Not so long ago, Section 230 of the 1996 Communications Decency Act was an obscure part of the federal code. Now, every armchair policy analyst has a passionately held opinion about it.
Anyone with a beef against big internet companies, and that means almost everyone these days, wants to kill it. Even newspapers have piled on, but repealing Section 230 won’t save the local free press.
First, and this is the part that everyone focuses on, it provides limited liability protection to platforms that host user-submitted content. Facebook, Twitter, YouTube and others can’t be sued for something a user posts. The user could be sued for libel or whatever is appropriate, but the website isn’t to blame.
Second, those digital companies may moderate content in “good faith” and not incur liability. So, if someone posts about how wonderful Nazis were and Facebook doesn’t want that sort of idiocy on its site, it can remove the post without opening itself to lawsuits.
It’s no understatement to say that without those protections, we wouldn’t have the robust online public forums that we all enjoy, loathe or avoid. Section 230 created a safe zone in which social media flourished.
Now it’s a target. There wasn’t much that President Donald Trump and President-elect Joe Biden agreed on during the campaign, but both want to repeal Section 230, albeit for different reasons.
Conservatives believe that the law allows websites to silence conservative speech. Trump has threatened to veto the National Defense Authorization Act unless lawmakers gut or repeal Section 230.
Progressives believe that the law allows way too much speech. Social media sites shouldn’t propagate false attacks on candidates, misinformation about COVID-19 and divisive content from Russian bots.
There’s some truth on both sides and a lot of misunderstanding about what Section 230 does. Congress wrote it more than 20 years ago in the era of Prodigy and CompuServe. There’s no harm in reassessing how well it works with the modern internet. Maybe it does need to be repealed.
But first there needs to be a calm conversation about what would happen if it is. The last thing anyone but trial lawyers want is to open the door for a flood of content-related litigation or government speech control.
Newspapers that have joined the repeal chorus mostly fall into two overlapping camps. The first group wants to hurt the big digital platforms that have hurt them no matter the cost. The second sees ending Section 230 as a way to reduce the power of digital platforms.
Jeff Kosseff is a cybersecurity law professor at the U.S. Naval Academy and author of “The Twenty-Six Words That Created the internet,” a reference to the number of words in the liability protection part of Section 230.
He also was a reporter for The Oregonian in Portland, where he was a Pulitzer Prize finalist. He, perhaps more than anyone else in America, understands the interplay between Section 230 and the press.
“What newspapers say is ‘We don’t like Facebook and Google because we don’t think they play fair and they have this protection under the law, so we want to get rid of 230.’ The biggest flaw with that is that newspapers and TV stations and any other media organization that has a website can get Section 230 protection,” Kosseff explained.
He said that newspapers have a lot of legitimate complaints about companies like Facebook and Google, but this isn’t the way to redress them. Nor should most newspapers forget that they were slow on the internet uptake and have been playing catch-up as a result.
“It’s like a lot of this debate. You have a lot of people who are angry at these platforms, and they’re using 230 as a proxy even though it’s not what they’re really angry about,” Kosseff said. “It’s disappointing to see these newspapers take such a strong stance against a statute that has helped preserve First Amendment values.”
He suggested that the local free press can still succeed in a Section 230 world.
News publishers could embrace the opportunities of Section 230. Their websites are just as entitled to Section 230 protection as Twitter. They could become more robust forums for local conversations that are difficult in larger venues. Reporters and editors can add value to those conversations that Facebook can’t.
Kosseff also mentioned nonprofit newspapers and hyperlocal news sites as possible next steps in the evolution of the local free press.
Whatever form they take, the local free press needs to deliver only what it can — local news coverage produced by reporters and editors who understand the community better than any national press. That has nothing to do with Section 230.