Section 230 of the Communications Decency Act, known to its fans as “the 26 words that created the internet,” shields social media and other digital platforms from legal liability for user-generated content. Although that protection has enabled myriad forms of online expression, it has become a bête noire for critics on the left and right who are unhappy with the results.
People who oppose government regulation of online speech hoped Donald Trump’s departure from the White House would take a repeal of Section 230 off the table. While President Joe Biden has said he favors repealing the law and Vice President Kamala Harris has opposed it since her days as California’s attorney general, Section 230’s most zealous critics were Trump and Sen. Josh Hawley (R–Mo.). Now that both men are standing atop much smaller soapboxes, it seemed possible that Congress would turn its attention elsewhere.
No such luck. Between January and mid-March, seven bills targeting Section 230 were introduced in the House or Senate, sponsored by a mix of Republicans and Democrats.
The most ridiculous of these proposals is the Protecting Constitutional Rights From Online Platform Censorship Act, sponsored by Rep. Scott DesJarlais (R–Tenn.). His bill would make it unlawful for web services to remove or restrict access to any content protected by the First Amendment. Facebook would have to permit hardcore pornography. YouTube would have to permit videos of beheadings. Web forums for dog lovers would have to permit long odes to cats, or abortion, or rutabagas. Understandably, the bill has gone nowhere since DesJarlais introduced it on January 4.
The Curbing Abuse and Saving Expression in Technology (CASE-IT) Act, sponsored by Rep. Gregory Steube (R–Fla.), errs in the opposite direction. Under this proposal, web services would lose Section 230 protection for allowing or facilitating any content deemed to be “indecent, obscene, or otherwise harmful to minors” unless the platform could somehow guarantee that no minor could ever access it.
At the same time, Steube’s bill would rescind Section 230’s liability protection for “dominant” platforms that restrict content “pursuant to policies or practices that are not reasonably consistent with the First Amendment.” It is not at all clear what that means, since the First Amendment constrains the government, not private businesses. But the bill says the provision should be “broadly construed” to foster “true diversity of discourse” without “discrimination based on viewpoint.”
These two demands would simultaneously require content-based restrictions and forbid viewpoint-based restrictions. They would effectively make it impossible for major platforms to retain Section 230 protection.
The Limiting Section 230 Immunity to Good Samaritans Act, sponsored by Rep. Ted Budd (R–N.C.), would strip major platforms of liability protection if they fail to make moderation decisions in “good faith.” The Abandoning Online Censorship Act, introduced by Rep. Louie Gohmert (R–Texas), would simply eliminate Section 230.
In the Senate, Democrats have introduced their own totally unworkable proposals. Sen. Joe Manchin (D–W. Va.) is sponsoring the See Something, Say Something Online Act of 2021, which preserves Section 230 liability protection for social media companies only if they surveil their users and report “suspicious” activity to a new Justice Department agency.
The Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms (SAFE TECH) Act, backed by Sens. Mark Warner (D–Va.), Mazie Hirono (D–Hawaii), Tim Kaine (D–Va.), and Amy Klobuchar (D–Minn.), would revoke Section 230 protection for any platform that fails to block “material that is likely to cause irreparable harm”—a phrase the legislation does not define. The bill also would allow liability when the platform has “created or funded the creation of the speech,” whether “in whole or in part.” Section 230 already does not shield speech created by the platform that carries it. By extending that exception, the SAFE TECH Act could essentially do away with Section 230 entirely, since providing the technical tools and infrastructure for users to post speech could be interpreted as funding its creation.
Finally, a bipartisan Senate bill known as the Platform Accountability and Consumer Transparency (PACT) Act would make it easier for both U.S. regulators and state attorneys general to sue online platforms for violating federal civil laws.
Trump erroneously believed that Section 230 gave social media platforms a license to suspend the accounts of MAGA Republicans or slap warning labels on their posts. In fact, such discretion is protected by the First Amendment, which allows social media companies to decide what content they want to host and on what terms.
Hirono is equally wrong to blame Section 230 for “civil rights and human rights violations, stalking and harassment, and wrongful death.” All of those things remain illegal, and individuals responsible for them can still be held accountable under civil and criminal law.
Trump may be gone, but the desire to bend the internet toward partisan goals is alive and well.