Section 230 Is Way More Than Just a Social Media Liability Shield

from Public Knowledge

We are nearing the 30th anniversary of the Communications Decency Act of 1996, in which lies Section 230, the infamous internet liability shield opponents believe is the major roadblock to making platforms a safer, healthier space for free expression. Responding to incessant calls to hold social media platforms accountable for harm, a bipartisan, bicameral group of lawmakers have championed repealing or reforming Section 230. The most recent charge is driven largely by kids’ online safety debates, and is being led in the Senate by Senators Lindsay Graham (R-SC) and Dick Durbin (D-IL) with support from a bipartisan group of 8 other lawmakers. In the House, Representative Harriet Hageman (R-WY) introduced her own Section 230 sunset bill to tackle what she perceives as “liberal Silicon Valley bias” in platform content moderation. Most recently, Representative Jimmy Patronis (R-FL) introduced the Promoting Responsible Online Technology and Ensuring Consumer Trust (PROTECT) Act, legislation to repeal Section 230, coming from the angle of holding platforms accountable for harm to children. 

 

To counterbalance the deluge of anti-Section 230 rhetoric from our lawmakers and online safety advocates alike, we find it’s important to reiterate the positive impacts of Section 230 (and no, they are not just limited to the liability protections Big Tech platforms may enjoy.) You can read about the legal nitty-gritty of what Section 230 is and does from Public Knowledge’s legal director John Bergmayer. But as a brief refresher, Section 230 makes it so online platforms are not held liable for third party content they host, including illegal or defamatory speech. It also makes it so platforms enjoy protections for moderating user content. Section 230 does not remove users’ responsibility for their own content. If someone posts illegal content like child sexual abuse material, that user can still be held liable for producing and distributing such content. 

To understand how Section 230 protects users’ expression, it’s important to understand that platforms, like most businesses accountable to shareholders, will always act in their own financial self-interest. If through Section 230 repeal, platforms were made liable for the third party speech they host, they could become hyper-cautious about hosting anything controversial, especially content criticizing powerful people with expensive lawyers and expansive notions of what constitutes defamation. Or alternatively, platforms might abandon content moderation altogether and claim ignorance of any defamatory, false or otherwise problematic content on their sites. Under First Amendment precedent, a platform can only be held liable for falsehoods if they had intent or knowledge of wrongdoing, creating a perverse incentive to avoid learning what their users are posting. Large platforms like Meta know this, and in fact would benefit from a regulatory environment that allows Meta to both spend far less on content moderation, and otherwise weather the liability lawsuits over user content that smaller firms cannot afford. A win-win for Meta: less of an incentive to moderate content combined with fewer potential competitors that could chip away at the social media behemoth’s market dominance. 

In the end, it’s not Big Tech that suffers from a Section 230 repeal – it’s you. Here’s what Section 230 actually protects, and who would be impacted the most by its repeal.

Your Local News Website and Journalism Depends on It

While lawmakers rail against Big Tech, they rarely mention that their hometown newspapers rely on the same protections. Local news outlets across the country maintain online comment sections, community forums, and user-submitted content that would become legal minefields without Section 230. Regional papers and even independent journalists on Substack use reader engagement channels like these to build community and drive subscriptions. Without Section 230, these outlets would face a choice to either disable all user interaction, or hire legal teams they can’t afford to review every single comment before publication...

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