The Bipartisan Push To Gut Section 230 Will Suppress Online Speech

That's a high price to pay because some politicians are angry about a little Facebook moderation.

Keep in mind two immutable—albeit cynical—rules whenever you mull over some proposed government action. First, the public always is most vulnerable whenever there's bipartisan agreement because there's little organized resistance to the proposal. Second, the likely result will be nearly the opposite of whatever it is the government promises.

Those two points are of particular importance as Republicans and Democrats move forward with plans to "fix" a key regulation that governs the internet. I could offer a couple of other rules, too: Be wary when the government targets something that affects your everyday life, and be extra, extra wary when emotion is motivating our lawmakers. But you get the idea.

Plans to gut Section 230, which passed as a part of the 1996 Communications Decency Act, are abominations that should raise the hackles of free-speech-loving Americans. That section in federal law includes the following: "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."

It means that if Joe Blow posts a defamatory comment on a social-media forum, only Mr. Blow is liable for it—rather than Facebook, Twitter, or whatever company is hosting the forum. Those sites are not traditional publishers. They are platforms that allow you, dear reader, to post whatever uplifting or nonsensical thing that pops into your head.

Section 230 is not only reasonable from a legal-liability standpoint but has allowed the internet to foster the kind of boisterous debates that we enjoy. Unfortunately, conservatives and liberals are upset at the state of discourse on those platforms.

President Trump and his supporters believe that liberally biased tech comments are "censoring" their speech by moderating their posts. "Section 230, which is a liability shielding gift from the U.S. to 'Big Tech' (the only companies in America that have it—corporate welfare!), is a serious threat to our National Security & Election Integrity," the president recently tweeted.

His newly confirmed appointment to the FCC, Nate Simington, likewise wants to limit those liability protections. Democrats don't like Section 230, either, although their beef is that internet companies don't do an aggressive enough job moderating social-media speech. The incoming Biden administration almost certainly has 230 in its crosshairs.

Last week, Reps. Tulsi Gabbard (D–Hawaii) and Paul Gosar (R-Ariz.) introduced the not-so-subtly titled "Break Up Big Tech Act." The authors say it will "take away legal immunity from interactive computer service providers that engage in certain manipulative activities, including social media companies who act as publishers by moderating and censoring content." It might not go anywhere, but it captures the bipartisan mood.

Section 230 was a grand achievement because it allows the marketplace of ideas to flourish—and enables individuals to choose the sites that conform to their preferences. "User empowerment recognizes that some platforms may moderate more than others and users will decide which to gravitate toward. This framing ultimately favors the free market over government regulation," argued Jeff Kosseff in a Lawfare blog last year.

Despite the emotional arguments of social-media's critics, moderation is not publishing. Section 230 fixes what is known as the "moderator's dilemma." I recall when newspapers first started publishing online and we had to figure out how to handle the often-inflammatory comments that readers would post at the end of articles.

To avoid liability, the publisher could not edit comments—but could determine which comments were out of line and remove them. One might not agree with the publisher's standards for moderation, but, as Kosseff noted, Section 230 allows the proliferation of sites, ranging from tightly moderated family-friendly ones to laissez-faire sites that give voice to weirdos.

Without such protections, social-media platforms would have a stark choice. They could take responsibility for everyone's posts. They would therefore place stricter limits on what we write—and we'd see a likely return to posting delays as the sites review comments. It would undermine the informal nature of these discussions.

Or they could allow anyone to post whatever they choose, which would mean that forums—especially the more freewheeling ones that conservatives increasingly seem to prefer—would be swamped with garbage, targeted attacks, incitements to violence, and the like. Anyone with an email spam folder should know what to expect.

Instead of hobbling the big tech firms that Trump and others despise, it would make them more powerful. They could afford armies of people to review posts, whereas smaller sites would go out of business or become unusable cesspools. It would open the door to endless litigation—to the detriment of everyone except for trial lawyers.

Think it through before you embrace proposals to revise Section 230, even if they are bipartisan efforts. Instead of boosting speech, they will bridle the way you communicate. That's a high price to pay because some politicians are angry about a little Facebook moderation.

This column was first published in The Orange County Register.