Section 230
Supporters of Section 230 Agreed About Concerns, But Counterarguments Dominated Panel Discussion

February 13, 2021 – With many current proposals to revise Section 230 of the Communications Decency Act, supporters of the landmark internet law on Tuesday discussed how new proposals could heavily interfere with the First Amendment.
The general angst about how people are using the internet badly, coupled with rising politicization and online hate speech have given advocates for change an upper hand. But Cathy Gellis, a tech law expert and Section 230 specialist, said that advocates for charge are overlooking how Section 230 has worked to the benefit of users.
“In some degree, we are reacting to some very real problems, but we’re not necessarily reacting with the appropriately nuanced analysis of what is really the root cause of concerns,” said Gellis, speaking at an event of the progressive American Constitution Society for Law and Policy.
During the meeting, which was hosted by the chapter of the organization at Santa Clara Law School, the discussion centered heavily on how future changes to Section 230 might diminish users’ speaking power and create unnecessary conflict.
Gellis insisted that these issues need to be analyzed with caution and consider users’ perspectives on the operation of social platforms.
Eric Goldman, associate dean at the law school, and co-director of the High-Tech Law Institute there, raised the concerns of some elected officials. He agreed that there are bad things that happen on the internet due to the outsized influence of overly-capitalized big tech platforms in the digital space.
Yet Goldman said that the entire critique of Section 230 has a severe structural problem: Critics of Section 230 have bought into the idea that big entities censor governments when they impose speech restrictions on how people talk to each other on the platforms. The truth, he said, is the reverse: “The First Amendment exists to keep it so that the government or big tech companies can’t use their power to keep citizens from being able to talk back to people in power.”
“Not having a regulatory system that prevents intermediaries from adopting policies, where a content-based discrimination is sharply limited, allows the internet to be user friendly,” agreed David Greene, civil liberties co-director of the Electronic Frontier Foundation, which has championed Section 230 for more than 25 years.
Cutting Section 230 would injure the First Amendment and the power of speech, he said, and make web sites lack user-friendly policies.
It is still unclear how the changes of Section 230 will enhance connectivity, he said. Whether the platforms are doing a good job or not, there is still and always will be the question of more or less moderation of content.
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.

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 Texas.net, 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.

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.
Premium
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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