Why ‘Section 230’ Is at the Heart of Fights Over Online Speech

In 1996, when the internet was still unexplored territory for most Americans, the U.S. Congress passed a law that included a provision intended to protect free speech online. Twenty-five years later, that provision, Section 230, is seen as crucial to the business models of some of the world’s most valuable companies, including Facebook Inc. and Alphabet Inc.’s Google. It’s also being described as a key factor in the ever-deepening swamp of harassment, toxic behavior and misinformation on social media. President Donald Trump failed in his attempts to eliminate or narrow Section 230. Now it’s an issue for his successor, Joe Biden.

1. What does Section 230 do?

A small but powerful part of the Communications Decency Act, it was originally marketed by its bipartisan sponsors as a “Good Samaritan” law for the internet. Its two key provisions: (a) shield internet companies from liability for most of the material their users post and (b) give the companies legal immunity concerning “any action voluntarily taken in good faith” to remove materials from their platforms.

Why ‘Section 230’ Is at the Heart of Fights Over Online Speech

2. Are there exceptions?

Yes. Federal criminal liability and intellectual property claims are specifically exempted from Section 230’s protections. In 2018, federal lawmakers also exempted cases involving online sex trafficking.

3. Why does Section 230 matter?

It gives tech companies broad leeway to moderate (or not) discussions and postings within their communities, and to leave them up or take them down. The year before its passage, the freewheeling investment firm Stratton Oakmont -- the inspiration for the movie “The Wolf of Wall Street” -- had won a libel lawsuit against the online service provider Prodigy over an anonymous user’s post accusing the firm of committing fraud. Section 230 provided Prodigy (and its progeny) broad legal cover to continue hosting freewheeling discussions. Its key line reads, “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.” Supporters of Section 230 credit it with securing today’s vibrant culture of free expression online.

4. Why is it controversial now?

When Section 230 was passed, the leading internet companies were fledgling operations seen as being in need of protection. Now they’re the overlords of the U.S. economy as well as social and political discourse. That shift in power means Section 230 cases frequently result in the spectacle of a tech giant squashing the complaints of users and smaller websites. Critics argue that over time, thanks to its myriad court rulings in favor of big internet companies, Section 230’s protections have grown overly broad. As president, Trump tried (and tried and tried) to narrow the protections, or even get Congress to repeal Section 230, part of his campaign to fight what he perceived as unequal treatment toward conservatives by the companies.

5. What do detractors dislike about Section 230?

Republican critics blame the statute for enabling tech companies to be overly zealous in removing certain material, which they say has resulted in unfair bias against conservative viewpoints. A high profile example was the banning of Trump from Twitter, Facebook, Instagram and YouTube from the final weeks of his presidency. Liberal critics accuse tech companies of using Section 230’s immunity to ignore the collateral damage of their users’ bad behavior, such as racist or sexist messages in addition to disinformation and provocation spread by Trump on Twitter during most of his time in office.

6. What will happen under Biden?

As a candidate, Biden called for repealing Section 230, singling out Facebook as an example of a company that should be responsible for defamatory content on its platform. His choice for Commerce secretary, Gina Raimondo, didn’t go nearly that far at her Senate confirmation hearing. She said she agrees with the need to revise Section 230 and would work with Congress to that end, but added that any reform “would have to be balanced against the fact that these businesses rely upon user-generated content for their innovation.” Reform ideas in Congress include empowering the Federal Trade Commission to enforce the rules set down by the platforms and making them responsible for the use of algorithms that determine which content gets widely shared.

The Reference Shelf

  • A QuickTake explainer on conservative complaints about free speech being curtailed on social media.
  • A law professor tries to gauge what the immediate aftermath of a Section 230 repeal would look like.
  • Twitter, Trump’s favorite social media megaphone, permanently banned him on Jan. 8.
  • Civil-rights groups urged Biden to save Section 230, which they called “a foundational law for free expression and human rights.”
  • Bloomberg Opinion columnist Joe Nocera endorsed the repeal of Section 230, saying it will make social media companies “quickly change their algorithms to block anything remotely problematic.”

©2021 Bloomberg L.P.

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