Politicians Want to Destroy Section 230, the Internet's First Amendment

Reason's Elizabeth Nolan Brown reviews four myths about Section 230, the law that protects free speech online, put out by politicians and media personalities.

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Television personalities and politicians, from Tucker Carlson to Nancy Pelosi, are calling for changes to the law that has protected the internet since the '90s. But they don't seem to have a clue about what it actually says, or whom it really protects.

Section 230 is a portion of the 1996 Communications Decency Act. It has made the internet as we know it possible by establishing that tech companies are not responsible for what their users post on their apps, websites, and devices. Section 230 allows for the free exchange of ideas on the internet—and it may be just as important to online free speech as the First Amendment.

Section 230's most important sentence reads as follows:

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.

Critics have come up with creative ways of distorting what the law says. Here are four myths to watch out for:

Myth 1: Tech Companies Must Be Neutral

"Neutrality" is not a condition of the law. Section 230 was designed in part so that internet companies could discriminate by filtering out content that's illegal, indecent, or otherwise objectionable. Before Section 230, online companies feared that any moderation would make them legally liable for user content. Section 230 explicitly says that's not the case—"good faith" and "voluntary" attempts to filter out unwanted posts and users are OK.

Without Section 230, it would be hard for companies to avoid lawsuits and criminal charges without either becoming cesspools of totally unmoderated speech or banning user-generated speech entirely.

Myth 2: Section 230 Makes a Distinction Between Platform and Publisher

There is no legal distinction in Section 230 between a "publisher" and a "platform." The word "platform" doesn't even appear. What matters for legal purposes is who is responsible for creating particular web content.

Judgment calls about user speech—however poorly executed, and whatever ideological biases are apparent—just don't affect whether a company is broadly protected by Section 230 or not.

Myth 3: Section 230 Shields Big Tech From Legal Liability

People like to pretend 230 created a legal "loophole," but the congress that passed Section 230 back in 1996 was explicit: Section 230 would not apply when it comes to federal criminal laws or intellectual property law. That means copyright violators and serious criminals do not get a free pass because of Section 230.

What the law does provide is limited protection from criminal charges brought by state or local law authorities and some immunity from getting sued in civil court.

This immunity is lost if a company:

Creates illegal content itself or edits content in a way that contributes to its illegality

Participates in illegal acts to obtain content

Engages in or profits directly from some illicit action

Section 230 is meant to leave room for holding online operators accountable for their own sins but not for those of their customers.

Myth 4: Section 230 Is Only for Large Tech Companies

Section 230 doesn't only benefit companies. As attorney Jeff Kosseff, author of The 26 Words That Created the Internet, puts it: "There also are significant free speech benefits to the public."

Section 230 shields not just the providers of digital services from litigation but the users of these services, too. Without it, anyone could find themselves liable for retweeting, reblogging, or posting links to content that is later found to break the law.

Yet for all the protections it provides to readers, writers, academics, shitposters, entrepreneurs, activists, and amateur political pundits of every persuasion, Section 230 has somehow become a political pariah.

The political class wants everyone to believe that the way the U.S. has policed the internet for the past quarter-century has actually been lax, immoral, and dangerous.

Don't believe them. The future of free speech—and a lot more—may depend on preserving Section 230.

Written by Elizabeth Nolan Brown. Edited by Paul Detrick.

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