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Section 230C1/C2: A debate on continuing utility

Published by marco on

This is an informative and interesting debate between Eric Goldman and Eugene Volokh about whether section 230C has outlived its usefulness. That is: is the protection for corporations and platforms sacrosanct no matter their size, power, and reach? Or do we have a problem when a small handful of companies control the channels of broad communication made available to people today?

Does the Government Have the Right to Control Content Moderation Decisions? by UCLA School of Law (YouTube)

I’ve included a transcript of the closing arguments, starting at 53:45.

Eugene made a sort of pre-closing argument first.

Eugene Volokh: In fact, the very first employment anti-discrimination laws in U.S. history were in the 1830s. And they banned discrimination based on voting. This was before the secret ballots. In a few states, they said you can’t, because we don’t want you to leverage your economic power into political powers. So, one question, is that a good idea? Or is that an acceptable burden on the private-property rights of employers?

“And I think that’s an interesting and difficult question, which, by the way, different states have resolved differently. California has one way; other states have less-protective approaches; others may have some more-protective approaches; others don’t interfere with employer discretion at all.

“So I think we have a similar question here: to what extent should we be troubled that large business corporations are using their economic power to influence political discourse. Maybe in ways that we think are quite public-minded today, but, of course, there’s no reason to think they’ll be that way tomorrow.

“And thoroughgoing libertarians would say: ‘Not at all. Free markets. Free property.’ and many others might say the same thing. But, some others, whether on the left, or in the middle, might say this is something that—we didn’t elect Mark Zuckerberg to do this—but we’re perfectly fine with him making a vast amount of money making a very useful service. But we don’t really want him picking which candidates and which office-holders are allowed to speak in this tremendously important way. So that’s the question. I’m not sure what the right answer is. You ask what I would suggest? I don’t know. I really don’t know. But I do think we think that we ought to be thinking about this, as part of this big picture.”

Eric responded immediately and eloquently with:

Eric Goldman: The idea that we could tell Internet services how to operate their business should strike many of us as immediately as something—well, we better have a good reason for that. (Emphasis in original as well) And the consequences for the Internet, I think, could be potentially devastating if we do let the trolls and the spammers win. So, I really think that section 230 has been a boon because we’ve sidestepped so many of these constitutional questions by allowing them to be decided by statute. And I honestly think that if we look at the amount of freedom that we have to reach audiences today that we never had in a pre-section-230 world. We’ve been given an enormous gift and one that I’m willing to fight for.”

The sentiment is basically a good one, but the main line of argument is chronologically unsound. Section 230 was passed in 1995. We’ve never known an Internet without it, at least in the United States. The Internet has never been held to the same legal, journalistic standards as other media, from the very beginning. It took a while before the Internet was capable of disseminating information at the same level as newspapers and cable TV, but it has long since eclipsed them. And it still rides much freer, despite its much, much larger power.

At 57:25, Volokh concurred with Eric’s points, but essentially disagreed with Eric on whether “we […] have a good reason”. Eric indicates that it is not the time, whereas Eugene is understandably worried that it’s long past time. Our Democracy is now a sideshow to the real power captured by 2 or 3 vast corporate monopolies.

Eugene Volokh: Well, I think Eric and I agree on many things. One is that, indeed, regulation of private businesses is something that should not be undertaken lightly and reserved for very unusual situations, where there’s a real need. Not everybody in the audience will likely agree with that, but at least Eric and I agree. I also agree that section 230 has been tremendously valuable, especially section 230C1, which has provided the immunity that makes it possible for companies like Facebook and Twitter and Youtube […] So I think it’s an interesting question as to whether there ought to be some revisions to 230C1, but I’m very skeptical […]

“This having been said, we’re in a different time than we were 25 years ago. Back then, it was, well, there was Compuserve and Prodigy and America Online and, well, what kind of environment are they going to have. I don’t think anybody envisioned there would be one such entity because there were, especially with the Internet, linking email accounts and web pages all over, where you could access from your Prodigy account a page set up by someone at Compuserve and send email to them…people sort of thought that there would be a lot of competition—and for a long time there was a lot of competition.

“But, in large part, because of the immunity provided by section 230C1, coupled with the nature of network effects where, if you set up a large enough walled-garden social network, that will give you an edge over smaller ones, because more people will want to be one your site because it’s so large, those two things put together—section 230C1 and network effects—have yielded this environment where these entities [have] unparalleled wealth and power and monopoly status within their own particular niches.

“And we see, whether or not its a concerted plan—and I’m perfectly willing to assume it’s not—competitors like Parler are being blacklisted in a certain way that makes it very hard for competition to arise. So, the question is, is the rule that we set up for a much more competitive environment, for companies that were much less influential at the time, still a sensible rule today, when we have a much less competitive environment, where the companies are vastly more influential over politics.

“The answer may be ‘yes’, but I’m at least open to the possibility that it’s time for a change, at least on the C2 side and the platform’s power to block people, as opposed to the C1 side, which is the immunity that platforms and others have for the speech that they allow.”