The U.S. Supreme Court shouldn’t mess with the internet by limiting Section 230 protections

It’s not often some arcane section of the regulatory code is so universally reviled that it’s known by its section number. Such is the case with Section 230, which was originally included in the federal Communications Decency Act – the 1996 law designed to protect minors from accessing obscene materials in the emergent internet.

The broader law hasn’t achieved its goals, but Section 230 has – without exaggeration – shaped the development of the modern internet despite its mere 26 words: “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.”

Explainer: Section 230

That means such as Twitter, Facebook and YouTube are not liable for their users’ posts. A publisher is responsible for content on its website or publication because it edits and reviews the material. A platform merely hosts what others publish. Without Section 230, any one of millions of potentially inflammatory comments would open these companies to crippling litigation.

Section 230 has become a hot button for social-media critics on the Right and Left because of the gray area of content moderation. Platforms have posting rules and they employ moderators to remove content that violates those rules. Their decisions are subjective and often controversial – such as when companies banned certain users or removed COVID-19 “misinformation.”

Related: Calling Section 230 a ‘Big Tech handout’ is a lie. Here’s why.

Conservatives accuse the platforms of going too far by censoring their viewpoints. Progressives accuse the companies of not going far enough by allowing the proliferation of hate speech. Both sides have focused their ire on that liability protection. Many voices – from conservative think tanks to the Biden administration – want Section 230 eliminated or “reformed.”

Now the U.S. Supreme Court has taken up the matter in a case known as Gonzalez v. Google. The plaintiffs are the parents of a California college student who was killed in a terrorist attack in Paris in 2015. The family claims that social-media firms (the case is now limited to Google) didn’t sufficiently police their sites to remove extremist content from Islamic radical groups.

One certainly can argue that the companies did not do enough to remove Islamic State content from their sites, but if the family’s lawsuit succeeds it could, as the New York Times explained, “have potentially seismic ramifications for the social media platforms that have become conduits of communication, commerce and culture for billions of people.”

The court could take any number of approaches, but if it eliminates Section 230 the platforms would have a stark choice: Either behave as publishers and review everything that users post on their sites or take a hands-off approach. The former will require armies of moderators and almost certainly will lead to more claims of censorship. The latter would mean anyone could post anything, opening the sites to extremists and spammers.

Some groups have called for reforming Section 230, a middle approach that the court could embrace. Yet reforms – such as limits on what types of posts the platforms can moderate – ultimately depend upon value judgments. That would lead to a similar result to eliminating the protection by leaving decisions in the hands of courts or regulators.

We’re stuck waiting to see what the high court will do, but we suspect that any changes to Section 230 will only make matters worse.