What the statute does
Section 230 is part of the Communications Decency Act of 1996, and Bob Zadek describes it as having been referred to as the twenty-six words that created the internet ‘Jawboning against Speech’ with Will Duffield (2023). He says it effectively creates an environment where free speech is virtually assured in social media, and that there would not be social media today without it. In his account the statute was enacted to encourage in the broadest possible way that anybody’s opinion has an outlet, and he calls it forward-thinking and enlightened when drafted.
Will Duffield, Zadek’s guest, describes Section 230 as an intermediary liability protection that prevents platforms, or really any website that hosts user speech, from being treated or held liable as the publisher of that user speech. On his account it ensures that responsibility for what anyone says online rests with the speaker and not whoever is carrying or providing a platform for their speech. Without it, he says, platforms would have to do a lot more policing of what their users say, because they could be sued over something they did not catch or remove that libels someone or is otherwise illegal or litigable.
Zadek puts the dependency in stronger terms: without Section 230, it is claimed plausibly that social media simply could not exist in its present form, and as an economic activity it would fail. He compares the internet’s dependence on the statute to human dependence on oxygen The New Face of Government Censorship (2023).
Editorial control and the platform/publisher line
In a 2020 episode on antitrust and Big Tech, Zadek sets out a version of the same distinction. Under existing legislation, he says, Twitter and Facebook and Google to some extent are free to do whatever they want from an editorial standpoint, or they are not allowed to exercise editorial control over what other people publish in their electronic platforms if they are just like a platform. Once they start editorializing and making editorial judgments, he continues, a different body of law is triggered and they could be liable for defamation and things of that nature, which means they have litigation exposure and the cost of doing business goes up. He concludes that they are deathly afraid of being accused of exercising editorial control and of being like a newspaper deciding what gets printed Why Trustbusting Big Tech is a Bad Idea (2020).
That episode’s guest, Ryan Young, treats the content-moderation controversy of the moment as a business decision rather than a legal one. He says Twitter made a mistake when it muted the Hunter Biden story that the New York Post published, that if he was running Twitter he would have let the story through, and that Twitter is free to make its own mistakes. He notes that other outlets, including some owned by the same parent company News Corp such as the Wall Street Journal, thought the story was not adequately sourced, and that he does not have an opinion on that matter. The publicity, he says, produced a Streisand Effect that doubled the story’s reach and kept it in the news cycle for days instead of dying quietly.
Jawboning and the threat to amend
The later episodes turn on how Section 230 becomes leverage. Duffield argues that the problem of jawboning illustrates how important Section 230 still is, and that in a world without it, where platforms are liable for what their users say, jawboning would be even more threatening and dangerous, because a platform that ignored a government takedown request would run the risk that the refusal came up in court later ‘Jawboning against Speech’ with Will Duffield (2023). He sketches the argument a plaintiff would make: the government warned you that this content was dangerous, and yet you still failed to remove it.
Zadek frames the same dynamic from the government’s side. He says government, whether the legislative branch or the executive branch, contacts social media quite directly and says that it created the oxygen the platforms live off and can just as easily amend or repeal Section 230 if they make it unhappy. That threat, he says, gets taken seriously especially when one party controls government. He adds that when legislators such as Senator Hawley or Marco Rubio call, the call does not get blocked, and that government says it would prefer platforms not censor—the word is never used—but make it far more difficult for their customers to find content it disapproves of The New Face of Government Censorship (2023).
Duffield distinguishes jawboning from a straightforward legislative threat. Where a politician says he will expose a platform to liability so that it will have to take down speech or be sued, and the proposed legislative change would do exactly what he is asking the platform to do anyway, Duffield says that is not jawboning. But if the politician threatens to change antitrust law so the platform will be broken up, that looks a lot more like jawboning, because even if the platform were broken up it would not have to take down the speech in question; antitrust is being used as the cudgel to get a private actor to do what it could not be ordered to do directly.
Duffield also describes forms of pressure that run the other way. He says platforms have a right to refrain from hosting speech as well, and that jawboning can take the form of must-carry demands—saying a platform will be punished if it does not continue to host a speech or speaker—which can make it hard for a forum operator to maintain the kind of conversation it would like. He gives the example of Steve Bannon’s hyperbolic statements about Anthony Fauci, in which Bannon said that if he were a Tudor-style king he would put Fauci’s head on a pike; Senator Richard Blumenthal claimed this was a death threat and that Bannon should be banned from YouTube for threatening Fauci’s life in an illegal way. Duffield says the speech is clearly hyperbolic, protected as opinion, and that no one anticipates Bannon actually trying to lop Fauci’s head off, but that Blumenthal claimed the speech was unlawful when it was not, in an attempt to bully YouTube into silencing him.
Duffield also points to non-governmental organizations that have provided targeting information for government jawboning—something like the twelve superspreaders of misinformation identified by a British NGO and then taken up by the Biden administration as the worst of the worst in COVID disinformation, one of whom, he notes, was RFK Jr. The New Face of Government Censorship (2023).
Earlier treatments
Section 230 appears in the show’s topic lists well before the 2023 episodes. A 2019 episode with Bill Ottman, founder of Minds.com, is described as covering the legal implications of Section 230 alongside algorithmic manipulation and decentralized alternatives Social Media Censorship (2019). A June 2019 episode with Professor Frank Buckley is described as discussing calls for government regulation of social media censorship after high-profile de-platforming incidents, critiquing Senator Josh Hawley’s proposed legislation as a regulatory shakedown, and exploring Buckley’s alternative proposal for a disclosure-based commission that would provide transparency without granting the government enforcement power Who Will Censure the Censors? (2019). A February 2021 episode with historian Paul Matzko, on the Fairness Doctrine, lists Section 230 among its topics and has Zadek opening the show by noting how much had been in the news lately about censorship and Section 230, and that the show had had many episodes on that topic The Radio Right and The Fairness Doctrine (2021).
Across episodes: what changed
The excerpts show no development in the account of what Section 230 does: Zadek’s description of it as the twenty-six words that created the internet, and of social media’s dependence on it, is essentially identical in the two 2023 episodes, and Duffield gives the same intermediary-liability explanation in both. What changes is the surrounding argument. In the 2020 antitrust episode, Zadek raises Section 230 only to set it aside—he says there is no time to discuss it and gives a one-sentence summary—and the guest’s focus is on why antitrust does not reach Twitter and why government should not regulate speech at all. By 2023, the statute is no longer a digression but the mechanism by which Zadek and Duffield explain jawboning, with Zadek supplying the government’s threat to amend or repeal and Duffield supplying the taxonomy of when a threat is and is not jawboning. The earlier 2019 and 2021 episodes touch the topic without the excerpts showing how it was argued there.
What the sources do not cover
The excerpts do not state the text of Section 230, the name of any bill to amend it, or the outcome of any case interpreting it. They do not say which subsection governs, beyond Zadek’s reference to Section 230(c)(1) in one episode, and they do not identify the amendment or constitutional provision on which any challenge turned. The 2019 and 2021 episodes are represented here only by topic lists and introductory remarks, so their treatment of the statute cannot be reconstructed from these sources.