The Constitution Can Crack Section 230

Relying on Sec 230, tech companies increasingly pull the plug on disfavored posts, websites, and even people. Online moderation can be valuable, but this censorship is different. It harms Americans’ livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves. But does the 1996 Communications Decency Act really justify Big Tech censorship? The key language, Section 230(c)(2), provides: “No provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The companies take this as a license to censor with impunity. That understanding is questionable. Law is rarely as clear-cut as a binary switch. As litigation comes before the courts, they will have to decide the limits of Section 230 and the lawfulness of privatized censorship. In the meantime, some state legislatures will probably adopt civil-rights statutes protecting freedom of speech from the tech companies. Recognizing that such legislation isn’t barred by Section 230, lawmakers in several states are already contemplating it. One way or another, Section 230 does not, and will not, bar remedies for government privatization of censorship.

[Philip Hamburger is a professor at Columbia Law School and president of the New Civil Liberties Alliance}