§ 230 and the SAFE TECH Act

My testimony today before a House Subcommittee on Communications & Technology hearing on proposed revisions to § 230.

You can see the PDF of my testimony (and the other witnesses' testimony as well), but I thought I'd also blog the text; I commented separately on five different proposals, so I thought I'd break this down accordingly. As I noted, my plan was mostly to offer an evenhanded analysis of these proposals, focusing (in the interests of brevity) on possible nonobvious effects. I also included my personal views on some of the proposals, but I will try to keep them separate from the objective analysis.

[III.] SAFE TECH Act

This bill contains several different provisions; let me focus on some of the less obvious ones.

[A.] Stripping Immunity from Paid Hosting Services (e.g., WordPress), Platforms That Share Ad Revenue with Creators (e.g., YouTube), and Platforms That Subsidize New Content

The bill would deny immunity to providers that have "accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech" (sec. 2(1)(A)(iii)).

This would threaten liability for any service that charges to provide hosting—for instance, blogging platforms such as WordPress or hosting services such as Amazon Web Services. After all, they "accept[] payment to make the speech available," which is unsurprising since they're in business to make money. Advertising-supported free services (which generally make money by selling access to their users, and their users' data) would still be immune, so the market would be strongly pushed in that direction.

This section would also threaten liability on any service that shares its advertising revenue with creators, for instance as YouTube does. After all, by letting providers of popular videos monetize those videos, YouTube would be "in part[] . . . fund[ing] the creation of the speech." (The providers will likely have created the videos in expectation of making money from them on YouTube, and the money they make would help fund future videos.) Creators would thus be less likely to earn money from their works, unless they're earning so much as to make it worth the platform's while to run the risk of liability in exchange for a share of the proceeds.

And the section would threaten liability whenever any providers provide grants to support local journalism or other such projects (something like the Google News Initiative[4]), since there the providers will have again "in part[] . . . funded the creation of the speech." Providers would thus become less likely to directly or indirectly support journalism and other expression.

[B.] Turning Immunity Into an Affirmative Defense: Likely a Largely Ineffective Modification

The bill specifies (sec. 2(1)(A)(iv)) that a provider that seeks immunity from liability would assert the immunity as an "affirmative defense," and thus "shall have the burden of persuasion, by a preponderance of the evidence," that it "is a provider or user of an interactive computer service and is being treated as the publisher or speaker of speech provided by another information content provider." But this change is unlikely to do much.

The burden of proof (or of persuasion) is important in factual disputes. If there's a close call on the evidence, who has the burden of proof might matter. But the placement of the burden  generally doesn't much affect legal questions, such as how a statute is to be interpreted or how a legal claim is characterized.

Whether a defendant is a provider or user of an interactive computer service can be a factual question, but one on which the facts will rarely be close. Twitter is clearly a provider of an interactive computer service, wherever you place the burden of persuasion.

And whether a defendant "is being treated as the publisher or speaker of speech provided by another information content provider" by the plaintiff's Complaint is a legal question, which the burden of persuasion is unlikely to affect. Thus, for instance, the seminal decision in Zeran v. America Online, Inc. concluded, as a matter of law, that plaintiff's "complaint treats AOL as a publisher" and that plaintiff's lawsuit is therefore preempted. 129 F.3d 327, 333 (4th Cir. 1997). On the other hand, Fair Housing Council of San Fernando Valley v. Roommates.com concluded, as a matter of law, that § 230 didn't apply, because plaintiff's claim was that a roommate advertising website's practices made it "become much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information." 521 F.3d 1157, 1166 (9th Cir. 2008). In neither case did the burden of persuasion matter.

Nor would making clear that § 230 immunity is an affirmative defense preclude early motions to dismiss. Indeed, courts have already recognized that § 230 immunity is an affirmative defense, yet allowed such motions. "Preemption under the Communications Decency Act is an affirmative defense, but it can still support a motion to dismiss if the statute's barrier to suit is evident from the face of the complaint." Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014); see also Ricci v. Teamsters Union Loc. 456, 781 F.3d 25, 28 (2d Cir. 2015); Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019). Nor would the statement about burden of persuasion displace the principle that "Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process," Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009), usually the motion to dismiss.

[C.] Enabling State Civil Rights Laws That Ban Political Discrimination

The bill would modify § 230 to provide that "Nothing in this section shall be construed to limit, impair, or prevent any action alleging discrimination on the basis of any protected class, or conduct that has the effect or consequence of discriminating on the basis of any protected class, under any Federal or State law." Some state legislatures are now discussing making political ideology a "protected class" under state public accommodations laws, and applying those laws to social media platforms.

D.C. law, for instance, already treats political party membership as a protected class, alongside race, sex, religion, and the like.[5] The Montana Constitution more broadly provides that (among other things) no "firm, corporation, or institution shall discriminate against any person in the exercise of his civil . . . rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."[6] Some local ordinances in cities such as Seattle, Madison, Lansing, Champaign-Urbana, and Ft. Lauderdale likewise ban discrimination in public accommodations based on political ideology (and not just party membership);[7] state legislatures may easily adopt similar laws as well.

As noted above, whether such bans on political discrimination by social media platforms are constitutional under the First Amendment, and whether they are a good idea, are difficult questions.[8] But the bill would make clear that § 230 doesn't preclude such bans.

[4] https://newsinitiative.withgoogle.com/info/innovation-challenges/.

[5] D.C. Code §§ 2-1401.02(25), -1402.31(a).

[6] Mont. Const. art. II, § 4.

[7] See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, 15 NYU J. L. & Lib. 709 (forthcoming 2021), http://www.law.ucla.edu/volokh/pubaccom.pdf.

[8] See Eugene Volokh, Treating Social Media Platforms as Common Carriers?, 1 J. Free Speech L. 377 (2011), http://www.law.ucla.edu/volokh/pubaccom.pdf.