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Section 230

6 min read

Part of Free speech and civil liberties.

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Every episode (6)

Who argued it

Jeff Kosseff · Ryan Young · John Samples · Frank Buckley · Bill Ottman · Elizabeth Nolan Brown

First Amendment · Free Speech · Campaign Finance · Big Tech · Antitrust · Monopoly · Censorship · Privacy

Background

Section 230 is a federal statute that protects platforms hosting user speech from being held liable as the publisher of that speech. Bob Zadek calls it “the twenty-six words that created the internet” and places it within the Communications Decency Act of 1996; 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 ‘Jawboning against Speech’ with Will Duffield (2023).

The protection and its purpose

Will Duffield 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. 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, 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 ‘Jawboning against Speech’ with Will Duffield (2023).

Zadek frames the statute’s origin as encouraging, in the broadest possible way, that anybody’s opinion has an outlet, and calls that outcome healthy for society. He notes that Section 230 is often referred to by the phrase “the 26 words that created the internet” ‘Jawboning against Speech’ with Will Duffield (2023). Duffield adds that the problem of jawboning illustrates how important Section 230 still is in many ways ‘Jawboning against Speech’ with Will Duffield (2023).

Section 230 and editorial control

In a November 2020 episode, Zadek summarized the legal battle surrounding the statute: under existing legislation, 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 on their electronic platforms if they are just like a platform. Once they start editorializing and making editorial judgments, 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 said 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).

In that same episode, Ryan Young argued there is no antitrust angle to the complaints against Twitter, because of the dozen keystrokes argument: switching platforms is easy, and consumers decide whether Twitter and Facebook and Google rise and fall. He said the free speech arguments come down to the principle that government should not regulate political speech. Zadek noted that the only possible governmental interest may lie in Section 230, which he described as a piece of legislation most consumers do not know about Why Trustbusting Big Tech is a Bad Idea (2020).

Jawboning and the threat to amend

Duffield explains that in a world without Section 230, where platforms are liable for what their users say, jawboning would be even more threatening and dangerous, because a platform that did not obey a government takedown request would run the risk that the refusal would come up in court later. He describes non-governmental organizations and civil society groups providing targeting information for government jawboning efforts, citing the “twelve superspreaders of misinformation” identified by a British NGO and taken up by the Biden administration as the worst of the worst in COVID disinformation ‘Jawboning against Speech’ with Will Duffield (2023).

Zadek describes government, whether the legislative branch or the executive branch, contacting social media directly and saying that it created the oxygen the platforms live off and can just as easily amend or repeal Section 230 if they make it unhappy. He says that threat gets taken seriously especially when one party controls government, and that when legislators such as Senator Hawley or Marco Rubio call, the call does not get blocked. He characterizes the government’s message as a preference that platforms not censor — a word never used — but make it far more difficult for their customers to find content the government disapproves of ‘Jawboning against Speech’ with Will Duffield (2023).

Duffield distinguishes jawboning from a genuine legislative threat: if a politician says he will expose a platform to liability so 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, that is not jawboning. But if he threatens to change antitrust law so the platform will be broken up, that looks a lot more like jawboning, because even if broken up the platform would not have to take down the speech in question; antitrust is just being used as the cudgel to get the private actor to do what it could not be ordered to do directly ‘Jawboning against Speech’ with Will Duffield (2023).

Across episodes

Section 230 runs through five episodes spanning 2019 to 2023. In the earlier treatments — the April 2019 episode with Bill Ottman and the June 2019 episode with Frank Buckley — the episodes show the statute as a topic listed alongside censorship and free speech, with Buckley proposing a disclosure-based commission as an alternative to Senator Josh Hawley’s proposed legislation, which he and Zadek critique as a regulatory shakedown Who Will Censure the Censors? (2019). By the 2023 episodes with Will Duffield, the discussion has shifted to jawboning: the mechanics of how the threat to amend or repeal Section 230 gives government leverage over platforms, and how the statute’s protection shapes what platforms can refuse. The later episodes supply the detailed account of the statute’s operation that the earlier ones only name.

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