Over the past few years, an obscure piece of federal communications law has become one of the most hotly contested issues among the left and the right alike. The debate was further amplified when Facebook and Twitter suspended Donald Trump’s Twitter account following the Jan. 6 riot at the U.S. Capitol.
Section 230 of the Communications Decency Act was created by the Federal Communications Commission in 1996 and says that “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.” In other words, Internet-based companies can’t be held liable for content created by their users.
Section 230 was developed long before social media during a time when there were far fewer voices online and the Internet was still seen as the next great democratizing force in society.
“What I was struck by then is that if somebody owned a website or a blog, they could be held personally liable for something posted on their site,” Sen. Ron Wyden, one of the provision’s authors explained to Vox. “And I said then — and it’s the heart of my concern now — if that’s the case, it will kill the little guy, the startup, the inventor, the person who is essential for a competitive marketplace. It will kill them in the crib.”
Since then, social media has transformed online communications by allowing users to upload their own content from YouTube videos to Yelp reviews. However, the hands-off approach to liability has allowed for the proliferation of misinformation and disinformation, along with political attacks and a host of other bad-faith content creators.
Liberal proponents for reform argue that if Section 230 is repealed or revised to remove the liability protection, social media platforms will take a firmer stance about removing harmful content and discouraging advertising and algorithmic decisions that drive misinformation and polarization.
Conservatives argue that the law as it currently stands gives the platforms latitude to unfairly remove content from right-wing accounts and it should be repealed to ensure equal treatment among all types of content. Donald Trump issued an executive order in May 2020 outlining why his administration felt Section 230 allowed social media platforms and others to unfairly target conservatives they disagree with politically.
On the other side, free speech advocates say that changing Section 230 would have a chilling effect on speech and even violate the First Amendment by restricting what people can and can’t say online.
“Proposals that seek to force platforms to engage in more monitoring—especially analysis before content is publicly available—will push internet firms to favor removing challenged content over keeping it,” Derek Bambauer, a University of Arizona law professor, wrote in a Brookings Institute op-ed. “That’s precisely the chilling effect that Section 230 was intended to avoid.”
Advocates against Section 230 reform also argue that changing the law would require social media platforms to review every piece of content before it’s published to make sure it didn’t contain anything they could be sued over. This dramatic shift in practices would put many smaller platforms out of business and eliminate the real-time communication that’s become a hallmark of the modern era.
Sen. Ron Wyden, one of Section 230’s original authors, expanded on this point in a December 2020 USA Today op-ed.
“It would force every website hosting user content to create round-the-clock legal and editorial review teams staffed with hundreds or thousands of people to continually monitor every message, video, photo, and blog,” Wyden wrote. “Alternatively, websites would face exorbitant legal damages at every turn. That is not realistic.”
With Democrats now controlling the Presidency, House, and Senate, it’s possible Section 230 could be revised or repealed under a Biden administration, but experts say it will not be an immediate priority for his administration.
“Their focus will be on nominations, COVID response and vaccinations,” said June DeHart, an attorney specializing in policymaking proceedings at Manatt law firm, told Business Insider.
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