First Amendment

Expect More Conservative Purges on Social Media If Republicans Target Section 230

Killing Section 230 would only lead web platforms to ban even more speech.


Gary Waters IKON Images/Newscom

Bipartisan lust to destroy the internet is growing, with calls from both Republicans and Democrats to carve out exceptions to or just destroy the law that lets most of the U.S. internet today exist as it does: Section 230 of the decades-old Communications Decency Act. Republicans have recently been rallying around Section 230's demise under the apparent delusion that it would protect conservative voices from marginalization and banishment on social media.

Some of this seems to be based on significant misunderstanding of what Section 230 is and does. Other conservatives clearly just find it good fodder for persistent persecution yarns. On the latter front, senator-elect Josh Hawley provides a perfect example.

As the current attorney general of Missouri, and one of the cadre of attorneys general obsessed with taking down Backpage—an unconstitutional passion project of state prosecutors' that centered on the meaning and application of Section 230—Hawley certainly should know how the statute works. Basically, that's by declaring that "no provider or user of an interactive computer service" should be treated as the speaker of content created by others when it comes to assessing certain legal liabilities.

Yet, as lawyer and The Verge Editor-in-Chief Nilay Patel pointed out this morning, here's Hawley acting like Twitter is being accorded some special status under Section 230 that's conditioned on the social platform taking no sides:

Nothing in Section 230 requires that an entity maintain "a true diversity of political discourse," whatever that means. This is not like the old equal-time rule for broadcast networks. You can be a web publication with an explicitly ideological slant, a social platform with idiosyncratic policies on permitted speech, or a private messageboard for anarchist Amish redheads to discuss the Cubs and Section 230 doesn't care. All that matters, for the most part, is whether a digital platform or service created whatever content is in question.

(Obligatory explainer: The standards are different for content suspected of enabling intellectual property violations, prostitution, or child sexual exploitation, and Section 230 won't shield anyone from liability for federal crimes.)

The law explicitly states that a service's efforts to filter out illegal or undesirable content do not open it to liability. "Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected," reads 230(c)(2).

"The only reason Section 230 exists is to give platforms the ability to moderate free of liability," writes Patel.

The law was implemented in response to Stratton Oakmont v. Prodigy, a 1995 case where the investment firm now immortalized in the film The Wolf of Wall Street sued Prodigy over message board posts it claimed were defamatory. The court found that since Prodigy moderated its message boards, it exerted the same editorial control as a publisher, and was thus liable for what was published.

Holding Prodigy liable for every post on its message boards was, of course, insane, and Congress responded by including 230(c)(2) in the Communications Decency Act […]

Patel concludes that "it's baffling" why "Republicans like Hawley and [Ted] Cruz seem intent on getting both the legislative intent and plain text of 230 exactly backwards." But not really—Hawley has long railed against Section 230 in his attempts to get a piece of Backpage's profits for Missouri. For others, weakening or demolishing Section 230 could let them more easily censor publications they don't like, or make point about gun control, or regulate "hate speech," or any number of things. That's why there's such bipartisan fervor by politicians to undermine it.

Weakening Section 230 works as an all-purpose salve toward authoritarian ends.

Assertions from Republicans that Section 230 stands in the way of them getting more fair online treatment are especially ridiculous. Weakening 230 would require platforms and providers to crack down more tightly on all manners of speech to avoid liability. If conservatives think they're unfairly targeted for Twitter suspensions and Facebook jail now, just wait until these sites are facing 50 angry state attorneys general and millions in civil fines if they make a wrong call. Erring on the side of more speech doesn't stand a chance.