One of the unresolved issues from the Trump Administration, which in part reflects the lack of nuance in Trump World, is what to do about Section 230.  Section 230 refers to a statute enacted back in 1996 as part of the Communications Decency Act which is currently codified at Title 47, Section 230 of the United States Code.

As currently written, Section 230 is a response to some basic principles of defamation law.  Generally speaking, a publisher (whether of books or newspapers) or broadcaster is responsible for the content that they publish or broadcast.  Thus, if I am Harper Collins Publisher and I publish a tell-all book written by a former White House aide, I am potentially liable if that book contains false information.  Similarly, if I am your local newspaper and I publish a letter to the editor or an ad in my paper, I am potentially liable if the letter to the editor or ad contains false information.  And if I am a television station and I broadcast an ad or a program which contains false information, I am potentially liable.  All of these entities are, usually, very selective in what they print or publish.  They either decline something that is potentially defamatory or they do what they feel is necessary to verify the allegations before publishing.

Now back in the 1990s, the internet was still in its infancy.  And many websites were letting users post content.  What is currently Section 230 arose from competing desires.  On the one hand, Congress wanted to create a mechanism that would permit those entities which were establishing the website to remove obscene content or content that violated somebody’s intellectual property rights.  On the other hand, website providers were concerned that playing any role in editing content would make them “publishers.”  The solution was contained in Section 230 (c).  That subsection contains three basic provisions.  First, the website owner would not be considered the publisher of any information posted by another on its website.  Second, the website owner would be immune from liability for any good faith efforts to restrict access to obscene or objectionable material (even if the material might be constitutionally protected).  Third, the website owner could also opt to provide users the ability to block access to certain materials. Continue Reading...