New Proposal Could Singlehandedly Cripple Free Speech Online

The Internet has evolved into a true marketplace for every idea – if you can think of it, you can find it on the web. That the online world has blossomed into this virtual town square teeming with diverse content is no accident. It is largely a creation of federal law – specifically, Section 230 of the Communications Decency Act of 1998. Section 230 is directly responsible for the free, messy, uncensored, and often brilliant culture of online speech. By prohibiting most state civil or criminal liability for something somebody else writes or posts, it created the single most important legal protection that exists for websites, bloggers, and other internet users. Under Section 230, a website can provide a platform for all speech without worrying that if one of its online users posts something stupid, critical, defamatory, or unlawful, the website itself can be held responsible.

What does this mean for the web as we know it? Almost everything. It means that Yelp can't be held legally responsible for a negative restaurant review written by one of its users. It means Craigslist doesn't have to screen every personal ad to make sure it isn't a cleverly-disguised prostitution pitch. It means that Reddit could, and did, offer its users a thread tracking the manhunt for the Boston Marathon bombers in real time without censoring users' reports from the BPD scanner. In short, Section 230 makes sure that any website that offers individuals a place to speak — comment threads, group forums, consumer reviews, political meet-ups, you name it — doesn't have to police its users to make sure every post is within the letter of state and federal law.

But last week a group of state attorneys general wrote a letter to Congress asking to change all that — and their misguided proposal threatens to undermine the legal regime that has allowed speech to flourish. The AGs have asked Congress to amend Section 230 so that websites can be liable based on accessory, accomplice, facilitation, or similar legal theories for users' violations of state criminal laws. If their proposal were to pass, it would mean that every website on the Internet could be subject to legal liability for violations of an unfathomable number of state laws. As Matt Zimmerman over at EFF points out, these include such infamous crimes as posting Netflix passwords online, and publishing someone's else's defamatory speech (which is illegal under a number of state laws). No website owner in her right mind would offer an uncensored user forum knowing that the website could be investigated, shut down, or charged with a felony just for one user's speech. We've joined a letter in response to the proposal that was submitted to Congress yesterday.

History shows us that that the likely result – the dramatic chilling of online speech – isn't a theoretical slippery slope. Section 230 was actually passed in response to the dark early days of the Internet, when websites faced lawsuits over speech by their users. Section 230 wasn't passed in order to provide a legal haven for sites hosting illegal behavior, but rather in response to legal claims that sites that remove offensive or illegal user-generated content then become legally responsible for that content. The legislative history of Section 230 refers specifically to a New York state case — Stratton Oakmont, Inc. v. Prodigy — in which a Long Island investment banking firm successfully sued a bulletin board for hosting anonymous defamatory comments because it had exercised "editorial" control to remove "offensive" language. The case had the perverse effect of discouraging sites from regulating offensive (or illegal) content, and led directly to Section 230.

The AGs' proposal would turn the Internet as we know it upside-down. Without Section 230's safe harbor to ensure that websites aren't legally on the hook for content created by their users, websites would be responsible for policing every user-submitted word for possible criminal violations — which simply isn't feasible. Avoiding legal risk would require even the smallest blog to hire an army of lawyers to compare user content against the mosaic of all 50 states' ever-changing criminal laws. More realistically, websites would do one of two things. They would draft their compliance policies to censor user-generated speech to match the most restrictive state law, or they would simply not host user-generated content. It's certainly what their lawyers would advise them to do. If Section 230 is stripped of its protections, it wouldn't take long for the vibrant culture of free speech to disappear from the web. That would be nothing short of a national tragedy.

Section 230's safe harbor provisions have been positive for free speech, resulting in the spectacular diversity of content we now expect online. More than 220 years after the adoption of the First Amendment, the web has fulfilled our foundational promise of an uncensored marketplace of ideas where free speech truly flourishes. Keeping Section 230 intact will ensure that websites aren't punished for providing the soapbox.

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This comes on the heals of Russia passing a related "anti-piracy" law just today, apparently pushed by the US, but which many worry can also serve as a way to silence opposition blogs:


One of my friends works on the Hill and posted the following comment in response to your piece. What do you think of this?

""So it is true that the AGs are very concerned about prosecuting certain crimes within their states, one of which is child and human trafficking. Their letter was brief and did suggest an edit to 230. While seemingly simple, the suggestion they have requested would create complex unintended consequences. America was forward looking in '96 to protect intermediaries from the speech of their users, and we need to continue to protect that. That said, I don't support the SOPA-ing (making up a verb) of this effort. No Congressman has acted on their letter, Congress is out, this is something to discuss with the AGs and experts in criminal prosecution. There are serious crimes being committed that require legitimate attention, but amending 230 is not on the table. No need to make 230 appear to be controversial, IMO."

Thank you.


This is the 21st century equivalent of fencing off the village green. The people in power hate and fear the collective power of those subject to them so limit our power to assemble and speak out.

Government liab...

If you visit most government sites that expose personal records of U.S. citizens (i.e. tax records, marriage licenses, traffic tickets, all court proceedings, and more), you will find a lengthy, all encompassing liability release which a viewer must "Accept" before proceeding to these personal records that are exposed to the world. There is nothing omitted even if it involves actions involving health or medical issues. So, the government has already covered themselves is they post any inaccuracy of what should be our personal, private data. Example follows.

Property Tax Data Search
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Michael D.

In a time where out own amendments to the Constitution are being slowly eroded away (most particularly the 1st and 4th) it's not surprising that someone would weaponize children as a means to open the door to essentially limitless prosecution. This is a problem I have when it comes to "state rights" as continuity becomes an issue.

While I agree child sex trafficking is pretty bad. Well, ANY sort of human trafficking is really but that being the point, these are crimes. The people who create these ads knowing what they're about should be held liable. To my understanding section 230 is not a free pass to knowingly allow such crimes. If that were the case then piracy websites would technically also be immune from liability for hosting illegal digital media and software downloads. Clearly that is not the case given these sites are often shut down.

To me this just looks like another attempt to untie the hands of people trying to prosecute crimes that also happen to children at the expense of freedom of speech online. The world is a sad place in many aspects. With what's happening to the LGBT community in Russia, to the International Olympic Committee more or less telling athletes and attendees to stay in the closet at the games next year and many other violations of the universal human rights declaration set forth by the UN going unpunished, we cannot sacrifice more freedoms for more security. Already too much of our own freedoms are being eroded away in the name of security.

At the of it all, any sane person knows free speech is not freedom to advertise human trafficking which to me is rather stupid in the first place given it's a trail law enforcement can hop on and find you with. I can't say I fully understand legalities and what not in situations like that but to me it's just common sense that you find a crime, law enforcement handles it. These people should be trained well enough in the letter of the law to actually enforce it in the first place so rather than whine about jurisdiction in heinous crimes let's just get them prosecuted regardless of what state is working on the case.

To me it appears as though if something falls under federal jurisdiction, state and local law enforcement cannot touch the case. I presume this is why they feel it would be necessary for the change to 230. If this is how it is then the change we need is simply allowing state and local law enforcement powers in handling federal crimes involving inhumane treatment of people such as child sex trafficking. Not to allow regulation of the internet based on state law just so they can have that power. Give the state and local authorities power to handle these sort of federal crimes. They are after all part of the United States and federal law is what binds the states together.

Curtis J Neeley Jr

47 U.S.C. §230 was NEVER introduced in Congress as a bill and was done to protect Internet connectivity providers or ISPs from liability for communications they allowed and did not originate. This was like telephone companies being protected from obscene or intrusive calls the telephone companies delivered but did not create.

This misinterpreted law is unconstitutional on numerous grounds and has always been a HOAX or law misinterpreted by the US Courts making the law do the opposite of the Congressional intent.

It should have been found unconstitutional quickly after the first misinterpretation instead of turning the [sic]"Internet" into an attractive nuisance.

Neeley v Federal Communications Commissioners, et al,(5:13-cv-5293)
The above is the beginning of the end of porn by wire and the US AG has notice that 47 U.S.C. §230 is unconstitutional and Reno v ACLU was a mistake.

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