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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.

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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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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Section 230

Industry Experts Caution Against Extreme Politicization in Section 230 Debate

Reforming Section 230 may not ‘break the internet,’ but experts recommended that changes be targeted and incremental.



Photo of Billy Easley, senior public policy lead at Reddit, courtesy of Jess Miers

WASHINGTON, March 7, 2023 — Congress should reject the heavily politicized rhetoric surrounding Section 230 and instead consider incremental reforms that are narrowly targeted at specific problems, according to industry experts at State of the Net on Monday.

“What I really wish Congress would do, since 230 has become this political football, is put the football down for a second,” said Billy Easley, senior public policy lead at Reddit.

Don’t miss the Big Tech & Speech Summit on Thursday, March 9 from 8:30 a.m. to 3:30 p.m. Broadband Breakfast is making a webinar of the summit available. Registrants and webinar participants receive two months’ complimentary membership in the Broadband Breakfast Club.

Instead of starting from Section 230, Easley suggested that Congress methodically identify specific problems and consider how each could best be addressed. With many issues, he claimed that there are “a slew of policy options” more effective than changing Section 230.

Much of the discussion about Section 230 is “intentionally being pitted into binaries,” said Yaël Eisenstat, head of the Anti-Defamation League’s Center for Technology and Society. In reality, she continued, many proposals exist somewhere between keeping Section 230 exactly as it is and throwing it out altogether.

Eisenstat expressed skepticism about the often-repeated claim that changing Section 230 will “break the internet.”

“Let’s be frank — the tobacco industry, the automobile industry, the oil and gas industry, the food industry also did not want to be regulated and claimed it would completely destroy them,” she said. “And guess what? They all still exist.”

Joel Thayer, president of the Digital Progress Institute, claimed that many arguments against Section 230 reform are “harkening back to a more libertarian view, which is ‘let’s not touch it because bad things can happen.”

“I think that’s absurd,” he said. “I think even from a political standpoint, that’s just not the reality.”

Potential reforms should be targeted and consider unintended consequences

While Section 230 has performed “unbelievably well” for a law dating back to 1996, it should at least be “tweaked” to better reflect the present day, said Matt Perault, director of the Center on Technology Policy at the University of North Carolina.

But Perault acknowledged that certain proposed changes would create a significant compliance burden for smaller platforms, unlike large companies with “huge legal teams, huge policy teams, huge communications teams.”

Concerns about the impact of Section 230 reform on small businesses can be addressed by drawing distinct guidelines about which types of companies are included in any given measure, Thayer said.

Easley warned that certain proposals could lead to major unintended consequences. While acknowledging Republican concerns about “censorship” of conservative content on social media platforms, he argued that removing Section 230 protections was not the best way to address the issue — and might completely backfire.

“There’s going to be less speech in other areas,” Easley said. “We saw this with SESTA/FOSTA, we’ve seen this in other sorts of proposals as well, and I just really wish that Congress would keep that in mind.”

Thayer suggested that future legislative efforts start with increasing tech companies’ transparency, building off of the bipartisan momentum from the previous session of Congress.

Easley agreed, adding that increased access to data will allow lawmakers to more effectively target other areas of concern.

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