25 years ago I was a party to the Reno v ACLU et al. We won it 9-0, a slam dunk. In this case, parts of the Telecommunications Act of 1996 were declared unconstitutional and rock-solid initial protection for the then emerging Internet was introduced. At least we thought.
Fortunately, an important part of the law has not been challenged. Section 230 protects telecommunications providers, with certain exceptions, from liability for content that their users produce. This wise move contributed to the creation of the modern internet and thus social media.
I understand that defending social media is not a popular position. Still, it's the right thing to do. Not because terrible and stupid language isn't terrible and stupid, but because it is rightly protected by the First Amendment. Terrible and stupid language is bad. The prohibition of horror and stupidity is worse.
Today the benefactors of both parties are seeking section 230. It's a handout to Big Tech (if you're a Liberal) or a handout to a Liberal (if you're a Conservative). Former President Donald Trump loudly called for Section 230 to be hollowed out in order to make the media landscape "fairer". President Joe Biden has called for its repeal because it promotes "misinformation" and poses a "threat to democracy". Both are deeply wrong.
Conservatives are fighting against attempts by gun control advocates to hold gun manufacturers liable for the use of guns. They argue that gun manufacturers are held accountable for acts of robbery and murder and ignore the moral agency of the person pulling the trigger. The consequences would also be unfair to law-abiding gun owners.
Then why should conservatives suddenly embrace the idea of blaming social media companies for how users use their product? Don't the same arguments apply?
Nor do the Liberals rightly believe that Section 230 is a generous gift to tech companies. It was written very clearly to promote economic growth and freedom of expression. The original authors (former Republicans Chris Cox and Ron Weyden, Republicans and Democrats respectively) said this many times.
In fact, Liberals who want to mess with Section 230 have it backwards. It's not a gift to big tech, but it will weaken. Are you surprised that Facebook founder Mark Zuckerberg has expressed his support for the Section 230 amendment? I'm not.
Facebook, Google and Amazon can throw a lot of money into navigation, whatever the regulatory jungle congress creates. Future Facebooks and Googles cannot. Big companies love regulation because it stifles competition. Economists call this "regulatory coverage".
We actually have some experience weakening Section 230. In 2018, Congress passed FOSTA: A Sex Trafficking Act. Online providers have been held liable for any content that contributed to it. Who could argue with that?
It turns out that sex workers. Sex trafficking and sex work are not the same thing. As a result of FOSTA, sex workers who were previously able to advertise independently were pushed back to their pimps when their platforms shut down. The dire consequences for these women have been carefully documented in Rolling Stone and the Fordham Law Review. Of course, sex workers aren't really human, so who cares, right?
There is a lot of stupidity in times like these. Conservative complaints about Big Tech "censoring" them are the result of their confused understanding of free speech. The fact that you can't be jailed for writing something doesn't mean someone else has to post it.
For this reason, Twitter and any other platform should have the right to prohibit anyone who violates its usage agreements. Conservatives who want to force companies to support their views are only asking for trouble. Section 230 also makes it easy to start your own platform. Ever heard of Parler?
Freedom of association is key here. There is nothing strange in protecting a user's right to create content while 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 bring about.
Leave section 230 alone; It's the best for the internet since dial-up modems. I should know I still have mine.
Barry Fagin is a Senior Fellow in Technology Policy at the Independence Institute in Denver and a winner of the ACLU National Civil Liberties Award. His views are his own. Readers can contact Fagin at email@example.com.
Barry Fagin is a Senior Fellow in Technology Policy at the Independence Institute in Denver and a winner of the ACLU National Civil Liberties Award. His views are his own. Readers can find Dr. Contact Fagin at firstname.lastname@example.org.