Whatever reforms they might propose, serious legal scholars understand that Section 230 includes the twenty-six words that created the Internet. Drafted by Rep. Chris Cox (R-CA), the law is exactly the kind of “forward-looking leadership” and “pragmatic” legislation the Ripon Society was founded to promote. Without Section 230’s protections, both providers and users of “interactive computer services” could be sued as the “publisher” of content they didn’t create – providers for hosting it and users for resharing or quoting it. Such lawsuits would be easy and cheap to file but many times more expensive to defend; and with billions of pieces of content posted each day, there would be an avalanche of them.
Some note that other countries seem to do well enough without Section 230. True, but none has anything like our legal system. In virtually every other democracy, the loser pays both sides’ costs of litigation. Not so in America, where defending against litigation is also uniquely expensive.
In the sorts of lawsuits websites would face routinely without Section 230, a defendant’s motion to dismiss a complaint routinely costs $15,000 – $80,000. Unless a judge grants such a motion, plaintiffs can compel defendants to produce extensive internal correspondence and witnesses. Battling over discovery can cost defendants hundreds of thousands of dollars.
Without Section 230’s protections, both providers and users of “interactive computer services” could be sued as the “publisher” of content they didn’t create…
A motion for summary judgment, usually prepared after discovery, can cost another $15,000 – $150,000. Trials cost much more. Juries regularly award staggering damages, often based largely on their antipathy towards a defendant. Add to that the uniquely American proliferation of class actions, which multiply damage claims across tens or hundreds of millions of users. Considering all this, it is unsurprising that the U.S. has fifteen times more lawyers per capita than Canada. Truly, we live in a lawyer’s paradise.
Without Section 230, as one leading appellate judge (a Republican appointee) put it, websites would “face death by ten thousand duck-bites.” Most websites that host user-generated content aren’t run by corporate titans; they’re small, community-based, or hobbyist endeavors, often nonprofits, with modest budgets and few lawyers. A single lawsuit would crush most of them.
Facing such costs routinely, who would ever risk liability for user-generated content? From blogs to podcasts, from Wikipedia to social networks, today’s user-driven Internet simply wouldn’t exist. Section 230’s unserious critics never acknowledge that the law protects all these services — and users — equally. They call the law a special subsidy for “Big Tech.” Those companies didn’t exist back in 1996 and they never would have gotten off the ground without Section 230.
And who would use a social networking service? Would you retweet someone else’s content if you risked being sued for it? Ask President Donald Trump, who invoked Section 230 to dismiss just such a defamation lawsuit.
Websites that somehow survived such risks would have a perverse incentive to take down content whenever anyone complained, creating a heckler’s veto. Many would ban vast swathes of controversial content preemptively. A few might even try to vet all user comments. That would make real-time engagement impossible and couldn’t scale to millions of users. In short, those who complain of “Big Tech censorship” would unwittingly create more of the same.
Most websites that host user-generated content aren’t run by corporate titans; they’re small, community-based, or hobbyist endeavors, often nonprofits, with modest budgets and few lawyers. A single lawsuit would crush most of them.
On other sites, especially those with fewer resources, abuse would flourish. In the early 1990s, U.S. courts began deciding cases involving online defamation. Moderating harmful content actually made websites more liable for it, as did proactively monitoring user content or letting users flag potentially unlawful content. Section 230 neatly avoided this Moderator’s Dilemma by insulating even imperfect content moderation from liability.
There’s always a balance to be struck in moderating harmful content and allowing user expression. Other democratic countries ban misinformation, hate speech, speech encouraging violence and self-harm, and more. But our First Amendment protects much of what would be illegal elsewhere. Requiring websites to assess the lawfulness of user-generated content would tilt the balance further from the First Amendment: websites would remove any content a court might conceivably declare unlawful, just to be safe.
The First Amendment allows each site to strike its own balance in moderating “lawful but awful” content. But that right would mean little if each site had to constantly relitigate the precise boundaries of the First Amendment’s protection, especially in borderline cases. Section 230 makes that protection meaningful by streamlining what could be staggeringly expensive, fact-intensive litigation. Today, when a website is sued for refusing to carry content it abhors, it can easily and cheaply win a motion to dismiss under Section 230. This isn’t just tort reform: it protects against the abuse of courts to punish the exercise of First Amendment rights—something populists, especially state attorneys general, are increasingly eager to do.
Some insist new media don’t have the same First Amendment rights as traditional media. But as Justice Antonin Scalia put it, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Parade organizers, newspapers, and other publishers clearly have the right to refuse to carry others’ content. If the Supreme Court takes on such questions next year, expect it to uphold a unanimous panel of the Eleventh Circuit — all Republican appointees — in protecting the editorial judgments of websites.
Some have called Section 230 “America’s Internet competition law.” But a competition claim can proceed against a tech company, ruled one court, if it “seeks to hold Defendants liable solely for their own conduct, not anyone else’s.” In how a company deals with third-party content, Section 230 protects only editorial judgments, not anti-competitive business practices — a distinction long acknowledged by the Supreme Court in applying the antitrust laws to media companies. What these critics really want to punish tech companies for, their alleged political bias, is exactly what the First Amendment protects.
Most complaints about the Internet aren’t really about Section 230 at all. Competition law can address real economic harms. Federal privacy legislation is long overdue — and closer to enactment than ever before. Federal criminal law, like intellectual property, has always been excluded from Section 230. Increased funding for federal law enforcement would help, and Congress can always enact new criminal laws without touching 230.
Can Section 230 be improved? Perhaps. The Ripon Society’s 1963 founding manifesto called for a “mature Republican philosophy… concerned more with the complexities of the means toward a solution than with a simplistic view of the ends.” For a serious debate about Section 230, listen to the scholars, not the polemicists. More law review articles, legal briefs, and thoughtful legislative hearings. And, please, fewer op-eds.
Berin Szóka is President of TechFredom, a non-profit think tank dedicated to technology law and policy. He has practiced Internet and communications law since 2005.