Big Tech’s court wins risk a big backlash against Section 230

2022 has been a good year for Big Tech in court. On May 23, the U.S. Court of Appeals for the 11^th Circuit ruled that Florida’s social media law, which limits the ability of major platforms to ban political posts based on viewpoint, was, in all key respects, unconstitutional. Eight days later, the U.S. Supreme Court blocked a similar Texas law from going into effect while litigation plays out in the 5^th Circuit, an early indication that the law will have an uphill climb when it eventually reaches — as it almost certainly will — the Supreme Court for consideration on the merits.

Within these victories, however, lie the seeds of disaster for the platforms — the possible repeal, or substantial alteration, of Section 230 of the Communications Decency Act of 1996.

The key provision of Section 230, which has been dubbed the “the twenty-six words that created the internet” by cybersecurity law professor Jeff Kosseff, shields companies from liability for what others post on online platforms. Traditional publishers such as newspapers, by contrast, can be sued for what they allow in their pages.

Section 230 was never meant as a gift to Big Tech, which could hardly be said to exist in 1996. Rather, it protected the nascent internet from being crushed by lawsuits or swamped with “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” speech. Congress wanted companies to be able to exercise editorial control over that sort of content without becoming liable for everything else users post on their platforms.

After all, if companies could be sued for what people said online, they would aggressively screen each post and err on the side of censorship when in doubt about the legal risk. News feeds would slow to a crawl, comments sections would disappear, and the fear of lawsuits that infects so many American institutions would come to dominate the internet as well.

Modern tech giants like Google and Facebook could not have existed in anything close to their current form without Section 230. But also, arguably, the internet’s most important feature — the ability for vastly more people to gain a platform for their ideas than was ever possible through television, radio, and print — might never have been. So, while the direct beneficiaries of Section 230 were companies that operate internet platforms, its value to society was in protecting everyone’sability to speak freely online.

The question now is: What happens when Big Tech decides it doesn’t want to let everyone speak freely?

The major platforms censor users for purposes that Congress never considered or intended in 1996. Section 230 identifies only speech belonging to the categories above as appropriate for removal.

Blocking a newspaper story exposing foreign dealings of a candidate’s son, days before an election, does not meet any of the law’s categories. Nor does prohibiting ads for a book critical of Black Lives Matter or suspending a satirical news site that makes fun of Democrats and wokeness, or any of the countless other examples of censorship of conservative speech on social media in recent years.

If the law had intended to bless the removal of any speech that platforms wish to take down, it would say so. It does not.

Nevertheless, the platforms now argue that they can block anything they want, at any time, for any reason, and there is nothing any person or state can do about it.

When courts review a platform’s curation of content, they claim a publisher’s First Amendment rights. But when legislatures review their liability for user speech, they suddenly transform into mere conduits deserving of special immunity. However comfortable that arrangement may be for the platforms, it is likely intolerable to Washington.

Big Tech’s arguments are so extreme as to close the door on virtually any effort to combat its influence over our politics, or to secure fairer treatment for Americans online. If the only option left for Congress is to amend or repeal Section 230, the result could be disastrous for the companies — and dangerous for free speech.

The debate in the courts often plays out by analogy, as the two sides argue over whether social media is more like a newspaper or phone company, parade organizer or shopping mall. The reality, of course, is that they are none of these things exactly. A middle-ground solution might be best for all in the end, but its prospects are rapidly fading. Big Tech can celebrate for now, but they may look back and rue the day.

Bradley A. Smith is chairman of the Institute for Free Speech and the Blackmore/Nault Professor of Law at Capital University. He served on the Federal Election Commission from 2000 to 2005.