Hi Everyone,

Lately I've seen a lot of posts of people saying Trump should repeal Section 230. I believe this is a TERRIBLE idea, and will actually be a huge gift to the left, while also killing any possible chance of a competitor to Twitter and Facebook ever emerging.

What is Section 230?

Section 230 is a law that basically says two things:

1. No internet service provider who acts as a platform will be treated as the speaker of any information posted by its users AND
2. These platforms may moderate content to remove obscene, illegal and objectionable content from their platforms and not be held liable for these moderation efforts.

Section 230 came about partly because of two lawsuits. There were two internet forums and two cases where someone on those forums slandered another person.

The first forum did not have any sort of moderation and allowed all content. The second forum did have moderation where certain objectionable content was removed. The first forum was found to be not liable because they did not moderate their content, whereas the second forum, because they had moderation of objectionable content (eg: swears, sexually explicit or illegal content) was liable because the courts found that this moderation made them responsible for the content.

Congress saw this and realized that there needed to be a way to allow some moderation on platforms without the platform being liable, because otherwise these platforms would just allow all content, even the worst content imaginable, because that was the only way they could escape liability. Thus, section 230 was born.

Publisher vs Platform

Section 230 gives immunity to platforms, which means that the service acts as a public forum, as opposed to a publisher, which is like a newspaper, where there is editorial control over the content.

Platforms can exercise limited moderation to remove certain types of content, including the vaguely termed objectionable content. This is where Section 230 starts to have issues.

Objectionable was never clearly defined in the law, so platforms use this as an excuse to remove content they don't agree with. Rather than repealing Section 230, what needs to be done is to clearly define what is meant by objectionable content and what is not considered objectionable. For instance, the law could be clarified to require providers like Twitter and Facebook to list in their Terms of Service specifically what objectionable content is, and it could also allow users to sue platforms if they believe that their content was removed and does not clearly fall under the umbrella of objectionable.

Why Section 230 is very important to new social media companies

Suppose you had two users on a social media site, Donald and Joe. Donald says that Joe is a "senile old racist pedophile". Joe doesn't like this, so he sues Donald for slander. However Joe also sues the social media company because they allowed Donald's supposedly slanderous speech. Section 230 basically says that as long as the social media company is a platform, Joe can't sue the social media company for Donald's speech.

This is important for the young social media upstarts, as Section 230 allows them to allow users to speak without being worried about being sued every time one user pisses another off. If Section 230 were to go away, censorship would get worse, not better. Platforms like Twitter and Facebook would remove any users they deem to be potentially libelous, and only allow those that they believe will not cause them any legal trouble. More importantly, upstarts like Parler could not exist as they would be bankrupt the first time one user said something bad about another on the platform.

So what can be done

There are a few things:

1. Congress can clarify Section 230 to clear up what "objectionable" means and also interduce methods by which users can challenge tagging of their content as "objectionable" in court. The law should be amended so that if a class of users in a class action can provide evidence of bias against a particular viewpoint that is not specifically banned in the provider's terms of service, they can bring legal action against the platform.

2. Donald Trump could potentially strip a different type of liability away from these providers.

Section 230 covers most, but not all, of the types of liability that protects social media providers. Section 230 does NOT cover copyright, which instead falls under the purview of the US Copyright Office. Unlike Section 230 protections, in order to receive protection against copyright suits for content companies must REGISTER with the copyright office to receive this protection.

Since the purpose of copyright is "to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship", I would argue that Trump could issue an executive order that says that any service found to not be promoting the progress of useful arts and science due to a demonstrable bias against one or more groups of society, should not have their DMCA copyright liability protection renewed.

If companies lost their DMCA liability protections, it could be as detrimental to them as losing their Section 230 liability protections. Furthermore, it is more likely that the US Copyright Office can be targeted by an executive order, since it is a government office, rather than Section 230, which is a standalone law.

3. Users who are harmed on platforms that show "fact check" notices can start suing these platforms directly.

I would argue that the repeated editorialization and fact checking on Facebook and Twitter makes them publishers and not platforms. Furthermore, I would argue that these actions make them publishers not just on the posts where they put these notices, but on ALL posts on their services. These services can't be a platform for some posts but a publisher for others, it's instead all or nothing.

So, users of these services should start to sue these services for harms suffered, arguing that their actions have made them a publisher. So, users who are harassed on Twitter, or threatened, or slandered, etc, should start to sue Twitter arguing that while typically Section 230 would prevent such a suit, Twitter's repeated editorializing of content has made them a publisher, not just for some posts, but all posts.

All it would take would be for one or two suits to stick where people harassed on Twitter successfully argue that they can sue Twitter because it is no longer a publisher for Twitter to be forced to stop editorializing content and blocking content they do not agree with. Once the precedent is set, it would open the floodgates for others to sue Twitter if they keep acting as a publisher.

I get that Trump is mad about social media companies. I am too. But repealing Section 230 would do way more harm than good. Instead, the law needs to be reformed. I hope that reform, not repeal is Trump's ultimate goal, as repeal will doom all but the largest social media services and will silence all but the most well behaved users on these services.