Everyone Hates Section 230. But the Internet Still Needs It.
What with war in Ukraine, Ron DeSantis using migrants for a campaign PR stunt, Trump’s legal travails, and devastating hurricanes, it’s not that surprising that one of the most important legal decisions in recent memory has gone largely unnoticed. The decision by a three-judge panel for the Fifth Circuit, which I wrote about for Fast Company last week, upheld HB20, a Texas law that prohibits large social-media platforms like Twitter, YouTube, Instagram, and Facebook, from doing almost any content moderation at all, aside from banning things like porn, explicit violence or incitement to violence, and harassment.
What that means, in simple terms, is that social-media platforms cannot ban Nazis or racists or trolls or anyone else, no matter how obnoxious or objectionable the content they generate is, and no matter how unpleasant they make the user experience on these platforms.
The decision is a very bad one in legal terms, as I wrote about and as Mike Masnick explained very well in a piece for TechDirt. To begin with, it denies social-media companies their 1st Amendment right not to have publish content they don’t approve of, and indeed compels them to publish content they find objectionable. On top of this, the decision contradicts Section 230 of the Communications Decency Act, which explicitly gives Internet companies of all stripes the right to curate user-generated content, and to ban any content they “consider” “objectionable.” And Section 230 lets Internet companies do this without thereby having to assume legal responsibility for the user-generated content they leave up.
The Fifth Circuit decision gets around this problem by effectively rewriting Section 230, and claiming that it only allows Internet companies to ban certain, limited kinds of content (essentially sexual, violent, and harassing). And, audacious as that is, it’s not exactly shocking, because the thing about Section 230 is that almost everyone, on both sides of the aisle, dislikes it, and has been spending the last few years trying to figure out how to repeal it or just circumvent it.
So both Trump and Biden have called for 230’s repeal. (Biden now wants “fundamental reform.”) And plenty of people in Congress feel the same way — during the 116th Congress (which was in office…