The hurried effort to repeal Section 230 is ill-advised

Moliere famously said that unreasonable haste is the direct road to error. The current quixotic fixation in Washington, D.C. on repealing Section 230 of the Communications Decency Act largely fueled by a fundamental misunderstanding of the law's function, encapsulates the danger of such haste, as it risks upending the foundational architecture of the internet in service of little more than shortsighted political score-settling.

For over two decades, Section 230 operated as a largely non-controversial piece of bipartisan legislation, ensuring that liability for user-generated content on websites is properly allocated to the users rather than the websites. In doing so, Section 230 incentivizes the curation of online communities by allowing website operators to modify or excise questionable third-party material without fear of shared liability -- a risk hinted at in pre-Section 230 case law. See, e.g., Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995).

Although passed in response to the digital revolution, Section 230's protections are far from novel. The protection of a website's right to modify or remove user-generated content sounds in classic First Amendment jurisprudence, as forcing websites to retain such content against their will would constitute impermissible compelled speech. See Wash. Post v. McManus, 355 F. Supp. 3d 272, 286-87 (D. Md. 2019). "This understanding of the Free Speech Clause reflects a recognition that requiring a speaker to disseminate a message that is not his own may, in fact, deter him from speaking at all, 'thereby reducing the free flow of information and ideas that the First Amendment seeks to promote.'" Id. (quoting Pac. Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1, 14 (1986)).

Recent discourse, however, has attempted to recast the rights of website operators under Section 230 as antithetical to the rights of website users, and more specifically conservative users. This began with theories that right-wing punditry was being "shadowbanned" (i.e., having its reach artificially throttled) on popular social media sites, and has more recently devolved into claims that editorial acts, such as appending "fact checks" to misinformation concerning the outcome of the 2020 presidential election, transform websites from "platforms" to "publishers" and place them beyond Section 230's purview. See generally Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020) ("Executive Order on Preventing Online Censorship" urging a narrowed interpretation of Section 230).

To be clear, none of the foregoing is true. Section 230's drafters have repeatedly affirmed the broad editorial discretion it was always intended to confer. See Ron Wyden, "I wrote this law to protect free speech. Now Trump wants to revoke it," CNN (June 9, 2020). There is also no confusion in this regard among the courts. See Hassell v. Bird, 5 Cal. 5th 522, 535 (2018) (collecting cases noting that Section 230 "ha[s] been widely and consistently interpreted to confer broad immunity" on websites for their handling of user-generated content). Yet many of the president's supporters inexplicably believe that without Section 230 in place, social media operators will be forced to carry conservative content unvarnished and unimpeded, and so champion its repeal on that basis. A simple thought experiment puts the lie to this belief. Take the recent defamation lawsuit lodged by Eric Coomer, systems security director of Dominion Voting Systems, against a bevy of conservative political figures for their role in elevating him as the face of a baseless conspiracy to rig the outcome of the 2020 presidential election -- a theory largely developed and propagated across social media. Coomer's lawsuit notably does not name any social media websites as defendants, even as they allowed the alleged defamation against Coomer to propagate, owing to the airtight protections of Section 230. Yet were conservatives successful in their inquest against Section 230, these same websites would have no incentive to allow controversial discourse such as that regarding Coomer and Dominion to take place, lest they be held responsible for the tortious byproducts of that discourse. Bottom line: Repealing Section 230 will lead to more "censorship" of right-wing agitators, not less.

Nevertheless, the propaganda campaign against Section 230 has proved remarkably successful among President Donald Trump's base, and a repeal of Section 230 -- once believed unthinkable given its centrality to the functioning of the internet as we know it -- is now their rallying cry. Although efforts to undermine Section 230 through the courts have been largely unsuccessful -- see, e.g., Prager Univ. v. Google LLC, 951 F.3d 991 (9th Cir. 2020) -- Trump has radicalized enough legislators as to place the future of Section 230, at least as currently constituted, in serious doubt. According to LexisNexis, 25 bills intended to amend Section 230 to varying degrees have been formally introduced during the current session of Congress, virtually all of which constitute solutions in search of problems.

Most alarmingly, Section 230's future has been needlessly injected into the nation's COVID-19 crisis, with Senate Majority Leader Mitch McConnell indicating last week that, at the president's directive, he will not bring any vote on additional stimulus checks to the floor unless bundled with a repeal of Section 230. Beyond the moral reprehension of holding critical humanitarian relief hostage to a pet issue of the president, the specter of a naked Section 230 repeal is an apocalypse-level event for the internet sector and its myriad reliance interests, as most websites will be forced to radically reconfigure their platforms to either pre-screen or altogether eliminate user-generated content. Ironically, the well-monied social media oligopoly of Facebook, Twitter, YouTube et al. targeted by the repeal effort will be best equipped to weather this storm, while the upstart alternatives favored by conservatives to escape supposed liberal-leaning "Big Tech censorship," such as Gab, Parler and Rumble, will be most susceptible to ruinous liability.

The foregoing is perhaps what is most often missed in the debates over Section 230: It is not, as Donald Trump is fond of claiming, a "gift to 'Big Tech.'" Rather, Section 230 broadly protects millions of websites both big and small, liberal and conservative. While its practical effect in the current political climate may unfortunately lead to a balkanized internet, with different political tribes seeking refuge on different platforms sympathetic to their views, this is certainly preferable to a reality in which few-to-no such platforms can safely operate in the first instance.

For better or worse, supporters of Donald Trump must confront the fact that we all share the same internet, and the protections afforded under Section 230 are key to the continuing operation of watering holes across the political spectrum. They are most certainly far too important to be treated as a mere political football and cavalierly kicked around by bad faith actors taking shots at perceived political enemies. If Section 230 is to be amended, the process should be slow and deliberate, with an eye towards preserving both free speech and reliance interests, not cynically slipped into wholly unrelated legislation as a poison pill. Little good law has ever been produced with a gun to the nation's head. On Section 230, Donald Trump and Mitch McConnell should holster their revolvers. 