The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here's Wyden's post (emphasis added):
I wrote the law that allows sites to be unfettered free speech marketplaces. I wrote that same law, Section 230 of the Communications Decency Act, to provide vital protections to sites that didn't want to host the most unsavory forms of expression. The goal was to protect the unique ability of the internet to be the proverbial marketplace of ideas while ensuring that mainstream sites could reflect the ethics of society as a whole.
In general, this has been a success — with one glaring exception. I never expected that internet CEOs would fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography.
If you want to be the CEO of an internet titan where schools communicate with students, artists with their fans or elected officials with their constituents, you need to limit content like pornography — and they all do. But for some reason, these CEOs think it's entirely appropriate to allow these other forms of indecency to live on their platforms. Their ineptitude is threatening the very legal foundation of social media.
Social media cannot exist without the legal protections of Section 230. That protection is not constitutional, it's statutory. Failure by the companies to properly understand the premise of the law is the beginning of the end of the protections it provides. I say this because their failures are making it increasingly difficult for me to protect Section 230 in Congress. Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms. Even if government doesn't take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.
Were Twitter to lose the protections I wrote into law, within 24 hours its potential liabilities would be many multiples of its assets and its stock would be worthless. The same for Facebook and any other social media site. Boards of directors should have taken action long before now against CEOs who refuse to recognize this threat to their business.
It's telling that Reddit, of all the social media sites, has been on the forefront of striking a balance — telling because they're the only site owned by a traditional pre-internet corporation. This balance is not the one I would have chosen — and certainly there have been missteps and failures — but an average user of Reddit won't encounter the extremes of obscenity and indecency that it allows in darker corners of the site. And even they have defined certain speech as too indecent to be permitted on their platform.
There are real consequences to social media hosting radically indecent speech, and those consequences are looming. They are threatening to undo more than 20 years of internet law and jurisprudence that has protected speech and expression as never before. The forces of government regulation and control never sleep. Unfortunately, the internet CEOs have been asleep at the wheel.
One common argument in support of indecency regulations is that they merely restrict certain modes of expression, and leave people entirely free to express whatever ideas they like; as Justice Stevens put it, defending the indecency restriction in FCC v. Pacifica, "Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." One common response is that indecency bans do restrict ideas (as Justice Brennan argued in the Pacifica dissent) or can easily morph into restrictions on ideas, especially given the vagueness of the term "indecency." Senator Wyden's broad definition of "indecency"—which labels entire categories of ideas and arguments as "indecent," and of course contemplates not just privately chosen action, but action taken for fear of greater governmental regulation—seems to support that critique of indecency restrictions.