The debate over the law known as Section 230 has reached a fever pitch with the Supreme Court recently agreeing to hear cases involving the liability of tech platforms for the user-generated content they host. Section 230, for all the misunderstanding there is about it, is rather simple. The law basically says that you and only you are liable for what you say online and not necessarily the people who host it or share it, with some limited exceptions. If Elon Musk is indeed going to buy Twitter, he’s going to need Section 230 more than anyone.
It’s impossible to accurately predict what the Supreme Court will decide about Section 230 but it’s hard to see a world where its protections are expanded. Therefore, it’s important to look at what the law said prior to 230’s existence.
Congress passed Section 230 due to dueling court decisions handed down in the 1990s, Cubby v. CompuServe and Stratton Oakmont v. Prodigy (yes, that Stratton Oakmont of The Wolf of Wall Street fame). In Cubby, the court ruled that because CompuServe did not moderate content on its message boards, it couldn’t be held liable for the content in question. In Stratton Oakmont, Prodigy was held liable for a user calling Stratton Oakmont crooks (they were) because Prodigy did moderate its message boards. Thus, the precedent was set that if you exercised your First Amendment rights to clean up your online property, you assumed liability for everything you may have missed, creating a strong disincentive for firms to exercise their rights and to clean up the internet. Section 230 reversed this counterproductive precedent, allowing for the largely user-generated internet experience there is today.
This is all to say that without Section 230, you face a choice as the owner of a website (like Twitter) to either allow anything and everything users post. Or, if you do choose to moderate, moderate as severely as possible to avoid liability and pray you haven’t missed anything—effectively an impossible task given the lack of context in many potentially problematic posts. Neither option is a good one from a business perspective. You risk the website either becoming an unusable cesspool filled with all the lawful-but-awful speech under the sun and devoid of reputable advertising revenue or an even more restrictive service with massive liability exposure. A restrictive environment is precisely the opposite goal of Musk’s stated intentions of buying Twitter.
Beyond this ultimate rock and a hard place scenario in the absence of Section 230’s current protections comes new wrinkles from cases the Supreme Court has agreed to hear and one the court will inevitably hear.
In the next few months, the Court will hear Gonzalez v. Google and Twitter v. Taamneh, which when combined will decide the limits of what platforms can host and algorithmically suggest in regard to terrorist-related content and communications and potentially other illegal or otherwise problematic content.
There is also the looming split decision between the Fifth Circuit and the Eleventh Circuit in regards to, respectively, Texas and Florida’s strikingly similar must-carry laws for online platforms. These laws prevent covered platforms from banning users and content based on viewpoint discrimination. The Fifth Circuit ruled Texas’s version constitutional, likening platforms to common carriers, while the Eleventh Circuit ruled Florida’s law unconstitutional due to the platform’s First Amendment rights. The Supreme Court will inevitably have to pick one or the other or concoct some novel third path that few will be able to understand.
Musk’s problem, and indeed a problem for anyone who likes their internet and wants to keep their internet, is that the Supreme Court could very well create a scenario where platforms such as Twitter can be held liable for terrorism-related content and other damaging speech (even if it isn’t obvious) by gutting Section 230 while at the same time forcing platforms to host any and all legal speech, no matter how awful or annoying, should the Justices agree with the Fifth Circuit. It’s effectively damned if you do and damned if you don’t on steroids for every website that hosts content it does not generate itself.
This mess has confounded many of the country’s greatest minds on free speech, internet policy, and constitutional law. Now it looks like it will all become a very personal problem for the richest man in the world and potentially the stakeholders in his various other enterprises from Tesla to SpaceX.
Without the Section 230 status quo, either Musk and his fortune could be massively exposed to civil liability for the unending stream of garbage that is constantly uploaded to the web or he’ll have purchased a $44 billion clunker of a website… or both.