On February 19, 2020, AG Bill Barr held a workshop regarding the current environment related to free speech in the media. In remarks for delivery to the workshop, the AG shared three observations:

First, civil tort law can act as an important complement to our law enforcement efforts. Federal criminal prosecution is a powerful, but necessarily limited tool that addresses only the most serious conduct. The threat of civil liability, however, can create industry-wide pressure and incentives to promote safer environments. In fact, Congress has enacted civil laws specifically to supplement criminal enforcement. For example, the Anti-Terrorism Act provides civil redress for victims of terrorist attacks on top of the criminal terrorism laws, yet judicial construction of Section 230 has severely diminished the reach of this civil tool. Civil liability can work hand-in-hand with the department’s law enforcement efforts to promote a safer environment, both online and in the physical world.

Second, broad Section 230 immunity can pose challenges for the department and other federal agencies in certain civil enforcement matters. Actions brought in the public interest by the federal government do not raise the same concerns of mass liability for private speech torts that were at the core of Congress’s concerns when it enacted Section 230. It is questionable whether Section 230 was intended to allow companies to invoke the statute’s immunity against the federal government acting to protect American citizens.

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Finally, and importantly, Section 230 immunity is relevant to our efforts to combat lawless spaces online. We are concerned that internet services, under the guise of Section 230, can not only block access to law enforcement — even when officials have secured a court-authorized warrant — but also prevent victims from civil recovery. This would leave victims of child exploitation, terrorism, human trafficking, and other predatory conduct without any legal recourse. Giving broad immunity to platforms that purposefully blind themselves – and law enforcers – to illegal conduct on their services does not create incentives to make the online world safer for children. In fact, it may do just the opposite.