This excerpt is part of TPM Cafe, TPM’s home for opinion and news analysis.
A key law that protects free speech online is celebrating its 30th birthday under withering fire from critics on both sides of the political aisle.
Even in stable times, rolling back protection would be foolhardy and harmful. In a moment when the Executive Branch and federal agencies seek to censor speech online, it could be a nail in democracy’s coffin.
That’s why it’s so shocking to see bipartisan support for either repealing or sunsetting Section 230 amid today’s deeply divided and tumultuous policy landscape. But a bipartisan bad idea is still a bad idea.
Enacted in 1996, Section 230 — originally part 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.”
A bipartisan Congress passed Section 230, which provides limited civil immunity to online intermediaries that host users’ speech, because it recognized that promoting more user speech online outweighed potential harms. When harmful speech occurs, it’s the speaker that should be held responsible, not the service that hosts the speech. The law also protects social platforms when they remove posts that are obscene or violate the services’ own standards. Importantly, Section 230 does not immunize services if they violate federal criminal laws.
Today we live in angrier, more turbulent times. Across the political spectrum, the public now seems hell-bent on finding someone to blame for whatever ills it sees. And members of Congress on both sides of the aisle, rather than showing the foresight of their predecessors, seem to have their fingers in the wind trying to gauge what direction they should run in to make political hay of all this rage.
U.S. Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) have introduced S.3546, the “Sunset Section 230 Act,” which would completely repeal Section 230 on January 1, 2027 unless Congress enacts a replacement framework. In the House, Rep. Jimmy Patronis (R-FL), has introduced H.R. 7045, the Promoting Responsible Online Technology and Ensuring Consumer Trust (PROTECT) Act to repeal Section 230, and Rep. Harriet Hageman (R-WY) has introduced H.R. 6746, the “Sunset To Reform Section 230 Act.”
Big Tech platforms make an easy target, and Congress should rein them in. These companies’ business models, which surveil and track everyone without our consent, harm everyone, including children. And their monopolistic tendencies — buying up competitors rather than innovating — raise significant concerns about everyone’s ability to speak and organize online.
These real problems, however, have nothing to do with Section 230. If Congress is serious about ending Big Tech’s dominance, it should pass a comprehensive consumer data privacy law, as well as laws that jumpstart greater competition. But by attacking Section 230, Congress is really attacking a law that protects all of our speech online.
The free and open internet as we know it simply cannot exist without Section 230. By protecting online intermediaries from civil suits based on what users say, Section 230 allows services to offer everyone the opportunity to open an email account, join a social media service, or create their own website. Section 230 also protects internet users when they distribute others’ speech, such as by retweeting, forwarding an email, or hosting comments on their personal websites or blogs. It also helps to quickly resolve lawsuits that have no legal basis.
Without Section 230’s protections, government officials and vexatious litigants would work overtime to censor speech protected by the First Amendment, including news and commentary critical of them. President Donald Trump, Attorney General Pam Bondi, and Federal Communications Commission Chair Brendan Carr already have threatened online services and demanded that they remove lawful speech, including documenting Immigrations and Customs Enforcement (ICE) activity.
Without Section 230, the intermediaries we all rely on to document ICE activity, share news critical of the government, or to organize protests, would have no legal or business incentive to keep our speech online. Instead, the services will remove lawful speech rather than spend money and time fighting even the most meritless lawsuits in court.
Worse, repealing Section 230 will only further entrench Big Tech. These companies have armies of attorneys and deep pockets to navigate that new landscape. New competitors will likely never emerge, as smaller services will lack the resources to either review their users’ content or even provide a forum for user-posted content.
The real losers in a world without Section 230: all of us. Every controversial topic and every viewpoint about it could be forced offline, including gun rights, abortion, immigration, vaccine safety and efficacy, climate change, and LGBTQ+ culture and identity. All of this, and much more.
Section 230 is not just a legal shield for online platforms. It is a bulwark against the mass censorship of free speech online — the rights to share ideas, advocate for change, speak our minds, and live our lives in the light.
A vote to weaken or repeal Section 230 is a vote to muzzle free speech, a vote to make the internet a conformist, neutral space where any controversial truth or opinion will be silenced. And what could make authoritarians happier than that?
Oh? None of those dread outcomes have yet occurred in Europe which continues to try to hold publishers responsible after the fact for what they publish.
In the US we lost 100s of thousands to unnecessary Covid deaths.