On Friday, the Repeal & Replace Section 230 Coalition hosted an online webinar entitled “A Necessary Reset: Reevaluating Big Tech.” I hoped these presentations would provide a greater sense of what conservatives plan to do (or not do) about Section 230, legislation which protects interactive internet services from being held liable for the content of its users. Here are a few of my takeaways:
- Section 230 reform demands bipartisanship. Unfortunately, during this webinar, the opportunity to debate and discuss concrete policy proposals was clouded by a slew of unhelpful comments. Between comparisons to communist China, claims that we cannot do anything about Section 230 until the next election, assertions that Trump’s loss is indicative of the “end times,” and competitions over who is the most “cancelled” on social media, it is evident that many on the political right are unwilling to reach across the aisle to achieve something meaningful regarding Section 230. Yet, the GOP cannot afford to maintain this mindset, as they do not find themselves in the majority and there is real appetite for reform in the coming months. Time spent complaining and placing blame would be better spent critically thinking through the reform Section 230 demands. Lastly, panelists avoided addressing the issue of widespread disinformation, even though it is an issue both Republicans and Democrats should be deeply concerned about. Considering the dangers of disinformation to civic health, Republican members should partner with their Democratic counterparts to assess how disinformation should be accounted for in Section 230 reform.
- Section 230 needs clarification, not revocation. Revoking Section 230 will have highly negative consequences for civic discourse since, without immunity, internet sites will become hyper-cautious about their liability for user content. Moderators will be forced to squash a majority of public debate, out of fear of incessant lawsuits, and may resort to closing down comment sections or user replies altogether. With already present concerns about Big Tech’s hypocrisy or inconsistency, this will only create greater distrust over the intentions of moderators. The legal battles to follow will be seemingly endless, not providing users with the clarity they are looking for up front. Surely, Section 230 is not working as it is, but scrapping it will not solve the problems we are grappling with today, and any attempt to draft its replacement would have to pass through an already gridlocked Congress. Congressman Gosar, a panelist at the webinar, put forth his bill as an opportunity for reform; Stop the Censorship Act, introduced in 2019, seeks to revoke Big Tech’s immunities in censoring “objectionable” content, but keep the immunities which allow Big Tech to remove unlawful material “in good faith.” While conservatives may differ on revoking any of 230’s laid out immunities, Gosar brings up the central priority of reform: clarifying vague language.
- Section 230 reform should primarily clarify what “otherwise objectionable” means. Section 230(c)(2)(a) states that no interactive internet service should be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Debate among conservatives seems to conflate “otherwise objectionable” with “unconstitutional” often; we need to separate private internet services’ prerogative to remove content as they wish from what we feel would be wise to remove. For example, one of the webinar’s panels debated whether pornography is constitutionally protected speech—a standard 230 states is not relevant for a platform’s judgement to allow or remove content. When I created my Twitter account, I agreed to abide by Twitter’s community guidelines, in which they outline what is acceptable and unacceptable behavior on their platform. Because we agree to these guidelines, if pornographic content somehow appears on my feed, I report it as sexually explicit content and Twitter notifies me when it has been removed. While some may posit pornography is constitutionally protected, Twitter’s capacity to decide it is not welcomed on its platform is not something conservatives should wish away. However, a clarification of this vague language could perhaps focus how services like Twitter interpret it, as we have all seen examples of censorship where Twitter’s discernment of what is “objectionable” was unhelpful or far-reaching. In a report last year, Klon Kitchen put forth a potential re-wording of 230(c)(2)(a) that retains room for interpretation, while also narrowing the scope of its reach: “Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, or harassing, whether or not such material is constitutionally protected.”
- Section 230 reform will not end “cancel culture.” While Section 230 reform is imperative to preserving a free internet discourse, this webinar left the impression that conservatives are giving Section 230 too much cultural power. For example, panelists raised concerns about how a hotel cancelled a fundraising event for Senator Hawley following the events of January 6th. Yet, instances like this are not touched by Section 230, which only spells out who is liable for what content posted online. Further, while Section 230 reform could assist in protecting the political speech of conservatives online, it cannot compel users to embrace this content. There will still be trending hashtags “cancelling” conservatives, as in the instance of Senator Cruz last week, and Section 230 reform will not protect them, for it is the responsibility of conservatives to make their points effectively. Congresswoman Marjorie Taylor Greene, a webinar panelist, posited that conservatives should create their own social media platforms with their own terms and conditions, where they will feel free to say whatever they want. As natural advocates of a competitive free market, conservatives can pursue this if they believe that current internet services are censoring them, a consequence of Section 230’s vague nature and a poisoned political culture. However, if conservatives withdraw into the safe corners of the internet they create, they will limit their voices in the public discourse.
- Section 230 needs a sunset clause. Many have claimed Section 230 needs reform because it is outdated; although, as the use of technology evolves, its reform will soon be outdated. Panelists agreed that enacting a sunset clause would allow Congress to revisit this substantial legislation every few years, and hold Big Tech accountable. One aspect of content moderation to be continuously explored is how to build the legitimacy of content moderation, an issue which does not fit neatly into the existing legislation. There is significant debate about who should moderate internet platforms, if there should be an appeals process, and who should be the final arbiter. Right now, there is moderation that claims to be neutral but clearly censors political speech, and each side of the political spectrum is obsessed with who is more often censored. Askonas and Schulman thoughtfully argue in National Affairs that the legitimacy of the moderator should take precedence over the standards of moderation, and that speech platforms should focus on becoming more legitimate, instead of less political. While current 230 reform discourse focuses on the standards of moderation, there should be continued thought about how speech platforms can become legitimate over time, discourse that a sunsetted 230 could encourage. Both parties seemingly agree that Big Tech is too comfortable in its current position, so a sunset clause should be an easy, but effective addition to the legislation.
The Repeal & Replace Section 230 Coalition’s discussion indicated there are more questions than answers as to how conservatives will respond to Section 230. However, conservatives must engage this issue with urgency alongside their political counterparts, advocating consistently for online free speech and a healthy public discourse. Each side of this debate undoubtedly has something to offer to 230 reform, and conservatives must not lose sight of this, especially as the internet takes an increasingly dominant role in civic life.