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Wed, 30 Dec 2020
Section 230 Isn't A Subsidy; It's A Rule Of Civil Procedure
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The other day Senator Schatz tweeted, "Ask every Senator what Section 230 is. Don't ask them if they want to repeal it. Ask them to describe it."It's a very fair point. Most of the political demands to repeal Section 230 betray a profound ignorance of what Section 230 does, why, or how. That disconnect between policy understanding and policy demands means that those demands to repeal the law will only create more problems while not actually solving any of the problems currently being complained about.Unfortunately, however, Senator Schatz's next tweet revealed his own misunderstanding. "I have a bipartisan bill that proposes changes to 230, but repeal is absurd. The platforms are irresponsible, but we should not have a government panel handing out immunity like it's a hunting license. We must rein in big tech via 230 reform and antitrust law, not lazy stunts."There's a lot to unpack in that tweet, including the bit about antitrust law, but commenting on that suggestion is for another post. The issue here is that no, Section 230 is nothing like the government "handing out immunity like a hunting license," and misstatements like that matter because they egg on "reform" efforts that will ruin rather than "reform" the statute, and in the process ruin plenty more that the Constitution - and our better policy judgment - requires us to protect.The point of this post is to thus try to dispel all such misunderstandings that tend to regard Section 230's statutory protection as some sort of tangible prize the government hands out selectively, when in reality it is nothing of the sort. On the contrary, it reads like a rule of civil procedure that, like any rule of civil procedure, is applicable to any potential defendant that meets its broadly-articulated criteria.For non-lawyers "rules of civil procedure" may sound arcane and technical, but the basic concept is simple. When people want to sue other people, these are the rules that govern how those lawsuits can proceed so that they can proceed fairly, for everyone. They speak to such things as who can sue whom, where someone can be sued, and, if a lawsuit is filed, whether and how it can go forward. They are the rules of the road for litigation, but they often serve as more than a general roadmap. In many cases they are the basis upon which courts may dispense with cases entirely. Lawsuits only sometimes end with rulings on the merits after both parties have fully presented their cases; just as often, if not more often, courts will evaluate whether the rules of civil procedure even allow a case to continue at all, and litigation frequently ends when courts decide that they don't.Which is important because litigation is expensive, and the longer it goes on the more cost-prohibitive it becomes. And that's a huge problem, especially for defendants with good defenses, because even if those defenses should mean that they would eventually win the case, the crippling cost involved in staying in the litigation long enough for that defense to prevail might bankrupt them long before it ever could.Such a result hardly seems fair, and we want our courts to be fair. They are supposed to be about administering justice, but there's nothing just about letting courts being used as tools to obliterate innocent defendants. One reason we have rules of civil procedure is to help lessen the danger that innocent defendants can be drained dry by unmeritorious litigation against them. And that is exactly what Section 230 is designed to do as well.An important thing to remember is that most of what people complain about when they complain about Section 230 are things that the First Amendment allows to happen. The First Amendment is likely to insulate platforms from liability in their users' content, and it's also likely to insulate them from liability for their moderation decisions. Section 230 helps drive those points home explicitly for providers of "interactive computer services" (which, it should be noted, include far more than just "big tech" platforms; they also include much smaller and non-commercial ICS providers as well, and even individual people), but even if there were no Section 230 the First Amendment would still be there to do the job of protecting platforms in this way. At least in theory.In practice, however, defendant platforms would first have to endure an onslaught of litigation and all its incumbent costs before the First Amendment could provide any useful benefit, which will likely be too little, too late for most if not all of them. The purpose of Section 230 is therefore to make sure those First Amendment rights can be real, and meaningful, and something that every sort of interactive computer service provider can be confident in exercising without having to fear being crushed by unconstitutional litigation if they do.What people calling for any change to Section 230 need to realize is how these changes will do nothing but open the floodgates to this sort of crushing litigation against so much that the Constitution is otherwise supposed to protect. It is a flood that will inevitably chill platforms by effectively denying them the protection their First Amendment rights were supposed to afford, and in the process also chill all the expressive user activity they currently feel safe to enable. It is not an outcome that any policymaker should be so eager to tempt; rather, it is something to studiously avoid. And the first step to avoiding it is to understand how these proposed changes will do nothing but invite it.
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posted at: 12:00am on 30-Dec-2020
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