Why Section 230 Has To Go

Section 230 of the Telecommunications Act of 1996—in subsection (c)—immunizes Internet platforms from any liability for what others say or publish on them. The crucial part is subsection (c)(1), a single sentence, quoted below. There are four main reasons why it has to go:

First, it’s destroying democracy, social order, and social peace. It’s doing that not just in our own country, where somewhere between 50 million and 100 million people believe (incorrectly) that Joe Biden stole the last presidential election. It’s also played a huge role in ethnic pogroms against Rohingya Muslims in Myanmar and the election of near-tyrants in Brazil, Hungary and Venezuela. When great masses of people are made to believe things that just aren’t so, bad things happen.

Second, Section 230 was a so-called “midnight amendment” to a major statute, tossed in at the last minute at the behest of powerful corporations. It had few or no hearings and received virtually none of the careful consideration that major changes in law usually get from Congress. The whole subsection’s title doesn’t even match the contents of crucial subsection (c)(1).

Third, Section 230 marked a major departure from Anglo-American defamation law. For Internet platforms alone, it wipes out the structure of common law that courts in England and the US spent centuries developing for earlier major advances in human communication: the printing press, radio and TV.

Section 230 cancels defamation law for Internet platforms by immunizing them from publishing lies. It does so even though it’s impractical—often impossible—to curb the anonymous, obscure and often unknown or immune people who originate or repeat the lies on the platforms, by the millions.

Finally, Section 230 was an experiment in legal immunity that has already served its purpose. It was designed to foster development of the Internet in its infancy.

Now that the Internet no longer needs fostering, a nasty side-effect of Section 230 remains: it gives everyone from politicians to social-media “influencers” an incentive to lie by removing all practical accountability for lying. To stop an exponentially expanding lie on the Internet, aggrieved parties must sue millions of unknown authors, most of whom have few or no assets to seize and cannot (due to screen names) be found or identified—and some of whom are out of reach of the law entirely.

The recent case of Alex Jones illustrates the problem. Courts just ordered him to pay $1.43 billion in damages for lying that the Sandy Hook gun massacre of mostly kids was a “hoax” and the aggrieved parents of dead kids were actors in it. [See this post on compensatory damages and this one on punitive damages.] Nearly a billion dollars of the damage award were compensatory. They are to be paid to particular suing parents, who had been pestered, hounded and even threatened by Jones-inspired crazies for publicly grieving their kids’ violent deaths. The rest of the damages were punitive, imposed by the court for a lie that was particularly egregious, socially and personally damaging, and apparently deliberate. (The court also ordered Jones not to transfer assets out of the country, making any attempt to do so “contempt of court,” punishable by additional damages and jail time.)

But what if Jones’ lie had not come from Jones—a notorious public figure who had waxed rich, in plain sight, from years of outrageous speech? What if it had come from an anonymous social “influencer” hiding behind a screen name and a dark network? What if, worse yet, it had been deliberately concocted by a Russian or Chinese spook, outside of the jurisdiction of US courts, for the purpose of destabilizing American society?

In any of these “what if” cases, our Section 230 would have kept courts from punishing anyone for the lie. In the first case, the liar could not have been found. In the second, the liar could not have been held to account by virtue of geography. The effects of the lie would have been much the same—millions of people believing that a terrible tragedy had never happened, but had been made up out of whole cloth to promote gun control and justify seizing guns. Yet nothing could have been done to correct the lie or punish the liars because Section 230 protects the Internet platforms that passed the lie on to millions, and the anonymous blogger or spook who started it could not legally be reached.

That, in a nutshell, is why Section 230 has to go. The reason has nothing to do with “bias” against conservatives (although if conservative lawmakers think so, their help in getting rid of Section 230 would be welcome). It has to go because it’s destroying the global fabric of politics and society by removing all practical accountability for lying over the Internet.

By vitiating accountability, Section 230 actually encourages lies. The Internet was supposed to expand human consciousness by making access to truthful information available around the globe. Instead, Section 230 has made it a cesspool of lies.

The tension between free speech and suppressing lies is nothing new. It didn’t start with the Internet, and it won’t end when (if ever) we all get our “news” electronically from direct cortical implants.

The law of defamation helps resolve that tension by letting people injured by lies sue liars. Its very existence is proof that there are limits to free speech, even in America. No one has a “right” to injure others by lying. It’s just that Internet platforms managed to trick Congress into immunizing them from the same rules that already apply to every other form of communication.

Our own Supreme Court, in its better days, thought it had resolved the tension in the seminal case of New York Times v. Sullivan. There it ruled that a newspaper’s owners could be held liable for defaming a public figure, but only if they published an untruth with more than negligence. They have to publish a falsehood with “malice,” defined as reckless disregard for whether the statement is true or false.

That’s a high standard to meet. All it means is that a lie’s publisher must have made some honest effort to verify its truth or falsity. That effort need not even rise to the level of “reasonable care,” the opposite of negligence. It just has to clear the bar of not being reckless.

It’s by no means certain that Internet platforms deserve that same lowered standard of care. If they make money by publishing the speech of others, in the millions, and they are the only practical chokepoints, should they be held to a lower or a higher standard than traditional publishers, who only put forth their own carefully considered “speech”?

But we needn’t answer that question now because Section 230 removes even that low bar for Internet platforms. So it practically invites lies on the Internet, the most rapid, powerful, and widespread means of communication in human history.

Today, the only real disincentive for publishing lies on the Internet is political and social pressure. As Sarah Palin might ask, “How’s that workin’ out for ya, America?”

Mark Zuckerberg and his ilk appear repeatedly before Congress to express regret and confess that they need to do more to stamp out lying on their platforms. Then they go back to their offices and programming desks, maybe tweak their algorithms a bit, hire a few more misinformation monitors, and continue raking in millions by directing—dare I write “distracting”—their users’ attention with “clickbait.”

The goal of profiting dictates their prime directive: turn clickbait into dollars. How do they do it? They serve up stuff that is unexpected, boldly new, surprising or astonishing. And the more “information” meets that description, the more their algorithms serve it up. Is it any wonder that lies and misinformation become a large part of the mix, precisely because they are unexpected, boldly new, surprising or astonishing?

It gets worse. Modern neuroscience now lets us peer inside the human brain while it’s reacting to new information. And modern studies show that liberals and conservatives react differently to the same information, using different physical parts of their brains.

I suppose that divergence is inevitable when the information is real. But when it’s a lie, couldn’t it be used to great effect as selective propaganda to different audiences? And isn’t it likely that the difference, provoked and maybe entrenched by lies, is responsible for our current extreme polarization and division?

Section 230 was part of the Telecommunications Act of 1996, passed when the Internet was just getting started. It was an open experiment in encouraging what was then a nascent industry.

That experiment has already succeeded, maybe too well. Now the Internet is everywhere. It dominates our communication, news, politics, and commerce. Companies that publish on it or feed on it, such as Amazon, Apple, Facebook, Google, Microsoft, and Twitter, are among the most valuable and influential in human history. Collectively, they far surpass even the automobile industry in value.

So Section 230 already has served its purpose. The Internet that now dominates our society, politics, communication and culture doesn’t need further special incentives to grow, let alone by encouraging lying.

Now we are in an economic pause. Internet businesses, among others, have overreached and are retrenching. Their algorithms and stealthy invasions of privacy have reached their Peter Principle and are under sustained social and political siege. Internet Inc. is already considering how to change and downsize going forward.

So maybe now is a good time to get rid of Section 230—at very least by imposing the same no-recklessness standard that every newspaper and broadcaster already must meet. Maybe now is a good time to try to save humanity from the madness of universal lies. Depending on the as-yet-unclear outcome of the Midterms, Congress might devote its “lame duck” session to doing just that.

The culprit’s text. Here, verbatim, along with the whole section’s title, is the single sentence of Section 230(c)(1) that changed our world:

[Section 230](c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker[.] 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.

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