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They’re barking up the wrong tree on Section 230











Some big name conservatives are upset over Section 230 of the Communications Decency Act, but it rather seems they’ve got the wrong end of the stick (as Captain Peacock might say). That’s according to Robert Winterton, Director of Communications at NetChoice, a trade association committed to protecting free enterprise and free expression online, writing in the OC Register. A measure implemented in 1996 to establish the legal responsibility of content creators for whatever they post on the Internet — surely a good idea? — Section 230 has come under fire from the likes of Ted Cruz and Tucker Carlson as a “handout” to big tech companies like Google and Facebook in the wake of terrorism and alleged election meddling controversies. The fact that neither company existed when the law was passed is your first clue that the logic here may be faulty, and Winterton lays out a convincing argument supported, among other things, by analysis from the Mercatus Center, reading in part:



In its 1999 Lunney v. Prodigy decision, the highest court in New York expressly classified an internet bulletin board operator as a common-law conduit. An internet service provider and bulletin board operator, the court held, ‘like a telephone operator, is merely a conduit.’ It made no difference to the court, and the ‘conduit designation’ was still applied, even when the bulletin board operator ‘reserves for itself broad editorial discretion to screen its bulletin board messages’ and occasionally exercises that discretion. The court explained that even if Prodigy ‘exercised the power to exclude certain vulgarities from the text of certain [bulletin board] messages, this would not alter its passive character in the millions of other messages in whose transmission it did not participate, nor would this, in our opinion, compel it to guarantee the content of those myriad messages.



Winterton also notes the impetus to protect content distributors goes back at least as far as 1959, when, in Smith v. California, the U.S. Supreme Court protected a book seller against liability for the contents of the books he sold.



Further he adds that repealing Section 230 would also open newspapers and other online publishers to liability for comments posted by readers, which would, given the parlous state of the newspaper business and the vitriol of the masses, probably spell doom for everyone.  The rest of the insightful piece is available here