Though the president’s veto of the National Defense Authorization Act was overturned by Congress, Section 230 of the Communications Decency Act, one stated reason for the veto, has been thrust back into the spotlight. Unfortunately, many Republicans continue to misunderstand the issue at hand.
Prominent Republicans, most notably the president, have presented the repeal of Section 230, a foundational law in the formation of the modern internet that ensures that web platforms are not legally liable for content posted by users, as essential to reining in social media bias against conservatives. Some, such as Republican Texas Sen. Ted Cruz, have portrayed the provision as a “subsidy” for Big Tech, likening it to an undeserved special favor like many others littered throughout American law.
It’s understandable that conservatives are often frustrated with social media companies’ predilection for fact-checking, flagging or removing posts on their platforms by conservatives. Majorities of Americans report believing that social media companies censor political viewpoints, while just under half believe that social media companies favor liberals over conservatives.
Nevertheless, repealing Section 230 is no way to address this. Section 230, though ostensibly a protection for social media companies themselves, is actually a protection for the users on their platforms.
Section 230 shields social media companies from being held liable for content published by others on their sites. That sounds like a legal protection for social media companies, which of course it is. But in the absence of Section 230, the consequences would fall on users posting on the sites hosted by social media companies, not the social media companies themselves.
Imagine you’re running a major social media site. If you would be held legally responsible for the views and opinions posted on your site, would you respond by bearing the brunt of lawsuit after lawsuit for what your users posted? Or would you aggressively police the opinions being expressed on your platform to avoid any hint of legal risk?
Conservatives opposed to Section 230 may counter by claiming that social media platforms are already policing views on their platforms. But this only further emphasizes the importance of the law — if conservatives see social media companies as targeting conservative opinions for censorship when they are shielded from litigation, imagine how much more aggressively conservative views would be regulated if legal action was on the table.
Section 230 should therefore be seen as a crucial safeguard defending freedom of speech (the principle, not the Constitutional right that does not apply to a private company’s platform). Social media companies should be incentivized to host a broad range of views, not to censor any posts that could subject them to legal action.
Conservatives often specifically dislike Section 230’s “good faith” clause, which protects social media companies from liability for obscene, lewd, or inappropriate content removed in “good faith.” Republican Missouri Sen. Senator Josh Hawley recently introduced legislation intended to reduce the protections provided by this provision, believing it can give social media companies leeway to censor conservatives.
But even in the absence of Section 230, our judicial system would hold that social media companies maintain a Constitutional right to monitor content on their own platforms. Courts have consistently upheld this right on First Amendment grounds in recent years.
The consequences of removing Section 230 are therefore clear: it would encourage risk-averse social media companies to police opinions on their platforms, while still providing no legal leg to stand on for conservatives to sue tech companies for censorship. It’s the equivalent of attempting to repair a car with an oil leak by removing all four wheels: unrelated to the actual problem, and harmful to boot.
Conservatives may dislike how social media companies manage their platforms, and they have every right to do so. Unfortunately, the belief that repealing Section 230 would provide the solution to these concerns is nothing but a fantasy — one that could have grave consequences for internet free speech.
Andrew Wilford is a policy analyst with the National Taxpayers Union Foundation, a nonprofit dedicated to tax policy research and education at all levels of government.