The future of Section 230 and internet speech after Trump

Brian Contreras, Los Angeles Times on

Published in Business News

"I remind my colleagues that it is the First Amendment, not Section 230, that protects hate speech, and misinformation and lies, on- and offline," Wyden said in a statement to The Times. "Pretending that repealing one law will solve our country's problems is a fantasy.

"Congress needs to look no further than 9/11 to remember how badly knee-jerk reactions to tragedies can backfire. I am certain that any law intended to block vile far-right speech online would inevitably be weaponized to target protesters against police violence, unnecessary wars and others who have legitimate reason to organize online against government action."

Democrats' dual wins in Georgia may have given them effective control of the Senate, with Vice President-elect Kamala Harris acting as tiebreaker to the body's 50-50 split, but it's an incredibly slim margin; a few defectors could easily sink reform efforts, especially if Democrats faced a filibuster, which they'd need 60 votes to overcome. And although collaborating with Republican critics of Section 230 sounds easy enough in theory — Sen. Lindsey Graham (R-S.C.), for example, said he was "more determined than ever to strip Section 230 protections from Big Tech" after Twitter banned Trump — bipartisan consensus on what to replace the policy with would be much harder to come by.

"It's clear to everybody that these [tech] intermediaries can wield enormous power in deciding whether individuals or even entire services are available or not," Llansó said. "But I don't really see anything yet that points to bridging that partisan divide of whether people think that's a good thing or a bad thing."

Part of the complication lies in the multifaceted nature of Section 230 itself, which gives web platforms the power to moderate user content but also shields them from liability for user content they choose not to moderate.

"Simply removing platforms' immunity under Section 230 likely would precipitate an even more sweeping removal of accounts by various social media platforms, to avoid incurring liability for extremist speech on their platforms," Katy Glenn Bass, research director of the Knight First Amendment Institute at Columbia University, said via email.


India McKinney, director of federal affairs at the Electronic Frontier Foundation, agreed the risk of unintended consequences is high.

"It's going to be very difficult in a policy proposal and legislation moving forward to differentiate between a peaceful, political, legitimate protest and a violent mob," she said. "I don't actually think that's possible, to write legislation that can correctly prevent violent protests while allowing peaceful protests to continue."

Another big question mark is what role Trump himself — who has been mostly quiet since his deplatforming — and the broader Trumpist ideology will play.

Even if Trump's crusade against Silicon Valley does gradually fade from the Republican agenda, Llansó cautioned that the issue of content moderation itself is here to stay.

"The attack on the Capitol … really shows the potential offline impact of what's going on on these online content platforms," she said. "Sure, the president exacerbated them in different ways at different times, but they will, unfortunately, continue independent of President Trump."

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