Laws Governing Online Speech Need Reform, Not Repeal

Section 230 has its flaws, but those are nothing compared with what Big Brother would bring.

Originally posted at the Wall Street Journal.

By Rick White

Dec. 22, 2020 6:16 pm ET

If you had told me 24 years ago that the internet pornography law I was working on would be the main obstacle to defense spending in 2020, I would have called you crazy. Yet for the past several weeks President Trump has repeatedly warned that he will veto the $740 billion defense appropriation bill if Section 230 of the Communications Decency Act isn’t repealed.

In recent years, Section 230 has become a political punching bag, with some saying it allows big tech companies to censor political views, and others saying it enables the spread of disinformation. Nearly a quarter century ago, we couldn’t have anticipated today’s internet, where one private company, Facebook, controls most of the public forums that Americans use to express their views, and another, Google, controls most of the information Americans receive when they search the internet. 

We need to re-evaluate Section 230 in light of today’s very different internet. But there’s one thing we shouldn’t re-evaluate: the provision’s role in supporting and nurturing an open and free marketplace of ideas. Every election cycle, and almost every news cycle, reminds us how difficult it is to defend the free-speech rights of those with whom we disagree. Our tradition of free expression is threatened every day, and we must remain vigilant about preserving it.

Simply repealing Section 230 is the worst possible solution. If website owners are held liable for everything that appears on their platforms, they will have to create systems for reviewing and editing all posted content before it goes up. This is an impossible task. At best it would create an environment that allows only the most limited and inoffensive speech. At worst it would force operators to shut down many social-media sites and drastically limit the ability of private citizens to express views online. We would end up with a Kafkaesque process governed by tort lawyers, political correctness and hidden agendas. This isn’t the right solution for a free society.

Another option that won’t work is the public-utility model. In this scenario, once a platform reaches a certain size, it would be subject to regulation by a public commission, which would decide whether the platform is allowing a free and fair flow of content. Americans don’t want the government acting as an arbiter of truth, deciding what speech is fair or not. This is precisely what the First Amendment is designed to prevent.

There are better ways to fix Section 230. Normally, the First Amendment doesn’t protect against speech restraints imposed by private entities, but if two or three companies own the entire marketplace of ideas, they should be held liable for failing to post speech that citizens have a constitutional right to express. We have lots of experience and case law about what speech is protected in public parks, state universities and other public places. We may need to modify the rules to a small extent, as we have done for radio and television broadcasting, but they present a good framework. 

We could also establish a plan for self-regulation by the online industry. As we’ve already seen, self-regulation by individual companies doesn’t work because one company acting alone doesn’t have enough credibility with the public. But an industrywide plan, analogous to the Generally Accepted Accounting Principles, or the Motion Picture Association film-rating system, could be credible, flexible and effective.

The right solution will come from some combination of these ideas. Assuming that Section 230 survives the debate over the defense bill, there’s still a good opportunity to fix it. In a perfect world, the internet community would arrive at its own consensus. For this to happen, several groups need to step up: the internet business community, particularly the medium-size and smaller companies that have avoided the lawsuits and controversy faced by the largest online companies; the nonprofit internet community, with its long tradition of advocacy for free speech online; and First Amendment advocates of all political stripes.

If these groups can’t produce a consensus on their own, Congress will have to do it. But the country would get a much better result if the people who understand and work with these issues every day can agree among themselves before sending it through the political process. 

We can rise to the challenge. The American people deserve an online marketplace of ideas that is consistent with our fundamental principles of free speech. 

Mr. White, a Republican, served as a U.S. representative from Washington, 1995-99. He is a member of the strategic advisory board at alliantgroup, a tax-consulting firm, and principal at the Woodbay Group, a consulting firm for startups.

Read more at the Wall Street Journal.