Justice Department Proposal to Overhaul Section 230 Protections Is Unworkable, Unconstitutional and Would Make the Internet Unusable

WASHINGTON — On Wednesday, several news outlets reported that the Justice Department is preparing guidelines for new legislation that would reduce or eliminate social-media companies’ protections under Section 230 of the Communications Decency Act, a federal law that shields companies from legal liability for the material their users post online.

The measure follows a Trump White House executive order signed in late May that seeks to punish social-media companies for fact-checking the president’s online posts. According to the reports, the DoJ will propose significant changes to the law to compel online platforms to be “fairer and more consistent” in their decisions to take down content.

Republicans have frequently alleged that there is an anti-conservative bias in decisions to block or restrict content that platform moderators find objectionable. There’s no evidence that such bias exists.

In May, Twitter attached a fact-checking link to an inaccurate presidential tweet about the legality of mail-in voting. It also attached a warning label to a Trump tweet that suggested “Looters” would be shot. Facebook has not removed the president’s posts even when they violate “community standards” the company applies to remove content that other users post to the platform.  

Free Press Action Senior Policy Counsel Gaurav Laroia made the following statement:

“The Department of Justice’s Section 230 proposal is unworkable, unconstitutional and would make the internet nearly unusable. There are perhaps workable fixes to Section 230 that would make companies more proactive in taking down harassing content, scams and other criminal activity occurring on their sites. Attempting this through an avalanche of civil suits is a mistake. We can combat activity that is already illegal without Attorney General Bill Barr’s radical changes to the statute.

“Barr’s scheme would remove Section 230 protections without offering clear guidelines on when these companies could be held responsible and liable for illegal third-party content of which they had no knowledge. This plan would force platforms to over-censor — chilling speech in the process and replicating the SESTA/FOSTA debacle with its disastrous real-world effects for sex workers and other vulnerable communities.

“Not satisfied with making it harder to keep some lawful speech online, the Department of Justice’s proposal also seeks to eliminate sites’ ability to take down other content they find objectionable. This would turn the internet into an unusable, hate-ridden mess. While there's much more to be done, sites like Facebook, Pinterest and Twitter have rightfully worked to create safer and saner online communities that don’t allow users to bully, harass, spread misinformation or engage in hate speech. Barr’s proposal would make it harder, if not impossible, for those sites to take proactive measures to address those kinds of harms, turning much of the internet into the digital equivalent of a public-bathroom wall.

“The proposal would reportedly involve the government in determining whether platforms are acting in good faith when they attempt to enforce their terms of service and community guidelines. That would clearly violate the First Amendment, which protects the speech of private entities from government interference. No matter how much the administration would like to pretend otherwise, the First Amendment definitely doesn’t protect presidents from private parties.

“The Barr proposal invites the government to evaluate whether websites are consistently applying their terms of service, and requires them to provide the government with explanations for content removals. This is conservative speech-policing cloaked in talk of fairness and transparency. The administration has repeatedly questioned the ability of sites like Facebook and Twitter to flag misinformation or violent rhetoric from the president. This plan is an unconstitutional attempt to give the Trump administration the power to stop critics and fact-checkers alike from commenting on this president’s violent and dangerous pronouncements.”