Speech and Commerce: What Section 230 Should and Should Not Protect

The broad language of Section 230 should not be interpreted in a way that gives platforms that host third-party content a special exemption from laws that apply to businesses generally, or creates an exemption from the kinds of health, safety, public interest, and economic regulation that governments at every level—from federal agencies to municipalities–engage in. To be clear at the outset, this does not mean that any and all regulations a government may want to enforce are good ideas. Some of them might be. Others might be terrible. The point is that 230 shouldn’t be read in a way that rules them out.

That is not to say that the legal arguments that Section 230 does, in fact, preclude some kinds of regulation of online services are trivial. They’re not. Judges have been skeptical of arguments that seek to get around Section 230 in clever ways when it seems like people are just looking for a way to directly impose liability for speech in exactly the ways that Section 230 prohibits. You could easily extend the same logic to policies that impose liability on or otherwise regulate online services, to the extent that there is some indirect effect on third-party content. All I want to argue here is, first, it is not necessary to read 230 in this way, and second, if 230 is interpreted as a broad charter of deregulation for online services, the predictable political response would be for it to be repealed, or statutorily curbed in a way that harms its speech-promoting function. If you love Section 230 you should want it to have clear boundaries.

This is the fourth blog post in a series about Section 230 of the Communications Decency Act. You can view the full series here.]