Calls to “Reform” Section 230 of Communications Decency Act Are Misguided—and Thankfully Unlikely to Succeed

This week, four U.S. Senators asked the Federal Communications Commission (FCC) to “take a fresh look at Section 230 of the 1996 Communications Decency Act and to interpret the vague standard of ‘good faith’ with specific guidelines and direction.” Real changes to Section 230 will require congressional action. You know, like the kind of thing U.S. Senators are elected to do.

But Senators Rubio (R-FL), Hawley (R-MO), Loeffler (R-GA), and Cramer (R-ND) know there’s little chance of legislation on this front. Calls to alter Section 230 of the Communications Decency Act from the right seek for social media platforms to do less removal and deprioritizing of user-generated content, while calls from the left demand the dead opposite. Populist activists and lawmakers claim platforms are removing too much conservative content while progressives argue for more removal of content they deem offensive. With Congress barely able to vote to fund the federal government, good luck getting legislation reforming Section 230 passed in an election year.   

But weakening Section 230, even done legislatively, would be a bad idea. Section 230 protects platforms from being held liable for the content of third-party posters, even if the platform removes or obscures that content. As courts have confirmed, platforms are private property with their own constitutionally protected right to not be compelled to carry speech with which they disagree, and are most definitely not a public square. My colleague Patrick Hedger has written in detail about the implications of changing Section 230 here.

The FCC will surely be polite about reviewing requests for action and agreeing that the content moderation debate is an important one, but don’t expect much more from them. The agency has traditionally honored First Amendment protections. The majority of Commissioners have expressed opposition to taking regulatory action. And, as a practical matter, there might not be time to act, even if the FCC were so inclined. Rulemaking procedures would likely extend past the November election.

The idea contained in the Senators’ letter and the President’s executive order is a bad idea for private property rights, free speech, and the health of the Internet. But the political posturing does provide an opportunity to shine light on Section 230’s benefits and why they should be protected.