Keynote Remarks: Section 230 and the Public Interest

Thanks very much. And it's great to be with all of you, and I'm going to make this a filibuster free zone, okay? And we're going to talk a bit about 230, obviously, and— let me start it this way, more than a quarter century of empowering Americans to make their own choices online and take responsibility for those choices is what Section 230 is about, in a sense. And over the years, there have been opinion articles written that have said that our law, for example, created a trillion dollars worth of wealth in the private economy. I'll let people debate that, but what I'll tell you is I'm most proud, most proud, is what Wikimedia has done with Section 230. That’s what I cite when people want to know what 230 is all about.

So, first of all, what 230 is, and a lot of people I think, sometimes think it's some kind of fuel substitute or something like that. They're gonna order some 230. It's a law that Chris Cox and I wrote in 1996, and one core part of the law, the so-called “26 words that created the internet” that really stands for one simple proposition. And that is the individual who created a piece of content online, is the person responsible for it. And back then, when we were having a big debate about the future the internet, I said, let's get down to this personal responsibility concept and that's what it's about.

Another part of the law broadens the First Amendment's protections and allows websites to take down posts that they don't want. Here, we're talking about stuff like hate speech, violent content, that kind of thing, and you can take it down and elevate other posts. Together, these provisions allow for online services to host and moderate content without fear of being under lawsuit [unintelligible]. Unfortunately, a lot of the debate is basically on whether this is just a big windfall for big social media companies. I want to emphasize that our goal was not about anything like big guy protection. It was about emphasizing users. We wanted to make sure that they could speak online and access interesting content. And second, the startups and small sites that want to compete with the incumbents—whether that's going up against Big cable or Big tech— everybody from Wikipedia to Public Library Services and knitting message boards, we wanted them to be in a position to be competitive. So for all of us users, Section 230 is what allows sites to host controversial speech. That is the speech that we really care about, the speech that propels progress, supports democracy. Platforms could make a lot of money posting inoffensive clickbait that lines their pockets with revenue, while forgetting about that kind of speech that challenges power and uncovers the truth. The controversial speech is essential. We know all too well that individuals and corporations with power are happy to use legal structures and legal systems to silence whistleblowers or dissenters and activists. Without 230, platforms would be happy to get rid of important speech. It's just not that important to their bottom line.

For example, look at how Republican politicians and states across the country are trying to shut down online conversations about abortion and reproductive health. Section 230 is the first line of defense against those repressive laws.

Or how they're trying to shut down access to gender affirming care and access to information about gender identity, including by banning books and teaching on the subject. Section 230 helps ensure that critical information gets online and accessible for those who need it most.

And look at the #MeToo movement or police accountability movements in 2020. I don't think any #MeToo post accusing powerful people of wrongdoing would even be allowed on a moderated platform without Section 230 nor would black journalists have been able to use Twitter to call out their own management on coverage of police violence. It's been clear that for several years MAGA Republicans and their Supreme Court justices, Alito and Thomas, want to take a sledgehammer to 230. And it's not to help consumers or create a healthier online environment. They just want to get rid of 230 to force companies to carry harmful content, because that promotes their political agenda. And to obscure their motivations, they falsely claim that getting rid of 230 would solve everything from the opioid epidemic to sex trafficking to bias against conservatives online. My comment: they ought to be careful what they wish for.

When Congress passed SESTA/FOSTA, over my objection, we all said that this was a horrible scourge. I don't take a backseat to anybody in talking about how evil these people are. They came out with this laudable goal of stopping sex trafficking online. And I went to the floor of the Senate and I said it's not going to work and it's going to cause a lot of collateral damage. Five years later, that misguided law has ended up doing nothing. Nothing to protect victims or bring sex traffickers to justice. When was the last time you saw a politician hold a news conference to talk about SESTA/FOSTA? I can't find any of them. Instead, what SESTA/FOSTA did is drive sex work to the dark web and dark alleys, and by all accounts violence against those individuals. Meanwhile, the threat of lawsuits has led sites to take down content that has nothing to do with sex trafficking. So I would just tell you, if you want a preview of a world without 230, it is SESTA/FOSTA.

Stopping online conversations won't solve the problems politicians claim they will, but without 230 and the First Amendment, it will be harder for people without power, without clout, without political action committees—the marginalized voices—to call out wrongdoing by the powerful. And it'll certainly be easier for government to set the terms of public debate. That's what the MAGA Republicans want to do. In Florida and Texas, where they pass laws to force the platforms to carry content that drives out vulnerable speakers that are disproportionately the targets of the content. MAGA Republicans want that kind of content left up, the kind of content that allows them to drive their points of view. And those laws are gonna have their day in the highest court this fall. And I hope the justices see the law as plainly violating the First Amendment and being preempted by 230.

So if 230 were repealed tomorrow, there would be immense pressure on websites to quickly take down content that offends people with power, and anything else outside of the comfortable in the mainstream. I don't believe Americans want that kind of world. I sincerely hope that no Democrats play into the hands of right wing culture warriors and help them use Section 230 to force sites to give voice to hate and radicalism.

Now, Section 230, as I said, protects startups and smaller sites. If Section 230 were repealed tomorrow, there wouldn't be any BlueSkys challenging Twitter. These upstart federated services depend on 230 to protect their users who create and manage their own content moderation programs within the small communities that comprise this whole decentralized service effort. And without BlueSky where else could I mock my staff for not having invites yet?

So Section 230—I'm one of the co-authors with Congressman Chris Cox—isn't perfect. We're always looking at a way to make the internet a better place for users. And now my family has said when Ron talks about the internet, all he's really going to tell us is about users, users, users. Well, I'm sorry to be repetitive but I think that's the bedrock principle we ought to be all about.

You know, a lot of people say otherwise or people who want to repeal Section 230 and say, it's a “Get Out of Jail Free Card.” I just point everybody to the brief Chris Cox and I submitted in the Supreme Court in Gonzalez. We took care to highlight a number of cases where courts decided companies were not protected by Section 230. Lemmon v Snap, where a family sued over Snapchat speed filter, the company created the filter, it's not user generated content, it's not protected by 230. It also doesn't protect Amazon when it delivers defective products or websites that provide illegal online home rentals. If you write an algorithm that only shows housing ads to people of a certain race, which Justice Sotomayor was concerned about, the courts have correctly decided no protection, none from 230. So, I'm sure the court read what Chris Cox and I wrote. I'm just absolutely convinced they read every word and were persuaded by our brief that they decided not to rewrite the statute. So I say, “ You're welcome.”

We're making light of this. Of course, I know many folks there spent nights drafting briefs and we thank them.

The outcoming Gonzalez highlights another point: Many of the claims that commentators and my fellow legislators bring up being blocked by 230 often wouldn't go far on their own. The court found that the claims, for example, and Gonzalez couldn't give rise to liability in their own right, no 230 needed. Where courts find the 230 doesn't borrow a claim the parties often end up with the same destination. Case dismissed. Courts might say the platform's actions were too far removed from the harm or the claims elements weren't met or dismissed for some other reason. But that only happens many months and 10s of 1000s of dollars later. Truly ruinous.

So two final points. Anytime I get the opportunity to talk about why content moderation and 230 are important, I also want to be clear about Big Tech, okay—Google, Meta, Twitter, Microsoft—all of them have to do a better job of protecting users on their sites. It's a horror what's happening with Twitter now, having divested so much particularly from trust and safety. Second, in my mind, the first place to start holding companies accountable is to pass a strong federal privacy law. That to attack the business model so many of the Big Tech companies depend on, to take away the incentives to hoover up users’ personal information and make it much harder to target them. It'll provide protection for people if you take away the incentives to target them. Particularly we don't want people targeted with objectionable content. We want to make sure that we're protecting kids and teens. I also support more aggressive antitrust enforcement and the Open App Market Agreement [sic] to create more competition in our markets and make it easier for more companies and new speech forums to grow.

I said I'd give you two more points. That'll be it. Um, softball questions will be especially welcome. I think Ashley is asking today. So thank you again to Wikimedia. You all, every single day, day-in day-out make a big difference—back to my favorite word–for users

Thanks, everybody.