from the not-how-it-works-guys dept
A few years back, at a Santa Clara University event about Section 230 of the Communications Decency Act, I remember (then) 9th Circuit chief judge Alex Kozinski noting with some amount of pleasure that he was relieved to hear from one of the two authors of Section 230 of the Communications Decency Act (former Rep. Chris Cox, who was in attendance at the event) that his opinions on 230 were exactly what Cox intended. Paraphrasing (just slightly) Kozinski’s comments, he noted that having the author of the bill that he needed to interpret comment on that interpretation was the equivalent of having God come down from Heaven to tell biblical scholars whether or not they had gotten things right.
And, as so many people seem to want to debate Section 230, often with blatantly incorrect explanations of what the law is intended to do, it’s important to remember that the two co-authors of 230 are both still around and happy to talk about it. A few years ago, Cox filed an amicus brief explaining the intent behind 230 (tragically, in that case, the court decided to mostly ignore Cox’s point).
And, of course, Ron Wyden is now a Senator (at the time of 230 he was in the House) and he’s now written quite the op-ed for CNN about how wrong the President and many of the President’s fans are about the point of Section 230. A key point is that contrary to what many claim, 230 itself creates incentives for free speech in removing much of the liability sites might otherwise have for hosting contested speech.
Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.
I think we would be vastly worse off in either scenario. Just look at Black Lives Matter and the protests against police violence over the past week as an example. The cellphone video that captured the officer kneeling on George Floyd’s neck spread across social media platforms — and it’s the reason Americans learned about his unjust killing in the first place. So many of these cases of unconscionable use of force against black Americans have come to light as a result of videos posted to social media.
In a world without 230, I cannot imagine that Facebook or Twitter would allow posts about police violence that could possibly be defamatory. These horrible injustices would never get the public attention they deserve. And accountability would be even less likely.
And then, of course, there’s the flipside. This weird belief by many, including the President, that sites shouldn’t be able to moderate content in a way that they dislike. But that would do damage to internet speech as well, though in a different way:
Now what it seems Trump would like is the other scenario — for platforms to be “neutral.” Let’s not kid ourselves. Trump’s attempt to abolish Section 230 is essentially a way of bullying social media companies so that he may post what he wants without any challenge.
And so without 230, I think that a lot of sites would choose not to moderate at all, and thus avoid responsibility for anything their users post. It goes without saying that there would be a lot more false, dangerous content out there, from revenge porn to posts supporting white supremacy. The internet would become the cesspool that anti-230 activists claim it is today.
But the key point that Wyden makes is at the end of the post: President Trump doesn’t need Section 230. If websites block him, he has no shortage of ways to get his message out there. Indeed, the press seems to fall over itself to over cover his every nonsensical statement. The real problem is how it would silence so many other people.
If Twitter banned Trump tomorrow, he wouldn’t have any trouble spreading his message to every corner of the world.
But without 230, the people without power — people leading movements like #MeToo and Black Lives Matter — would find it far harder to challenge the big corporations and powerful institutions. Without 230, I believe that not a single #MeToo post would have been allowed on moderated sites.
As Wyden notes, a world without 230 is one in which the speech police rule, and controversial statements, especially from those outside the halls of power, get suppressed and stymied.
For the President and his supporters to insist that we need to get rid of Section 230 to encourage more speech is exactly wrong. And thankfully we have people who truly know the point of the law to explain it to him. The question is whether or not anyone will listen.