The Goldilocks Porridge Problem with Section 230
November 3, 2020
The national discourse encircling the fate of Section 230 of the 1996 Communications Decency Act bears a curious resemblance to the ‘Goldilocks porridge problem.’
Put simply, we have a case where one presidential candidate claims Section 230 inhibits effective content moderation by Internet platforms (porridge is too cold), whereas the other candidate claims it allows for too much censorship (the porridge is too hot).
In no uncertain terms, however, both President Donald Trump and former Vice President Joe Biden have verbalized their displeasure with Section 230 and called for its revocation. While both candidates agree that Internet platforms are not properly managing the content they host, the contretemps is about how the content is being mismanaged.
This porridge is too cold
In a December 2019 interview with the New York Times, Biden said “Section 230 should be revoked, immediately should be revoked, number one.” While recognizing that Section 230 has been a cornerstone of the modern internet, Biden reasoned that because online platforms are “propagating falsehoods they know to be false,” the liability protections under Section 230 should consequently be revoked. Biden’s campaign has indicated that the law should be revoked and that a Biden administration would propose legislation to hold social media companies accountable for knowingly using their platforms to distribute falsehoods.
This porridge is too hot
Although Section 230 shields social media companies from being held liable for publishing content posted by its users, President Donald Trump’s May 2020 “Executive Order on Preventing Online Censorship” sought to reduce those protections. The Executive Order recounts the societal harms from platforms that engage in “selective censorship” by inhibiting national discourse, and cites thousands of Americans as having reported “online platforms ‘flagging’ content as inappropriate, even though it does not violate any stated terms of service[.]” Charges that some social media platforms are suppressing conservative views came to the fore during the U.S. Senate Commerce Committee hearing on October 28 when Republican lawmakers questioned the chief executives of Twitter, Google and Facebook. To that point, at a campaign rally in Greenville, North Carolina, President Trump warned that “If Big Tech persists, in coordination with the mainstream media, we must immediately strip them of their Section 230 protections … it’s very simple.” Overall, President Trump has signaled to lawmakers a need to clarify the scope of immunity granted to platforms and inhibit “stifling free and open debate” online.
Finding the right balance
Even U.S. Supreme Court Justice Clarence Thomas has waded into the debate in recent weeks, warning in a denial of cert that “Extending §230 immunity beyond the natural reading of the text can have serious consequences . . . . Without the benefit of briefing on the merits, we need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.” Whether it is perhaps better to revoke the law, or reform it, will remain a critical point for the future presidential administration to explore in tandem with the technological community and lawmakers. In devising internet regulations, with every action there is an equal and opposite reaction in the digital ecosystem. Thus, any attempts to alter Section 230 will require great diligence and care from lawmakers to ensure a salutary balance is achieved.
Jessica 'Zhanna' Malekos Smith, J.D., is a Senior Associate (non-resident) with the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, DC.
The Strategic Technologies Blog is produced by the Strategic Technologies Program at the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s) and not that of CSIS, the U.S. Government, or Department of Defense.