Following the passage of Section 230, online business activity exploded. For example, the U.S. Bureau of Economic Analysis shows that the economic value created by “internet publishing” and the broader “ICT-producing industries” each increased around nine-fold (in real, inflation-adjusted terms) following Section 230’s passage in 1996.
For perspective: today the “internet publishing” industry alone is more than three times larger ($293.4 billion in real value-added in 2019) than the entire U.S. “primary metals” manufacturing industry ($79.3 billion), and “Big Tech” employs far more workers too. Surely, not all of this growth is attributable to Section 230—technology (faster internet speeds, the rise of smartphones, etc.) undoubtedly played a big role—but experts uniformly agree that Section 230 helped. A lot.
What Doesn’t Section 230 Do?
Conservatives and liberals don’t like Section 230 for a host of reasons, but few (if any) of them are accurate. So here’s a list of things that Section 230—contra the critics—doesn’t actually do:
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Section 230 doesn’t subsidize Big Tech. First, Section 230’s liability protections in no way match any accepted definition of a subsidy (e.g., a government grant, tax break, low-interest loan, or free piece of land conditioned on a recipient’s identity or action), and the statute clearly doesn’t apply to only large tech companies. Second, and more importantly, this claim turns any sort of government protection into a “subsidy.” Is police protection a “subsidy” to small businesses? Are libel limitations “subsidies” to the media? What about anti-SLAPP laws (which protect individuals from frivolous lawsuits intended to silence them via the high cost of litigation)? If you’re a conservative and answering “yes” here, well, then you have bigger issues than Section 230.
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Section 230 doesn’t distinguish between “publishers” and “platforms.” The most common form of this popular claim is that a social media company’s use of the content moderation “sword” magically turns it into a “publisher” that cannot utilize the Section 230 liability “shield.” The biggest error? The statute says no such thing (read it yourself). As Feeney notes, “Section 230 merely states that an interactive computer service is not the publisher of most third party content and is free to moderate content.” That’s it. Furthermore, this claim ignores that traditional “publishers”—like, say, the New York Post—also enjoy Section 230 protections when they host and moderate third party content (e.g., comments) online.
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Section 230 doesn’t require websites to serve as a neutral “public forum.” This mistake is almost understandable for non-lawyers, as the “findings of Congress” in Section 230(a)(3) describe the internet and “interactive computer services” as “offer[ing] a forum for a true diversity of political discourse.” However, the mistake is unforgivable for actual lawyers like Senator Ted Cruz who know very well that such language is non-binding, and that the rest of the statute—including the actual definition of “interactive computer service” in Section 230(f)(2)—contains no such requirement. Furthermore, as TechDirt’s Mike Masnick and many others have noted, government requirements that private businesses remain politically “neutral” would be a blatant violation of their First Amendment rights.
Regardless, it’s also important to note that there’s not much evidence of systematic “censorship” of conservative views on social media. Sure, there are anecdotes or tweets from idiotic employees, but—as AEI’s Jim Pethokoukis’ recent review of the studies on this issue showed—the evidence of systematic bias is virtually non-existent. Both liberals and conservatives, moreover, clearly profit from and flourish (really) on social media—including by fighting with their online hosts. And, finally, liberals are just as mad about alleged social media bias against them. (Pro tip: when both sides are mad about “systemic bias,” chances are good that both are wrong.)
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Section 230 doesn’t extend “special immunity” to social media companies that is denied to other media outlets. This one comes (unfortunately) from Federal Communications Commission Chairman Ajit Pai himself, but that doesn’t improve its quality. First, as already noted, Section 230 protects all internet companies, not just social media. Thus, traditional media outlets have the same Section 230 protections as Twitter and Facebook when it comes to hosting third-party content on their websites. Second, the statute establishes that internet companies are—just like other “media outlets”—still liable for their own speech; they’re just not liable for the speech of unaffiliated people posting there. Finally, it’s precisely the unique nature of online business in general (e.g., the need/incentive to allow third-party content, combined with the speed, ease and quantity of such content) and the resulting “moderator’s dilemma”—issues not shared by any other type of media or business—that necessitated Section 230 in the first place. NBC isn’t hosting a live open mic night out in front of 30 Rock anytime soon, and, even if they did, it’s pretty darn easy for them to “moderate” that “content” (same goes for radio or dead-tree periodicals). By contrast, internet companies (including legacy media ones!) have different needs, incentives, content, and problems. Hence, Section 230.
What Curtailing or Repealing Section 230 Might Do
As noted above, politicians on the right and the left, including both Biden and Trump, want Section 230 changed. Senator Josh Hawley, for example, wants 230 protections to be provided only to websites that are certified as “politically unbiased” by four of five Federal Trade Commission members. Others simply want it repealed. Not all of the proposed reforms are as draconian as these, but they all carry similar risks, including:
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Putting the government more in charge of online speech. Whether it’s through the courts or through new administrative “certifications,” limiting or repealing Section 230 would inevitably result in more government regulation of speech, as subjective terms like “political neutrality” are applied or adjudicated by state actors. It’s frankly hard to see how this would be a win for conservatives in the long term.
It is very difficult at scale to review all the writings, pictures, videos, and links that millions or billions of users post. Stalkers, trolls, and other social maladaptives are incredibly wily and motivated, so a forgiving rule of liability for platforms seems best. If content is self-evidently wrongful or illegal—say, child porn that has already been algorithmically identified—legal responsibility for taking it down may lie with platforms. But if it takes interpretation or adjudication, responsibility for moderation could easily swamp a platform in potential liability.
Of course, the vast majority of internet speech isn’t “self-evidently wrongful or illegal,” and there’s an obvious risk of questionable lawsuits from questionable plaintiffs seeking cash from deep-pocketed tech companies.
A newly empowered plaintiffs bar for internet speech? What could go wrong?!
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Reducing speech overall. Of course, the aforementioned litigation risks would inevitably affect internet companies’ behavior. As a Brookings Institution report recently explained, “proposals that seek to force platforms to engage in more monitoring—especially analysis before content is publicly available—will push internet firms to favor removing challenged content over keeping it. That’s precisely the chilling effect that Section 230 was intended to avoid.” Instead of more monitoring, internet companies might just close down comment sections altogether—precisely what Reddit and Craigslist did to certain at-risk pages in response to the 2017 Stop Enabling Sex Trafficking Act (SESTA), which eliminated certain Section 230 protections.
Long delays in, or strict internal regulation of, website commentary would also discourage use (who wants to wait a day to post a Tweet?), thus further chilling online speech. Maybe, having seen some of the nonsense regularly posted on Twitter (not by me, of course), you think less speech might actually be a good thing (I don’t), but recall that such policies would also apply to Amazon or Yelp reviews, or your silly birthday wishes on Facebook, or legitimate news and protest activity—all strangled by risk-averse companies now liable for any content that might possibly attract litigation. New restrictions on internet speech would also hinder benign efforts to use social media data for scientific and commercial initiatives, such as improving economic forecasting. All of this makes us worse off on balance.
Additional procedures, such as appeals for complaints and requirements to track posts, will increase costs for platforms. Right now, most popular internet sites do not charge their users; instead, they earn revenues through advertising. If costs increase enough, some platforms would need to charge consumers an admissions fee. The ticket price might not be high, but it would affect people with less disposable income. … Even if Twitter earns enough money to keep its service free, the regulatory cost of these proposals could make it harder for start-up companies to compete with established internet companies.
Rising costs would only worsen the antitrust and competition concerns that the Department of Justice and state attorneys general are already investigating. And there is no guarantee that reforms would justify their expense. Spam e‑mail didn’t dry up when the United States adopted anti-spam legislation in 2003; it simply moved its base of operations abroad, where it is harder for American law enforcement to operate.
Small companies would also be hurt by increased litigation costs. A recent survey found, for example, that fully litigating a single lawsuit can cost a company anywhere from $130,000 to $730,000 (or more!) in lawyer fees. Google and Twitter have in-house legal teams and can absorb these costs; new companies certainly can’t.
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Empowering legacy media. As Reason’s Robby Soave explains, “[t]he demise of social media would limit the ability of people to express themselves on the internet, a venue where right-leaning speech has actually flourished: Facebook posts by Ben Shapiro, Fox News, Breitbart, and others are routinely the most-read content on the site. It is Trump’s great enemy, the mainstream media, which would benefit most directly from the collapse of these spaces for disseminating information.” Big win for the #FakeNews.
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Slowing economic growth and innovation. Beyond the aforementioned new regulatory costs for consumers and small businesses, there’s also solid evidence of just how much Section 230 has benefited the U.S. economy over the last two-plus decades. For consumers, a 2019 study from Stanford’s Erik Brynjolfsson and others found substantial consumer benefits for free apps like Instagram, Snapchat, Facebook and LinkedIn, and that including the hidden welfare gains of Facebook alone would increase U.S. Gross Domestic Product by tens of billions of dollars each year. A separate Brynjolfsson study found that consumers place enormous value on digital goods in general (calculated by asking people how much money it would take for them to give up the service for a year):
