In the two decades following the passage of Section 230, the internet’s tremendous growth has transformed the statute from a little‐known protection for an infant industry to the legal basis for a seemingly all‐encompassing internet of intermediaries that suffuses our daily lives. Section 230 allows the tools and services we rely upon—from messaging apps to mobile payment services—to operate despite their imperfect moderation efforts. As previously illustrated, attempts at perfect moderation are costly. A platform moderation regime that sought to prevent all misuses of its tools would have to accept incredibly high false‐positive rates and significant barriers to platform access.
While platform users benefit tremendously from Section 230, it is often denounced as a protection for industry or, in the parlance of many critics, “Big Tech.” Because Section 230 is a specific statutory protection for the providers of interactive computer services, it is increasingly described as a “handout” to technology firms, an undeserved benefit free of reciprocal obligations or broader public benefit. Partisans of many stripes have taken up the language, albeit for contrary reasons. Republicans worry that these tools are not, in fact, open to all but are instead governed with bias against conservatives. Democrats fear that platforms’ imperfect moderation and algorithmic discovery functions provide potent channels for the spread of hateful sentiment and misinformation. Speaker Nancy Pelosi (D-CA) has taken to calling Section 230 a “gift” to tech companies.23 On the right, Sen. Josh Hawley (R-MO) deems it “a sweetheart deal that no other industry enjoys.”24 Breitbart’s Allum Bokhari describes it as “the golden government handout that has allowed online companies like Google to prosper.”25
Bokhari is partially correct; it is unlikely that Google could exist in its current form without Section 230. However, Google is far from the only, or even the primary, beneficiary of Section 230.
When we use social media platforms to interact, whether talking to friends on WhatsApp, arguing about politics with strangers on Twitter, or responding to a used boat advertisement on Craigslist, we are engaging in activity protected by the First Amendment. Platforms are not bound by the First Amendment and remain free to police our use of their services as they see fit. The government, however, cannot censor speech on the internet any more than it can censor speech elsewhere.26 While our rights do not grow or shrink in response to technological advances, social media has greatly enhanced our ability to exercise our First Amendment rights. Private firms have developed countless digital tools serving a myriad of interests. Every tool cannot be expected to serve everyone: in many cases, design or governance decisions intended to better provide for some activities may foreclose others. Nevertheless, the platform ecosystem, taken as a whole, provides at least a minimally viable home for almost all interests. However, we are able to exercise our speech rights within this ecosystem only because Section 230 provides a legal framework for its existence.
If the manufacturers of movable type had been held liable for how others arranged their letters, few printing presses would have been manufactured. In the Ottoman Empire, a combination of the dominance of scribal culture and regulatory uncertainty inhibited the provision of printing services and, in turn, discourse in the printed word for hundreds of years.27 If Section 230 is understood as a “handout,” it must be appreciated as a handout to speakers and listeners: a gift to anyone using internet platforms or benefiting from anyone else’s use of them. The greatest beneficiaries of the internet are its users, those billions of souls who grant platforms their unmanageable scale. Limiting speech by limiting the creation of speech tools clearly violates liberal free speech norms.
Likewise, our First Amendment tradition recognizes “the press” as a set of technologies to which the government cannot restrict access.28 University of California, Los Angeles, law professor Eugene Volokh identifies a host of cases from the 19th century in which the First Amendment was implicated in disputes over individual citizens’ publication of comments or complaints via newspaper advertisements, including People v. Simons, In re Austin , Taylor v. Delavan, and Brandreth v. Lance.29 In Brandreth, for example, the New York Chancery Court (the highest court in the state in 1839) invalidated an injunction barring a businessman, Lance, from hiring both a writer and a printer to produce a biography critical of a professional rival. Volokh writes, “Nothing in the court’s opinion suggested that the liberty of the press was a right that belonged only to printer Hodges; the injunction was dissolved as to all defendants.”30 This broad definition of the press respects the necessity of the division of labor in speech production. More recently, in its 1964 New York Times Co v. Sullivan decision, the Supreme Court held that the First Amendment protects noncommercial paid republication as it does other speech. The court expressed concern that a ruling to the contrary “might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press.”31 Though the First Amendment does not necessarily provide a right to specific communications technologies, in New York Times v. Sullivan the Court recognized a link between the vitality of speech rights and broad access to speech tools.
Thus, protecting speech rights by protecting the creators of publishing tools is entirely in keeping with America’s First Amendment tradition. Like other statutory speech protections, Section 230 was passed to rectify judicial trends that threatened to curtail Americans’ ability to speak freely.32 Given that contemporary platforms could not function without Section 230, it serves as a guarantee of free speech rights, authorizing the manufacture of means of expression. It is not the only intermediary liability protection intended to shield constitutionally protected activity.