Fine, Let’s Talk About Section 230

Everything you need to know about the much-maligned (and much-misunderstood) internet law.

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Dear Capitolians (I seriously need to retire this dumb gimmick),

I had planned this week to take a break from the wonkery and regale you with stories about nachos (no, seriously, I did), but the whole New York Post debacle has provided too good an opportunity to dig into one of the most misunderstood concepts on the internet (ironic, I know): Section 230 of the Communications Decency Act of 1996 and its relationship with internet companies like Twitter, Facebook and YouTube.

As you may have read here at The Dispatch (or elsewhere, I guess), a firestorm erupted last week when the New York Post published some rather, ahem, interesting and timely emails purportedly from Democratic nominee Joe Biden’s troubled son, Hunter Biden. Given the content of and events surrounding those emails, Twitter and Facebook decided to “moderate” that content—for example blocking the Post story (or websites linking to it) or posting warnings that users would have to click through to visit those same sites—in novel ways that hadn’t been applied to questionable content harming President Trump. Those actions, unsurprisingly, led to a total freakout on the right, including calls from prominent rabble-rousers and members of Congress that these companies have violated Section 230 and/or should (I kid you not) be “nationalized.” Now, the Federal Communications Commission is investigating whether to “clarify” (read: narrow) Section 230, and the Senate Judiciary Committee plans to make Twitter CEO Jack Dorsey testify later this week. The President, of course, has been his usual, calm self.

The whole thing was and remains a giant mess, and in my opinion the actions of Twitter/Facebook are stupid for myriad reasons (including by actually amplifying the allegations against them!). And I dare not even begin to opine on the veracity of the underlying claims. But I do think it’s good and necessary to spend a moment on a core element of the right’s current and longstanding claims about Section 230, and what would most likely happen if/when it’s repealed—something both the right and left now want.

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  1. Avatar photo
    PaulH

    While the article talks about both a sword and a shield, it is really on the shield that matters.

    The "sword" provides a safe harbor against being sued for taking down obscene content. Back in the 90's, that may have seemed re-assuring, but it is not clear that it is needed. For example, the sword does not provide any protection for taking down content based on the political views expressed in the content. But that doesn't matter. There is no cause of action against a website if it censors yours or others content based on politics.

    Also, I think the author misunderstands the concept of a "special immunity". Social media companies (and other web services) do have a special immunity. If I post something slanderous on a website, the site is not liable. On the other hand, if a newspaper published a letter to the editor from me that was slanderous, the newspaper might well have liability. Maybe that difference in treatment is appropriate, but there is no denying that websites have a special immunity that traditional (i.e. non web-based) content providers don't have.

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    Victor Clairmont

    So, when the math is added up for Facebook with the top 25 sites, there are more leftish publications than rightish at a margin of about 53% to 47%.

    When expanded to the top 50 it falls down to 37% for conservative interactions and outlets when including likes.

    So, everyone's been wrong about conservatives dominating Facebook. Maybe years ago, but currently, they do not.

    I did the math in another thread, but here's a easier summary from Jeremy Boreing (Daily Wire) that someone sent me (No, I don't care for Prager U much but the information is accurate)

    https://twitter.com/prageru/status/1319682118033666049

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  3. Mark Paskowitz

    I have been persuaded by people like you and David French, who I trust know more about the detail than I do, that Section 230 doesn't make a publisher/platform distinction in the way I thought it did. But maybe it should. It seems like a useful distinction to me. Would it mean less free-wheeling comment sections? Or the end of Twitter? Maybe those wouldn't be bad things. And the argument that Trump, Breitbart, and their ilk shouldn't object to the current situation given how much they've benefited from it may well be good, but it's hardly a reason for me to accept it.

    I'm not calling for a repeal of Section 230. I know that I don't know enough and haven't thought it through enough to have any idea what the right answer is. But you haven't done much here to convince me it's actually good as is.

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    Earl King

    We've rarely had giant corporations go after one of the original freedoms that were so clearly enumerate in the 1st Amendment. That is the difference of the insidious game social media platforms are playing. ...I also believe that to reflexively dismiss the concerns or the danger in limiting free speech is inane.
    Let these principals slip away and you can imaging the downfall of our current Republic.

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

    My advice would be to treat them like public utilities....from a legal perspective on more sure ground.

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      Matmos

      I too find the power of these platforms deeply disturbing. But these first amendment rights are about the government, not about private corporations. The question is whether we want the platforms for speech to be public or private. If they are privately run, the first amendment does not apply. Public utilities are a special case because they are monopolies. Twitter, Facebook, Tiktok, Reddit, etc are not monopolies.

      I am no fan of the way tech companies negotiate issues around content moderation. But I also sympathize with the dilemmas they are caught up in. If you don’t moderate at all your site will immediately be full of obscene content. If you decide to moderate, you need to draw the line between obscene and not obscene. This leads very quickly into politically valenced decisions. Eg are death and rape threats obscene? Those are fairly common in political discourse unfortunately.If you combine this with the fact that, as David French points out in his latest book, the windows of acceptable discourse on the left and rigth have diverged to the point of being non overlapping, it’s really not clear how you can even in principle moderate in a way that will not anger and alienate people.

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    2. cb76

      Are you going to have the federal government take over the funding and management of Twitter and Facebook as well? Because once you put the screws to these corporations there's not much to stop them from just taking their ball and going home. We all got along just fine before social media, so acting as though it is now crucial to the proper functioning of our society is ludicrous. You have a right to free speech. You don't have a right to post your dumb opinions on someone else's website. Somewhere along the line we conflated those two things.

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  5. Avatar photo
    Show Jay Janney the 🚪!

    Section 230 is not a blanket immunity, but one based on specific concerns. "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable", Moderating content beyond that is not covered by the Section 230. The question is if it is a blanket exemption or not.

    FWIW and IMHO, the question comes down to defining "otherwise objectionable". that is the part the FCC will examine. I think either refining that phrase or striking it clarifies the section 230 more clearly.

    Being legally liable might encourage greater transparency....

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    1. Jvspringrose

      As to "otherwise objectionable", see Andrew McCarthy's analysis @ https://www.nationalreview.com/2020/10/washington-can-put-a-stop-to-twitters-game-playing-on-censorship/

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      1. Avatar photocircle-angle-nib
        Scott Lincicome vertical-nib Author

        Recommend the thread here (from the guy who literally wrote the book on 230): https://twitter.com/scottlincicome/status/1319069397579911168

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    2. Avatar photo
      Angie

      Private companies have a right to make their own rules...as conservatives use this re" the bakeshop case etc...not sure why you object when someone you think is left is doing what they think is right
      They have a right of free speech too..they also have a right to censor speech they don't like..they are not the government and shouldn't be, and the government certainly shouldn't be policing the free speech of private companies....you don't like it when they do it to individuals, so it seems somewhat contrary to want different rules for companies
      All media sites have rules and regulations, if you want to use them, you follow their rules, just like any business..if you don't...there are other places to go to express what you want..free market and all that
      It puzzles me why the champions of free speech want to control others free speech...

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      1. Jvspringrose

        The question is not the control of others free speech, it is the freedom from liability that otherwise free speech might entail that some find objectionable. See Andrew McCarthy 2 https://www.nationalreview.com/2020/10/washington-can-put-a-stop-to-twitters-game-playing-on-censorship/ for more in-depth discussion.

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    3. Avatar photocircle-angle-nib
      Scott Lincicome vertical-nib Author

      Read Section 230(c)(1) again.

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  6. Mary Stine

    Well, Sheriff Lincicome, welcome to Dodge! It's obviously still the Wild West on the internet and Section 230 is the first (and imperfect) county courthouse complete with some contradictory laws. Thanks for explaining this to those of us who only got to 2nd grade in tech. As the letters here indicate, many folks are still hoppin' mad. Those folks can be seen as follows:
    1.) angry persons who just want something to shoot, dammit 2.) farmers who don't want rancher's cattle disturbing their sheep. 3.) ranchers who don't want any sheep disturbing their cattle 4.) shop owners who just want to sell merchandise without being gouged by a new license or some unfair regulation, like only hitching your horse on one side of the street 5.) preachers who are trying to keep people in church and away from bad influences, but are shocked! that gambling and drinking are going on! 6.) gamblers, drinkers and others who would just like to be entertained without having to knock on ten doors, say a password 10 times and then be thrown out for no reason!
    So, good luck Sheriff! You are going to need that and all the patience and charm of Andy Griffith. Now, if we could just find Barney Fife.....

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      Bill B

      And some of us just want a decent town to live in not infested with criminals, grifters, snake-oil salesmen, carny barkers and madmen.

      It took all of five seconds for most of us who graduated 2nd grade in tech to recognize what kind of tech the Internet was going to turn out to be when it was aborn - the perfect platform for pornography and selling stuff. Turns out it was also good for dismantling an entire society. Democratization? Ha!

      Before some folks decided the Fairness Doctine was a restriction of free speech TV and radio were much calmer and saner places where we all went to get our daily dose of info. Sure we didn't get the alt-right or Antifa on any channels but then 95% of us didn't want them. Now we're all just stuck in information silos and madhouseses barking mad at each other. Some forms of "freedom" burn down your house so won't be imprisoned within four walls. What an improvement.

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        Dan

        Hey now, don't you denigrate pornography by putting it in the same sentence with a reference to capitalism! One's an amoral system of exploitation of the masses by the few, and the other is people gettin' naked and doing things to each other on camera.

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    Jhc

    IKR?! 🤯

    Thanks for a detailed defense of the law that protects the emergent systems that everyone loves to hate. I'll be passing this column along.

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  8. Mirabeau

    Section 230 protects internet service providers from defamation suits. Other businesses and individuals do not get that protection. Whether this protection fits any "accepted definition" of a subsidy is beside the point. Internet service providers benefit greatly from this protection and use it to further their notions of good policy. Their notions of good policy differ from mine. The policies they favor are policies that harm me. You do not explain why it is wrong for me to favor doing away with the statutory protection that allows them to harm me.

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      Jhc

      I disagree with "other businesses ... do not get that protection." (No argument that individuals don't get that protection, btw.)

      I will bet dollars to donuts that any telephone "common carrier" (AT&T, Verizon, T-Mobile, and so on) -- whether land-line or cellular service -- is also protected against defamation suits based on what a subscriber does.

      That's independent of whether a subscriber made a voice call to defame someone vocally, sent a fax to defame someone in a document, or used a cell phone to post a defamatory comment to a web business.

      In a somewhat related example, AT&T isn't held criminally liable for a customer who faxes a bomb threat to a business or government office.

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      JohnF

      Here's the text Scott's referring to:
      ------------------
      (c)Protection for “Good Samaritan” blocking and screening of offensive material
      (1)Treatment of publisher or speaker 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.
      (2)Civil liability: No provider or user of an interactive computer service shall be held liable on account of—
      (A)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; or
      (B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]
      --------------------
      This does not "protect internet service providers from defamation suits." Websites and Social Media sites are still fully responsible for the contents of materials THEY publish.
      What it does do is to protect these sites from being libel for content that OTHERS publish (the actual publisher of that content is still legally liable if that content is illegal or libelous).
      The Second part says that sites that do make well-intentioned efforts to keep illegal or defamatory contents posted by third-parties off of their sites can't be sued if they happen to miss one or two items.
      That's the core of it. It has nothing to do with trying to regulate what "legal" content websites can or cannot publish (or allow to be published by others). If I want to run "John's Woke Website" and delete all Conservative posts, I can do that - with or without Section 230. However, without Section 230 I'm likely to be more inclined just to disallow third-party content altogether.

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    3. Avatar photocircle-angle-nib
      Scott Lincicome vertical-nib Author

      Read Section 230(c)(1) again.

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    4. cb76

      Have you considered that if you do away with those protections, you will loose the ability to post here, on Twitter, or anywhere else? If the owners of apps and websites are liable for every nutty thing their users post, what is their incentive to allow them to post anything at all?

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        Bill B

        That would be wonderful.

        We could all go back to libraries, bars, dinner parties and social clubs, slow down the news cycle, actually do serious research on issues and events and talk to real people face-to-face. And maybe, just maybe prevent a second Civil War.

        Small price to pay if you ask me.

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        1. cb76

          I don't necessarily disagree, but you can bet some of the loudest and most active posters, tweeters, etc. that are calling for repeal of section 230 haven't seriously considered that outcome.

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    DougAz

    I like your opinion on this Scott

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    Ray Salemi

    Without 230 I wonder who would be responsible for vetting this post: The Dispatch or Substack.

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    1. Avatar photo
      Pstahley

      We'd actually probably have to wait for the first lawsuit, inevitable appeals, circuit splits, etc and in 50 years we can have a settled jurisprudence.

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      Show Jay Janney the 🚪!

      I'd argue The Dispatch....they are using the Substack software to run the site. But that is just my personal opinion....

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