Section 230

These are hard times for free speech advocates. The Internet–with its capacity for mass distribution of lies, misinformation, bigotry and incitement to violence–cries out for reform, but it is not apparent (certainly not to me) what sort of reforms might curb the dangers without also stifling free expression.

One approach is focused on a law that is older than Google: Section 230 of the Communications Decency Act. 

What is Section 230? Is it really broken? Can it be fixed without inadvertently doing more damage? 

The law is just 26 words that allow online platforms to make rules about what people can or can’t post without being held legally responsible for the content. (There are some exceptions, but not many. )As a recent newsletter on technology put it (sorry, for some reason link doesn’t work),

If I accuse you of murder on Facebook, you might be able to sue me, but you can’t sue Facebook. If you buy a defective toy from a merchant on Amazon, you might be able to take the seller to court, but not Amazon. (There is some legal debate about this, but you get the gist.)

The law created the conditions for Facebook, Yelp and Airbnb to give people a voice without being sued out of existence. But now Republicans and Democrats are asking whether the law gives tech companies either too much power or too little responsibility for what happens under their watch.

Republicans mostly worry that Section 230 gives internet companies too much power to suppress online debate and discussion, while Democrats mostly worry that it lets those companies ignore or even enable dangerous incitements and/or illegal transactions. 

The fight over Section 230 is really a fight over the lack of control exercised by Internet giants like Facebook and Twitter. In far too many situations, the law allows people to lie online without consequence–lets face it, that high school kid who is spreading lewd rumors about a girl who turned him down for a date isn’t likely to be sued, no matter how damaging, reprehensible and untrue his posts may be. The recent defamation suits brought by the voting machine manufacturers were salutary and satisfying, but most people harmed by the bigotry and disinformation online are not in a position to pursue such remedies.

The question being debated among techies and lawyers is whether Section 230 is too protective; whether it reduces incentives for platforms like Facebook and Twitter to make and enforce stronger measures that would be more effective in curtailing obviously harmful rhetoric and activities. 

Several proposed “fixes” are currently being considered. The Times article described them.

Fix-it Plan 1: Raise the bar. Some lawmakers want online companies to meet certain conditions before they get the legal protections of Section 230.

One example: A congressional proposal would require internet companies to report to law enforcement when they believe people might be plotting violent crimes or drug offenses. If the companies don’t do so, they might lose the legal protections of Section 230 and the floodgates could open to lawsuits.

Facebook this week backed a similar idea, which proposed that it and other big online companies would have to have systems in place for identifying and removing potentially illegal material.

Another proposed bill would require Facebook, Google and others to prove that they hadn’t exhibited political bias in removing a post. Some Republicans say that Section 230 requires websites to be politically neutral. That’s not true.

Fix-it Plan 2: Create more exceptions. One proposal would restrict internet companies from using Section 230 as a defense in legal cases involving activity like civil rights violations, harassment and wrongful death. Another proposes letting people sue internet companies if child sexual abuse imagery is spread on their sites.

Also in this category are legal questions about whether Section 230 applies to the involvement of an internet company’s own computer systems. When Facebook’s algorithms helped circulate propaganda from Hamas, as David detailed in an article, some legal experts and lawmakers said that Section 230 legal protections should not have applied and that the company should have been held complicit in terrorist acts.

Slate has an article describing all of the proposed changes to Section 230.

I don’t have a firm enough grasp of the issues involved–let alone the technology needed to accomplish some of the proposed changes–to have a favored “fix” to Section 230.

I do think that this debate foreshadows others that will arise in a world where massive international companies–online and not– in many cases wield more power than governments. Constraining these powerful entities will require new and very creative approaches.


  1. Professor-my father used to tell me to “use your head.” Perhaps, we just need a giant dose of common sense. This issue is so complicated, yet, we do know that it is not right to “yell fire in a crowded theatre.” Ahhhh, common sense. D

  2. Maybe we are missing an opportunity here!

    Why not revoke immunity for the politicians who knowingly pedal out and out lies, not even conspiracies. Some conspiracies are rooted, not all but some, in fact. But, made up lies for the sake of disparaging debate or governmental progress, those individuals should be held responsible for making Congress a festoon of malediction. They should not have immunity.

    The Speech or Debate Clause is a clause in the United States Constitution (Article I, Section 6, Clause 1). The clause states that members of both Houses of Congress shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

    It seems to me that there have been individuals who have met the criteria for prosecution of treason, felony, and breach of peace! And, this should be prosecuted right now.

    This link gives arguments for and against, very fascinating;

    Once again, the laws and rules put forth in the Constitution are manipulated to elevate individuals in government above the people. This is out and out undemocratic. If you are knowingly speaking and fomenting libelous innuendo and conspiracies, you should be held accountable no matter who you are.

    But right now, the laws should be enforced, the rules should be followed, and individuals who participated in the insurrection, who fomented violence in the state capital, who foment distrust concerning gun violence and foment fallacies concerning the Second Amendment, be held accountable.

    And, I might add fomenting the distrust of healthcare by claiming doctors would be forming death squads seeing to it that all the good patriots and good people would be left to die! I’m still waiting to see an example of death squads, and really the only death squad I’ve seen was the GOP trying to take people’s healthcare away! And, let’s not forget the deaths from covid19 that the GOP is responsible for by promoting conspiracies publicly to prevent people from becoming immunized or following proven science on mask wearing and social distancing!

    If you represent the people there is a certain responsibility for being truthful and honest, this is not been the case, the laws that are presently on the books can set an example for everyone, what was the old game show? ” Truth or Consequences” sounds good to me!

    If these large social media corporations see politicians being held to some sort of account concerning their tendency for malediction, I think it would probably solve that issue rather expeditiously.

  3. Also,

    The executive could use all law! Presidential order, by George Bush November 13, 2001, The president declared a national emergency and claimed that Article II of the Constitution and the recent Joint Resolution by Congress Authorizing the Use of Military Force (Public Law 107–40) empowered him to issue the order.

    Military tribunals could be the answer considering the trees in an insurrection that took place on and even before January 6. This would bypass the court system and the Supreme Court and bring justice to bear on those individuals knowingly using their innuendo and maledictive liable, detrimentally affecting societal norms, including health and well-being!

    Make no mistake, this is what a wartime Pres. must do to stave off the assault taking place as we speak on personal liberties and equality for all including human dignity.

  4. Dennis, common sense may be the world’s most uncommon commodity.

    At the very least they should be required to fact check and label the lies, then ban the liars, if the practice continues. I know that they have done that, but it seems that their efforts are half-hearted at best. The labels should be the most prominent feature of the post and the truth should be part of the revelation.

  5. I think it has been discussed before, but in the context of polluters, externalities is dumping stuff into the environment like untreated sewage, that others downstream pay the costs for because they can no longer use the water.

    Social media sites create externalities that they bear no cost for, like propagating election false hoods. Suddenly election boards across the country are having hires people just to answer all of the panicked phone calls. Imagine the cost of spreading anti-vaccination information. People will die, and the social media companies have absolutely no liability.

    If you want to spread controversial and possibly false information that is not allowed on social media sites, set up your own website and make sure you can defend the ideas in the court of law. The problem with social media and and even blog sites, is that the barriers of entry in to the market place of false information is so low, that every crackpot has a megaphone. At the same time if you want to kill good ideas the same crackpots censor them by drowning them is flood of false posts.

    The bar needs to be raised.

    Just like a newspaper, social media companies should absolutely face the consequences of what is posted on their site, because they will quickly learn how to control it, or go out of business. It will bring some balance back to the market place of ideas when there is finally some accountability.

    I do acknowledge that there will be some danger that more will get filtered than is good for that market place of free ideas, but you will at least have the option to self publish or sue.

  6. Yes, Peggy, as said by Voltaire, “common sense is not so common.” And, Einstein put in his own 2 cents about it with “Common sense is the collection of prejudices acquired by the age of 18.”
    John, you make a lot of sense, both times.
    Peggy, I like your labels idea.
    Sheila, you write that FB is concerned about “illegal” activity, and I see that as purposefully too narrow. There are certainly some things that can be put out there that may well not be illegal, but can be very harmful, as in the case of misinformation about medical interventions.

  7. As with other “unlawful” actions, it is not the punishment which is the deterrent, it is the likelihood of being caught. In that direction the solution lies. There are endless examples over the years of letting industries/companies “self-regulate” instead of having strong government (non-partisan) regulation.

  8. I am baffled by Republicans who, in one breath, complain about social media censorship and then in the next breath want to eliminate Section 230 which protects those social media companies from being sued for content published on their website. You eliminate Section 230 and those social media companies will be much more aggressive in taking down material on their websites, including material published by conservatives. Those social media companies don’t want to have to defend billion dollar lawsuits from the likes of Dominion for lies spread on their websites.

  9. Sheila writes, “Constraining these powerful entities will require new and very creative approaches.”

    Once again, who allowed Facebook to get so large in the first place? Who allowed Google to dominate search engines? Who keeps calling in the CEOs of these companies demanding constraints after the fact?

    You would think the 2008-9 terms, “too big to jail” and “too big to fail,” would have been the impetus for change to break up these entities into tiny pieces, including banks, wireless providers, telecom, internet, oil, etc.

    When did the government stop regulating industry?

    At the same time, instead of focusing on regulating the industry by breaking it up, we are using free speech to hold these companies accountable.

    “We’re sorry we let you grow beyond your means to self-regulate, but we have to hold you accountable anyway?”

    Meanwhile, we already know that the government collects and hands names to Google, Twitter, and Facebook; they want to be censored. Yet, even though the patriot groups used Facebook to coordinate their 1/6 attacks on the Hill, Christopher Wray said, “We had no early intelligence.”

    He’s lying. John Brennan told Congress, “We don’t spy on Americans.” He was lying.

    You catch a glimpse of this same illogic and twisted lies in the Solar Winds hacking case. The DHS was among several government departments spied on by “Russia hackers” for months and didn’t know it until a private contractor discovered a company had been breached. The government claims to have antiquated infrastructure while also having the most sophisticated spyware and surveillance software globally.

    John said something about conspiracies above. How in the world can we make an intelligent decision when there is so much misinformation within our own Fascist government?

    We claim to be about “transparency” and “democracy” even though all decisions are made in corporate boardrooms and handed down to our politicians. While our government uses a constitutional workaround with private industry, our free speech withers away. The free press has been neutered, and anyone wanting to hold the government accountable has the Julian Assange case staring them in the face.

    Fascist authoritarianism is the new term on Twitter.

    Try reading this AP article about the Solar Winds case. It will hurt your brain — it’s like an oxymoronic built upon on oxymoron, yet the end game is the government will use private companies to spy on and censor users even more.

  10. Lester: Those self-regulators are the ones who have successfully lobbied against “big government,” a prime example of which is the reduction of federal meat inspectors in meat packing plants, a menace to the public health.

    Paul: Social media companies have a problem any direction they take with 230. They are making big bucks with their advertising, but if they totally heed those who would all but shut them down with limitations on 230 they will have a vanilla output which will turn off their consumers and end up in Chapter 11 in short order.

    Personally, and for a change, I see merit in both Democratic and Republican fixes, but I won’t pretend to have an answer to the multi-faceted issues involved. Thus the speech component of the First Amendment is a guarantee against state action, but how do you treat the state’s statute which delegates such a guarantee to a non-state profit making organizations in charge of determining what limitations they please on speech? Are libel laws and the Sullivan v. NYT holding adequate to stem use of the social media via suits against those who speak hate and insurrection without reference to the social media companies as defendants due to their exemption from liability per 230? Should 230 be repealed and leave such social media companies with cookbook and astrology offerings for the masses?

    To these and many other queries that could be asked, I, uh, can only speculate.

  11. Dan,

    I appreciate the kind words, although my comment had trees in instead of treason, it’s kind of hard to make an emphatic point when you’re using the wrong words, lol!


    Excellent comment! How do you stop a bad guy with a nasty yap? Maybe a good guy with a nasty yap?

    Arguing and argumentative confrontation never accomplishes anything, I think, as you’ve been saying for quite a while, shining the light on the oligarchs who really are controlling so much of our society would be a good idea! That’s one reason why I mentioned the executive branch having to play the game on the level that the opposition is playing. Do something unexpected and full thrusted. In a crisis wartime situation, the executive has the option to declare martial law and make sure everything is running appropriately without subversive operatives damaging the government. That seems to be the case right now. It’s time for boldness, but I doubt anybody has the willpower for that. So then the GOP, when they get the opportunity, they’ll finish off their opposition by this very method.

    The GOP is just hoping and praying that in the next two years or so, the Democratic party will not have the gumption to be bold and take the bull by the horn so to speak. Let’s hope, that changes pretty quick.

  12. Social media like Facebook could adopt a THREE-TRACK APPROACH to accepting posts from participants. The media company then would self-administer and enforce this new approach.

    News track: personal news that is basically true, as well as reposts of other news that is basically true. Diary-like entries. Well-wishes. Salutations. Puppydog drivel. Family news. Invitations.

    Opinion track: individual opinions on almost any subject, supported by facts or by lies or by nothing at all, but clearly entered as opinion, the assumption being that within the opinion expressed there is no claim to truth.

    Creative track: satire and other creative expression, meant to entertain and stimulate, or aggravate and ridicule, etc. would be posted here.

    The media company would be empowered by law to move posts entered into the wrong track into the correct track, which avoids affecting the poster’s free speech rights; however, the company would be enabled to fine all posts entered in the wrong track.

  13. But those lies have created a hostile environment worldwide. America needs to get this right and how.

    My sister had covid and lives in FL. She has watched Fox Spews since day 1.
    Last Saturday she told my mother she wasn’t getting a vaccine because she doesn’t like Bill Gates. She believes the lie about a tracker added to the vaccine.

    I think that we really need to remove these conspiracies from the planet. They are dangerous to the human race. A security threat.

  14. Paul Ogden, the last proposal from Republicans was much more dangerous that just removing section 230. The last proposal was remove section 230 EXCEPT for religious and political content. This would allow the firehose of political lies backed by religious drivel to flow unabated.

  15. When the creators of social media, thought that it would bring people closer together, they were young and naieve. Every human creation seems to create both negative and positive effects.

    Common sense Is it thoughtful, honest, intelligent, necessary, kind? THINK before you post or speak. Unfortunately,the former president has led people to believe that hate speech is permissible with his thoughtless, hateful tweets.

    Adolescents do not have a mature frontal lobe of the brain so they have poor impulse control and less ablility to detach from peers’ gossip. Parents need to teach their kids about not only “bad touch” but “bad speech.” Parents need to be involved with their kids’ activity on social media. My sister’s son was being affected by what a peer wrote. As soon as she found out, the parents of the kid making the offensive remarks were contacted. Without parental involvement adolescent cyber bullying can have devastating consequences.

    I recall the strict TV censorship we once had. Now there’s a lot of graphic violence. And now there is graphic violence on social media that is actually happening in real time. All social media outlets will have to have ways to deal with anyone making a post that glorifies violence or terrorism. NPR and PBS always warn listeners if there will be disturbing news or images before they give the report.

    Larry Maybe Facebook should have another “opinion” category called “Propaganda” or “Conspiracy Theory.” Or maybe they need a rating system like the movies.

    So we are talking of the internet. And when will police officers take verbal threats against women, people of color etc. as seriously as we now are with what people post on social media?

    I wish everyone would simply THINK before they speak. But that requires a healthy frontal lobe of the brain and a strong moral compass that gives us the capacity to self-regulate.

  16. Larry – I like you idea, but I remember, when brick and mortar bookstores were more common, being appalled by what was displayed in the “non-fiction” section. Alien abductions and haunted houses are entertaining, but hardly “non-fiction”. James Randi’s prize from proven “para-normal” events has never been claimed, but “non-fiction” sections contain lots of examples.

    I will note that “religion” used to have its own section, rightly so, as it never fit into that dichotomy, faith being a separate modality/dimension.

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