T he House Energy and Commerce Committee released a draft bill to sunset the online liability shield commonly known as Section 230. The proposal is only about 50 words long, but if enacted, it would wreck the internet as we know it.
Section 230 was passed in 1996 as part of a broader package concerned with access to pornography on the internet, much of which would go on to be struck down by the courts as violating the First Amendment. When the internet was in its infancy, two lawmakers noticed that liability law was disincentivizing “interactive computer services,” meaning platforms or websites like Facebook that host third-party posts, from taking down content that was offensive or otherwise unwanted, such as sexually explicit or hateful speech. As liability law stood then, hosts might open themselves up to legal liability for all third-party content if they removed any of it. Hosts could either let all the “awful but lawful” content remain, or curate their forum and face the legal costs of defending some of what they had left up on their site in court when the lawsuits inevitably started.
This prompted then-Representatives Chris Cox (R., Calif.) and (now Senator) Ron Wyden (D., Ore.) to write Section 230. It was meant to encourage content moderation by clarifying that legal liability rests with the author of content posted online, not the host. In practice, this means that if someone posts a nasty review of a business on Yelp, or lies about someone on Facebook, that business or person could sue the person who made the post for libel, but not Yelp or Facebook.
With that legal risk eliminated for hosts, Section 230’s liability shield allowed for the massive growth of social media and helped secure the U.S. as the global leader in tech. According to the U.S. Department of Commerce, the digital economy accounted for 10 percent, or $2.6 trillion, of GDP in 2022. It also provided 8.9 million jobs and $1.3 trillion in total compensation that year.
Beyond the economic benefits, Americans now enjoy an unprecedented democratization of speech. Never before have so many people had so much access to so much information, and never before have so many people had the chance to make their views heard, something that has caused alarm and spawned legislation designed to restrict free expression in less open societies across the world, from Merkel’s Germany to Putin’s Russia.
But with great progress come great challenges. Criminal activity facilitated through social-media platforms and concerns about mental-health consequences for young users are driving efforts to curtail or repeal Section 230. So too is the fear of “disinformation” and “misinformation,” both abused concepts that are used as excuses to clamp down on dissenting opinions.
This latest proposal by House Energy and Commerce Committee chairwoman Cathy McMorris Rodgers (R., Wash.) and ranking member Frank Pallone (D., N.J.) would end Section 230 and its legal protections for hosts of third-party content on December 31, 2025.
The bill itself makes no suggestions for what legal framework should replace the liability shield. But in an op-ed for the Wall Street Journal, the authors elaborate on what they hope the bill would spur from platforms before Section 230 expired. They write, “Our bill gives Big Tech a choice: Work with Congress to ensure the internet is a safe, healthy place for good, or lose Section 230 protections entirely.” In the era of trigger warnings and supposed microaggressions, it is easy to see how those benign words “safe” and “healthy” could be abused.
Congress is an especially difficult place to get almost anything passed these days, so what would happen if Section 230 were left to expire?
The plaintiff’s bar would be let loose on tech platforms. One might expect enthusiasm for that from Democratic members of Congress, but it’s an odd endorsement from Republicans. The Grand Old Party has long recognized that, while deterrence is a legitimate goal of tort law, its track record in the U.S. is rife with abuse, inefficiency, and the discouragement of innovation.
The fear of litigation would most immediately trigger a large decrease in material allowed online. Posts on the margin of incurring risk would simply be removed by platforms in an attempt to avoid costly legal battles, assuming the platforms had a large enough to staff to keep up with removing anything objectionable. The natural response to any content deemed risky or contentious enough to provoke even nuisance or harassing litigation would be to take it down, and perhaps the user’s account would be barred entirely to prevent repeat offenses. The total amount of speech hosted and shared online would decline significantly. Conservative speech, climate skepticism, and traditional religious views are often viewed as fringe, particularly in today’s corporate culture, and may well be the among the first “problematic” views to be removed. Even with Section 230 in place, platforms were under pressure from the government to take down views about Covid-19 vaccination and election concerns.
The biggest firms have the financial resources to survive legal costs and beef up content moderation. Meta already employs 40,000 people to work on safety and security, and it has invested over $20 billion in online safety measures since 2016. In the fourth quarter of 2023, Meta sent 6 million Cyber Tip Reports to the National Center for Missing and Exploited Children. But nascent and yet-to-be-founded companies will not have those vast resources.
In this way, the absence of Section 230 would serve as a barrier to entry for potential competitors. Today’s largest platforms have benefited from the liability shield, even though they did not yet exist when it was passed. Tomorrow’s companies would not be able to say the same. And there is little reason that today’s Big Tech giants would support a new legal regime that extended that advantage to their would-be competitors.
It’s also important to remember who else would be hurt by the elimination of Section 230. Buyer reviews hosted on Amazon and Yelp might disappear. The same is true for comments sections at newspapers like the New York Times, the Wall Street Journal, and local papers. Wikipedia, Substack, and Reddit would all be at heightened legal risk to host content.
As this draft bill is considered, members of Congress should remember it would be foolish to sign up for a shot clock on avoiding breaking the internet.