Randy Picker on the Recent Section 230 Hearings

Kicking Around Section 230: Don’t Confuse Politics and Policymaking

“Change is gonna come.” That was how Sen. Lindsey Graham (R-SC), Chairman of the Senate Committee on the Judiciary, closed Tuesday’s hearing titled “Breaking the News: Censorship, Suppression and the 2020 Election” and he was referring to Section 230 of the Communications Decency Act. Just before that, Senator Richard Blumenthal (D-CT) called for greater accountability for Facebook, Google, Twitter, and Amazon. Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey appeared virtually at the hearing examining the role that social media had played in the just-completed election. Zuckerberg and Dorsey have testified at another hearing before the Senate Commerce Committee on October 28, that time joined by Google CEO Sundar Pichai. That election-eve hearing was titled “Does Section 230s Sweeping Immunity Enable Big Tech Bad Behavior?”

Beyond hearings, there are multiple pending bills that would seek to rewrite Section 230, including S.3398, The EARN Act of 2020, and S.4534, also known as The Online Freedom and Viewpoint Diversity Act. All of this draft legislation is directed at imposing further regulation on what Sen. Marsha Blackburn (R-TN) called “the invisible gods of the Silicon Valley.” 

The hearings may make for good TV and go viral on social media, but we shouldn’t lose sight of the difficulty of the undertaking that is reforming Section 230. The original version of Section 230 was enacted in 1996 at the dawn of the internet era. Congress had not enacted a new comprehensive communications law since 1934, during really the era of radio. Since then TV had come, followed by cable, and then the internet, and Congress was finally prepared to put a new framework in place. The Communications Decency Act was part of the 1996 reform and put in place new laws to deal with obscenity and violence. Tucked at the bottom was a section on online family empowerment—who could be against that?—with the text of the new Section 230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Most of the CDA was found unconstitutional in 1997 as a violation of the free speech clause of the US Constitution, but Section 230 survived.

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