No Matter Who Wins, Section 230 May be in for a Rough Ride

WASHINGTON, D.C. – Early this year, back before COVID-19 became the center of the news-universe, Joe Biden unequivocally stated he believes Section 230 of the Communications Decency Act “immediately should be revoked.”

As it turns out, this is one thing on which Biden and his electoral adversary, President Donald Trump, appear to agree completely. If there was any doubt on that front, Trump eliminated it today with a single, all-caps tweet.

While none of the proposals relating to Section 230 currently under consideration by the House and/or Senate explicitly call for the full repeal of the safe harbor, each of the proposals seeks to narrow it in some fashion or another.

At a time when there’s no shortage of handwringing out there over a lack of bipartisanship and collegiality between the two major parties, the desire to amend Section 230 (or, more cynically, a desire to be seen as wanting to amend the safe harbor) stands out as one of the few points of agreement between republicans and democrats in Washington.

In describing the reason for their zeal to amend Section 230, another bipartisan tendency is to badly misstate the nature of Section 230, then claim that “big tech” is flaunting the law based on the misreading preferred by whichever critic is doing the speaking.

REPEAL SECTION 230!!!

— Donald J. Trump (@realDonaldTrump) October 6, 2020

Look at Biden’s take on Section 230, for example. In an interview with the editorial board of the New York Times, speaking of Mark Zuckerberg, Facebook’s CEO and founder, Biden said that with respect to allegedly false information posted about Biden on Facebook, Zuckerberg “should be submitted to civil liability and his company to civil liability, just like you would be here at The New York Times.”

Biden’s point is nonsense, though. It’s well established under U.S. law that for a public figure like him to sue the Times with respect to allegedly defamatory statements, he would have to show the Times had “actual malice” – meaning the Times would have to know the statements were false, or had acted with “reckless disregard” for their truth or falsity.

Biden people who have made similar statements about Section 230 also seem to conflate the protections offered to operators of interactive computer services with respect to third-party expression with the notion that platforms and websites can’t be sued for their own expression either, which is flatly false.

If Zuckerberg were to log into his own Facebook account right now and post a series of defamatory statements about Biden, Section 230 would offer him no protection at all. Biden would still face the typically uphill battle public figures always face when pursuing defamation claims, but that’s a fact one can hardly pin on Section 230, which came into existence long after the legal standards that govern whether or not a public figure has been defamed. The landmark case in this area, New York Times v. Sullivan, was decided in 1964, the Communications Decency Act, of which Section 230 is a part, was passed in 1996.

Trump’s frustration with Section 230, it seems, flows from platforms like Twitter and Facebook either deleting his communications or tagging them with warnings – something he appears to think they would not be allowed to do if Section 230 is repealed. Just as likely, social media platforms would ban users like him altogether if Section 230 were to be repealed, lest they face liability for any allegedly defamatory tweets he might publish!

Whether Section 230 gets repealed, amended or otherwise altered in the months and years to come remains to be seen. Who knows; maybe once the upcoming election cycle is over (whenever that might be), politicians will lose their taste for yammering about Section 230 and turn their attention to some other concern – like online porn.

Hey, don’t laugh; I’ve heard one of the candidates signed some sort of pledge regarding his intent to crack down on internet porn, once upon a time….