Last December, during a conversation with the New York Times editorial board, then-candidate Joe Biden declared that Section 230 of the Communications Decency Act, a foundational law of the Internet that was intended to govern how companies moderate speech online, “immediately should be revoked, number one.” Presidents, of course, can’t simply make legislation disappear, but they can try to move things along with executive orders.
Back in May, Donald Trump issued an order meant to dissuade social-media companies from exercising editorial control over material that appeared on their platforms. Twitter had recently infuriated him by adding a generic fact-check label to a tweet of his that declared mail-in ballots to be fraudulent. Biden’s complaint about Section 230, however, was not that social-media companies were exercising too much editorial control but that they were not exerting enough. It is irresponsible, Biden suggested, that Section 230 immunizes companies from libel and civil suits for material posted on their sites by third parties, no matter how harmful.
Danielle Citron, a law professor at Boston University who has studied Section 230 for more than a decade, told me that she believes Biden’s call to scrap the law was “a placeholder, a way of saying we need to have a meaningful discussion about reforming it.” When Section 230 was passed, with bipartisan support, in 1996, the Internet was primarily a collection of home pages, Listservs, and bulletin boards; Google searches, click bait, social media, online shopping (as we know it today), and YouTube did not yet exist. The previous year, though, an early online service, Prodigy, was successfully sued for defamation after a user posted untrue claims about an investment company and its president on one of Prodigy’s bulletin boards. Because Prodigy moderated the content on its sites, the court reasoned that it was acting as a publisher and was liable for the material that it hosted. In response, Christopher Cox, Republican of California, and Ron Wyden, Democrat of Oregon, co-authored a bill in the House of Representatives that sought to indemnify Internet companies for exerting editorial control over the material that appeared on their sites. The law, Section 230, was intended to prevent the Internet from becoming home to all kinds of unsavory, offensive, and possibly illegal content—content that would drive away potential users and stifle the fledgling industry.
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