Section 230

In 1996, Congress amended the Communications Decency Act with a provision commonly known as Section 230. Today, the amendment is one of the most significant federal rules surrounding social media platforms.

Updated:
Jun 23, 2022
| Published:
Jun 23, 2022
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Section 230 of the Communications Decency Act states: “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.” Essentially this means that social media platforms cannot be held liable for content posted by users. This provision is important for social media companies because it is impossible for them to police all content posted to their sites. The debate surrounding Section 230 revolves around whether social media companies taking responsibility for policing content disqualifies them from Section 230 protections. 

History

Section 230 of the Communications Decency Act (1996)

The Cox-Wyden Amendment to the Communications Decency Act (CDA), now commonly referred to as Section 230, sought to address the issue of intermediary liability — a phrase used to determine to what extent third parties are legally responsible for the speech of others. Legal ambiguity and outdated telecommunications regulations blurred the lines between publishers and distributors of online content, forcing courts to answer cases based on obsolete legal precedent. Addressing that ambiguity was a critical goal of the amendment’s authors.

This amendment is the key provision governing the liability of online service providers in the United States and offers two primary legal protections. First, it protects these companies from being held liable for users’ harmful or illegal speech on their platforms. Second, it protects them from being held liable for the content they remove in “good faith” while attempting to prohibit harmful or illegal speech. However, Section 230 does not absolve these companies of liability when violating federal criminal law, copyright law, or sex trafficking law. In June 1997, following a suit by the ACLU and other organizations, the Supreme Court unanimously struck down the anti-indecency sections of the CDA but left Section 230 intact.

Section 230

“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.” These twenty-six words have defined the internet legal landscape for decades. As the Democratic Party continues to push social media companies to stop the spread of misinformation, the Republican Party sees those steps as tyrannical crackdowns on conservative content. Republicans argue that social media companies act as publishers of left-leaning news rather than hosts for everyone.

Some Republicans, as well as President Barack Obama, argue that social media sites operate as publishers. Essentially, this means that these organizations choose what users can or cannot upload to their platform. Many conservatives argue that social media ToS agreements unfairly target right-leaning content. For instance, Twitter’s ToS states you cannot directly attack gender identity. As a result, Twitter could censor a conservative that does not believe gender identity exists.

Proponents of Section 230 argue that social media sites are private businesses that can remove whatever content they please since the Constitution does not prevent private entities from restricting speech. Social media companies will argue that moderating content is necessary to filter out inappropriate content for children and advertisers. Without Section 230 protections, people could sue social media sites for failing to remove graphic or illegal content rather than the person who posted it. The existing liability shield allows social media companies to remove content that violates their policy, just as small business owners can remove guests for violation of a “no shirt, no shoes, no service” policy.

Both parties can agree that some reform is necessary: lawmakers wrote Section 230 before social media’s popularization. Some have suggested that officials should reform social media companies into public utilities. This change would shield the companies from legal disputes while allowing all content to exist on the platforms. However, it would legally instate the current social media landscape as the de facto system. Others have suggested letting the free market decide if social media companies that block content survive. In the same way that Facebook overtook Myspace, proponents of free markets suggest decentralized social networks like Gab, Minds, and BitChute can overtake established media sites. 

Discussion Questions

  1. Is the language of Section 230 outdated? 
  2. Should social media companies be able to remove posts from their platforms?
  3. Who should decide what content is harmful or hurtful and should be removed?

History

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Narratives

Left Narrative

Lawmakers need to reform Section 230 in some capacity, as the internet has drastically changed since Congress passed the law. Big tech companies have too much power and protection from the legal implications of allowing users to spread misinformation and harmful content on their platforms. Reforms need to include making sure these platforms are liable for the content their users share. With the rising influence of social media on public opinion, it is essential to hold these big tech companies accountable.

Right Narrative

Republicans are split on the issue of Section 230. President Trump has called for its repeal, while other prominent conservatives prefer reforms. Some conservatives believe free-market alternative apps are the future, while others look at the coordinated attack on the Twitter alternative Parler to indicate that future. Ultimately, social media platforms are silencing conservative thought, and lawmakers must change Section 230 to protect those voices.

Bipartisan Narrative

Republicans are split on the issue of Section 230. President Trump has called for its repeal, while other prominent conservatives prefer reforms. Some conservatives believe free-market alternative apps are the future, while others look at the coordinated attack on the Twitter alternative Parler to indicate that future. Ultimately, social media platforms are silencing conservative thought, and lawmakers must change Section 230 to protect those voices.

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