Taylor Lorenz’s Power User - How Section 230 Became Political : The Secret Campaign To Seize Power Over the Internet

Episode Date: March 16, 2026

What is Section 230 and why is everyone trying to kill it?Support my independent journalism:🙏 Patreon: https://www.patreon.com/cw/taylorlorenz    🗞️ Buy a paid subscription to my Substack: https://www.usermag.co   In the latest episode of my Section 230 mini-series I’m joined by Mike Masnick, founder of Techdirt and host of the amazing Section 230 podcast Otherwise Objectionable. Mike breaks down how the whole drama around Section 230 began, and how this extremely inconsequential law became vilified by the mainstream media. We also debunk the biggest myths about Section 230 and breaking down how the law actually works, and why removing it would make Big Tech even more powerful.Read Mike's excellent Section 230 myth busting on Techdirt:https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/

And I think that that case in particular was the moment where Facebook and lots of other big tech companies realized like, oh, we can lock in our users. And anyone who tries to help them get out of our silo, we can sue them into oblivion. This week, the Senate is set to hold a big hearing debating whether or not we should repeal Section 230. As discussion of the law becomes more and more prevalent online, I wanted to talk about how Section 230 backlash came to be and also debunk some of the most common. misconceptions about the law that I keep seeing crop up in the comment sections of these videos. To do all of this, I'm joined by Mike Maznick. Mike Maznick is the founder of TechDirt, which you'll see me cite constantly throughout this podcast.

He is an expert on Section 230 and has covered the law for years. He's also the host of an amazing podcast on the history of Section 230 called Otherwise Objectionable, which if you've watched this series, you should definitely, definitely check out. It's on any podcast platform called Otherwise Objectionable. But today, I'm so excited to have Mike. Mike here to join me to debunk these common Section 230 misconceptions and talk about how all of this recent drama surrounding Section 230 got started in the first place. Mike, welcome.

Yeah, good to be back. So great to have you here. So to start, for people that haven't been keeping up with this mini series, can you give a little explainer on what Section 230 is and why it matters? I mean, I think the simplest way of thinking about it is just that it is about putting the liability on the party who actually who actually is violating the law, the party who is actually, you know, because with the internet, we're always talking about content, but whoever is imbuing the content with whatever it is that violates the law, whether it's defamation or some other tort, that the liability goes on them

rather than on the tools that are being used to distribute that content. How did it become such a political lightning rod where, like, everybody is so obsessed with it? And now it's like this thing that we constantly have to hear about. I don't know. maybe there was discussions of this before a few years ago, but I feel like it's everywhere now, and it's become this, like, cudgel that every politician uses to, you know, attack big tech. Yeah, I've sort of tried to trace it back a few times where, you know, for the longest time, you know, I mean, it was the sort of not talked about law. It didn't come up that much. It was somewhere about

10 years ago where suddenly people started talking about it. And I think there are a couple of things that came up. One was that a law professor referred to it as the 26 words that created the internet. And so therefore, it sort of suggested a level of responsibility for that law that then anything that was bad on the internet was also blamed on it, which was not entirely accurate. Neither statement is entirely accurate. It's also not 26 words long. I know it is, there is those famous 26 words. Yes.

But it is a longer law. It is a longer one. But it is true that that section C1, which is the 26 words. words, what sort of the instrumental part of it. It's interesting, too, because for the longest time, 230 is longer than that. But the two parts that people focus on are C1 and C2. And it is funny because C1 is the 26 words.

C2 is the part that people get oddly hung up on. And for the longest time, courts almost entirely ignored C2. And they basically made all decisions, even the ones that people think would be covered by C2 under C1 grounds, because it was easier and cleaner. So C2, I forget the exact language, but C2 is the part that lists out a bunch of categories and says you can moderate these things that are, you know, problematic. I forget exactly what it is and it ends with or otherwise objectionable. And it has a sort of good faith requirement to it.

And so a lot of people look at that. They say C1 is the liability part that is about, you know, just hosting content. C2, they say, is about the moderation because it's about taking down content. and things of that nature. What the courts have determined correctly, in my mind, is that C1 covers all publishing activity, and that includes leaving up or taking down things, and that includes all the stuff.

Once you get into C2, you get into this problem of, you know, one, was it done, was the action done in good faith, which is only covered by C2, or does it fit into the categorization of that list of things? Again, I forget exactly what the list is, which ends with or otherwise objectionable, And to me, that is the catch-all, which, again, under First Amendment grounds, I don't think you can, you don't get to decide. A court doesn't get to decide what is otherwise objectionable.

A site gets to decide because it's in that site's opinion, what it determines to be objectionable. And that could be anything. Again, like if you're running a gardening forum, you could decide that, you know, conversations about pets are objectionable because they don't fit in that forum. And so it shouldn't be something that the courts decide. It should be something that the sites decide. But again, for the most part, courts have focused on C1. There have been more and more courts looking now at C2 and other parts of the law. But I think that that was part of it.

The second thing I'll say about why the focus changed this way, I don't fully blame, but I think there was an article in Wired about a decade ago where they had this whole big thing about like, why is there so much hate speech on Facebook? And they blamed Section 230. and they claimed in the article that people within Facebook were told that under Section 230, they shouldn't do any moderation because any moderation they do, they might lose Section 230 protections. It's wrong. It's exactly backwards. And so I had reached out to the authors of that article at the time.

And I was like, this is backwards. And I think they said it twice in the article. And like, I went over it with the authors. I was like, you have it backwards. And it's like it's malpractice to print that as if that is the thing. And what I heard back from one of the authors was effectively, well, that's what we were told, that that's what they were told internally, that people inside Meta or Facebook at the time were told not to moderate too heavily because then they might lose their 230 protections.

And the only explanation I've heard from someone that kind of makes sense is that that was probably what was sort of, you know, told to people on the trust and safety team for sort of a global understanding of how to deal with these things because 230 specifically only protects in the U.S. It extends outside of the U.S. in some ways. But, you know, because of that, because if you need a sort of simple rule for a global way of thinking about it, you say, well, you know, be very, very careful about what it is that you're taking down and mostly leave up content because in other countries we might face liability, which is funny then that then that gets thrown back on 230, when it was 230 that was actually allowing you to do much more and to have a different approach.

And it was the foreign approaches that were making people more careful and less responsible. But it was sort of spread out there. And it was sort of there was a belief within Facebook that under 230 they should do less moderation, which is just wrong. Yeah. It's literally like you said the offices. So we have this like, okay, this law professor publishes a book, Facebook. Somehow there's like this game of telephone that ends up in a wired article.

And then somehow we get like foster sesta, I guess, fast. Basically, I mean, whenever you want to regulate speech on the internet, right, you do, oh, there's terrorism or, oh, the children are in trouble, right? There's sort of a famous cartoon along those lines of, like, you know, how do you want to wrap this president of censorship? And the two choices are terrorism or protect the children. And this, you know, Foster was one of these sort of protect the children kind of laws. It was pushed very strongly by John McCain's wife, Cindy McCain, who was a big part of, you know, she had a big campaign about trafficking and all the stuff. And it's big and scary.

And again, lots of people pointed out how this would backfire. And yet, you know, when you go out there and you say, oh, my gosh, there's human trafficking that's happening on the internet. And it can't be stopped because of 2.30, which was always wrong. But that's, that was the story that was told. And therefore, you get this sort of unstoppable momentum for people to, we have to pass a law. We have to stop it. Big bad tech is allowing for human trafficking.

and therefore we're going to pass a law. And, you know, since then it's been a disaster. And it hasn't helped with human trafficking. In fact, it's almost certainly made the problem worse. But, you know, nobody wants to go back and revisit that. Yeah, I mean, I guess it just sort of like continued to make its way through. And then suddenly you have Democrats and Republicans, sort of both villainizing it for different reasons. Why do Republicans hate Section 230 and why do Democrats are like, what is the difference?

Because it seems weird that it's something, I mean, I guess both parties align on censorship. but I feel like they both don't like this specific law for kind of different genres of reasons. Yeah, I mean, I think it really comes down to both of them want to control the speech on the, you know, and this is a mechanism in which they think that they can get more control over speech on the internet. And so you have Democrats who think incorrectly

that if you get rid of Section 230, you can somehow force companies to remove what they consider to be disinformation, which might actually be disinformation. But again, removing 230, isn't what is actually going to solve that problem. And then you have Republicans who falsely believe that most of the companies on the internet

are biased against conservatives and how they moderate. When, again, like almost all of the actual details that have been revealed were that the companies bent over backwards to give conservatives, you know, extra chances because they tended to violate the rules much more often. And of course, now we have it

so that a lot of the large platforms are controlled by people who are aligned with the Republicans. And so it's, you know, it's kind of funny that you don't hear them saying the same things anymore. But both of them saw Section 230 as basically a tool that they can use as, you know, a wedge against tech to control people's speech online. It seems like the media has also kind of mythologized Section 230 a lot. Obviously, there was this podcast that I don't even want to give the clout to to mention. All we'll mention is otherwise objectionable, which is your amazing podcast breaking down Section 230. and I highly recommend everyone.

But it seems like also just like, I mean, I worked at the New York Times and we published all this stuff about Section 230. And it seems like just the media fed into a lot of this like myth making around this like big law that, you know, was again protecting tech companies, X, Y, Z. Yeah. I mean, it's just one of these things where I think partly the narrative sort of took over reality. And so a bunch of people kind of ran with it. The New York Times somewhat famously had a, they ran this, you know, full page, front page of the business section article. I think I forget the exact title was something to the effect of. the law that allows hate speech online.

And they said it was 230 and they went through something. And then they had to run a correction online later because the published version was already out on print saying, oh, actually, we're wrong. It's the First Amendment, not Section 230. But by then they'd already run this huge front page thing. And what was crazy, too, was I think it was like two weeks later they ran an op-ed where they made the exact same mistake and blamed 230 from someone else. And then also had to run almost a word-for-word identical correction that they had

run two weeks earlier where they blamed. for it. You know, there is this element and this, you know, sometimes feels a little conspiratorial, but it keeps happening that, you know, a lot of big media companies have always hated the internet because it really changed their business and took away some of the, you know, the sort of business models that they had. And so it's always been fun to beat up on the media at any chance that you get. And 230 has become a tool that is really easy. Everyone hates big tech right now. And if you can use 230 and say that, you know, oh, it's all the bad stuff that you see online is because of this law, the media can hit on it. Also, you know, to be honest, you know, there is an element behind all this that that Hollywood is deeply involved in.

And this part frustrates me as well. You know, we're now almost a decade and a half past a different legal fight, which was for SOPA, which was copyright law that would have also done tremendous damage to the internet. And that was a case in 2012 where the internet sort of. rose up. There was a big blackout, people spoke out, and these bills died. And I think that people in Hollywood then set about to say, we're going to figure out a way to destroy this horrible internet and all these internet people. And a big target of it was Section 230. And in fact, some of the people behind the lobbying for Fostasesta and the lobbying that we see today for changes to Section 230 or for the repeal of Section 230, you will notice were the same lobbyists who were

working for News Corr and Fox during the Sopa PIPA fight. And so there is an element there where there are Hollywood people who have, you know, spent their lives hating on the internet and attacking 230 is a way to get back at the internet for the damage it did to those industries. It's interesting, like Hollywood, there is so, I mean, I live in L.A., but there's so much, like, animosity towards, quote, unquote, big tech. And I think even something, I don't know if you were ever able to get in touch with Joseph Gordon Levitt and speak some sense. into this man. But, you know, somebody like him, like he's a little bit younger. But, of course, is a member of Hollywood. And I've heard this from other people kind of in the Hollywood world

out here. It's like they're younger. And I think they're captivated by this idea of, like, fighting back against big tech. Like, maybe they're not aligned with the Hollywood studios as much, but it seems like this, like, populist thing that they can take part of it and feel like they're really sticking it to the man while they're defending, you know, the most evil Hollywood, you know, corporations ever. Being against the man is always popular, right? I mean, lots of people want to speak out against the big companies. And again, the big companies, I think, have done some really bad things. Like, I think it's important to acknowledge that.

But the point is, like, 230 is the wrong tool for it. And going after 230 is not what is going to bring the big companies down. It's going to make them more powerful. So it's fine to speak out. It's fine to be mad at Google and meta and Amazon and Apple and whoever else you want to be mad at. Like, there are plenty of reasons to do that. But if you want to stop what they're doing and you want to enable a better internet for everybody, 230 is not the tool to do that because you're just going to put more power in their hands.

Yes. And there are lots of laws and proposals. Ron Wyden has many of them that would actually curb the power of big tech or give us like privacy, surveillance. And I don't know if you can talk a little bit about that because I think like some people will be like, oh, so you're just like big tech booster. One of these nonprofits was yelling at me on Twitter the other day. All you do is boost a big tech and you, you know, what do you want to do? Like, what's your alternative? And I'm curious if you think there are any kind of like reasonable, you know, legislative passways to curb their power? Yeah, I mean, I think there are a number of different ways to do it. It's a little bit trickier. It's not as easy.

It's not, you know, 2.30, having one single law to rage against feels easy, right? And the complexity of the situation is that it's difficult to do this right. I do think that we need some sort of federal level privacy law. So much of this goes back to privacy issues. Who controls your data is kind of key and kind of central to all of this. So figuring out the right way to do that. Unfortunately, most of the privacy proposals that have come out to date have had problems as well. Like doing it right is important.

But I think there are other laws that really impact this as well. I think people don't pay as much attention to them anymore, but both copyright and patent laws have allowed for there to be monopoly control over certain kinds of situations. You know, the abuse of patents to stifle competition has been a real issue. Thankfully, the tech companies haven't been. as bad, but some of them have certainly used patents to try and stifle competition at times. I think the other law that I talk about all the time that I think is really important for people understand is the Computer Fraud and Abuse Act, which is known as the CFAA, which is in 1980s

era law that's supposed to be to stop hacking. The language it was written in is not entirely clear, and that means it's been used in a very abusive way. And the case that I point to all the time is one that Facebook filed against this company called Power Ventures in the sort of 2010 time frame. And Power Ventures was a service that would reach into Facebook and other social media companies at the time and give you, pull out your data, allow you to control it in a separate interface, and allow you to read what was on these other sites, and then also to post to those

sites without ever having to log into Facebook yourself. And I think that was actually something that was really cool and took power away from Facebook and Facebook sued them claiming that you giving your login information to power and then power logging in with it violated the CFAA because it was unauthorized access that it was hacking. I think that is clearly ridiculous because it's you giving your login and giving them permission to log in for you, but that's not how the court saw it. And I think that that case in particular was the moment where Facebook and lots of other big

tech companies realize like, oh, we can lock in our users. And anyone who tries to help them get out of our silo, we can sue them into oblivion. And so I think reforming the CFAA is way up there on the list. If you want to take power away from the big companies, fix that. If you want to take power from the big companies, fix the DMCA, the copyright law, especially 1201, which allows for these like anti-circumvision provisions, which allows, you know, anything that you do to get around a technological protection measure is seen as copyright infringement, even if it has nothing to do with copyright whatsoever. That law is being used by companies to stop competition right now. And you have a bunch of examples like this. There are all these laws that you can do to improve competition.

Obviously, on the back end, there's also antitrust laws to increase competition. I think those are kind of slow and messy. So I know that a lot of people really focus on them. I think they're not that effective. I do think where they could be more effective is on the front end when the large companies go to buy somebody else, reviewing those beforehand. I think going back and trying to break up companies after the fact

is really, really difficult and slow and messy and doesn't seem to work very well. But I think these other laws, CFAA, DMCA, patent law, there's a bunch of things that you can do to increase competition. And then the other thing, too, is like, not just on the legal front, but on the user side. It's like, don't use the big company so much. There are alternatives and seek them out and use them and encourage other people to use them as well. And that's going to be the best way that we are to get past big tech controlling so much.

I think what people say, because I ask, I'm on Mastodon and Blue Sky and all these places that I really love. And there's other tech reporters there, I would say. But it seems like the public is pretty locked into these platforms. many of the reasons that you just said. And they also engage in a lot of anti-competitive behavior. As, you know, I've talked about what like meta did to musically that made it have to sell in the first place. But people will say, but they're so addictive. They're so engaging. They're so good. And so I guess like how do you kind of respond to that? Because I think like another thing that you hear from people that when they're talking about Section 230 is like, oh, well, you know,

we have to crack down on these quote unquote addictive social media apps. And they feel like they can't break free of, you know, the main for social platforms. I mean, the addiction rhetoric bothers me to some extent. I think it's an easy thing to say. It's not really supported by the data. There was a study that came out late last year that sort of looked at this verbiage around addiction, and there were a couple of things that they found, one of which was that most people had no signs of actual addiction, which, you know, there are a number of different physical

characteristics that you associate with addiction, including withdrawal symptoms. If you, if this is taken away from you, do you go through some sort of withdrawal? And they found that a very, very small percentage. I forget the exact numbers, forgive me, but it was, I think, around like 4% of people showed signs that were consistent with withdrawal. Yet people self-reported addiction much higher, so something like 35 or 36%. So many more people claimed it. And what the study found was that the more that the conversation was about social media addiction,

the more people claim that they had social media addiction, which also meant that they sort of gave up their own agency. They claim like, oh, I'm addicted and therefore there's nothing I can do to change my behavior. There's nothing, no steps I can take to improve this and, you know, spend less time on it. And effectively, like the narrative around addiction was leading to more people thinking they were addicted when they weren't and not taking control over their own habits, which, you know, there are ways to do that. There are ways to deal with habits and there are ways to deal with addictions and they're not the same.

And if you treat everything as if it's an addiction, you create problems. So I think, first of all, the language of addiction is problematic. It's not a DSM. There's no social media addiction in the DSM. There's no real evidence that social media is addictive in the sense of, you know, alcohol or drugs or something of that nature. That said, again, you know, I think that this is the kind of thing that people have to take some responsibility themselves for and figure out how do you, how do you, you know, how do you want to live your life? And, you know, what companies have found, you know, one of the other things that comes up, this is not quite the same thing, but it's really. You know, one of the things that comes up in these discussions is people say, oh, you know, these sites, they addict you because they put the most rage-inducing content in front of you, and that keeps you there because whether you like it or not, you just stick around because it's engagement bait, right?

And they have to do this. And yet what studies have found over and over again was that that is a short-term phenomenon if a site is addicting you with pure rage bait and the whole reason when you open the app, it just makes you so angry. Like, yes, maybe that makes you stick around for a little bit or come back for a few days. But like after a fairly short period of time, it burns people out and they go away. And most of these sites have figured out like, no, wait, we can't do that. That's not good for us. It's not good for our long-term projections, even if it might be good in the short term. So most of them turn down the sort of rage part of the algorithms because they realize it wasn't doing well.

And so there's this element of like people at just. and the company's adjust and the market keeps changing. And again, the way to to deal with that is to, you know, to make it clear to the companies. Some of that is by using other sites and services, which again, I'll encourage. But then the other thing is too is like, if you're just getting rage bait, stop using the service. And it's not as hard as people think. Well, also the rate thing kind of bothers me because I've covered the rise of TikTok extensively. And TikTok, the way, I mean, part of the reason it got the massive user base that it did is because it was

is delivering hyper-targeted, and it was harvesting a massive amount of data, and delivering a hyper-targeted experience where it was actually based primarily around your interests. So if you like food, you could watch food. TikTok is not really known as like a rage bait app. Like that's really affiliated with Twitter, which is actually like one of the least popular of all the major social networks, especially even under Elon Musk, it's like declined. So I just think this idea that like, oh, we're all getting outraged on social media. No, most of what you're watching is actually like highly engaging content that's hyper-tailored to your interest.

based on all the data that they've harvested. And that's why you're glued to your screen. And yes, you might be angry and upset because there's a lot of bad stuff happening in the world. And these platforms are also our gateways to that bad and negative information. But yeah, I think that conversation loses so much nuance. Yeah.

And then there's just the element of like, yes, when TikTok has an algorithm that recognizes what you want, you know, it's hard to say that that should be illegal in some way, right? You know, it's like it is delivering what you want. Now, there are all sorts of things. where it would be nice, again, getting back to the data protection data privacy part of this, where you could see what they have on you or you had more control over the algorithm in terms of

telling it what you want. And we're seeing some of that coming into the marketplace now. Obviously, Blue Sky and full disclaimer, I'm associated with Blue Sky. So take this, you know, with whatever bias you want. You know, like they allow you to set your own algorithms and make your own algorithms and do what you want with it. But you also see things like threads, and I'm not really on threads, but threads added this feature that people were originally joking around with where they would respond to things and say, Dear Algo, like, I want to see less of this or I want to see more of this. And Meadow actually went and implemented that. And they added this thing where if you say dear Algo in your threads post, the algorithm will actually listen to that for a short period

of time, I think. And so I think we're starting to see, again, like the market changes with what consumers demand. And if consumers get burnt out from too much content that that makes them feel, you know, not great the next day, if you wake up the next day and say, oh, my gosh, I spent so much time on TikTok, you know, sooner or later, you realize, like, maybe I shouldn't use TikTok anymore. And TikTok has to adjust. And so we're seeing that with threads, trying to get people more of what they want. And I think we'll continue to see that, that these markets change. The idea, like, there's this idea out there that like the worst of what it is that we see now is forever going to get worse. And I have faith that society actually does adapt to these things.

I know. I don't want people to think it's all like libertarian market, you know, economics. Like I do think we have to like, I mean, I think all those laws that you mentioned, like, these companies do do anti-competitive stuff and it's great to like hold them accountable. But yeah, I agree. I mean, I also think these algorithms are almost too responsive. People talk about like, oh, I watched the wrong cat videos and now it's all I'm getting. So like I do think like we are seeing the ways like we are learning to manipulate our own algorithms. We're learning the effects. I'm all for more consumer choice.

And sort of in that realm. But we're not going to get that if they repeal section 230. We're not going to have an internet anymore. We're not going to have those opportunities, you know, if this really important law goes away. Thank you so much for walking us through all of that. Now I want to do kind of like a lightning round where I want to just have you debunk some of the most common misconceptions and claims that I, you and and I constantly hear about Section 230. This law is often described as this thing that allows tech companies not to be liable

for the content on their website. And obviously this doesn't apply to illegal content. But I think that this framing kind of elicit something in people where they're like, but tech companies should be liable. These are evil, bad companies. So can you explain why would it be a good thing that tech companies are not held, quote unquote, liable for the content that appears on them? So it's, and to be clear, they're not held liable for third party content.

So it's someone else's content. And I think that is the key thing. There's this idea that the companies aren't held liable for anything that is untrue, that is absolutely untrue. They're absolutely can be held liable for the things that they specifically do that might violate the law in some form or another. It is just about the content that they host that someone else created. And that's really important.

but that sort of gives away the game, right? As I said at the beginning, the issue here is who imbued the content with whatever it is that makes it so that that content violates the law in some form or another, and that we expect the liability should go on the party who added the thing that violates the law. When you put it on a third party on the tool that they use, you create all sorts of downstream incentives that are really problematic, some of which, you know, we've talked about in the past, but, you know, basically you're putting it on a company so that basically the largest companies will still be able to fight off those lawsuits because even in those situations, it's unlikely that a lawsuit would win against the tool provider because they're not, they don't have the requisite intent or they're not as close to the issue as they should be. But therefore, you're making it so that you could only have large companies that will host content. There are a bunch of other things that come up along with them. this, but effectively, again, I just go back to, if you think about it as putting the liability on the party who actually violated the law, it feels like a fairly simple and straightforward concept.

Well, what people will often say is, but there's algorithms. And for those people, I actually did a whole episode last week on that question, so we don't have to re-answer it. But another thing that I hear around this liability is that Section 230 is this special law that only protects internet companies. or only protects kind of like, you know, Facebook and Google, et cetera. And this is some special protection that we just made for these big tech internet companies. I mean, so there is a small element of that that is true, which is that it is a special protection for the internet and its users. And so there are a few different elements to that. One of which is that it is slightly different than other liability regimes offline.

But there's a reason for that. And it's a good reason for that, which is that in almost every offline, scenario in which you would compare this to, you have a very small amount of content that anyone would have to deal with in which they would have to review and, you know, therefore take ownership of in terms of the potential liability. The whole point of the internet was that allowed everybody to have a voice. And if you want that, you need something like a Section 230 to enable intermediaries to be willing to actually host those voices.

Otherwise, you don't have an internet that allows everybody to speak. you have broadcast TV or broadcast radio or magazines or books or something like that, which have always been sort of these traditional gate-kept industries where only a very, very small percentage of people actually get to speak. The internet is inherently different. It allows everybody to speak, and we want intermediaries to be able to host that content. And the only way you're going to do that at the scale that we want people to be able to speak is if you create some sort of recognition that they shouldn't face liability.

for what those people say. Again, it doesn't mean that the liability goes away. The liability can still be placed on the speakers themselves if they're imbueing the speech with something that violates the law. Secondly, the idea that it is only focused on big tech is just fundamentally wrong. You know, when the law passed, there was no real big tech. But certainly the law applies to any site and or user.

And the user part always gets left out of this, but I think is really important, who is, you know, sharing someone else's content. That means it has, in fact, in court protected people for retweeting something or for forwarding an email to someone. There are cases involving both of those scenarios where Section 230 protected you. And so if you're saying it is, oh, it's a special shield for big tech, that is not true at all. It is a shield that helps everyone on the internet in terms of sharing or spreading someone else's speech, which I think some of us believe is a really important part of social media today. Yeah, I know. I think a lot of people might not realize that they're, you know, they have that Section 230 protection when they are forwarding an email, doing a retweet, et cetera, et cetera.

Some people also come back with, well, what about the First Amendment? We have the First Amendment. Isn't that what protects speech? why do we need this Section 230 thing that seems to be, you know, providing the shield for big tech? Why can't we just eliminate that and rely on the First Amendment? Yeah, it's a good question. It comes up a lot because a lot of this, a lot of Section 230 is really backstopping the First Amendment. It's in some ways, you know, a First Amendment for the Internet.

But the specifics there actually matter. And it gets a little bit deep into the legal weeds, but it's actually kind of important, which is that how you handle a case in litigation makes a big difference in terms of what your strategy is. And fighting a case under Section 230 is relatively inexpensive. It's not inexpensive for you or I, but, but, you know, for a larger company, for a company, generally speaking, the numbers are that if you're going to win a case on Section 230 grounds, it's probably going to cost you in the range of $50,000 to $100,000. If you want to win a case on First Amendment grounds, you have to go much further and the process is a lot more expensive.

The estimates there are probably closer to $5 million, maybe up to $10 million, in order to win the case. And so there are cases where you would win in either situation, but in one, it's much, much more expensive. And what that means practically is that for smaller companies, especially and certainly for individuals, they're going to fold. They're not either, they're not going to host third party content at all. They're going to go out of that business or never start in that business. Or if they get any demand or request or threat letter, they're going to fold. They're just going to take the content down because the cost of actually fighting it in court, even if you would win, is way too expensive.

And so there's a procedural difference here that Section 230 provides, which is really important, which is that it allows you to get out of these cases very quickly for relatively less money than a First Amendment case. So, yes, the First Amendment would protect in the long run, but it would mean that you would still, really only have the largest companies providing these services and much fewer of them at that. Some people have made this claim that Section 230 incentivizes platforms to not moderate content, that this is what has led to, you know, this modern, messy internet. This is what is making Twitter and Instagram and all these platforms so bad. It allows these companies to, quote, get away with anything and promote hate speech or hateful content, you know, with no regard for, I guess, user well-being.

Can you break that down? Because I think actually people might be surprised that Section 230 is actually what allows these platforms to moderate content. Yeah. I mean, well, the First Amendment allows them to moderate, too. But as I was just saying, like, it makes it much more expensive and the risk much greater if they have to rely on the First Amendment. So, yes, I think that that complaint is exactly backwards. Section 230 enables these companies to feel free to experiment. And there's an important point here that I think also gets lost, which is that there are other incentives besides the law.

Everyone is just very focused on, you know, only the legal incentives and they think that if there is no law, then the companies are not going to do it. But that's not true, right? There's strong incentives for companies to moderate and to do other things to keep their user base happy. You know, if a website is just filling up with spam and scams and, you know, harassment and abuse, people are going to leave. And so companies have a natural incentive, which are, you know, keeping their users happy to do some level of moderation. and to handle that. And Section 230 makes that possible. The whole case that created Section 230 in the first place,

the Stratton-Okman case, involved Prodigy, which was trying to create a family-friendly environment. And because of that, when they got sued by this company Stratton-Okmont, which is the company from the Wolf of Wall Street, you know, the judge said, because you're trying to keep a family-friendly environment, because you moderate, now you're liable for all the content on the site. So the whole point of 230 was to encourage,

encourage companies to moderate by saying, we're not going to hold you liable for the things that you don't moderate. Therefore, you have now incentives to moderate based on the market demands. And again, that can be users. It can be advertisers. Advertisers don't like having their brands show up next to, you know, bad, horrible, horrific, racist content. It could be app stores. It could be all sorts of things. There are all sorts of incentives in place. And what 230 does is it makes it easier for the companies to then respond to those market incentives and say, okay, we're seeing that our community is unhappy with this or the advertisers are unhappy with this and therefore we're going to respond. And we don't have to have the lawyers review every decision that we make.

We can have content moderators and, you know, trust and safety teams that are reviewing this, not for legal liability, which is what would happen if it had to be the lawyers reviewing it, but rather for what will actually be best for our community, for the long term, for our company's goals. What about this idea that platforms are increasingly acting like publishers? You know, people will say, well, these platforms, they are making editorial decisions. So they are like a newspaper. So shouldn't they lose Section 230 protections because they're acting like a publisher? Again, this is like a total misunderstanding of Section 230.

I know you know that. But Section 230 was designed to make these websites act like a publisher. There's this myth that has been out there for a decade or so that it's a platform or a publisher. and the whole point of 230 was to make them act like a platform. And if they act like a publisher, they should lose 230 protections. That is the exact opposite of what 230 was meant to do. 230 was designed to have companies act like a publisher. Again, I take you back to the Straton-Okmont case,

where the fear was that without something like 230, and if that ruling had held up, that companies wouldn't want to moderate at all because any sort of editing, moderating, any publishing activity that they did, they might be held liable for, and therefore they would do less of it out of fear of liability. So the whole point of 230 was to act like a publisher. And in fact, you know, there have been court cases.

The one that I've cited a lot is Barnes v. Yahoo, which had a kind of funny result for other reasons. But part of what was said in that case was any publishing activity, what Section 230 protects, is any publishing activity of third-party content. So it was encouraging you to act like a publisher. And that's why it frustrates me to no end when I hear people say, oh, they're acting like a publisher. That's the whole point. Like that was the point of 230.

You should act like a publisher. They wanted more sites to act like a publisher so that you would have more sites willing to host content and to create different kinds of communities, different styles of communities to the degree that they wanted to, that the websites themselves get to choose what kind of community. They create, and that is publishing activity. and they are protected in doing that against being held liable for the content of the people that they publish. Yeah. I mean, you also hear this idea of like neutrality where people will be like, well, Section 230 was meant to protect neutral platforms.

And, you know, back in the day these social media platforms were neutral. I mean, it kind of goes back to the algorithm thing. And maybe we can address that again as well, but I did do a whole episode on it. But this idea that like, oh, the internet used to be these neutral, you know, platforms that were very generic. And now we have very non-neutral platform. So they shouldn't have sort of Section 230 protections. Yeah. I mean, again, just not true.

Like, there were never neutral platforms. And again, I'll take you right back to the Stratton-Oak-Munk case. And the whole point was Prodigy was not trying to be neutral. They're trying to create a family-friendly space where they heavily moderated the content. And that's what 230 was meant to encourage. And, you know, you can talk to Ron Wyden. I know who you spoke to him recently. And Chris Cox, who wrote Section 230, and they vote.

always said it was always meant to allow for everyone to create different kinds of communities, and they could be as biased in one direction or another. They wanted people to create communities for Democrats, communities for Republicans, communities for gardening. Whatever it was that you wanted, they wanted you to be able to create a community for that online. That was the potential of the internet. Not one giant platform that had to be neutral, which is not even a term that makes sense in this kind of scenario, but that they wanted different communities to form. and have different rules and different structures. And that is exactly what 230 enables.

There is this big podcast, which you did a great job debunking. It was like an NPR show that was using a situation that I hear people bring up a lot in relation to Section 230, which is the Sandy Hook massacre, where Alex Jones was famously spreading a lot of hateful lies about these Sandy Hook families. And YouTube, of course, amplified these lies. And so there's this idea, I think, when people sort of put forward of like, well, look at people like the Sandy Hook families, like, shouldn't they also be allowed to sue YouTube? And isn't this an example of, like, how we do want accountability, you know, in these spaces? We should allow these

victims to sue the platforms that mainstreamed, you know, the lies about them. I mean, you know, in that case, you have Alex Jones got sued and was found liable and, you know, it has a judgment hanging over him for, I forget how much, but over a billion dollars. So again, you know, the point of Section 230 is to put the liability on the speaker. the person who actually imbues the content with what made it violate the law. And in Alex Jones's case, there was a court that found that he violated the law, multiple courts at this point, actually. And that's the point, right?

We put the liability on the speaker, not on the tools that they use. But I think what people argue with that case is like, shouldn't YouTube be held responsible? You know, they amplified these lies. They profited off these off spreading, you know, hateful content. Shouldn't we eliminate Section 230 so that they can. can be held liable, you know, as well. To some extent, right, that's the, the American way to, like, always look for the big company

that you can also sue to try and get more money out of them, whether or not that is the best overall system, you know, I think in this case, it wouldn't be because, again, like, I understand, and obviously I have tremendous sympathy for the families and for everyone who's been influenced by people like Alex Jones and the lies that he has spread, the horrible, hateful lies over many years. But the way you deal with that is by going after the people actually responsible. Because if you don't, if you say that YouTube could be liable for it, again, what you end up doing is shutting down avenues for most people to have a voice. You push us back to a world in which everything that is aired anywhere has to go through careful vetting and gatekeepers.

And some people may argue that that is a better world, but some of us also remember the time before the internet when most of us didn't have a voice. And not only do we not have a voice, we had no path to having a voice. You know, the number of people who actually get to go on TV or radio or publish a book or write for a magazine was minuscule. It was a tiny, tiny percentage of people. What the internet has empowered is everybody to have a voice. And obviously, that means that some people are horrible. Some people get a voice and say horrible things. Though I'll note, I mean, Alex Jones was one of the people who actually did. did have a voice in the pre-internet era.

And so, you know, I mean, he was very successful on radio and sort of came up in that world. And, you know, we don't talk about, you know, suing the radio, right? Like, suing the companies that made it possible to broadcast on the radio. You know, the focus should be on who it is that is saying the horrible things or, you know, violating the law in some way, rather than blaming the tools that they're using because all that does is make sure that we have less tools. and less ability for people to speak in the long run. I totally agree with you on like,

we want an open world without gatekeepers, et cetera, et cetera. But I think so many people rightfully feel so angry about, you know, big tech, they're obsessed with, you know, sort of this deletrious effects. You know, we saw Foster Sestha was also framed as a way to crack down on big tech, which was a sort of a carve out to section 230 in some ways. So yeah, what would you say to those people that feel like it's not getting them accountability? Yeah, I mean, I don't trust big. tech at all. Like, you know, I would like to see them go away. And I think there are other tools to do that.

I think that targeting Section 230 as the tool for dealing with big tech is the exact opposite. I mean, if you look, meta in particular has been very happy to reform or change 230. The whole reason that Fasta Sesta passed in the first place was because META came out and endorsed it. and Cheryl Sandberg wrote a whole big blog post about how wonderful Foster Sesta was going to be. And that convinced Congress that they could get it through and to pass it. And it has done immeasurable harm. And at the same time, has actually given META more power. That's why META is absolutely willing and happy to have 230 change. Because as I explained earlier, they'll still rely on the First Amendment.

They have a building full of lawyers. they can handle a few $5 million, $10 million cases. They'll win those cases and they'll stick around and everybody else will go away. Removing Section 230, even reforming Section 230 gives meta more power. If you don't trust or don't like Big Tech, and I don't, removing or reforming 230 gives them more power. It may have them have to face a few more lawsuits, which they're going to win on First Amendment grounds anyways. But it doesn't take away their power. doesn't make them more responsible.

If anything, it makes them less responsible because, again, under the First Amendment standard, they have to have actual knowledge of the wrongfulness of the content. And the best way to avoid that is to not look, to do less moderation, to do less to clean up your platform, and just, you know, look the other way. Because then when you're brought into court,

you can say, oh, we didn't know, we didn't know that there was this defamatory content. We didn't know that there was this awful content being spread. We looked away, and now that you sued us, you can't hold us liable for it. So you will get less responsible behavior, especially then if it drives the rest of the competition away, especially smaller upstarts.

It drives them out of business, takes them out of the market. They have even less reason to be responsible. So it is entirely understandable and reasonable that you should not trust and dislike big tech, but thinking that Section 230 is the tool to deal with them is exactly backwards. You've answered so many, like, you know, amazing kind of questions and fact checks And I feel like hopefully people have, you know, a lot of the tools to kind of respond to some of these bad faith attacks on Section 230. But what do you think is the most effective way to kind of protect this law? It seems like Congress doesn't really care. I don't know if there's any groups like even fighting for Section 230. Obviously we all want to support tech dirt for the work you're doing. But yeah, like what would you suggest people do to kind of like protect this law? It doesn't seem like there's a protect Section 230 act. They can like, you know, call up and vote, you know, have their congressmen vote for. Yeah, I mean, right now, not, but, you know, the reverse is true, right?

Fighting against bad laws and certainly the repeal 230 Act is really, really problematic, and we should be aware of that. You know, fighting against other bad laws like COSA that I know you've spoken out against as well, I think is really important, making your voice heard, responding to the myths that keep getting spread. You know, when people say these things that are wrong, say, no, that's wrong and point them to the evidence that it's wrong. there are groups that are doing really good work fighting against this stuff. I mean, fight for the future has done amazing work, you know, fighting to protect Section 230. EFF continues to do tremendous work, fighting to protect Section 230. So there are groups out there that are doing this work. And so, you know, pay attention to them. And, you know, Ron Wyden continues to fight the good fight as well. He may be the only Senator left who's fighting for Section 230,

but, you know, follow what he's talking about as well. Well, Mike, thank you so much for your time and for joining me today. Yeah, thanks. This is always fun. All right, that's it for this week's episode of my Section 230 miniseries. As always, this series and my work is entirely self-funded. I have no advertisers supporting this series. I think that should tell you something. And every single dollar of your support makes such a major, major difference and allows me to continue things like this Section 230 mini series. It is completely funded by people like you. So if you like my work, please, please support me on Patreon via the link below or buy a paid subscription to my Substack newsletter at usermag.co. That's usermag.com. I send a biweekly roundup of everything that I'm reading

and following online. You can also get my newsletter through my Patreon where I do monthly Q&A live streams and more. Again, this is how I support myself. So seriously, every single dollar and every single subscription helps produce more content like this. I'll be back next week with a brand new episode of my Section 230 mini series and I'll see you guys then.