Repealing Section 230 Will Not Foster “More Free” Speech

Certain lawmakers in recent months assert that technology companies should not be allowed to censure content. Due to displeasure with restrictions on speech or content blocked (or qualified) on such platforms, lawmakers have called for a repeal of Section 230 of the Communications Decency Act.

It does not work like that. Passed in 1996, Section 230 of the Communications Decency Act provided an exemption for Internet companies to be free from liability. Meaning, no matter what another person or entity posts on the Internet platform, the platform itself should not be held at fault for any trouble caused by the poster. So, for example, a fraudulent statement by a seller about antique furniture on eBay could very well cause a buyer harm. But eBay would not be liable, if it qualifies as an entity that can invoke Section 230. In the late 1990’s, when the World Wide Web was the Wild Wild West, Congress felt that it was important to allow innovation on the Internet to flourish. As such, the liability exemption was intended to encourage new and then-fledgling technologies to develop, unshackled from fear of legal action based on the conduct of others whom they presumably could not control.

That was then. Now, as politicians, policymakers, and businesses look ahead, it’s important to understand how Section 230 would work. If the liability exemption therein were outright appealed, this would encourage Internet companies to become more vigilant at policing content on their sites. It would not facilitate more freewheeling flow of content; it would do the opposite, and potentially incentivize Internet platforms to restrict users from posting statements that would place the Internet company at risk of litigation or regulatory fines.

To be even-handed, certain other lawmakers in recent months assert that technology companies should do more to moderate harmful content. They, too, have called for a repeal of Section 230. But repealing Section 230 will not cause specific categories of speech to exit the Internet; instead, it would take away liability-shields from businesses and make it harder for new entrants to compete, given the skyrocketing costs of defending litigation (even meritless litigation).

Regardless of one’s ultimate opinion of the relationship between tech and politics, one thing is certain: before good policy reforms can be reached, it’s crucial to understand provisions of the law, i.e., what it is we’re reforming.

As opposed to an outright repeal of Section 230, the recently proposed Safe Tech Act takes a more incremental approach. It permits Internet platforms to keep the liability exemption, but creates carveouts for the exemption for certain types of litigation (e.g., injunctive relief, civil rights violations). We’ll be watching this space, including the March 25, 2021 hearing of tech companies before the Consumer Protection and Commerce Subcommittee, and report back on the key developments as they arise relating to Section 230.

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