Section 230 is subconstitutional free speech law. One might naively expect it can steer clear of the notorious complexity of First Amendment law, and for the most part it does. Both arms of §230 establish broad and simple rules. There is no mucking about with actual malice, public versus private figures, traditional versus limited public forums, tiers of scrutiny, or any of the other Ptolemaic doctrinal baggage of the First Amendment. Section 230(c)(1) avoids waking the slumbering giant by granting immunity rather than imposing liability for speech, §230(c)(2) by giving private actors rather than state actors a privilege to block speech on their platforms.
Even so, debates about §230’s reach have an oddly familiar ring to them. The thrust and parry of arguments about when online speech should stay up or come down recapitulate well-worn arguments about when offline speech should or shouldn’t be allowed. There are, I think, three things going on. One is that §230 itself is always open to challenge. It may be good law, but that doesn’t tell us whether it’s a good law. The second is that even though §230’s protection is absolute and its coverage broad, its coverage still has limits (as any law’s must). Some of those limits look a lot like the limits on the scope of “speech” under the First Amendment. And the third is that §230 by design gives platforms substantial freedom to allow speech or to restrict it. In choosing how to exercise that freedom, they have to confront the same conflicts that animate First Amendment doctrine. All three of these open the door to the kinds of arguments that one regularly sees in First Amendment cases and free speech debates.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]