Liberals Beware: Repealing a Law That Protects Free Speech Online Will Only Help Trump

People on both sides of the aisle have argued that repealing Section 230 would force tech companies to moderate their content faster. In reality, the exact opposite is true.

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The law once dubbed “the most important law protecting online speech” is now the most hated law on the internet and it’s under dire threat from both progressives and the Trump administration.

For a time, Section 230 of the Communications Decency Act (CDA) was only familiar to civil liberties advocates and tech policy geeks. Now, it is a constant source of angry headlines, as it’s being attacked on all sides for giving “immunity” to tech companies for content users post online. The most-quoted passage of the law reads: “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.”

Those simple words are now being flagrantly misinterpreted across the political spectrum as a way to threaten companies like Facebook and Twitter. But make no mistake: if the law is repealed, the real casualties will not be the tech giants; it will the hundreds of millions of Americans who use the internet to communicate.

If anything, repealing the law — or calling on the FCC to engage in unspecified “regulation” of tech companies’ moderation policies — would encourage tech companies to leave more hate speech up.

Many liberals mistakenly believe that Section 230 is to blame for tech companies’ plodding response to toxic content. There have been countless articles criticizing the law recently, most notably a recent New York Times op-ed which argued that a repeal of Section 230 would force tech companies to moderate their content faster, removing hate speech before it has a chance to spread.

In reality, the exact opposite is true.

Look, I’m suspicious of the tech giants as much as anyone else. I criticize them all the time. But taking away Section 230 is not going to make the tech companies more liable for hate speech that shows up on their websites. If anything, repealing the law — or calling on the FCC to engage in unspecified “regulation” of tech companies’ moderation policies — would encourage tech companies to leave more hate speech up.

Section 230 was written for the explicit purpose of encouraging websites to moderate content without facing punishment. Back in the 1990s, the New York Supreme Court ruled that once a message board started to moderate content, it was then responsible for everything that was posted. Essentially, the ruling meant that if they never moderated content, then they would be in a much safer position. Section 230 was created to nullify that case and encourage moderating — not to dissuade it.

It’s right there in the law — if journalists, politicians, and pundits read beyond the first sentence. It is referred to in the text as the “good Samaritan” provision, literally titled “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” It states in part:

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 obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Whether people like it or not, a lot of hateful and violent content is First Amendment protected speech (as the New York Times recently had to note in a correction); removing 230 isn’t going to magically make tech companies liable for it. If, for some reason, repealing the law does make the tech companies much more aggressive in moderating, it’s those people criticizing the tech companies who will suffer the most.

The reason news websites like the New York Times can moderate their own comment sections is because Section 230 applies to them as well.

Section 230 provides protection to tech companies against a host of civil laws, but it primarily comes into play in cases of libel committed by its users on the platform. A user can be held responsible for purposefully lying about individuals, but the platform that hosts the offending post cannot. If Section 230 were to disappear, companies won’t want to risk going over the line for making false or defamatory statements about others, so they’ll start taking down all sorts of criticism that is in the same ballpark. Those who castigate public officials, make parody accounts, or even just call out others who engage in hate speech would now be the most vulnerable to being kicked off Facebook and Twitter.

(By the way, do all the journalists and newspapers arguing for Section 230 to be repealed think it doesn’t affect them? The reason news websites like the New York Times can moderate their own comment sections is because Section 230 applies to them as well.)

As badly as some progressives are misinterpreting the law, the Trump administration may soon attempt to purposefully warp the same statute for decidedly more sinister aims. Trump and his allies like Senators Ted Cruz and Josh Hawley are purposefully warping the statute in another way: they claim Section 230 requires tech companies to be “neutral” in how they moderate content.

And Trump is taking advantage. A leaked document published last week showed that the White House is looking at taking unprecedented control of tech companies’ content-policing — and in turn, seizing power over everyone’s free speech.

Trump, in his own ego-driven feud against tech companies who supposedly “censor” conservatives, is reportedly considering directing the FCC to “reinterpret” Section 230 to tell tech companies that Section 230 can’t apply in situations involving censoring a nebulous definition of political bias. Trump has been on a warpath recently, claiming conservatives are being unfairly kicked off by social media platforms because of their political views (which in his mind apparently includes posting racist or hateful content that violates these networks’ terms of service).

The draft executive order seems half-baked and doesn’t fully make sense. And there are reportedly several drafts circulating the White House, so it’s hard to tell what might actually come to fruition. But in broad strokes, Trump wants to put the Federal Communications Commission in charge of deciding when tech companies can moderate content and when they can’t — especially when political content is involved. The executive order would have unprecedented effects: Trump and the federal government would be asserting authority over political speech on the internet. The consequences are potentially terrifying.

There are plenty of ways for progressives to protest and push for government action against the tech giants. But Trump’s bizarre and potentially terrifying plan should tell us all at least one thing: Everyone should be fighting for Section 230, not against it.