Though most people have most likely never heard of Section 230 of the Communications Decency Act (passed in 1996), the Electronic Frontier Foundation calls it “the most important law protecting internet speech.” Section 230 essentially provides immunity for website platforms from third-party content, saying that an “interactive computer service” can’t be treated as the publisher or speaker of third-party content and thus isn’t legally responsible. Websites aren’t liable for the content posted by their third-party users (such as pornography)—an especially important distinction in the age of social media. Credited with helping the growth of the internet, Section 230 has been an important part of the digital age, though it has become increasingly controversial and gained a fair number of critics.
Q. What is the relationship between section 230 and the first amendment?
Paul Sternberg: The First Amendment protects the right to free speech in the United States which includes prohibiting the government from mandating tech companies to moderate content. Internet defamation lawyer and author of The Guide to Internet Defamation and Website Removal by Paul Sternberg of Houston, Texas, explains that, “Section 230 protects the right for third-party users of websites and social media platforms to post what they want, regardless of the views of the owners of those websites and platforms, though private companies can restrict speech if they choose, something that Twitter and Facebook have recently become notorious for when restricting hate speech like that of former president Donald Trump. That is those company’s right under the First Amendment.”
Q. How has Donald Trump tried to change section 230 and how might Joe Biden change it?
Paul Sternberg: It is already a topic on Trump’s mind, a feud with the platform Twitter revived an executive order targeting Section 230 in May 2020. “The order was an attempt to redefine Section 230’s parameters more narrowly—Trump would ideally like the Section abolished entirely,” says Mr. Sternberg. Though less vocal about it, President Biden is also a critic of Section 230 and in January 2020 even proposed revoking it entirely. Biden hasn’t readdressed Section 230 since he was elected but advisors have suggested getting rid of it in favor or drafting new legislation entirely.
Q. How Has Section 230 Been Modified Over the Years?
Trump signed FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) into law in 2018 which aims to fight sex trafficking by reducing the legal protections for online platforms. “FOSTA creates an exception to Section 230 meaning it doesn’t apply to civil and criminal charges of sex trafficking or anything that ‘promotes or facilitates prostitution,’” explains Paul Sternberg of Houston. “After it was passed, websites began censoring any parts of their platforms that might allow for future third parties to post items related to sex trafficking and prostitution. Sex workers have been negatively affected since they have been forced offline and into the physical realm and there seems to be little evidence that the new law has reduced sex trafficking.”
Q. What other changes are legislators and congress proposing?
Paul Sternberg: At the start of 2020, the US Department of Justice convened a workshop to brainstorm ways to amend Section 230 to limit cases where platforms inadvertently allow for distribution of pornography and child sexual abuse imagery. Sternberg explains that two types of proposals came out of this, one to remove protections from certain categories of content, the other would require website platforms to prove they are meeting certain standards against this kind of material to get liability protection. Congressional democrats have been concerned primarily with making amendments that would limit platform’s ability to post hate speech, harassment, and terrorism. Republicans have proposed new restrictions and heavier moderation to restrict the same elements.
Mr. Sternberg says that Section 230 will definitely change. It is just a matter of the degree. Defamation on the internet has to be curtailed.
Mr. Sternberg can also be reached at 713-392-4322 or 6060 Richmond Avenue, Suite #320, Houston, Texas 77057.
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Attorney Paul Sternberg of Houston, Texas states that the above text is not offered as legal advice but is provided as general information. The information contained within may not be suitable for all individuals or situations. No attorney-client relationship is created or implied by the provision of this information, nor does the aforementioned make any warranties, whether expressed or implied, of any kind.