from the that's-not-how-it-works-at-all dept
You may have heard last week that actor Joseph Gordon-Levitt went to Washington DC and gave a short speech at an event put on by Senator Dick Durbin calling for the sunsetting of Section 230. It’s a short speech, and it gets almost everything wrong about Section 230. Watch it here:
Let me first say that, while I’m sure some will rush to jump in and say “oh, it’s just some Hollywood actor guy, jumping into something he doesn’t understand,” I actually think that’s a little unfair about JGL. Very early on he started his own (very interesting, very creative) user-generated content platform called HitRecord, and over the years I’ve followed many of his takes on copyright and internet policy and while I don’t always agree, I do believe that he does legitimately take this stuff seriously and actually wants to understand the nuances (unlike some).
But it appears he’s fallen for some not just bad advice, but blatantly incorrect advice about this. He’s also posted a followup video where he claims to explain his position in more detail, but it only makes things worse, because it compounds the blatant factual errors that underpin his entire argument.
First let’s look at the major problems with his speech in DC:
So I understand what Section 230 did to bring about the birth of the internet. That was 30 years ago. And I also understand how the internet has changed since then because back then message boards and other websites with user-generated content, they really were more like telephone carriers. They were neutral platforms. That’s not how things work anymore.
So, that’s literally incorrect. If JGL is really interested in the actual history here, I did a whole podcast series where I spoke to the people behind Section 230, including those involved in the early internet and the various lawsuits at the time.
Section 230 was never meant for “neutral” websites. As the authors (and the text of the law itself!) make clear: it was created so that websites did not need to be neutral. It literally was written in response to the Stratton Oakmont v. Prodigy case (for JGL’s benefit: Stratton Oakmont is the company portrayed in Wolf of Wall Street), where the boiler room operation sued Prodigy because someone posted in their forums claims about how sketchy Stratton Oakmont was (which, you know, was true).
But Stratton sued, and the judge said that because Prodigy moderated, that because they wanted to have a family friendly site, that is because they were not neutral, they were liable for anything they decided to leave up. In the judge’s ruling he effectively said “because you’re not neutral, and because you moderate, you are effectively endorsing this content, and thus if it’s defamatory you’re liable for defamation.”
Section 230 (originally the “Internet Freedom and Family Empowerment Act”) was never about protecting platforms for being neutral. It was literally the opposite of that. It was about making sure that platforms felt comfortable making editorial decisions. It was about letting companies decide what to share, what not to share, what to amplify, and what not to amplify, without being held liable as a publisher of that content.
This is important, but it’s a point that a bunch of bad faith people, starting with Ted Cruz, have been lying about for about a decade, pretending that the intent of 230 was to protect sites that are “neutral.” It’s literally the opposite of that. And it’s disappointing that JGL would repeat this myth as if it’s fact. Courts have said this explicitly—I’ll get to the Ninth Circuit’s Barnes decision later, where the court said Section 230’s entire purpose is to protect companies because they act as publishers—but first, let’s go through the rest of what JGL got wrong.
He then goes on to talk about legitimate problems with internet giants having too much power, but falsely attributes that to Section 230.
Today, the internet is dominated by a small handful of these gigantic businesses that are not at all neutral, but instead algorithmically amplify whatever gets the most attention and maximizes ad revenue. And we know what happens when we let these engagement optimization algorithms be the lens that we see the world through. We get a mental health crisis, especially amongst young people. We get a rise in extremism and a rise in conspiracy theories. And then of course we get these echo chambers. These algorithms, they amplify the demonization of the other side so badly that we can’t even have a civil conversation. It seems like we can’t agree on anything.
So, first of all, I know that the common wisdom is that all of this is true, but as we’ve detailed, actual experts have been unable to find any support for a causal connection. Studies on “echo chambers” have found that the internet decreases echo chambers, rather than increases them. The studies on mental health show the opposite of what JGL (and Jonathan Haidt) claim. Even the claims about algorithms focused solely on engagement don’t seem to have held up (or, generally, it was true early on, but the companies found that maximizing solely on engagement burned people out quickly and was actually bad for business, and so most social media adjusted the algorithms away from just that).
So, again, almost every assertion there is false (or, at the very least, much more nuanced that he makes it out to be).
But the biggest myth of all is the idea that getting rid of 230 will somehow tame the internet giants. Once again, the exact opposite is true. As we’ve discussed hundreds of times, the big internet companies don’t need Section 230.
The real benefit of 230 is that it gets vexatious lawsuits tossed out early. That matters a lot for smaller companies. To put it in real terms: with 230, companies can get vexatious lawsuits dismissed for around $100,000 to $200,000 dollars (I used to say $50k, but my lawyer friends tell me it’s getting more expensive). That is a lot of money. But it’s generally survivable. To get the same cases dismissed on First Amendment grounds (as almost all of them would be), you’re talking $5 million and up.
That’s pocket change for Meta and Google who have buildings full of lawyers. It’s existential for smaller competitive sites.
So the end result of getting rid of 230 is not getting rid of the internet giants. It’s locking them in and giving them more power. It’s why Meta literally has run ads telling Congress it’s time to ditch 230.
What is Mark Zuckerberg’s biggest problem right now? Competition from smaller upstarts chipping away at his userbase. Getting rid of 230 makes it harder for smaller providers to survive, and limits the drain from Meta.
On top of that, getting rid of 230 gives them less reason to moderate. Because, under the First Amendment, the only way they can possibly be held liable is if they had actual knowledge of content that violates the law. And the best way to avoid having knowledge is not to look.
It means not doing any research on harms caused by your site, because that will be used as evidence of “knowledge.” It means limiting how much moderation you do so that (a la Prodigy three decades ago) you’re not seen to be “endorsing” any content you leave up.
Getting rid of Section 230 literally makes Every Single Problem JGL discussed in his speech worse! He got every single thing backwards.
And he closes out with quite the rhetorical flourish:
I have a message for all the other senators out there: [Yells]: I WANT TO SEE THIS THING PASS 100 TO 0. There should be nobody voting to give any more impunity to these tech companies. Nobody. It’s time for a change. Let’s make it happen. Thank you.
Except it’s not voting to give anyone “more impunity.” It’s a vote to say “stop moderating, and unleash a flood of vexatious lawsuits that will destroy smaller competitors.”
The Follow-Up Makes It Worse
Yesterday, JGL posted a longer video, noting that he’d heard a bunch of criticism about his speech and he wanted to respond to it. Frankly, it’s a bizarre video, but go ahead and watch it too:
It starts out with him saying he actually agrees with a lot of his critics, because he wants an “internet that has vibrant, free, and productive public discourse.” Except… that’s literally what Section 230 enables. Because without it, you don’t have intermediaries willing to host public discourse. You ONLY have giant companies with buildings full of lawyers who will set the rules of public discourse.
Again, his entire argument is backwards.
Then… he does this weird half backdown, where he says he doesn’t really want the end of Section 230, but he just wants “reform.”
Here’s the first thing I’ll say. I’m in favor of reforming section 230. I’m not in favor of eliminating all of the protections that it affords. I’m going to repeat that because it’s it’s really the crux of this. I’m in favor of reforming, upgrading, modernizing section 230 because it was passed 30 years ago. I am not in favor of eliminating all of the protections that it affords.
Buddy, you literally went to Washington DC, got up in front of Senators, and told everyone you wanted the bill that literally takes away every one of those protections to pass 100 to 0. Don’t then say “oh I just want to reform it.” Bullshit. You said get rid of the damn thing.
But… let’s go through this, because it’s a frequent thing we hear from people. “Oh, let’s reform it, not get rid of it.” As our very own First Amendment lawyer Cathy Gellis has explained over and over again, every proposed reform to date is really repeal.
The reason for this is the procedural benefit we discussed above. Because every single kind of “reform” requires long, expensive lawsuits to determine if the company is liable. In the end, those companies will still win, because of the First Amendment. Just like how one of the most famous 230 “losses” ended up. Roommates.com lost its Section 230 protections, which resulted in many, many years in court… and then they eventually won anyway. All 230 does is make it so you don’t have to pay lawyers nearly as much to reach the same result.
So, every single reform proposal basically resets the clock in a way that old court precedents go out the window, and all you’re doing is allowing vexatious lawsuits to cost a lot more for companies. This will mean some won’t even start. Others will go out of business.
Or, worse, many companies will just enable a hecklers veto. Donald Trump doesn’t like what people are saying on a platform? Threaten to sue. The cost without 230 (even a reformed 230 where a court can’t rely on precedent) means it’s cheaper to just remove the content that upsets Donald Trump. Or your landlord. Or some internet troll.
You basically are giving everyone a veto by the mere threat of a lawsuit. I’m sorry, but that is not the recipe for a “vibrant, free, and productive public discourse.”
Calling for reform of 230 is, in every case we’ve seen to date, really a call for repeal, whether the reformers recognize that or not. Is there a possibility that you could reform it in a way that isn’t that? Maybe? But I’ve yet to see any proposal, and the only ones I can think of would be going in the other direction (e.g., expanding 230’s protections to include intellectual property, or rolling back FOSTA).
JGL then talks about small businesses and agrees that sites like HitRecord require 230. Which sure makes it odd that he’s supporting repeal. However, he seems to have bought in to the logic of the argument memeified by internet law professor Eric Goldman—who has catalogued basically every single Section 230 lawsuit as well as every single “reform” proposal ever made and found them all wanting—that “if you don’t amend 230 in unspecified ways, we’ll kill this internet.”
That is… generally not a good way to make policy. But it’s how JGL thinks it should be done:
Well, there have been lots of efforts to reform section 230 in the past and they keep getting killed uh by the big tech lobbyists. So, this section 230 sunset act is as far as I understand it a strategy towards reform. It’ll force the tech companies to the negotiating table. That’s why I supported it.
Again, this is wrong. Big tech is always at the freaking negotiating table. You don’t think they’re there? Come on. As I noted, Zuck has been willing to ditch 230 for almost a decade now. It makes him seem “cooperative” to Congress while at the same time destroying the ability of competitors to survive.
The reason 230 reform bills fail is because enough grassroots folks actually show up and scream at Congress. It ain’t the freaking “big tech lobbyists.” It’s people like the ACLU and the EFF and Fight for the Future and Demand Progress speaking up and sending calls and emails to Congress.
Also, talking about these “efforts at reform” getting “killed by big tech lobbyists.” This is FOSTA erasure, JGL. In 2018 (with the explicit support of Meta) Congress passed FOSTA, which was a Section 230 reform bill. Remember?
And how did that work out? Did it make Meta and Google better? No.
But did it destroy online spaces used by sex workers? Did it lead to real world harm for sex workers? Did it make it harder for law enforcement to capture actual human traffickers? Did it destroy online communities? Did it hide historical LGBTQ content because of legal threats?
Yes to literally all of those things.
So, yeah, I’m freaking worried about “reform” to 230, because we saw it already. And many of us warned about the harms, while “big tech” supported the law. And we were right. The harms did occur. But it took away competitive online communities and suppressed sex positive and LGBTQ content.
Is that what you want to support JGL? No? Then maybe speak to some of the people who actually work on this stuff, who understand the nuances, not the slogans.
Speaking of which, JGL then doubles down on his exactly backwards Ted Cruz-inspired version of Section 230:
Section 230 as it’s currently written or as it was written 30 years ago distinguishes between what it calls publishers and carriers. So a publisher would be, you, a person, saying something or a company saying something like the New York Times say or you know the Walt Disney Company publishers. Then carriers would be somebody like AT&T or Verizon, you know, the the the companies that make your phone or or your telephone service. So basically what Section 230 said is that these platforms for user-generated content are not publishers. They are carriers. They are as neutral as the telephone company. And if someone uses the telephone to commit a crime, the telephone company shouldn’t be held liable. And that’s true about a telephone company. But again, there’s a third category that we need to add to really reflect how the internet works today. And that third category is amplification.
Again, I need to stress that this is literally wrong. Like, fundamentally, literally he has it backwards and inside out. This is a pretty big factual error.
First, Section 230 does not, in any way, distinguish between “what it calls publishers and carriers.” This is the “publisher/platform” myth all over again.
I mean, you can look at the law. It makes no such distinction at all. The only distinction it makes is between “interactive computer services” and “information content providers.” Now some (perhaps JGL) will claim that’s the same thing as “publishers” and “carriers.” But it’s literally not.
Carriers (as in, common carrier law) implies the neutrality that JGL mentioned earlier. And perhaps that’s why he’s confused. But the purpose of 230 was to enable “interactive computer services” to act as publishers, without being held liable as publishers. It was NOT saying “don’t be a publisher.” It was saying “we want you to be a publisher, not a neutral carrier, but we know that if you face liability as a publisher, you won’t agree to publish. So, for third party content, we won’t hold you liable for your publishing actions.”
Again, go back to the Stratton Oakmont case. Prodigy “acted as a publisher” in trying to filter out non-family friendly content. And the judge said “okay now you’re liable.” The entire point of 230 was to say “don’t be neutral, act as a publisher, but since it’s all 3rd party content, we won’t hold you liable as the publisher.”
In the Barnes case in the Ninth Circuit, the court was quite clear about this. The entire purpose of Section 230 is to encourage interactive computing services to act like a publisher by removing liability for being a publisher. Here’s a key part in which the court explains why Yahoo deserves 230 protections for 3rd party content because it acted as the publisher:
In other words, the duty that Barnes claims Yahoo violated derives from Yahoo’s conduct as a publisher—the steps it allegedly took, but later supposedly abandoned, to de-publish the offensive profiles. It is because such conduct is publishing conduct that we have insisted that section 230 protects from liability….
So let me repeat this again: the point of Section 230 is not to say “you’re a carrier, not a publisher.” It’s literally to say “you can safely act as a publisher because you won’t face liability for content you had no part in its creation.”
JGL has it backwards.
He then goes on to make a weird and meaningless distinction between “free speech” and “commercial amplification” as if it’s legally meaningful.
At the crux of their article is a really important distinction and that distinction is between free speech and commercial amplification. Free speech meaning what a human being says. commercial amplification, meaning when a platform like Instagram or YouTube or Tik Tok or whatever uses an algorithm to uh maximize engagement and ad revenue to hook you, keep you and serve you ads. And this is a really important difference that section 230 does not appreciate.
The article he’s talking about is this very, very, very, very, very badly confused piece in ACM. It’s written by Jaron Lanier, Allison Stanger, and Audrey Tang. If those names sound familiar, it’s because they’ve been publishing similar pieces that are just fundamentally wrong for years. Here’s one piece I wrote picking apart one, here’s another picking apart another.
None of those three individuals understands Section 230 at all. Stanger gave testimony to Congress that was so wrong on basic facts it should have been retracted. I truly do not understand why Audrey Tang sullies her own reputation by continuing to sign on to pieces with Lanier and Stanger. I have tremendous respect for Audrey, who I’ve learned a ton from over the years. But she is not a legal expert. She was Digital Minister in Taiwan (where she did some amazing work!) and has worked at tech companies.
But she doesn’t know 230.
I’m not going to do another full breakdown of everything wrong with the ACM piece, but just look at the second paragraph:
Much of the public’s criticism of Section 230 centers on the fact that it shields platforms from liability even when they host content such as online harassment of marginalized groups or child sexual abuse material (CSAM).
What? CSAM is inherently unprotected speech. Section 230 does not protect CSAM. Section 230 literally has section (e)(1) that says “no effect on criminal law.” CSAM, as you might know, is a violation of criminal law. Websites all have strong incentives to deal with CSAM to avoid criminal liability, and they tend to take that pretty seriously. The additional civil liability that might come from a change in the law isn’t going to have much, if any, impact on that.
And “online harassment of marginalized groups” is mostly protected by the First Amendment anyway—so if 230 didn’t cover it, companies would still win on First Amendment grounds. But here’s the thing: most of us think that harassment is bad and want platforms to stop it. You know what lets them do that? Section 230. Take it away and companies have less incentive to moderate. Indeed, in Lanier and Stanger’s original piece in Wired, they argued platforms should be required to use the First Amendment as the basis for moderation—which would forbid removing most harassment of marginalized groups.
These are not serious critiques.
I could almost forgive Lanier/Stanger/Tang if this were the first time they were writing about this subject, but they have now written this same factually incorrect thing multiple times, and each time I’ve written a response pointing out the flaws.
I can understand that a well meaning person like JGL can be taken in by it. He mentions having talked to Audrey Tang about it. But, again, as much as I respect Tang’s work in Taiwan, she is not a US legal expert, and she has this stuff entirely backwards.
I do believe that JGL legitimately wants a free and open internet. I believe that he legitimately would like to see more upstart competitors and less power and control from the biggest providers. In that we agree.
But he has been convinced by some people who are either lying to him or simply do not understand the details, and thus he has become a useful tool for enabling greater power for the internet giants, and greater online censorship. The exact opposite of what he claims to support.
I hope he realizes that he’s been misled—and I’d be happy to talk this through with him, or put him in touch with actual experts on Section 230. Because right now, he’s lending his star power to one of the most dangerous ideas around for the open internet.
Filed Under: 1st amendment, allison stanger, audrey tang, competition, content moderation, dick durbin, free speech, jaron lanier, joseph gordon-levitt, section 230
