The Common Law: an Antidote to Section 230

For most of a millennium after Magna Carta, our Mother Country England developed a unique—and uniquely successful—system of law. We call it the “common law.” It still exists in the US and most other English-speaking countries today.

The common law had a unique advantage over other systems of law. Where it still prevails, it still has the same advantage.

It doesn’t try to predict and micromanage human behavior in advance. Instead, it recognizes certain general principles of responsibility and excuse. It allows those principles to develop organically, through a system of precedent, by means of case-by-case decisions that take all relevant facts into account.

At its essence, the common-law system is one of legal humility. It recognizes that no one is smart enough to decide, in advance, what facts might be relevant or important in cases that haven’t yet arisen.

Common-law courts apply the previous decisions of equal or higher courts by analogy. They “make” new law only when the old law is inapplicable; and even then the new law must be consistent with the old. In this way, the common law evolves organically, in response to the needs of a developing and maturing society.

One of the common law’s greatest products was the concept of negligence. In pre-industrial societies, most killings and injuries were intentional. But as cities grew denser, roads more congested, and conveyances and machines more powerful, more people came to be killed or injured by accident. So courts had to decide under what circumstances a person associated with an accident would be liable. Over centuries, common-law courts developed the concept of “negligence” as the failure to use reasonable care.

But even today, “reasonable care” is a standard, not a precise specification. Today’s courts invite expert testimony on the standard of “reasonable care” in settings as diverse as an auto accident, a factory’s assembly line, a transcontinental airplane flight, or the application of genomic medicine. At common law, they apply the same general standard, with care and discretion, to everything from overturning carts to mishandling of radioactive isotopes. That’s what judges at common law can do.

The common law thus recognized a basic truth of the human condition. People’s intelligence and imagination are limited. Even the wisest legislators or judges can’t conceive—let alone predict with accuracy—all the messes that human beings may find themselves in a decade or a century ahead. In a rapidly developing commercial, scientific and social society, those disputes can change rapidly and radically.

There will always be unpredicted and unpredictable circumstances and contingencies. There will always be unforeseen excuses and justifications that beg for analysis with care and wisdom.

That’s why we have judges. And that’s why, in appointing or electing them, we carefully consider their education, qualifications, experience, temperament and impartiality. We understand that, in each of our own personal lives, there is no substitute for having a wise man or woman look at all the evidence, after the fact, and make a reasoned decision on our fate or liability when we are accused of a crime or sued in civil court.

Unfortunately, in our zeal to build a highly sophisticated, complex, specialized and powerful scientific-technological society, we have neglected this human wisdom. We have forgotten that we are and will remain flawed and limited creatures, with very little useful foresight. Increasingly during the last century, we Americans began to abandon the common law’s timeless wisdom in a futile attempt to micro-specify and micromanage everything with detailed statutes and regulations.

Don’t get me wrong. Detailed regulation has its place in our complex scientific-technical society. Regulating the precise contents of drugs and medicines is rational. So are precise numerical limits on the amount of poisonous pollutants in our water or air, greenhouse gases in our warming climate, dangerous impurities in our food and drugs, and the level ozone in the air before we warn people to stay indoors and avoid exercise.

But there is as yet no reliable scientific-engineering formula for human care and culpability. As a society, we laud “risk-takers” as “entrepreneurs” or scientists, at least when they are successful. But daredevils and many criminals are also “risk takers.” How do you tell the difference? There is as yet no scientific-engineering formula for that.

So at a basic human level, when we consider human motivation, culpability, reward or punishment, there is no engineering or scientific formula for analysis on which we can rely. When we get down to crime and punishment, or civil reward and liability, we must rely on case-by-case analysis, after the fact, as under common law.

That, in a nutshell, is why Section 230 was such a catastrophic mistake. Not only did it reject common-law, case-by-case, after-the-fact analysis as a method of governance. By its very terms, it purported to wipe out the entire common law of defamation, as applied to the most powerful means of human communication ever invented, namely, Internet platforms. In immunizing the only practical choke-points for lies promulgated by foreign spooks and extremists hiding behind electronic Internet anonymity, it effectively opened the floodgates to lying by anyone who could afford a laptop.

In a society whose First Amendment is a near-absolute endorsement of free speech, the common law of defamation (and it business cousin “trade libel”) was the only thing in our law that penalized lying. Section 230(c)(1) entirely wiped out the law of defamation as applied to owners and operators of those platforms. It immunized them from the common-sense liability that had applied to everyone in English-speaking societies, with increasing sophistication and sense, from the middle of the last millennium.

This was not evolution. This was revolution. It was a revolution in law wrought by lobbyists for rich and powerful industrialists in a single-sentence midnight amendment that, to my knowledge, never underwent legislative hearings or public discussion before becoming statutory law. (The tipoff is the title of Section 230(c), which doesn’t even match subsection (c)(1).)

Section 230(c)(1) was a product of legislative negligence of a high order. I’m astonished and disgusted that a progressive Senator whom I generally admire, Ron Wyden (D., Ore.), still supports it. As far as I can tell, he and other senators adopted it in 1996 based largely on the following simplistic syllogism, offered by Silicon Valley lobbyists:

“The Internet is the mightiest tool of communication and enlightenment in human history, which we Silicon Valley geniuses are bringing to America and the world, mostly for free. If we are taxed with liability for what other people say on it, we will sit at home and pout, or we will drag our heels, and we will fail to develop it. So if you don’t exempt us from the same liability for defamation that now applies to every newspaper publisher and radio and TV broadcaster in the country, you will destroy the twenty-first century’s greatest gift to democracy and humanity, which we are otherwise ready to provide.”

Maybe this is hyperbole. But if so, only a bit. This is the essential lure that Congress gobbled up, hook line and sinker, without a thought to possible consequences. Among those consequences, we have already seen an explosion in lying about politics and elections, an attempted insurrection based on those lies, and a people made largely reluctant to accept the most miraculous vaccines ever invented, even to fight a global pandemic.

Never to my knowledge has an entire industry been made so categorically exempt from the normal rule that action that causes harm has consequences. Never has Congress granted such a categorical exemption not just from the law of defamation, but arguably from all of tort law. (I argue against such an exemption here, but the Supreme Court’s recent decision refusing to touch Section 230 tilts to the contrary.)

The solution, to my mind, is astonishingly simple. It’s to repeal Section 230(c)(1), with a statutory preamble stating clearly Congress’ intent neither to specify or preclude liability, but to let the courts of our great nation do their common-law jobs, on a case-by-case basis.

Maybe defamation and disinformation on the Internet are indeed different. Certainly providers and operators of Internet platforms should not be treated the same as foreign spooks and Internet extremists who willfully promulgate misinformation, hate, and incitement to discord and violence. But just as certainly, if the platforms are exempted from all liability, as Section 230 purports to do, lies, misinformation, and foreign and domestic propaganda will overwhelm truth and sanity, and our ship of state will founder in a sea of lies.

It is not for Congress to micromanage the Internet. Congress has nothing like the expertise, let alone the time and patience, to deal with an avalanche of self-motivated lobbying and yes, motivated lying that would ensue. The proper way to handle Internet misinformation and hate is under the common law.

Let courts review each case, after the fact, with all the knowledge that comes from evidence— not speculation or lobbyists “studies” (often a form of pseudo-science). Let them review, in detail, the damage and the harm, what was known to the platform and its employees and executives, the attempts (if any) they made to reduce or avoid the harm, and the costs of doing so. Let them even consider the likely effect on the Internet and society as a whole, with the aid of evidence- and science-based expert testimony developed after the fact.

This incredibly complex and nuanced assessment of culpability and responsibility will be hard enough to assess after the fact, when all the considerations, precautions and consequences are known, and the only speculation might be what else the platform might have done. There is no way that Congress—or any other human institution—can create a useful general rule in advance, let alone under an avalanche of lobbying from interest groups pushing their own abstract agendas.

This is a matter to trust to our courts, to resolve piecemeal, step by step, case by case, under common law. That’s how we got from assessing ox-cart accidents in the King’s Courts to dealing with intercontinental air terrorism, industrial explosions and railroad disasters today. The technology may change, but the general need for meticulously developed standards of care to avoid foreseeable harm doesn’t.

Resort to the common law is essential for another reason. Under existing Section 230(c)(1), Internet platforms’ managers know with certainty that they will never incur liability for harm caused by lies or hate pushed by others on their platforms. Therefore, every penny they spend to curtail those lies or hate is an unnecessary expense, motivated, if at all, by altruism and good citizenship. In nation that runs on profit and loss, and whose Founders based on a careful balance of powers, that’s a weak foundation for either democracy or science.



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