Unfortunately, the Fourth Estate has recently allowed misinformation about Section 230 to spread, which is especially regrettable given that falsehoods about Section 230 are already ubiquitous.
The most recent example of such misinformation is an op-ed in The Wall Street Journal by the conservative commentator and Prager University founder Dennis Prager. The first falsehood appears in the subhed: “Big tech companies enjoy legal immunity premised on the assumption they’ll respect free speech.”
This is not true. Congress did not pass Section 230 on the understanding that Internet companies would engage in minimal moderation and “respect free speech.”
CATO is correct.
I was an Internet CEO in 1996 -- I ran MCSNet of Chicago, one of the first firms in the area (second by a day, factually) to sell Internet access to consumers. We also had a lively business connection aspect, as well as one of the first virtual web-hosting offerings.
In other words I was one of the people who really made what you have and do today happen.
I was also, as a consequence, in the middle of the debate on the Communications Decency Act -- and Section 230.
Prior to that ISPs had only case law to shield them. It was pretty good law, in the general sense; the seminal case was called Cubby .v. CompuServe, which turned on exactly this issue -- whether CompuServe could be held liable because it failed to restrict speech.
The holding at the time was that retroactive moderation, or the failure thereof, did not give rise to derivative liability. Left open was the question about prospective moderation -- that is what is commonly known as editorial review. This is the process that an editor in a newspaper uses, for example: Only that which is actively approved passes. This was left open to a circumstance-by-circumstance evaluation.
Cubby shielded providers who either did or did not retroactively moderate. In other words if you had an open forum and either decided to or decided not to, after someone posted, take something down other than on the clear presentation of evidence of wrongdoing such as a copyright claim, you were immune from liability. If you were presented such a claim at the point of actual knowledge there was risk of liability -- but not before.
This is distinct from the speaker being liable. That is, the person who actually posted the material was (and remains today) responsible for it.
Section 230 changed all that. Under Section 230 the operator of the system is not responsible -- period .
It does not matter if they censor.
It does not matter when they censor (before or after the fact.)
It does not matter irrespective of what the material is, including that which normally has the highest First Amendment protections (e.g. political speech.)
The only remaining exceptions that have been broadly found under Section 230 is if you edit (that is, change, not remove or refuse to remove) someone else's speech -- that makes it your speech, not the users -- or if the material is illegal and complicity can be shown in that regard (e.g. hosting child porn where you either know or have reason to know it's there.)
It also leaves in place Copyright suits. However, the DMCA dealt with that separately provided the operator of the site again (1) is not the original poster and (2) conforms with specific requirements of the DMCA, including taking down claimed violations on a commercially-reasonable basis.
Note that under the law there is no differentiation between a "platform" and not. It's similar to journalism in that journalism is an activity, not a person. Anyone engaged in journalism, whether for profit or not, whether their usual means of making a living or not is a journalist at that particular point in time.
I had at the time of Section 230's debate and passage serious concerns over the law as written. But the current range of censorship and such on the Internet today isn't so much about Section 230 or not, it is about the collusive nature of said censorship and concentration of market power.
It's not the banhammer -- it's that the providers collude to collectively deny basic infrastructure purchases by those they dislike, effectively forbidding them from going somewhere else. This is exactly what happened with 8Chan recently and many others over the last few years.
That's illegal under 15 USC Chapter 1 and worse for those who engage in this sort of collusive behavior that's not a civil matter either, it's a criminal felony carrying 10 years in the slam-slam per incident and it is applicable to everyone involved from CEOs on down.
But heh -- today nobody goes to jail for violating anti-trust law. Not in the medical field, not in the pharmaceutical field and certainly not in the social media field.
Every one of these people should go to prison -- right now. But this is not a failure of enforcement of Section 230; rather, it is a failure to enforce 15 USC Chapter 1 as written , with so-called "interpretations" that have unlawfully given a pass to break felony criminal laws on the books for more than 100 years not only in the technology field but in the medical and pharmaceutical fields as well.
There are relatively-simple remedies for this, along with prison sentences for the current violators of which there are many apparent ones, all of whom ought to be facing indictments right here and now. We need no new law; the existing 100+ year old anti-trust law is plenty sufficient to send many of these firms CEOs and other executives to prison for a decade and ruin their firms with billions -- or even tens of billions in fines since violations are good for $100m each .
Among more-permanent structural remedies are classifying "unbranded" utility-style services as those forbidden to discriminate for or against like kind and quantity buyers. These would be DNS providers, cloud hosting services, anyone offering colocation services irrespective of their specific type of primary business, CDNs (including those that work to prevent DDOS attacks from working such as Cloudflare, etc.), circuit providers (e.g. telcos, fiber companies, etc), payment processors and aggregating firms irrespective of whether they're in the "fintech" or "traditional" money handling businesses and meet-point operators.
PS: Want someone on air to talk about this was actually there at the time as CEO and won't BS you? You know how to find me.....