How Democrats’ Attack On Section 230 Plays Right Into Trump’s Censorial Plans
from the think-ahead-dammit dept
Like clockwork, lawmakers are once again rallying around the idea of eliminating Section 230. That Republicans are leading this charge is hardly surprising—repealing Section 230 is explicitly laid out in the Project 2025 playbook. But what’s surprising, and increasingly reckless, is the willingness of Democratic lawmakers to join forces with Republicans in dismantling one of the few remaining legal safeguards standing between the Trump Administration and unchecked control over online speech. In doing so, they are handing the Trump Administration a powerful tool to execute its long-standing goal: total control over online discourse. And in a political climate where Trump is already targeting law firms that oppose him, loss of access to the skilled attorneys needed to defend online speech without Section 230 isn’t a side-effect, it’s the entire point.
Perhaps Democrats don’t fully grasp the strategic importance of Section 230. For years, many on the left have believed that repealing the law would pressure online services into “cleaning up” their spaces by removing hate speech, conspiracy theories, and other content deemed anti-social. The assumption is that without 230’s liability shield, companies will err on the side of caution and engage in more content moderation. But in reality, that outcome is far from guaranteed. The more likely result is either an explosion of harmful content (the stated goal of Project 2025) or aggressive over-moderation that silences all user speech: an “own goal” that would severely undermine the progressive causes Democrats claim to support.
But the most dangerous consequence of repealing Section 230 has nothing to do with content moderation policies themselves but rather the ability to defend those policies. Section 230 doesn’t grant new speech rights; the First Amendment already protects a website’s editorial decisions. What Section 230 does is provide a procedural “fastlane,” allowing websites and users to dismiss meritless lawsuits early—often at the motion to dismiss stage. That’s a big deal. With Section 230, defendants don’t need elite law firms or millions of dollars. Legal advocacy groups, and particularly those less susceptible to political pressure, can take on these cases pro bono, knowing they won’t be buried in years of litigation or financial ruin.
Without Section 230, the calculus changes drastically. Now, any lawsuit over a content decision, whether it’s removing Trump’s posts or leaving up white nationalist propaganda, typically requires a First Amendment defense. And unlike Section 230, First Amendment claims are fact-intensive, expensive, and slow-moving. Courts are reluctant to resolve them at the pleading stage. Instead, they often allow discovery, depositions, and extended litigation to explore whether a platform was acting as a state actor, or whether the content decisions were truly editorial in nature. These cases can drag on for years and cost defendants six or seven figures. Only the most well-resourced defendants with access to high-powered legal talent stand a fighting chance.
And that’s where things get even more sinister.
The Trump movement has made it abundantly clear: law firms that represent his political opponents are targets. And the pressure campaign is working. Paul Weiss, a major law firm, reportedly backed off representation of Trump-opposed clients. Perkins Coie “discovered” a conflict of interest mere days after being singled out in a Trump executive order. Other firms are falling in line too, particularly those with longstanding ties to litigation over online speech.
In a post-230 world, tech companies and individuals will face a flood of lawsuits over content moderation decisions—many of which will require expensive, high-stakes constitutional defenses. Large law firms, increasingly wary of political retaliation, will be even less willing to represent clients challenging Trump-aligned speech or policies. Under normal circumstances, independent attorneys and advocacy groups that are typically less susceptible to political pressure would be the ones to step in and defend these cases. But without Section 230’s early procedural protections, even they will struggle to absorb the financial and time burdens of full-blown constitutional litigation.
Imagine then a scenario where an online service removes Trump, or moderates
rhetoric aligned with his Administration’s agenda. The Trump Administration could respond with retaliatory executive action or lawsuits. Who’s going to step up to defend that service? Which firms are willing to risk executive orders, client loss, and political scrutiny to protect editorial discretion? Increasingly, the answer is: no one.
The combined effect is devastating. Faced with mounting legal risk and an eroding pool of legal help, online services will begin moderating content in line with the Administration’s interests, not out of ideological sympathy, but self-preservation. They’ll leave up speech they would have otherwise removed. They’ll take down speech that powerful actors deem objectionable. This won’t just preserve the exact kind of content the Democrats oppose; it will erase the speech of those pushing back against Trump.
The result is chilling: speech that offends those in power, particularly Trump, is suppressed not by law, but by lawsuit. Not by censorship orders, but by fear of retaliation and now the inability to find legal representation.
And yet here we are. Democrats are handing over the keys to this censorship machine, thinking they’re striking a blow for safer online spaces. But what they’re really doing is dismantling the only law that makes resistance possible. Unlike newspapers, cable, or legacy media—which are vulnerable to political coercion—Section 230 is authoritarian-proof. It’s the last structural safeguard we have to protect the essential free exchange of ideas online.
Repealing Section 230 won’t lead to the “better” Internet that Democrats envision. It will pave the way for the most powerful voices to dominate the conversation and make sure those who speak out against them can’t fight back.
Jess Miers is currently Visiting Assistant Professor of Law, University of Akron School of Law.
Filed Under: 1st amendment, censorship, democrats, free speech, project 2025, section 230
Comments on “How Democrats’ Attack On Section 230 Plays Right Into Trump’s Censorial Plans”
Do we know how likely the bill is to pass the Senate let alone the House?
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Hard to say exactly, but probably close to a toss up.
Assuming the GOP is going to vote for it, it is likely to pass the House (currently GOP majority). In the Senate, there is the filibuster to overcome. The Senate is 53 GOP, so that leaves them 1 short of breaking the filibuster assuming no flip flops (to beat a filibuster is 60), with the GOP+ Durbin, Klobuchar, Whitehouse, and probably Blumenthal and Welch. There’s a pretty high risk of getting 1 more, given the broad dislike (mainstream Dems like Clinton/Biden have complained about 230- it’s not a niche thing to just these 6). You have to keep in mind, most people, including Congresspeople, do not really understand 230 or why it’s important, and can probably get sucked into repealing it without realizing the ramifications. So the risk is very high, but pretty volatile.
There might be a buffer from a few Rand Paul types, but that’s probably only like 2-3 GOPers max. And not trustworthy. It’s close, could go either way.
That’s before adding in the overall dysfunction Congress is in right now, though. Nontrivial chance this gets bogged down in the shitshow.
Being unable to be treated as a publisher for 3rd party content (regardless of things like actual knowledge) is a right that isn’t granted by the First Amendment. If there was no difference, publisher liability wouldn’t exist at all. That’s the entire point, the unconditional nature of 230 is what allows the fast lane. You don’t need to do the expensive fact finding etc if there are no facts that can lead to liability.
That was the whole problem with Stratton Oakmont, Inc. v. Prodigy Services Co. Prodigy lost and was liable, it didn’t just go through the slow lane.
Someone should let Media Matters know.
Section 230 is an important legal safeguard, and the more hurdles the better, but it doesn’t safeguard against violating the law, as this administration has already done. (the flipside of course, is that it’s stupid to make it any easier. Guardrails still have value even if not actually authoritarian-proof)
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The publisher is the party who created the content, not the platform.
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The platform is still considered a publisher, but under 230 it can’t get liability from that publishing activity.
And you don’t have to take my word for it, Mike says it here: indeed, the law is directly saying *you are the publisher. It’s just saying that even though you are the publisher and have full editorial rights, we’re saying if the created content is from a third party, we don’t hold you liable as the publisher. Again here: * you get 230 protections FOR ACTING AS A PUBLISHER,*
For a more detailed answer, Eric Goldman also goes into it here: A prima facie Section 230(c)(1) defense typically has three elements: (1) the defendant is a provider or user of an interactive computer service, (2) the claim relates to information provided by another information content provider, and (3) the claim treats the defendant as the publisher or speaker of the information
Similarly, Zeran v Aol: Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.
In this case, AOL is legally considered to be a publisher. “[E]very one who takes part in the publication … is charged with publication.” Id. Even distributors are considered to be publishers for purposes of defamation law
etc
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Taking away Section 230 doesn’t mean that the service automatically loses to a defamation or other publisher tort claim. The service still has strong First Amendment defenses when it comes to its editorial decisions. There is no new speech right implicated. It’s just a matter of procedure.
Or as Eric Goldman put it in his article comparing Section 230 to the First Amendment, Section 230 simply functions as a means to get to the First Amendment result quicker.
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And less expensively, more importantly.
We’d not be having this headache if court fees weren’t so absurdly high, I reckon.
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Instead congress wants to blow all guardrails away and send the US all the way into total fascism, kill the internet, censor everything adult or queer or remotely liberal, all while the democratic party act like repealing section 230 was the right choice.
Re: Extra Speech Rights
Removing Section 230 doesn’t mean an online service is automatically liable for defamation or other publisher torts. It simply means the case is more likely to proceed beyond the motion to dismiss stage. The service still has a First Amendment defense available—and in many cases, it would ultimately prevail under that defense. That protection exists with or without Section 230.
The difference is procedural. Section 230 allows defendants to shut down cases early, before costly discovery or trial. That’s not an “extra” speech right, it’s a procedural shortcut. As Eric Goldman explains in this piece, Section 230 and the First Amendment often lead to the same outcome; the difference is how fast, cheap, and accessible the path to that outcome is: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3351323
To your last point: it’s not about breaking laws. It’s about being able to defend online speech in an era where Trump and his allies are actively undermining access to legal support. With Section 230, a small legal team or advocacy group can file a motion to dismiss and end a case early. Without it, defendants face drawn-out, expensive First Amendment litigation, sometimes requiring a “Paul Weiss”-level firm. And as Trump ramps up pressure on major firms and targets those representing his critics, that kind of legal firepower is becoming harder to secure. Section 230 makes defending online speech possible with solo lawyers and small organizations Trump can’t easily intimidate.
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The difference is procedural. Section 230 allows defendants to shut down cases early, before costly discovery or trial. That’s not an “extra” speech right, it’s a procedural shortcut. As Eric Goldman explains in this piece, Section 230 and the First Amendment often lead to the same outcome; the difference is how fast, cheap, and accessible the path to that outcome is
A right you cannot afford to exercise is a right you effectively do not have, so far from granting ‘extra’ rights what 230 does is protect the already existing first amendment rights of those running online platforms by making it affordable to make use of them.
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I think you replied to the wrong commenter there, unless you meant to simply reword what they said.
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Absolutely. I’m not saying they will automatically be liable. Just that the amount will be nonzero. The vast majority of cases will still be covered by the First Amendment. But not all of them, there will be a small amount that fail. Cases like Blockowicz v. Williams live in that sliver of difference.
In most cases, it is procedural. But not all. The fundamental reasons 230 allows cases to be shut down early, is because 230 protections can’t be stripped by procedure found in discovery/trial. It’s unconditional. But First Amendment protections can be (in very limited cases). The short cut is tied to the unconditional nature of 230. If the First Amendment was identically robust, it would also be able to skip those steps. The reason it can’t, is that there are cases where discovery/trial could potentially overcome those protections, which necessitates going through them, even if most cases will arrive at the same result earlier.
Where they overlap, the difference ends up being procedural. The (few) cases where they don’t overlap are not just procedural.
The key words there are ‘often’ and ‘many cases’. For most cases, the First Amendment will cover it, as it’s protections are fairly broad. But that’s not the same as all. It’s an important distinction that’s worth making, even if you think those few exceptions are a price worth paying.
Those are related, when looking at whether it’s ‘authoritarian proof’ or not. The ability for an authoritarian to get around the legal system directly undermines that defense.
Of course, losing it would still be a big (counterproductive) blow. There’s no reason to make it easier for Trump. But at the same time, we shouldn’t overstate the protection- it’s far from authoritarian proof, and many sites are still feeling heavy coercive pressure despite it’s protections. It’s worth keeping even if it isn’t actually authoritarian proof, though. More like ‘authoritarian resistant’.
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You fuckin donkey did you not read the part about how expensive going through a first amendment trial is?!?!
I’ve been thinking about Blumenthal and Durbin lately especially with the ridiculous and repetitive actions these two are pushing stuff like KOSA and section 230 repeal.
Considering Durbin and Blumenthal are very old (Durbin, 80 and Blumenthal, 79) I’m highly suspecting that both of them have some form of dementia especially considering the repetitive actions from both revolving around “think of the children” legislation for the last several years.
Durbin’s sore loser tantrums how his CSAM bill died last year that had six cosponsors and only passed one senate committee and he wants to ruin section 230 out of retaliation for his bills demise which is really pathetic.
Blumenthal’s obsession with KOSA seems to grow bit by bit every day as he hijacked a meeting about Ted Cruz’s TAKE IT DOWN act a bit ago and made the meeting all about KOSA which to me is showing his obsession is getting more crazier by the day to where he wants to pass KOSA.
But from the looks of things KOSA doesn’t seem like it’s taking off at the moment with certain House GOP members having various issues with the bill so it’s unknown at the moment what could happen with KOSA so Blumenthal and Blackburn (the two senators who created KOSA) are teaming with Durbin and Graham to nuke 230 due to KOSA dying last year.
In short terms aka a senator along with various other senators who despise the internet and want to nuke section 230 in retaliation for their bills dying.
It’s really fucking pathetic that these two can’t tolerate losing and want to punish everyone before they croak from old age.
The blues are playing on the same team as the reds – once you see it you cant unsee it
The DNC told you who they really were in 2009. And then repeatedly more and more after that.
Many of you didn’t believe them.
And suddenly only now they’re on the wrong side when it’s not them who get to use the fascist toys.
Stop treating politicians as dumber than literal toddlers
Perhaps Democrats don’t fully grasp the strategic importance of Section 230.
…
And yet here we are. Democrats are handing over the keys to this censorship machine, thinking they’re striking a blow for safer online spaces.
As I’ve said time and time again, these are not clueless children, nor are they people who have never heard of or been corrected about 230.
They know exactly what they are doing and what it stands to do if they ‘succeed’, they just don’t care because all they’re focusing on is the ability for them to give a Look At Me Doing Something statement and the cost to the internet and speech online is a price they’re willing to have everyone else pay for them to do it.
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Yep — unfortunately I think that’s spot on. I tried to give them some benefit of the doubt but the writing is so clearly on the wall.
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So..Ah, how do we make them not repeal this, then?
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Yeah this, stop giving Democrats the benefit of a doubt, they have proven time and time again that they know exactly what they are doing. They live their political lives in the gray area because they will always assume someone will fall for the ‘Just fell off the turnip truck’ trick while they’re enacting their 200th or so ‘oversight’.
The idea that freedom of speech, does NOT need to protect itself.
To those that know Why 230 was created. YEA. It was a stupid incident, but Proved that Freedom of Speech needs a WALL to never climb.
If this goes down to killing 230. You might as well take EVERY newspaper/News site on the NET and Close them down.
Any place that has an opinion, or allows opinions to be expressed, will be targeted. IF for no other reason then to get Money from the Site and the ISP’s.
To a point, if you look close at how our Gov. and companies Work. Gov. give money to company. Company has setup a ‘THING’ that should not be. So Gov. Sues the company and gets Money back. REALLY interesting way to Launder money.
The problem with Democrats is they really are just as censorious as Republicans. They, and yes that includes some who have written for this blog, are more than fine with censorship as long as it’s used against their political adversaries. They applaud the ability to remove people who do not toe the line, even. Their only real objection to it has always been who it has been used against, not that it exists at all.
Ideally, Free Speech is a principle to be followed instead of a line in a 250 year old piece of paper. The founding fathers put it into law with the assumption that the government having it would mean others would follow suit. Clearly that’s not happened and instead it’s just become a game of who can undermine it the fastest using proxies and technicalities, and no one seems to be on the side of enforcing it as an ideal for everyone who enjoys the Freedom of the Bill of Rights to follow. And I do mean nobody, there really is no one on the side of Free Speech or Free Expression.
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They, and yes that includes some who have written for this blog, are more than fine with censorship as long as it’s used against their political adversaries.
[Citation Needed].