The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Jeff Bewkes, "former chairman and CEO of Time Warner," and Jeffrey Sonnenfeld, "senior associate dean and professor of management practice at the Yale School of Management, where he is president of the Chief Executive Leadership Institute," writing in Fortune:
[M]ore closely regulating social media companies is a good idea…. The regulation of technology is considered by many on the left and on the right to be a taboo, a bureaucratic assault on entrepreneurship, and a neo-Luddite undermining of U.S. competitiveness. However, screening of Internet communications is common around the world. It is completely possible to require private accountability for hate speech and inciting violence without curtailing the First Amendment. No constitutional rights are limitless—and the repeal of Section 230 has nothing to do with freedom of speech….
Repealing Section 230 is not a threat to the First Amendment. As long as anyone is free to launch their own platform, they must also shoulder the obligation to keep it safe and respectful.
The bulk of the article is indeed about repealing or modifying § 230, and there are perfectly plausible arguments to be had around that. Should Internet platforms be potentially liable for defamatory material posted on them, the way newspapers are potentially liable for defamation in letters to the editor or in advertisements? Should they be liable just on a notice-and-takedown basis, much as bookstores and libraries are (i.e., they would be liable if they keep material up once they're on notice that it's allegedly defamatory)? Or should they be entirely immune, the way they are now, and the way telephone companies have long been? (See this post for more on these three options.) I think that on balance the current § 230 regime is the least bad of the alternatives, but there are reasonable arguments for at least a notice-and-takedown position (and reasonable counterarguments).
But that debate is about platform liability for speech that fits within a First Amendment exception, such as libel, or one of a few other categories (such as solicitation of crime, true threats of crime, and the like). There is no First Amendment exception for hate speech. The government can't make people legally "accountab[le] for hate speech"—whether by imposing liability on them for their own speech, or for third parties' speech—any more than it can make people legally accountable for "[dis]respectful" speech or unpatriotic speech or rude speech or blasphemous speech or the like.
And this is so, of course, regardless of § 230. Section 230 doesn't keep posters from being sued or prosecuted for their own speech; but the First Amendment protects them from being held "accountab[le]" for their own "hate speech." Likewise, with or without § 230, platforms can't be held accountable for their users' "hate speech" (whatever that means), either. If what's driving the calls to repeal or modify § 230 is a broader agenda to suppress people's expression of supposedly "hate[ful]" ideas, that is all the more reason to resist such calls.