How Free Speech Online Is Enabled By Not Blaming Websites For The Actions Of Their Users

from the save-section-230 dept

We've written many, many times about the importance of Section 230 of the Communications Decency Act, which provides protections against secondary liability (except for intellectual property) claims for internet service providers. In the simplest form, Section 230 says that if a user does something on a site that's illegal, you need to blame the person who did it, rather than the site. As we've said repeatedly, this makes so much sense it's almost troubling that you need a law to make the point. You blame the person who broke the law, not the tools they used. Duh. You don't blame Ford because that was the getaway car in a bank robbery and you don't blame AT&T because the extortion call was made via an AT&T phone line.

But, on the internet, blame often gets thrown around wildly, and websites themselves are too frequently targets of misguided legal claims. Section 230 protects against that and lets companies quickly extricate themselves from bogus legal claims. Unfortunately, Section 230 has been under attack lately by a number of parties. There are a bunch of state Attorneys General who are looking to change the law to exempt it from applying to cases they might bring against sites. You have short-sighted law professors who think that a way to fix "bad" sites online is to gut Section 230. And, unfortunately, you have one really bad district court ruling (which disagrees with every other ruling on the law) which hopefully will get reversed on appeal.

Much of the academic discussions concerning the importance of Section 230 have, quite reasonably, focused on the impact on innovation. As some have pointed out, Section 230 can, in many ways, be credited with "giving us the modern internet." So many of the sites you know, love and use today probably wouldn't exist, or would exist in greatly limited forms, without Section 230. It's truly enabled a revolution in innovation online, allowing sites to build powerful tools for the public, without having to be liable for how the public then uses those tools.

And that brings us to a second important point about Section 230 that perhaps gets less attention, though it probably should get much more. Section 230 has really helped to enable a tremendous amount of free speech online. On a recent edition of his Surprisingly Free podcast, Jerry Brito interviewed Anupam Chander who recently co-authored a paper (with Uyen Le), which highlights "the free speech foundations of cyberlaw" and how Section 230 has been truly key in guaranteeing a lot of free speech online -- basically highlighting how the First Amendment and Section 230 work well together. However, it also points out that it was the First Amendment that underpins all of this, and that we should be wary of challenges to the law that might undermine the First Amendment.

If you know the history of the Communications Decency Act, you know that it was a very, very different bill than Section 230. The original CDA was basically the opposite. It was a bill to censor websites that had "indecent" communications. Most of that got thrown out (after quite the legal fight) as unconstitutional under the First Amendment. What remained, and should continue to remain, is Section 230 -- which was the one part of the bill that was consistent with the First Amendment.

The paper also goes into how copyright law, separately, has been trying to chip away at the First Amendment online, and how dangerous that is as well. Remember, Section 230 doesn't apply to copyright law, though there is Section 512 of the DMCA, which is similar, but not nearly as strong. The paper notes that things like SOPA really were a direct attempt to attack the First Amendment, which is why it's a good thing that it failed.

All in all, it's a good reminder of both how important protecting free speech online is today and how fragile it is, since the laws that have made it possible are so constantly under attack.

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  1. identicon
    Just Sayin', 14 Feb 2014 @ 9:04pm

    Good arguments, but...

    The arguments made are good, and it's all fine and dandy, but translated to the real world (deleting the old "on the internet" clause), you might consider differently.

    If I have a billboard company that allows anyone to put up any advertising and entirely refuses to take it down, even if it's obscene, abusive, illegal, or slanderous... what would happen? Clearly as the billboard company I would be in a position to stop such speech. In fact, I am a key part of the process of making that speech. Without the billboard, the speech (good or bad) would not be made in that manner.

    So the billboard owner isn't just a passive "service provider", but more of an enabler, one who aids in making such speech. The result is that advertising companies of all sort (and any other publishing company) has certain responsibilities under the law to deal with such issues.

    Section 230 is wonderful, except that it grants a level of protection above and beyond what would be found in the real world. If you anonymously put up slanderous posters on every light pole in town, you can be sure that someone would work to figure out who put them up, and take you to court for it. Heck, you might even end up with a criminal case (harassment) to deal with as well.

    A website owner has some responsibility to deal with what is on their site. Most take this for granted at least to some extent, as an example I don't think we can post child porn or death threats here in the comments on Techdirt. Like it or not, you have ignored section 230 to do what is right, morally and legally. Having crossed that line already for CERTAIN illegal or distasteful acts, why would you think that you have no liability for the rest of them?

    Section 230 would work and get supported by all sides if it didn't create a special "on the internet" class which allows users to hide behind a website or ISP's skirt. It creates a hole where the website / service provider won't take action, and at the same time impedes access to the information required for an injured party to take action. It creates a situation where the abuser gets a double helping of protection, and the abused party gets told to pound sand.

    The hope should be that over time, the internet remains free with a little sideline of "but you don't get more rights here".

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