Utah Prematurely Tries To Dance On Section 230's Grave And Shows What Unconstitutional Garbage Will Follow If We Kill It
from the not-dead-yet dept
As Mike has explained, just about every provision of the social media moderation bill being proposed in the Utah legislature violates the First Amendment by conditioning platforms’ editorial discretion over what appears on its services?discretion that the First Amendment protects?on meeting a bunch of extra requirements Utah has decided to impose. This post is about how everything Utah proposes is also barred by Section 230, and why it matters.
It may seem like a fool’s errand to talk about how Section 230 prohibits state efforts to regulate Internet platforms while the statute currently finds itself on life support, with fading vital signs as legislators on both sides of the aisle keep taking aim at it. After all, if it goes away, then it won’t matter how it blocks this sort of state legislation. But that it currently does preclude what we’re seeing out of Utah it is why it would be bad if Section 230 went away and we lost it as a defense against this sort of speech-chilling, Internet-killing regulatory nonsense from state governments. To see why, let’s talk about how and why Section 230 currently forbids what Utah is trying to do.
We often point out in our advocacy that Congress wanted to accomplish two things with Section 230: encourage the most good content online, and the least bad. We don’t even need to speak to the law’s authors to know that’s what the law was intended to do; we can see that’s what it was for with the preamble text in subsections (a) and (b), as well as the operative language of subsection (c) providing platforms protection for the steps they take to vindicate these goals, making it safe for them to leave content up as well as safe for them to take content down.
It all boils down to Congress basically saying to platforms, “When it comes to moderation, go ahead and do what you need to do; we’ve got you covered, because giving you the statutory protection to make these Constitutionally-protected choices is what will best lead to the Internet we want.” The Utah bill, however, tries to directly mess with that arrangement. While Congress wanted to leave platforms free to do the best they could on the moderation front by making it legally possible, as a practical matter, for them to do it however they chose, Utah does not want platforms to have that freedom. It wants to force platforms to moderate the way Utah has decided they should moderate. None of what the Utah bill demands is incidental nor benign; even the requirements for transparency and notice impinge on platforms’ ability to exercise editorial and associative discretion over what user expression they facilitate by imposing significant burdens on the exercise of that discretion. Doing so however runs headlong into the main substance of Section 230, which specifically sought to alleviate platforms of burdens that would affect their ability to moderate content.
It also contravenes the part of the statute that expressly prevented states from interfering with what Congress was trying to accomplish with this law. The pre-emption provision can be found at subsection (e)(3): “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Even where Utah’s law does not literally countermand Section 230’s statutory language, what Utah proposes to do is nevertheless entirely inconsistent with it. While Congress essentially said with Section 230, “You are free to moderate however you see fit,” Utah is trying to say, “No, you’re not; you have to do it our way, and we’ll punish you if you don’t.” Utah’s demand is incompatible with Congress’s policy and thus, per this pre-emption provision, not Constitutionally enforceable on this basis either.
And for good reason. As a practical matter, both Congress and Utah can’t speak on this issue and have it yield coherent policy that doesn’t subordinate Congress’s mission to get the best online ecosystem possible by letting platforms feel safe to do what they can to maximize the most good content and minimize the least bad. Every new threat of liability is a new pressure diverting platforms’ efforts away from being good partners in meeting Congress’s goal and instead towards doing only what is needed to avoid the trouble for themselves these new forms of liability threaten. There is no way to satisfy both regulators; Congress’s plan to regulate platform moderation via carrots rather than sticks is inherently undermined once sticks start to be introduced. Which is part of the reason why Congress wrote in the pre-emption provision: to make sure that states couldn’t introduce any.
Section 230’s drafters knew that if states could impose their own policy choices on Internet platforms there would be no limit to what sort of obligations they might try to dream up. They also knew that if states could each try to regulate Internet platforms it would lead to messy, if not completely irreconcilable, conflicts among states. That resulting confusion would smother the Internet Congress was trying to foster with Section 230 by making it impossible for Internet platforms to lawfully exist. Because even if Utah were right, and its policy happened to be Constitutional and not a terrible idea, if any state were free to impose a good policy on content moderation it would still leave any other state free to impose a bad one. Such a situation is untenable for a technology service that inherently crosses state boundaries because it means that any service provider would somehow have to obey both the good state laws and also the bad ones at the same time, even when they might be in opposition. Just think about the impossibility of trying to simultaneously satisfy, in today’s political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.
The only solution to the regulatory paralysis Congress rightly feared is what it originally devised: writing pre-emption into Section 230 to get the states out of the platform regulation business and leave it all instead to Congress. Thanks to that provision, the Internet should be safe from Utah’s attack on platform moderation and any other such state proposals. But only so long as Section 230 remains in effect as-is. What Utah is trying to do should therefore stand as a warning to Congress to think very carefully before doing anything to reverse course and alter Section 230 in any way that would invite the policy gridlock it had the foresight to foreclose these twenty years ago with this prescient statute.