It wasn’t long after mass shootings in El Paso and Dayton killed more than 30 people that a chorus of commentators, reporters, and even the president himself offered a plaintive response. These near-simultaneous tragedies, they all said, force the country to consider reining in the web sites that have, as the chorus sees it, permitted hateful content to flourish and inspire such massacres. What will likely follow are calls to pass legislation so that online platforms—from social media giants who trade data to third parties without meaningful consent, to whatever obscure internet forum supplants 8chan, the current hate cauldron of choice—can be held liable for the content published by their users.



To do this would mean changing the law that has thus far been credited with making an open internet possible: Section 230 of the Communications Decency Act.

That paradoxical name comes with an instructive history. A panic over online porn in the mid-’90s prompted the Communications Decency Act (CDA), a set of amendments to the more sweeping Telecommunications Act. Meanwhile, then-Representative Ron Wyden, along with (now former) Representative Chris Cox, worried about efforts to hold platforms like the early email and bulletin board behemoth, Prodigy, accountable for anything their users published. The congressmen feared all this effort to rein in platforms would end up hindering such companies from moderating content altogether. In response to these issues, Wyden and Cox proposed what became Section 230 of the CDA.

Section 230 states that an “interactive computer service” (to use the parlance of the time) cannot be held liable for content posted by its users, who the law considers to be “publishers” and therefore responsible for their own content. Section 230 also protects platforms from being considered “publishers” should any try to moderate or remove content published by users. Since passage in 1996, the CDA’s “decency” provisions have been ruled unconstitutional by the Supreme Court, but Section 230 remains.

Section 230 has often been misrepresented as a mandate for platforms to remain “neutral”—which it isn’t—and this has made much recent public debate about 230 next to impossible. Take Republicans like Missouri Senator Josh Hawley, who is on a quest to gut 230 to “protect” conservative speech from phantom censors. As New York Times editorial board member Sarah Jeong wrote this July, it’s tough to take on such proposed legislation in any serious way because the law its foes are angry about does not exist. “The debate is not focused on the real issues with C.D.A. 230,” Jeong wrote. “Indeed, it is not focused on the actual text of C.D.A. 230.”