Section 230 and the Whole Internet | Cato @ Liberty – Cato Institute

Section 230 shields an ecosystem. Rather than protecting particular platforms or offering separate rules for different sorts of services, it protects all internet intermediaries equally, regardless of their size, purpose, or policies. Under this uniform, predicable arrangement, specific platforms may set their own rules, choosing to cater to mass audiences or niche subcultures and governing their services accordingly. Diversity of opinion marks the whole system but not every platform therein. This liberal, decentralized approach remains the best mechanism for ensuring freedom of speech online.

Section 230 was intended to let athousand platforms bloom, ensuring that, according to the Congressional findings that precede the bills substantive sections:

The Internet and other interactive computer services offer aforum for atrue diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

Crucially, this expectation was made of the internet as awhole, or, the internet and other interactive computer services, when taken together, not specific services. Unfortunately, critics of the policies of particular platforms such as Twitter and Facebook increasingly misread this expectation as relating to individual platforms.

In aFederalist Society Blog post titled Section 230 and the Whole First Amendment, Craig Parshall, General Counsel of the National Religious Broadcasters, claims that Section 230 was intended to incentivize individual tech platforms to open themselves to all speech.

The intent behind Section 230 was to incentivize tech platforms to screen out harmful and offensive content while also providing a forum for atrue diversity of political discourse, unique opportunities for cultural development, and myriad of avenues for intellectual activity.

It is time that they be required to live up to their part of the bargain; namely, expressly conditioning their protection under Section 230in return for their use of aFirst Amendment free speech paradigm for their decisions on thirdparty content.

Setting aside the problem of how platforms might be expected to screen offensive and harmful material while simultaneously mirroring the First Amendment, by substituting tech platforms for the internet, Parshall dramatically alters Section 230s expectations.

More recently, Conservative Partnership Institute Policy Director Rachel Bovard makes the switch in an opinion piece for USA Today;

Internet platforms would receive aliability shield so they could voluntarily screen out harmful content accessible to children, and in return they would provide aforum for true diversity of political discourse and myriad avenues for intellectual activity.

By narrowing the internet to particular internet platforms,Bovard and Parshall invent aSection 230 that demands diversity within platforms, rather than between them. The expectation that all platforms offer truly diverse forums amounts to an expectation of uniformity in platform policy. If all platforms must serve as a forum for atrue diversity of political discourse, none may serve particular communities. This leveling would perversely render the internet as awhole far less diverse than it is today. Instead of Ravelry offering aplatform for knitters and TheDonald.win offering ahome for unfiltered MAGA fandom, Bovard and Parshall would have both platforms host it all. Taking anarrow view of the internet as ahandful of major platforms, they propose systemic changes that would put the diversity they ignore on the chopping block.

Their unworkable expectation is at odds with aplain reading of the statute and the intentions of Section 230s drafters, Representatives Ron Wyden (D-OR) and Chris Cox (R-CA). In arecent letter to the Federal Communications Commission objecting to its efforts to modify the statute via rulemaking, they write:

In our view as the laws authors, this requires that government allow athousand flowers to bloomnot that asingle website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same neutral point of view. This is the opposite of true diversity.

By allowing individual websites to screen offtopic or otherwise objectionable, Section 230 ensures that online communities and service providers can chose whatever rules or standards they think most fitting for their particular corner of the internet.

All platforms have rules intended to foster particular sorts and styles of conversation. Some are enforced by moderators or bots, while others are built in to the platforms architecture. Twitter maintains rules against threats of violence, and the platform will not allow an account to post more than 100 tweets in an hour. Even ostensibly ungoverned platforms maintain rules. 4chan is divided into topic specific image boards for everything from Papercraft &Origami to Adult Cartoons.

Because online real estate is an unlimited resource, for those who find agiven ruleset illfitting, exit is cheap. Section 230s intermediary liability protections keep the cost of exit low by preventing platforms from being held liable for their users speech. While The Atlantic staff writer Kaitlyn Tiffany calls this capacity for exit the internets structural penchant for hate, it prevents any single set of platform rules from creating auniversal prohibition. Unlike legal speech restrictions, unwanted platform restrictions are intended to be avoided through the creation of competing jurisdictions.

This is particularly important for explicitly dissident alternatives to mainstream platforms. Both TheDonald.win and Ovarit were created as offplatform alternatives to banned subreddits. For these burgeoning, essentially moderatorrun forums, the fact that they regularly hostspeech deemed impermissible by Reddit would serve as amagnet for litigation in the absence of Section 230.

Indeed, at atime when traditional media gatekeepers have deemed migration to Parler a threat to democracy, and treat podcast apps as the next front in an unending War on Disinformation, intermediary liability protections are vital speech protections. Advocates of liberal speech governance should refrain from reading expectations of uniformity into Section 230. Undermining protections for diverse approaches to content moderation will serve only to nip alternatives to mainstream platforms in the bud.

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Section 230 and the Whole Internet | Cato @ Liberty - Cato Institute