New Paper: “Why Section 230 Is Better Than the First Amendment”

April 23, 2019 · by · in Content Regulation, Derivative Liability

I’m pleased to share a new article, “Why Section 230 Is Better Than the First Amendment.” It’s still in draft, so I’d be grateful for your comments.

As you know, the future of Section 230 looks bleak. This paper addresses the potentially non-hypothetical question of what happens when Section 230 gets carved back–or up. In theory, the First Amendment–the global bellwether protection for free speech–should partially or substantially backfill any reductions in Section 230’s coverage. In practice, the First Amendment does no such thing. The paper catalogs the important substantive and procedural benefits provided by Section 230 that the First Amendment does not provide, meaning that all of these benefits are in jeopardy due to the toxic and dysfunctional conversations taking place inside the beltway. Every policy-maker who takes a jab at Section 230 should be required to read this paper so that they better understand the stakes–and why attacking the immunity really isn’t about sticking it to Google and Facebook.

__

The abstract:

47 U.S.C. § 230 (“Section 230”) immunizes Internet services from liability for third-party content. This immunity acts as a crucial legal foundation for the modern Internet. However, growing skepticism about the Internet has placed the immunity in regulators’ sights.

If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that’s not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.