We’ve spent months now highlighting how politicians (of both parties) continually misrepresent what Section 230 of the CDA says. There are open questions as to whether or not this is because they don’t know the law, or they don’t care, and they think lying about it helps them politically. Considering that two of the most vocal individuals are Senators Ted Cruz and Josh Hawley — both of whom have a long history of being Constitutional lawyers — it is difficult to believe that both aren’t fully aware that they are lying.
Now the NY Times is calling them out, with an opinion piece by editorial board member Sarah Jeong, highlighting how badly they get the law wrong. She notes that the law is short and easy to read, and therefore no one has an excuse for blatantly misrepresenting it.
Section 230 of the C.D.A. is neither long nor particularly inscrutable. It clocks in at under 1,000 words, and it makes clear that the law does not premise protection on political neutrality. Neither does it force tech companies to assume either the role of “publisher” or “platform.” And it states that C.D.A. 230 has no bearing on federal criminal law — or on intellectual property law, for that matter.
She also highlights that there are some reasonable arguments to be made that the existence of Section 230 has stopped lawsuits from people who have legitimately been harmed — something we’ve discussed quite a bit as well. There are real and legitimate questions over how to handle those situations (and, relatedly, if the internet platforms themselves are the proper party on which to place liability or responsibility). However, you aren’t going to have reasonable and nuanced conversations about any of that if you’re lying about the law.
But there can be no honest debate over a version of C.D.A. 230 that doesn’t exist. Political neutrality has never been part of C.D.A. 230, and to make it so would require a complete overhaul of the law. Senator Hawley’s bill calls for government regulation of the internet on an unprecedented scale. The Federal Communications Commission used to enforce the Fairness Doctrine on the airwaves, a policy under which broadcasters were required to air balanced opinions on controversial issues — balanced from the F.C.C.’s perspective, that is. It’s already perilous to have a government regulator decide what is fair and balanced. It makes even less sense when applied to the internet. In 1969, the Supreme Court upheld the F.C.C.’s power to enforce the Fairness Doctrine on the grounds that the airwaves are an inherently limited resource. But the sea of internet postings is boundless.
The Republican Party’s new obsession with “political neutrality” has left former allies reeling. Berin Szôka, the president of the libertarian-leaning think tank TechFreedom, said in an interview that Republicans were once his natural allies on a wide range of issues, but have now “betrayed their most fundamental principles, principles they spent decades fighting about — to keep the government out of meddling in broadcast media, fighting against the Fairness Doctrine. And now they want exactly that but on steroids for the internet.”
As Jeong notes in her piece, it might make sense to have an actual debate on Section 230, but almost no one — least of all the legislators who are responsible for doing so — seem willing to have an honest discussion about the law.
But the debate is not focused on the real issues with C.D.A. 230 — indeed, it is not focused on the actual text of C.D.A. 230.
Perhaps the discourse will be improved if we all take a moment to actually read the text of C.D.A. 230, but Mr. Szôka is not optimistic. Senators Cruz and Hawley, he said, are totally aware of what the statute says and what the case law around it actually is. “They’re smart lawyers. And they absolutely know what they’re talking about is a warping of Section 230.”
Of course, what the opinion piece does not discuss is why Hawley and Cruz are so eager to misrepresent the law and to grandstand about it. It doesn’t discuss how this misrepresentation plays to a certain base, and gets them riled up and angry. Indeed, I’ll expect many people in the comments of this very post to continue to make false claims about CDA 230 and “neutrality” that are simply untrue. It has created a narrative that is not accurate and is so far from truth that any debate on it gets mired in the complexities of having to call out statements so dishonest that they cannot have been made in good faith.
There may be legitimate debates to be had over the impact of 230 and how it works — but when politicians are so focused on scoring political points rather than dealing with real issues, that’s never going to happen.
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