Twenty-five years ago, I was a party to the Supreme Court case of Reno v ACLU et al. We won it 9-0, a slam dunk. That case ruled parts of the Telecommunications Act of 1996 unconstitutional, and established rock-solid First Amendment protections for the then-emerging internet. Or so we thought.
Fortunately, an important part of the law wasn’t challenged. Section 230, with certain exceptions, shields telecommunications providers from liability for content their users produce. This wise measure helped create the modern internet, and with it, social media.
I understand defending social media is not a popular position. Nonetheless, it’s the right one. Not because awful and stupid speech isn’t awful and stupid, but because it is deservedly protected by the First Amendment. Awful and stupid speech is bad. Banning awfulness and stupidity is worse.
Today, do-gooders of both parties are going after Section 230. It’s a handout to Big Tech (if you’re a liberal) or it’s a handout to liberals (if you’re a conservative). Former President Donald Trump was very vocal in calling for gutting Section 230 to make the media landscape “fairer.” President Joe Biden has called for its repeal because it promotes “misinformation” and is a “threat to democracy”. Both are deeply and profoundly wrong.
Conservatives fight against attempts by gun control advocates to hold gun manufacturers liable for how guns are used. They argue holding gun makers liable for acts of robbery and murder ignores the moral agency of the human being who pulls the trigger. The consequences would also be unfair to law-abiding gun owners.
Why then would conservatives suddenly embrace the idea of holding social media companies liable for how users employ their product? Don’t the same arguments apply?
Nor are liberals correct in assuming Section 230 is some sort of generous gift to tech companies. It was written quite clearly to encourage economic growth and free speech. Its original authors (former Reps. Chris Cox and Ron Weyden, a Republican and Democrat respectively) have said this many times.
In fact, liberals who want to mess with Section 230 have it backwards. It is not a gift to Big Tech, but weakening it will be. Are you surprised that Facebook founder Mark Zuckerberg has expressed support for changing Section 230? I’m not.
Facebook, Google and Amazon can throw buckets of money at navigating whatever regulatory jungle Congress creates. Future Facebooks and Googles can’t. Big companies love regulation because it crushes competition. Economists call this “regulatory capture.”
We actually have some experience with weakening Section 230. In 2018, Congress passed FOSTA: A law aimed at curbing sex trafficking. It held online providers liable for content that contributed to it. Who could argue with that?
Sex workers, it turns out. Sex trafficking and sex work are not the same thing. As a result of FOSTA, sex workers who used to be able to advertise independently were forced back to their pimps when their platforms shut down. The terrible consequences for these women were carefully documented in Rolling Stone and the Fordham Law Review. Of course, sex workers aren’t really people, so who cares about them, right?
There’s plenty of stupidity to go around in times like this. Conservative complaints about Big Tech “censoring” them are the result of their confused understanding of what free speech is. The fact that you can’t be thrown in jail for writing something doesn’t mean somebody else must publish it.
That’s why Twitter and any other platform should have the right to ban anyone who violates their user agreements. Conservatives who want to force companies to support views they like are just asking for trouble down the road. Besides, Section 230 makes starting your own platform easy. Ever heard of Parler?
Freedom of association is the key here. There’s nothing strange in protecting users’ right to create content, while also protecting a platform’s right not to publish it. Sure, it’s not perfect. It’s just a better balancing act than anything Congress will ever come with.
Leave Section 230 alone; it’s the best thing for the internet since dial-up modems. I ought to know, I still have mine.
Barry Fagin is senior fellow in technology policy at the Independence Institute in Denver, and an ACLU National Civil Liberties Award winner. His views are his own. Readers can contact Fagin at firstname.lastname@example.org.