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Section 230

Section 230 Executive Order Questioned by Federal Communications Commissioner Geoffrey Starks and Legal Experts



Screenshot of Federal Communications Commissioner Geoffrey Starks from the webinar

June 17, 2020 — “Section 230 is on fire in D.C.,” said Eric Goldman, professor at the Santa Clara University School of Law, at a Wednesday webinar hosted by the Information Technology & Innovation Foundation.

Panelists on the webinar discussed President Donald Trump’s recent executive order regarding the controversial statute, as well as other recent attempts to curb its reach. On Wednesday, the Department of Justice issued new recommendations for reforming the statute, and Sens. Josh Hawley, R-Mo., and Marco Rubio, R-Fla., introduced a bill that would allow users to sue internet companies for uneven or “bad faith” enforcement of their terms of service.

Each proposal attempts to curtail the liability protections that Section 230 of the Communications Decency Act provides to online platform companies hosting third party content.

“The executive order was really the kind of stuff you would expect to hear at a President Trump for Reelection campaign rally, rather than what you’d expect to see in a legally binding document that has gone through full legal vetting by a well-functioning executive branch,” Goldman said.

While opponents of Section 230 claim that it allows social media companies to limit free speech, Federal Communications Commissioner Geoffrey Starks pointed out that the companies themselves are protected by the First Amendment.

“In focusing on Section 230, we shouldn’t lose sight of the fact that the Constitution — not just a statute — protects private actors’ right to label, moderate, and otherwise control speech on their platforms,” he said. “The First Amendment allows social media companies to censor content freely in ways the government never could, and it prohibits the government from retaliating against them for their speech.”

The executive order directs the National Telecommunications and Information Administration of the Commerce Department to send a petition asking the FCC to propose regulations regarding Section 230.

Starks urged the NTIA to send this request as quickly as possible, rather than waiting until the prescribed deadline at the end of July.

“If, as I suspect it will, the petition fails at the threshold legal question of authority, we should say so loud and clear, close the book on this unfortunate detour and get back to the important work of closing the digital divide,” he said.

Starks also emphasized the political timing of the order.

“Whatever you think of its merits, the executive order represents the President’s clear intention to influence how social media companies operate at a time when their decisions are heavily implicated in his own electoral future,” he said.

Other experts question the need for the executive order

Kate Klonick, assistant professor at the St. John’s University School of Law, agreed, saying that “this has turned into a way to go after platforms and big tech companies because they hold a lot of power and a lot of amplifying potential for politicians.”

Goldman argued that the debate over content moderation should be framed as editorial discretion rather than censorship. Companies clearly have the right to exercise their editorial discretion in a politically biased way, he said, even if such an outcome is undesirable.

There is no evidence currently supporting the existence of political bias on social media platforms, Goldman claimed, and by definition, every single content moderation decision creates a winner and a loser.

“Those losers, over time, feel like they can look around, find other people who have the same outcome and say, ‘how come they’re all picking on us?’” Goldman said. “The losers are always going to be unhappy with the outcome they got, and they’re always going to claim that that was a result of bias against them.”

Content guidelines on social media platforms have stayed largely the same for the past several years, Klonick added. Any perceived uptick in enforcement is likely explained by the growing amount of extremist speech online.

Starks expressed skepticism about whether the FCC should even be playing a role in the regulation, explaining that the agency has power to act either when expressly directed to do so by Congress or when Congress leaves an interpretive gap to be filled.

“Neither has happened here,” he said. “Section 230 provides a self-enforcing rule for courts to apply in private litigation and does not give the FCC an enforcement or administrative role.”

“That the president might find it more expedient to influence a five-member Commission than a 538-member Congress is not a sufficient reason, much less a good one, to circumvent the constitutional function of our democratically elected representatives,” he added.

Klonick noted the importance of a commissioner arguing that his own agency is not supposed to have a certain authority.

“The phrase ‘when you’re a hammer, everything’s a nail’ comes to mind, and if you’re actually going, ‘oh no, this isn’t a nail,’ and you’re hearing it from the hammer, I think that’s pretty significant,” she said.

Reporter Em McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for the student newspaper. In addition to agency and freelance marketing experience, she has reported extensively on Section 230, big tech, and rural broadband access. She is a founding board member of Code Open Sesame, an organization that teaches computer programming skills to underprivileged children.

Section 230

Section 230 Shuts Down Conversation on First Amendment, Panel Hears

The law prevents discussion on how the first amendment should be applied in a new age of technology, says expert.



Photo of Ron Yokubaitis of, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

WASHINGTON, March 9, 2023 – Section 230 as it is written shuts down the conversation about the first amendment, claimed experts in a debate at Broadband Breakfast’s Big Tech & Speech Summit Thursday.  

Matthew Bergman, founder of the Social Media Victims Law Center, suggested that section 230 avoids discussion on the appropriate weighing of costs and benefits that exist in allowing big tech companies litigation immunity in moderation decisions on their platforms. 

We need to talk about what level of the first amendment is necessary in a new world of technology, said Bergman. This discussion happens primarily in an open litigation process, he said, which is not now available for those that are caused harm by these products. 

Photo of Ron Yokubaitis of, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

All companies must have reasonable care, Bergman argued. Opening litigation doesn’t mean that all claims are necessarily viable, only that the process should work itself out in the courts of law, he said. 

Eliminating section 230 could lead to online services being “over correct” in moderating speech which could lead to suffocating social reform movements organized on those platforms, argued Ashley Johnson of research institution, Information Technology and Innovation Foundation. 

Furthermore, the burden of litigation would fall disproportionally on the companies that have fewer resources to defend themselves, she continued. 

Bergman responded, “if a social media platform is facing a lot of lawsuits because there are a lot of kids who have been hurt through the negligent design of that platform, why is that a bad thing?” People who are injured have the right by law to seek redress against the entity that caused that injury, Bergman said. 

Emma Llanso of the Center for Democracy and Technology suggested that platforms would change the way they fundamentally operate to avoid threat of litigation if section 230 were reformed or abolished, which could threaten freedom of speech for its users. 

It is necessary for the protection of the first amendment that the internet consists of many platforms with different content moderation policies to ensure that all people have a voice, she said. 

To this, Bergman argued that there is a distinction between algorithms that suggest content that users do not want to see – even that content that exists unbeknownst to the seeker of that information – and ensuring speech is not censored.  

It is a question concerning the faulty design of a product and protecting speech, and courts are where this balancing act should take place, said Bergman. 

This comes days after law professionals urged Congress to amend the statue to specify that it applies only to free speech, rather than the negligible design of product features that promote harmful speech. The discussion followed a Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube.   

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Section 230

Congress Should Amend Section 230, Senate Subcommittee Hears

Experts urged Congress to amend tech protection law to limit protection for the promotion of harmful information.



Photo of Hany Farid, professor at University of California, Berkley

WASHINGTON, March 8, 2023 – Law professionals at a Senate Subcommittee on Privacy, Technology and the Law hearing on Wednesday urged Congress to amend Section 230 to specify that it applies only to free speech, rather than the promotion of misinformation.

Section 230 protects platforms from being treated as a publisher or speaker of information originating from a third party, thus shielding it from liability for the posts of the latter. Mary Anne Franks, professor of law at the University of Miami School of Law, argued that there is a difference between protecting free speech and protecting information and the harmful dissemination of that information.

Hany Farid, professor at University of California, Berkley, argued that there should be a distinction between a negligently designed product feature and a core component to the platform’s business. For example, YouTube’s video recommendations is a product feature rather than an essential function as it is designed solely to maximize advertising revenue by keeping users on the platform, he said.

YouTube claims that the algorithm to recommend videos is unable to distinguish between two different videos. This, argued Farid, should be considered a negligently designed feature as YouTube knew or should have reasonably known that the feature could lead to harm.

Section 230, said Farid, was written to immunize tech companies from defamation litigation, not to immunize tech companies from any wrongdoing, including negligible design of its features.

“At a minimum,” said Franks, returning the statue to its original intention “would require amending the statute to make clear that the law’s protections only apply to speech and to make clear that platforms that knowingly promote harmful content are ineligible for immunity.”

In an State of the Net conference earlier this month, Frank emphasized the “good Samaritan” aspect of the law, claiming that it is supposed to “provide incentives at platforms to actually do the right thing.” Instead, the law does not incentivize platforms to moderate its content, she argued.

Jennifer Bennett of national litigation boutique Gupta Wessler suggested that Congress uphold what is known as the Henderson framework, which would hold a company liable if it materially contributes to what makes content unlawful, including the recommendation and dissemination of the content.

Unfortunately, lamented Eric Schnapper, professor of law at University of Washington School of Law, Section 230 has barred the right of Americans to get redress if they’ve been harmed by big tech. “Absolute immunity breeds absolute irresponsibility,” he said.

Senator Richard Blumenthal, R-Connecticut, warned tech companies that “reform is coming” at the onset of the hearing.

This comes weeks after the Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube. The case saw industry dissention on whether section 230 protects algorithmic recommendations. Justice Brett Kavanaugh claimed that YouTube forfeited its protection by using recommendation algorithms but was overturned in the court ruling.

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Content Moderation, Section 230 and the Future of Online Speech

Our comprehensive report examines the extremely timely issue of content moderation and Section 230 from multiple angles.



In the 27 years since the so-called “26 words that created the internet” became law, rapid technological developments and sharp partisan divides have fueled increasingly complex content moderation dilemmas.

Earlier this year, the Supreme Court tackled Section 230 for the first time through a pair of cases regarding platform liability for hosting and promoting terrorist content. In addition to the court’s ongoing deliberations, Section 230—which protects online intermediaries from liability for third-party content—has recently come under attack from Congress, the White House and multiple state legislatures.

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