be. 

Importantly, Section 230 does not stipulate that content creators cannot regulate their content. As private enterprises, these companies -- despite the free speech guarantee of the First Amendment -- are allowed to decide what they publish on their websites. The crux of the issue, however, is whether social media companies should be shielded from legal exposure if they can exercise such discretionary authority. If Section 230 were to be repealed, social media websites would likely further regulate their content, leaving people like the former President with even less room to disseminate their views.

The future of Section 230 and content regulation on the Internet is uncertain. Notably, U.S. Supreme Court Justice Clarence Thomas, following the Court’s October 12, 2020 decision in MalwareBytes Inc., v. Enigma Software Group (2020), expressed interest in hearing a case that would decide whether Section 230 of the Communications Decency Act “aligns with the current state of immunity enjoyed by Internet platforms” [6]. In addition, on September 23, 2020, the Trump Department of Justice sent draft legislation to Congress to reform Section 230 of the Communications Decency Act. The legislation reiterated President Trump’s directives in his  Executive Order on Preventing Online Censorship [7].

Following the January 6, 2021 U.S. Capitol riots, a broad coalition of Democrats once again took aim at Section 230. Most notably, Representative Alexandria Ocasio-Cortez, who sits on the House Oversight and Government Reform Committee (a panel with jurisdiction over federal regulations) tweeted hours after the attack, "We’re going to have to figure out how we rein in our media environment so you can’t just spew disinformation and misinformation," alluding to  President Trump's fallacious claims that he won the 2020 presidential election. "There’s absolutely a commission that’s being discussed,” she said [8].

It seems that across the political aisle there is broad consensus to reform or repeal Section 230. I would argue that the rationale behind both Democrats and Republicans’s proposals is rooted in feverish partisan motives. However, the law itself is sound. The Republican proposal that limits an interactive computer service’s ability to regulate its content at all seems unrealistic. Notwithstanding, I believe that there should be new federal legislation that expands on the definition of hate speech and disinformation provided for in the antiquated 18 U.S. Code § 1038 [9]. I disagree with Democrats who want to require interactive computer services to regulate their content because this undermines the very intended purpose of a third-party content provider: to provide a vast array of diverse information and perspectives. While the Internet has its faults, we must not lose sight of the vast benefits it has imparted to society due to its free exchange of information, ideas, and perspectives. Efforts to undermine this should be treated with the utmost caution.

References

[1] Sara L. Zeigler, “Communications Decency Act of 1996,” March 22, 2021.

[2] Aaron Blake, “Analysis | A New Study Suggests Fake News Might Have Won Donald Trump the 2016 Election,” Washington Post, March 22, 2021.

[3] JD Supra, “Legislators Propose Narrowing § 230’s Protections,” March 22, 2021.

[4] LII / Legal Information Institute, “First Amendment,” March 22, 2021.

[5] LII / Legal Information Institute, “47 U.S. Code § 230 - Protection for Private Blocking and Screening of Offensive Material,” March 22, 2021.

[6] JD Supra, “Justice Thomas Lays Blueprint for Supreme Court to Limit Section 230 In a Future Case,” March 22, 2021.

[7] “The Justice Department Unveils Proposed Section 230 Legislation,” September 23, 2020.

[8] James Rosen, “Rep. Ocasio-Cortez, Progressive Titan and Media Celebrity, Urges Regulation of Media,” KMPH, January 15, 2021.

[9] LII / Legal Information Institute, “18 U.S. Code § 1038 - False Information and Hoaxes.” Accessed March 23, 2021.