The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Economics Professor Bruce Yandle developed the concept of "Bootleggers and Baptists." Often, different groups with different motivations favor the same regulation. For example, who favors prohibition laws? Baptists, because they are morally opposed to alcohol. And Bootleggers, who stand to profit from selling moonshine on the black market. Independently, each group may not be able to advocate for prohibition laws. But when the coalition works together, they can achieve results. Yandle writes, "[Baptists] take the moral high ground, while the bootleggers persuade the politicians quietly, behind closed doors."
We are seeing a strange "Bootlegger and Baptist"coalition with respect to Section 230. President Trump and other Republicans have called for the repeal of that seminal law. As have Joe Biden and other progressives. Indeed, advocates for revenge porn laws placed a target on Section 230's back many years ago. They seek to repeal Section 230 for very different reasons. The conservatives think Twitter is biased against conservatives, and is shadow-banning their tweets. And progressives think Twitter is shielding abusive content that affects marginalized groups.
The coalition to support Section 230, I fear, is dwindling. The ACLU is not what it used to be. And tech companies are not particularly sympathetic plaintiffs.
The next Congress may be able to muster bipartisan votes to kill Section 230. But I am skeptical they can adopt far-reaching privacy legislation. Once the preemption argument is gone, states will adopt their own European-style privacy laws. Tech companies would face a patchwork of fifty-one extremely imperfect solutions.
I'll let you decide which group is the Baptists, and which group is the Bootleggers.