Why We'll Hate Section 230's Repeal and Why It Will Screw Both Left and Right the Same

There's one thing that democrat and republican leaders agree on these days. 

They hate "Section 230" and they want it dead.

It's the law politicians love to hate and the general public doesn't understand.

In a New York Times interview back in 2020, Biden said "we should be worried about" Facebook "being exempt" from lawsuits.  "[The Times] can’t write something you know to be false and be exempt from being sued...Section 230 should be revoked, immediately should be revoked."

Trump said the same multiple times.

“REPEAL SECTION 230!!!” he wrote in the tweet in 2020 as he signed an executive order designed to punish big tech for perceived political bias.  "Social media giants like Twitter receive an unprecedented liability shield based on the theory that they are a neutral platform, not an editor with a viewpoint," he said during the signing ceremony for the order.  His former justice department tried to cobble together a terrible alternative to Section 230 that thankfully failed. 

Both sides have a different reason for wanting the law dead. 

Biden hates Facebook and accuses them of spreading misinformation and he wants the power to stop it.  That's why he tried to fire up a dystopian titled Disinformation Governance Board. Of course the problem with deciding what's false information is that whoever is in power at the time gets to decide what's "true" and what's "false" like the Russian “anti-fake news" law that charged a blogger and may put her in jail for 15 years because she dared to call the Russian invasion of the Ukraine a war instead of a "special military operation."

The right sees big tech as biased against conservative views and they want to stop what they see as rampant censorship and to make sure they can use social media platforms as a personal bully pulpit to go direct to the people and bypass any and all mainstream media.

There's just one little problem.

Both sides are lying to you.

Of course, there's the faintest sliver of truth to what these people are saying and that's the key to a good lie. The law absolutely does give broad immunity to internet service providers that didn't exist before the internet.  Beyond that though, they're straight up lying to you.

Biden is totally wrong when he says Section 230 treats Facebook and Twitter any differently than the New York Times or Fox News or Breitbart or the Atlantic.  None of them are responsible for what angry idiots and trolls post in their comment section.  You can write stupid, insane nonsense in any of their comments and they aren't held responsible for your crazy.  But if the New York Times or Fox News employees write something defamatory, both the reporter and the site can be held liable.

At the same time, Trump and former Attorney General Barr are dead wrong in saying that Section 230 demands that online platforms be neutral.  The truth is the law was written to encourage online platforms to filter content.  It has absolutely no requirement for neutrality. 

To understand why you just have to understand the history of the law and how it came to be.

What Section 230 Actually Does and Why It Was Passed In the First Place

To actually understand Section 230, you have to understand how the world worked in 1996.

Back then the Internet was small and three companies dominated the way people got online with dial up modems: Prodigy, AOL, and CompuServe. You've got mail!  Along with net access the three companies also offered realtime chats and online message boards.

Prodigy wanted to promote a family friendly experience so they monitored their message boards and deleted posts that didn't fit the company's family friendly standards. On today's internet it's nearly impossible to catch every hate filled message even with AI and automation due to the sheer volume of the posts but it wasn't a walk in the park back then either.  Every message had to be reviewed by someone personally and just like today stuff slipped through the cracks of their monitors.

Ars Technica writes, in their breakdown of the law politicians love to hate, that "in 1994, an anonymous user made a series of potentially defamatory statements about a securities firm called Stratton Oakmont, claiming on a Prodigy message board that a pending stock offering was fraudulent and its president was a 'major criminal.' The company sued Prodigy for defamation in New York state court."

Prodigy argued that it shouldn't be liable for user posting and pointed out an earlier case that absolved CompuServe of liability in 1991. CompuServe didn't monitor message boards and allowed total free reign to posters. In the court's ruling the judge in that case reasoned that CompuServe was like a bookstore and couldn't be held liable for the books it sold if it wasn't aware of the book's contents.

But the judge in the 1995 ruling held that because Prodigy was monitoring bulletin boards then they missed the post they should be held liable.

The internet was a small thing back then and if you think politicians don't understand it today, almost none of them knew almost anything about it all back then. It was worse than a "series of tubes." It barely existed to them. Luckily, there were two internet savvy congressmen, Ron Wyden (D-Ore.) and Chris Cox (R-Calif.), who recognized that taken together the two rulings created a perverse incentive for internet providers and web sites. If you don't monitor anything you're free and clear but if you do any monitoring you're libel. So they drafted a bipartisan bill (remember when bipartisan was still possible?) to fix the problem.

Congress was working on the Communications Decency Act (CDA) at the time, a much hated bill designed by old school conservatives to stop porn on the net. Rather than create two bills, congress simply lumped Section 230 in with the wider legislation and passed it. The section received little to no attention because very few people in government understood the net and had the good sense not to question those who do, unlike today when a broad range of technologically ignorant morons have opinions for everything tech related.

The congressmen wrote the law with the hope that if they guaranteed platforms wouldn't get sued into oblivion for every troll on their platform and for their imperfect moderation decisions, then most sites would voluntarily engage in filtering. You read that right, the law was designed to encourage moderation and monitoring by private entities, instead of forcing providers and platforms to abandon all monitoring so they wouldn't get hammered in court.

When the CDA was later struck down by the Supreme Court as unconstitutional, they left Section 230 intact and the rest is history.

You can read all about it in the definitive history of Section 230, "The Twenty Six Words that Created the Internet".

The Real Reasons They Really Want the Law Dead

So do politicians not really understand Section 230? 

It's possible.  We have some proudly ignorant politicians these days.  But I'm betting even the ones who struggle to read shampoo bottles understand it just fine. 

The truth is they have a real reason for wanting the law dead that’s different from their sales pitch to their followers.  Biden's sales pitch appeals to his base, stoking their fear that Facebook and Big Tech (muhahahaahahaha) are letting Russian trolls steal elections from them and allowing a horde of anti-vaxxers to spread fear about life saving COVID vaccines.  Trump's sales pitch appeals to the paranoia of his most radical followers that they're getting shadow banned and blackballed on social media and that's why elections get stolen from them because they can't get the real truth out and, of course because a cabal of BLM/Big Tech liberal activists/deep staters are secretly triple counting liberal ballots.

But their real reasons are much simpler. 

They both want the power to sue the shit out of tech companies any time they want so they can force them to ram their favorite messages down our throats and drown out the other guy's words forever. 

It's a ploy ripped right from the pages of the authoritarian playbook.  They're borrowing it from Putin and Singapore's slick former spin doctor dictator, Lee Kuan Yew, and Peru's Alberto Fujimori, all of who pioneered more covert control methods over the last fifty years rather than the overt brutal violence and fear common to Mao, Hitler and Stalin. 

A fantastic and horrifying new book, Spin Dictators tracks the changing face of tyranny in the modern world and it breaks down the technique.  In the past if dictators wanted to silence a journalist or a media company they just killed them or shut them down with no pretense whatsoever other than that they could do whatever they wanted. That would make the dictators the only source of information in their countries and it gave them total propaganda dominance to control their citizen's opinions.  That worked well in the old, isolated world they lived in but in our increasingly connected, sophisticated and globalized world it can ignite a backlash as word gets out about mass killings and those kinds of backlashes can lead to a groundswell of opposition that topples governments.  

So they do it differently.  

Instead of killing the journalist or sending thugs in to smash up the media company, they tie them up with defamation and libel lawsuits.  

They sue the hell out of media companies or pass laws limiting their circulation to destroy their profits.  It's one of many techniques they use but it's effective at silencing anything they don't like without having to put a bullet in too many people's heads though they still did/do that from time to time if they can put together enough plausible deniability. 

In Russia they have a law where if you're a blogger and you get a following of more than 3000 people you have to register with the state and you're responsible for anything people post in the comments so all they need to do to throw you in jail or cripple you financially to shut you up is send a troll to post something nasty in the comments and you're finished.

Now the good news is that in practice the First Amendment makes it nearly impossible for UK style libel laws to exist and thank God because it dramatically limits defamation and libel lawsuits unless the person who filed the suit can prove that the person who wrote it knew it was patently false and did it deliberately. That's good because the US justice system is already overburdened with all kinds of insane byproducts of stupid laws like the patent trolls suing everyone in the country for absurdly overly broad patents granted to them by bureaucratic NPCs in the patent office or the new wave of lawsuits from far right vigilantes who want to stop all abortions pioneered by horrific people of twisted logic and other bleeding red jurisdictions. If you don't think the Texas law is evil then I submit to you that the Firearms Policy Coalition, a gun rights activist, filed a brief calling for the law to be struck down because they wisely saw how easily those kinds of laws could expand to anything crusaders want to stop in their own states like limiting gun rights in more liberal state governments.

But even with limits, lawsuits cost money and time and can really hurt a company, especially if they get a judge friendly to their cause that comes down on their side with a big billion dollar settlement.

Of course, what both Trump and Biden would love is UK style libel laws. In the UK any moron can take someone to court and accuse them of libel and English libel laws ridiculously put the burden of proof on the defendant and does not require the plaintiff to prove falsehood. Read that a few times fast. It means I can take you to court for libel and I don't have to prove anything, even if I'm totally batshit crazy, and you have to prove everything. English libel laws have led to many cases of "libel tourism, [where] plaintiffs sued in England to censor critical works when their home countries would reject the case outright. In the United States, the 2010 SPEECH Act makes foreign libel judgements unenforceable and unrecognizable by U.S. courts if they don't comply with U.S. protections for freedom of speech and due process, which was made largely in response to the English laws."

But both men would love to change it. Hell, it's not even a secret that Trump wants to sue critics into bankruptcy. In a speech in 2016, Trump said "we're going to open up those libel laws...So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected."

The good news with Trump is you can always take him at face value. He says exactly what he's going to do. He doesn't even try to hide it. His critics all think he's just saying crazy shit and make the stupid mistake of dismissing it as nothing but words but they should have taken his words exactly at face value because he literally telegraphs every move he ever makes. Hell, he declared he was going to call the election a fraud months and months before the election even happened and before a single vote was cast.

Biden is at least a little cagier about it but not much. He's openly expressed hatred for Facebook at a personal level, including Zuckerberg, saying "I’ve never been a big Zuckerberg fan. I think he’s a real problem." In the same article in the Times, he even hinted at using racketeering style laws against Zuckerberg when he said "whether he engaged in something and amounted to collusion that in fact caused harm that would in fact be equal to a criminal offense, that’s a different issue. That’s possible. That’s possible it could happen."

Racketeering laws were created to go after mafia kingpins who didn't pull the trigger to have someone killed but had underlings who ordered a murder acting as a buffer between them and the actual crime. If you remember the Godfather II, where Michael Corleone is facing a Senate hearing the capo testifying against him says "buffers, yeah the family had a lot of buffers." Those laws were designed to get around buffers and pin jail time on the Don even though he never ordered the murder or pulled the trigger directly.

So Biden is openly talking about trying to take down the head of Facebook with criminal collusion for ads that were placed on his platform as if he is personally monitoring or could monitor the ads of 100s of millions of advertisers.

In other words, what Biden and Trump would both like to do is make Facebook personally responsible for what 2 billion people write on their platform and Twitter responsible for what 300 million people say. That means every crazy fool, every nutbag, every foaming at the mouth fascist, every screaming woke activist, every conspiracy theorist, every idiot and troll and Russian bot would be treated as if they are employees of those two companies. If that sounds impossible that is because it is impossible and they know it.

Trump would love to take it further and make sure he can attack the New York Times and anyone else who writes stories about him he doesn't like which he calls "patently false stories". Of course, he can already do that so he's lying again. The Supreme Court has ruled that a newspaper can be held libel if what they published "was wholly and patently false or that it was published with reckless disregard of whether it was false or not". But then he'd actually have to prove it was false since he filed the lawsuit and he really doesn't mean "patently false," he really means "anything I don't like or want to suppress". What he would love is a horrible UK style libel law where the burden is on the defendant to prove a negative and that would allow him to launch a flurry of lawsuits designed to bankrupt his enemies.

If you're thinking "good" to any of that, you're a part of the problem because a world where only one side has the right to say what they want to say is not America and it's not what the country was founded on. Everyone should welcome media they hate, even if they hate it.  When you get to a place where one set of people who think they know everything can silence the other side completely it always leads to a sick and decaying system that falls into rapid decline. No one side ever has all the answers, ever, at any point in history.

And If you're someone who's twisted up into thinking that the death of Section 230 will lead to more free speech you can count yourself as one of the folks helping to create less free speech possible.

What do you think will happen when Twitter and Facebook is personally responsible for what anyone writes on the platform no matter how idiotic or evil or crazy? Think about it for just a moment. It's a pretty easy outcome to see coming.

Do you think that leads to more open free speech and more dialogue or do you think if you were running that business and wanted to keep the business running you'd systematically hunt down everything even remotely borderline and err on the side of killing anything at all that might get you sued? That's the only way it plays out. Less free speech because now those organizations will need to employ an army of censors like Chinese Weibo just to keep from getting constantly sued. China employs over 2 million microblog censors so we've got good templates for how this plays out.

This is not a world any red blooded, free thinking American of any political stripe should be cheering for, for any reason.

Section 230 made it possible for all of us to complain on the Internet and bitch about everything right on the platforms we are bitching about and for us to have platforms to say what we wanted when we wanted to say it. And yeah it allowed for crazies to say horrible things too and that's why content platforms have moderation policies. Those moderation policies are imperfect and heavy handed at times. That's why Musk bought Twitter, because he sees it as a way to strike a better balance. He's probably fooling himself. It's a Kobayashi Maru trying to govern human behavior, an unwinnable game, guaranteed to piss off everyone and please nobody. You can't even win by cheating the way Kirk did, because this is real life. But let him try. Maybe he gets closer to the platonic ideal. I doubt it. But maybe.

What we absolutely don't want though is politicians "opening up libel" laws or governments instituting their own moderation policies or making it so anyone in power can sue their enemies into oblivion.

That's a Black Mirror scenario.

So be very careful when you cheer the demise of Section 230 because you're calling for the total death of free speech.

And that's a dark road that leads to a world none of us will want to live in.