Section 230 and the First Amendment: Is speech freer with Section 230 or without it?

Written By: Anoli Motawala

Section 230, the Communications Decency Act, was introduced in 1996.[1] The act states that “no provider . . . of an interactive computer service . . . shall be treated as the publisher or speaker of any information provided by another,” thus granting “service providers” immunity from lawsuits stemming from the content posted on their sites.[2]

Each service provider was given the ability to customize the content they allowed on their sites so that they could distinguish themselves from other service providers, allowing them the flexibility to moderate as they saw fit without having any third party liability.[3] Section 230 makes it so that electronic content operators cannot be held liable for the posts, photos or videos that they allow or remove.[4]

On October 28, 2020, top executives from Facebook, Google, and Twitter were questioned about their content moderation methods.[5] Democrats contend that these sites do not do enough to take down harmful misinformation, especially as it relates to foreign interference in the 2020 presidential election.[6] Republicans contend that these social media companies deliberately censor conservative viewpoints.[7]

Lawmakers question the impartiality of these companies’ content moderation, and they are considering changes to Section 230 to address those perceived shortfalls.[8]

Repealing Section 230 would enable people to sue companies for the content allowed on their platforms, which, companies argue, would lead to costly litigation.[9] Facebook’s Mark Zuckerberg also argues that without the protections of Section 230, technology companies would not only be sued for content they did allow, but also for basic moderation of content they did not allow, leading to further costly litigation.[10] Twitter CEO Jack Dorsey argues that modifying Section 230 would lead to so much litigation that only the large, well-funded technology companies could afford to face, and would lead to less competition because smaller companies with fewer resources would not have enough money for the litigation that would likely follow.[11]

Experts say that the effects of repealing Section 230 would likely be similar to the effects of the passage of FOSTA-SESTA in the spring of 2018, which held platforms criminally and civilly liable for sexual service advertisements posted on their sites.[12] FOSTA-SESTA led Craigslist to preemptively shut down its personal ads section entirely because of the cost of litigation that would stem from the passage of the bill.[13]

Section 230 protects internet service providers and “domain name registries” as well.[14] Without section 230, the cost of litigation and cost of content moderation would make it so that smaller companies could not compete, leading to the centralization of content providers. As imperfect as Section 230 is, and as much power as companies have to moderate content, experts say that consumers would have even fewer choices of platforms without Section 230.[15]

It seems that, unless iron-clad protections can be put in place to protect smaller companies, Section 230 should be upheld because it ultimately leads to greater freedom of speech on the internet, whereas changing or repealing Section 230 would lead to fewer content providers, and in turn, fewer content moderators, which would further restrict the kinds of speech that can be shared.


[1] Roger Cochetti, What Were We Thinking in 1996 When We Approved Section 230?, The Hill (Oct. 20, 2020, 2:00 PM), https://thehill.com/opinion/technology/523523-what-were-we-thinking-in-1996-when-we-approved-section-230 [https://perma.cc/HWY5-QYYJ].

[2] Id.

[3] Id.

[4] Tony Romm, et al., Facebook, Google, Twitter CEOs Clash with Congress in Pre-Election Showdown, Washington Post (Oct. 28, 2020, 2:42 PM), https://www.washingtonpost.com/technology/2020/10/28/twitter-facebook-google-senate-hearing-live-updates/ [https://perma.cc/DM4A-762H].

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Kari Paul, Section 230: Tech CEOs to Defend Key Internet Law Before Congress, The Guardian (Oct. 27, 2020, 16:11 PM), https://www.theguardian.com/us-news/2020/oct/27/section-230-congress-hearing-facebook-twitter-google [https://perma.cc/BXT8-2HQ7].

[10] Id.

[11] Id.

[12] Id. (FOSTA-SESTA is short for the “Allow States and Victims to Fight Online Sex Trafficking Act” and “Stop Enabling Sex Traffickers Act.”)

[13] Id.

[14] Id.

[15] Id.


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