Why a Little-Known 1996 Law Protecting the Flow of Internet Speech Got Caught Up in End-of-2020 Politics

This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.

During the tumultuous tussle between Congress and President Donald J. Trump in recent weeks over stimulus payments and defense spending, a once-little-known and irrelevant piece of legislation dating back to 1996 kept popping up as a potential deal-breaker.

That provision is called Section 230, part of the Telecommunications Act of 1996, a 26-word sentence that has shielded internet giants like Facebook and Twitter from being sued for vile or defamatory content posted by users on their platforms. Here is that sentence:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In some ways, those 26 words drew strength from the 45 words of the First Amendment by nurturing free expression.

“Section 230 applies First Amendment values to the internet,” says Jeffrey Kosseff, a former journalist and a scholar in the U.S. Naval Academy’s Cyber Science Department. “It recognizes the unique role that online platforms play in allowing billions of people to communicate freely, and it unshackles those platforms from regulations and crippling lawsuits.”

Underscoring its importance, Kosseff wrote the book “The 26 Words That Created the Internet” in 2019. “The internet would look very different if these platforms faced existential liability for the millions or billions of pieces of user content that they transmit every year,” Kosseff said in an interview. (Kosseff said his views are only his and don’t represent the Department of Defense, Department of the Navy or Naval Academy.)

At the time the provision became law, members of Congress saw it as a way to help the internet flourish as a new industry and a source of free expression. Allowing those services to be sued for posted commentary that they were not even aware of would be a serious drag on that development.

A retro analogy: Bookstores and libraries, by and large, are shielded from being sued for the content of books they offer. Multiply that by billions of internet submissions, and the need for Section 230 may become clearer.

So why did this sentence get caught up in unrelated controversy? Debate over the law has simmered in recent years, but it was Trump who turned it into a flashpoint. In his view, Section 230 has given Big Tech companies too much power and leeway to use their platforms to censor — not cherish — free speech.

Trump’s fury began in earnest in May after Twitter began attaching warning alerts to his tweets. When he criticized California’s mail-in ballot process, Twitter offered a way to “get the facts” about the issue.

The president quickly issued an executive order asserting that it was “fundamentally un-American and anti-democratic” for online platforms to be able to “hand pick” speech on the internet. “Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias,” the order stated.

The Center for Democracy & Technology (CDT) quickly pushed back, challenging the order on First Amendment grounds. “The executive order is designed to deter social media services from fighting misinformation, voter suppression and the stoking of violence on their platforms,” said CDT President Alexandra Givens. “The President’s actions are a direct attack on the freedom of speech protected by the First Amendment.” The lawsuit was dismissed in part because the executive order was vague as to what it planned to do to rein in the tech companies.

But Trump persisted, and Congress took up the issue as well, holding hearings and grilling tech executives, some of whom said they would consider reforms.

As the presidential election heated up, Trump got even more angry about Section 230 because of the proliferation of warnings and deletions imposed on his social media commentary and on postings by some Trump-friendly organizations. Since tech companies are not government entities, those restrictions are not First Amendment violations.

Trump harangued Congress to “get rid of Section 230 — don’t let Big Tech steal our country,” as he tweeted Dec. 29. On Dec. 24, he tweeted, “Twitter is going wild with their flags, trying hard to suppress even the truth. Just shows how dangerous they are, purposely stifling free speech. Very dangerous for our country. Does Congress know that this is how communism starts? Cancel culture at its worst. End Section 230!”

Trump vetoed the defense spending bill Dec. 23 because it did not include a provision repealing Section 230. But Congress overrode his veto, leaving Section 230 in limbo. It is likely to be a recurring issue in coming months and years. President-elect Joe Biden has been critical of Section 230 because of the vile, even dangerous content it has unleashed.

What would the internet be like if Section 230 was repealed? Ironically, repeal might well result in stifling the flow of speech and content on the internet, not widening it.

“The most likely outcome is that platforms will be more likely to remove controversial user content, as they no longer would have the certainty provided by Section 230,” said Kosseff. “Platforms are businesses. Businesses have lawyers. Lawyers want to limit risk. Eliminating Section 230 would entirely change platforms’ risk calculus. Any rational platform, in a Section 230-free world, would limit any user content that poses even a slight risk of litigation.”

Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media and a special correspondent for the Freedom Forum.

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