A few quick notes about section 230

In The Wolf of Wall Street, Scorsesse tells the story of a firm named Straton Oakmont a predatory stock brokerage. Shortly before they fell apart, they successfully sued America Online for defamation, as a user of that service was blowing the whistle on them. What a ridiculous outcome. Congress thought so too so they created blanket immunity for Internet service providers for material flowing through their systems. After all, AOL said nothing, a user did.

Of course the fish had three eyes…

There is a strong literature base both on Section 230 and content moderation in general, so I will keep this brief:

Section 230 is key to free speech online, ending it chills free expression.

First, there is no part of section 230 that bans feed management or attempts to manage a product. The closest you get to this are claims in cases like Roomates, that Section 230 does not provide blanket immunity against fair housing law. That is a good thing. Twitter doesn’t “lose” 230 protection because they don’t allow you to engage in illegal activity on their platform or because they exercise their right to edit their system. This was a convenient fiction for firms that didn’t want to take moderation seriously. Examples you hear of Section 230 failing are not about editing, they are about a secondary issue like fair housing violations or crimes. Not allowing the President to lie is not a crime.

Second, the existence of semi-edited spaces is good and productive. By allowing substantial additional speech within boundaries. More speech tends to be good, especially if that speech is truthy. This dovetails with a key American 1A misunderstanding: it only applies to the government, not to private actors. It is entirely possible that a semi-public space could enable more, better speech by constraining other speech or speech-like conduct. The Supreme Court has never embraced the theory of add unlimited speech and press blend, this Vitamix social theory is only embraced by folks who want an unpleasant public sphere riddled with deception.

Third, and finally, if you allow a flood of litigation against these firms they will clamp down on all expression. The idea that anyone would want to dive into the pool of unlimited, unedited, artificial speech is ludicrous. Even more bizarre is the idea that anyone would advertise there. We have already decided against this idea and recently too when Congress ended the asinine enforcement of foreign defamation judgments in US courts. While defamation was a big part of nineteenth century US law, the system evolved, there is no reason to step backwards two-hundred years because rich people don’t like facing social consequences.

To be clear as well, winning defamation suits is hard, likely this is just a way for powerful people to bully journalists and media companies. Heavy duty editorial control is the alternative to the status quo, not the Greek Agora.

Summary: Section 230 allows social network firms to maintain semi-public spaces that enhance free speech, attempts to increase their exposure to liability chills free expression.

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