Today, House Energy and Commerce Committee leaders will consider a major shift to internet policy. Committee Chairwoman Cathy McMorris Rodgers (R-Wash.) and Ranking Member Frank Pallone Jr. (D-N.J.) intend to “sunset” Section 230, the much maligned provision of the Communications Decency Act that makes everyone responsible for their own online speech. While this move was ostensibly made to motivate industry to write a replacement bill for legislators, this is an explanation of unprecedented bad faith. Instead, the Section 230 sunset amounts to a full repeal that would decimate small tech companies, limit online speech and undermine the entire internet ecosystem as we know it.
Section 230 is a favorite punching bag for many politicians. It has been irresponsibly mischaracterized and has become wildly misunderstood. Republicans often blame Section 230 for the censorship of conservative viewpoints, while Democrats say it allows platforms to inadequately restrict user discussions. Of course, neither is true. Section 230 simply protects platforms and users from being sued for speech that is not their own. It is not Section 230 that gives companies the right to moderate and associate with certain types of speech — the First Amendment does that. It does not protect companies from illegal activity, either. Explicit carve outs mean that any time a platform violates federal law — they can be prosecuted and punished.
When politicians demonize Section 230, what they are really doing is masking their anger and resentment of free speech online. That should frighten all of us.
While other Section 230 debates have centered around the partisan division outlined above, this new, bipartisan effort uses child safety as the motivating justification. While I am profoundly skeptical of this shift, I think it is fair to take them at their word, especially given the consistency of McMorris Rodgers on this issue. But it is also fair to ask the question: Would a Section 230 repeal make anyone safer? The answer is a resounding no. A repeal of Section 230 would likely cause platforms to stop hosting most user content to avoid an onslaught of litigation. Besides limiting free expression and commercial output, this would drive much online interaction into less centralized spaces, driving up the possibility that younger internet users could be targeted and taken advantage of.
Even if the tech industry met these political demands and wrote the perfect replacement bill, there is almost zero chance Congress would actually pass it. While Republicans and Democrats may share some unifying concerns about the internet, there is virtually no agreement among them about what comes after Section 230. Republicans still want most content left up while Democrats still want more content to come down. Even on child safety-related issues, there is major disagreement. Content debates at the state level in places like California, Texas, Utah and Maryland show that Republicans and Democrats are at odds on what content is “appropriate” for children. The only point of agreement seems to be that our speech is something to be scared of and that the government would do a better job raising kids than their parents.
The “sunset” repeal would also further empower politicians to jawbone online platforms into changing their moderation policies related to online speech based on their preferences. This effort flies in the face of the work being done in the House Judiciary Committee and Oversight Committee to stymie government efforts to jawbone private actors. If Congress can hold aSection 230 Sword of Damocles over the tech industry every two years, it means Congress can constantly pressure companies to change their content moderation policies — with Republicans and Democrats pushing in opposite directions. As such, it represents one of the most aggressive attempts at federal jawboning of private speech that we have ever seen.
This Section 230 repeal draft is just another example of lawmakers’ willingness to embrace anti-free expression provisions that place small tech businesses in line of fire. While a Section 230 repeal would be a major hit to large tech companies like Google and Meta, they may be able to afford the litigation costs. That is patently untrue for the smaller companies. Platforms like Reddit, Pinterest or Nextdoor would be wiped out in an avalanche of frivolous litigation. Even if companies won every single case brought against them, the collective cost of those battles would bankrupt them.
There have been few times where such hostility to the First Amendment and free speech has been expressed so openly in Congress. Section 230 has been such a monumentally important pillar of online expression because it helped give the First Amendment power on the internet. Before Section 230, special interests backed by the trial bar could simply sue — or threaten to sue — limiting free speech and cashing a check for doing so. Section 230 formed a desperately needed bulwark that led to an explosion of expression, creativity and commercial activity. Not for nothing, it also led to America being the center of digital innovation.
Politicians can dress it up all they want, but their open hostility towards Section 230 has always been thinly veiled animosity towards free expression itself. Efforts to undermine it or repeal it entirely should be condemned as should any effort to degrade online expression. Committee leaders who want to abandon responsibility and roll the dice with the health of the internet should be honest about that fact so their constituents will know who to hold responsible.
Zach Lilly is Deputy Director of State and Federal Affairs at NetChoice, a trade association committed to making the internet safe for free enterprise and free expression, in Washington, D.C. He has also served in the executive branch and as a policy adviser to former Rep. Dave Reichert (R-Wash.).
