Patterico's Pontifications


In Support of Section 230 of 1996’s Communications Decency Act

Filed under: Law — DRJ @ 1:27 pm

[Headline from DRJ]

Tech critics on both sides have it wrong: Section 230 is not a special privilege:

Recently, both Republicans and Democrats have publicly questioned the future of one of the most important laws underpinning the explosion of the internet: Section 230 of 1996’s Communications Decency Act. Policymakers including Speaker of the House Nancy Pelosi (D-Calif.) and Sen. Josh Hawley (R-Mo.) have both called the law, which protects internet providers and platforms from liability for the content their users generate, an unfair and special privilege for tech companies.

But in a new Mercatus Center at George Mason University working paper, we discuss why Section 230 is about accelerating sound legal precedent and free speech protection, not special privilege. It emerged as the codification of a pro-speech legal principle that had been developing since the 1930s: Media distributors should very rarely be liable for the content they transmit.

Starting with earlier technologies like newswire services and radio, courts began to recognize that free speech norms and a need for pragmatic rules should outweigh arguments for holding what are essentially conduits of information liable for that information. One early case found that a radio station should not be subject to strict liability for a host remarking that a certain establishment was a “rotten hotel.” As information technology expanded, so did this norm to include new mediums and address concerns such as newsstands and libraries

The rest is at the link.


17 Responses to “In Support of Section 230 of 1996’s Communications Decency Act”

  1. Then you will have to stop whining about private company censorship. but you won’t.

    lany (ebb95a)

  2. Ok. I haven’t done that so I’m pretty sure I won’t.

    DRJ (15874d)

  3. and it’s effectively a dead letter if progressive representation on credit card company boards team up with tech giants, to block not only access but even entry into the market, we’ve seen how Lindsay shepherd was the most recent example to be ‘deplatformed’ for wrongthink, I don’t have an answer, but it is a problem.

    narciso (d1f714)

  4. An important post for us low information voters*. Thanx, DRJ!

    *It has taken me years to accept that I am a LIV. It was the fine discussions here that persuaded me of the truth.

    felipe (023cc9)

  5. There comes a point where the speech that is allowed is so tailored to a viewpoint held by the carriers that its source is unclear. And this is where Section 230 fails.

    We have civil liberties, including freedoms of speech and the press, but if the methods of speaking and printing become highly controlled, does it really matter if the control is public or private?

    In the 1870s, the notion that the Bill of Rights applied to the states was considered ludicrous, and you had Supreme Court decisions that emphasized that, even in the face of horrific state behavior (e.g. Cruikshank). Later, they were “incorporated” against the states, most recently with the 2nd Amendment.

    To say that there is no basis for incorporating the Bill of Rights against corporations which enjoy widespread power at the sufferance of the State is to create a path for the effective elimination of same, at least above a soapbox in the park.

    Kevin M (21ca15)

  6. This is definitely a learning process for me, felipe.

    DRJ (15874d)

  7. “does it really matter if the control is public or private?”

    – Kevin M

    Until a private sector entity can put me in prison for violating its dictates, the answer is “yes.”

    Leviticus (048cbd)

  8. Until a private sector entity can put me in prison for violating its dictates, the answer is “yes.”

    Perhaps, for amendments 4-8, but the police power has nothing to do with the first amendment, other than specifically prohibiting the State from using it. Your argument fails through non sequitur.

    A more correct response would be “since only a private sector entity can penalize me for my speech, you’re damn tootin’ it matters!”

    Kevin M (21ca15)

  9. But Section 230 is a red herring anyway. The immunity of bloggers or media outlets for comments or information created by others isn’t the issue. What IS the issue is the careless and apparently one-sided censorship that occurs on the national communications services. In these cases Section 230 only operates by making said censorship unnecessary to protect the venue; otherwise it means nothing.

    To the degree that these services operate as monopolies, with government assent, we are creating a mechanism of government (or perhaps Deep State) censorship-by-proxy. Something that will become all too clear in the next election.

    Kevin M (21ca15)

  10. Hey key board commandos what is to stop you from starting your own google, face book or twitter? The corporate establishment free trade donor class controlled the republican party until trump and the republican populist base put an end to it. but you would rather cry and whine.

    lany (f3278a)

  11. On Halloween, October 30, 1938, Orson Welles broadcast “War of the Worlds” on the CBS radio network. We studied it for RTF in high school, listened to a tape recording of the original broadcast, and I got to tell you it sure sounded real, really real, like an alien invasion was actually happening. In other words, it was very well done.

    What happened over the next few days and months is illustrative. The New York Times billboard lit up with “Orson Welles Causes Panic,” headlines like “Terror Over the Air” were printed, along with stories of millions of people fleeing their homes in fear, calling police, storming the Mercury Theater and CBS headquarters.

    Thing is, none of that happened. Most people didn’t even listen to the show, and those that did knew it was a fictional play, adapted from an H. G. Wells novel, narrated by Orson Welles. There was no panic, but because newspapers reported there was, people believed it. Adolph Hitler even spoke of the panic as evidence of the decadence of American culture in a speech later that year.

    The truth is that during the Great Depression newspapers were losing advertising revenue to radio, so when “War of the Worlds” broadcast, reporters made up stories of a panic to sell newspapers and generate ad revenue. Fake news is nothing new. And it’s all about the money.

    So who’s to blame for all this? CBS radio for broadcasting a fictional play, or the New York Times newspaper for printing fictional stories.

    You can’t blame the platform or the medium, but you can blame the bad actors.

    Gawain's Ghost (b25cd1)

  12. No one expects the mailman to be in anyway responsible for what is written in a mailing. The problem with the platform providers is that they have become publishers in that they editorial judgment on what is allowed on the platform. They want to be treated as common carriers, but do not want to act as common carriers.

    Frank (90a91c)

  13. But doesn’t every publisher make that decision, Frank? Newspapers, TVs, radio, etc., pick and choose what to publish. That is editorial decision-making, not censorship. Similarly, consumers can pick and choose which publishers to read or avoid.

    DRJ (15874d)

  14. The immunity of bloggers or media outlets for comments or information created by others isn’t the issue.

    I think most bloggers believe it is important. I do.

    DRJ (15874d)

  15. Sigh. Being treated as common carriers is what platform providers DO NOT WANT! That would subject them to government regulation. It’s the loonies they deplatform who want to treat them as common carriers.

    nk (dbc370)

  16. I think most bloggers believe it is important. I do.

    Yes, but it isn’t in danger. Only if people continue to conflate Section 230 with the censorship problem (there is actually no connection), is there any danger of repeal.

    Kevin M (21ca15)

  17. Section 230 was made back in simpler, less scaled times for a simpler, less scaled Internet. It is wholly inadequate to handle the massive advertising platform monopolies, collegiate nerd defamation brigades, and corporate Chekas of today.

    I’ll settle for stretch goals of having New York Times v. Sullivan overturned. A real libel check on the press would not injure ordinary speech–unlike the egregious censorship now routinely conducted by corporations. If I say “Jeff Bezos is a pedophile”, even believing it untrue, no one is harmed because my social reach and influence as an individual are negligible.

    But the media routinely defames completely innocent people for no better reason than to turn a buck, and unlike my speculation their lies get accepted as fact and even recorded as cited evidence in Wikipedia (the nerd defamation gazette).

    Cigarillo (66c665)

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