May 20, 2019 1:56PM

Why Section 230 Is Unstable

Everyone interested in social media should read Jeff Kosseff’s The Twenty-Six Words that Created the Internet. It provides an excellent history of Section 230, the legal foundation of social media. That might sound boring, but Kosseff makes it work by mixing stories and analysis without vitiating either. I agree with Kosseff that, problems notwithstanding, the benefits of Section 230 have outweighed its costs.

Given that, I don’t look forward to future editions of his book since they may document the “fall” of Section 230. In other words, the law is likely to be amended to limit the protections offered internet platforms. We have already seen changes meant to combat sex trafficking. Section 230’s most serious persistent vulnerability, however, comes from a mismatch between its statutory language and the larger world the law inhabits.

Our political world is divided between (let’s call them) Progressives and Conservatives. Progressives see society as a struggle between designated oppressor and oppressed groups. No one – not government, not the tech companies – should be neutral between these groups; everyone should favor the oppressed. Since the speech of oppressors is causally essential to the harms experienced by the oppressed, government and the platforms should suppress that speech to help the oppressed. Remember, no one is neutral in this endless struggle.

As it happens, given the extent of Progressive cultural authority, the language of Section 230 favors the Progressive cause. Here’s an edited version of Section 230(c)(2) that clarifies this point:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be...objectionable, whether or not such material is constitutionally protected...[emphasis added]

So if content moderators think speech offending the oppressed is “objectionable,” they can banish it from their service.

Conservatives say Section 230 demands political neutrality. They are clearly wrong about the statutory language. However, their claim might be interpreted more broadly. Progressives believe some online speech should be suppressed. The companies may do so under Section 230(c)(2). But the Conservative demand for neutrality may be another way of saying our political world is evenly divided between Progressives and Conservatives. What would happen if the platforms tried to suppress a great deal of speech by half of the population?

We need a solution here that recognizes the platforms’ right to moderate content must be carried out absent political animus . For Conservatives, that would mean Alex Jones comes down but Charles Murray stays up, as it were. Conservatives may not have much faith in this solution.  They might see a slippery slope whose zenith is Alex Jones and whose nadir is Charles Murray. (That may explain conservatives’ odd embrace of Alex Jones as a conservative). Indeed, it is not unreasonable to think Murray’s treatment at Middlebury might be repeated figuratively online. In that light, government regulation of the platforms seems a reasonable solution to reasonable fears.

But it is not. We have a First Amendment because we do not trust the government to regulate speech. But now our distrust of each other (including distrust of the owners of the platforms) points many people back to government regulation of online speech and of private content moderation. Conservatives are coming around to the idea that the government that cannot be trusted to regulate campaign finance somehow will assure a fair online political debate. Count me skeptical on both points.

For me, that turn toward government may spoil Kosseff’s future history of Section 230. After all, like most readers, I prefer a happy ending, especially for liberal values.