New Paper: Why Section 230 Is Better Than The First Amendment

from the they're-related dept

We've talked a lot over the years about the importance of Section 230 of the Communications Decency Act (CDA) in helping to create and enable the internet and all of the free speech on the internet. Expect us to continue to talk about it as it is increasingly under attack. Professor Eric Goldman has now released a short, and very worth reading, paper about Section 230, with the provocative title: Why Section 230 Is Better Than the First Amendment. The importance here is that many have argued that CDA 230 and the 1st Amendment go hand in hand. At times, in the past, I've argued that in a reasonable world we shouldn't even need a CDA 230, because the proper application of liability should obviously be with the person posting the law-breaking content, rather than the platform hosting it. But, that was clearly talking about in an idealistic world that does not exist. Given the frequency of lots of people -- plaintiffs, journalists, politicians, and more -- going after platforms for actions of their users, CDA 230's broad immunity is absolutely necessary if we're to have free speech online. Goldman's paper makes this clear:

If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that’s not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.

Goldman's paper lays out the argument very clearly (it's very readable for an academic paper). He notes that Congress has passed many laws that are "speech enhancing" beyond the 1st Amendment, which are often designed to make sure that the 1st Amendment is actually useful, rather than illusory. For example, he discusses things like shield laws for journalists, anti-SLAPP laws, and the recent Consumer Review Fairness Act, that bars companies from banning consumer reviews. As Goldman notes, there are reasons to go beyond the 1st Amendment to better protect speech:

The justification for speech-enhancing statutes is clear when the laws extend the First Amendment. For example, anti-SLAPP laws and defamation retraction-demand statutes create procedural hurdles to speech-related lawsuits that the First Amendment does not require. The CRFA governs private vendor-customer contracts, which typically do not receive First Amendment scrutiny at all.

The key point that Goldman makes is that most of these laws provide procedural benefits. That is, what good are your free speech rights, if someone can abuse legal processes to silence you. The important elements of things like anti-SLAPP laws and CDA 230 are in how they stop bogus lawsuits early and at a lower cost point than the 1st Amendment alone.

Section 230(c)(1)’s early dismissals are valuable to defendants. They reduce the defendant’s out-of-pocket costs to defeat an unmeritorious claim. For smaller Internet services, defending a single protracted lawsuit may be financially ruinous. Also, complex litigation can divert substantial managerial and organizational attention and mindshare from maintaining or enhancing the service. Thus, the ability of a defendant to resolve a case on a motion to dismiss (and avoiding expensive discovery) protects small and low-revenue Internet services; which in turn enhances the richness and diversity of the Internet ecosystem.

But, of course, it's not just about defeating bogus lawsuits. There are wider benefits to this procedural expeditiousness, including much better protection of free speech online than would happen otherwise:

Section 230(c)(1)’s early dismissals also benefit society in several ways. First, from a judicial economy standpoint, they save both parties from wasting valuable resources on doomed litigation. They also take meritless litigation off court dockets, freeing up the courts to handle other cases more carefully or quickly.

Second, Internet services rarely make a lot of money from any single item of third-party content, so they lack financial incentives to stand behind individual items. Also, the services often lack the facts sufficient to properly defend third-party content in court.

Accordingly, the most economically rational decision for most Internet services is to capitulate to any lawsuit over UGC—or avoid the lawsuit altogether by quickly removing third-party content in response to pre-litigation demands, without any investigation or pushback. This causes “collateral censorship,” i.e., the proactive removal of legitimate content as a prophylactic way of reducing potential legal risk and the associated potential defense costs.

Unmeritorious quick removals are common in online copyright law,57 because the UGC copyright safe harbor58 is less defendant-favorable than Section 230.59 In contrast, Internet services routinely stand up to non-copyright legal threats, legal demands, and cease-and-desist letters targeting UGC—because Section 230 provides them legal certainty at a relatively low cost.

And, of course, if everyone had to rely on using the First Amendment to defend such lawsuits, it would be a lot more time consuming and a lot more expensive:

Unlike Section 230, Constitutional litigation is rarely quick or cheap. In particular, courts are reluctant to resolve Constitutional arguments on motions to dismiss. Further, Constitutional doctrines often raise sufficient factual questions that courts wait until summary judgment (or later) before disposing of an unmeritorious case. Thus, Internet services will expect it to cost less to defend UGC via Section 230 than the First Amendment, which makes the services more willing to stand up for their users. And if Section 230 and the First Amendment both equally dictate defense wins, society as a whole benefits from reaching that result as quickly and cheaply as possible.

Importantly, Goldman points out that this kind of protection probably helps marginalized communities protect their speech the most. This is partly why it's so annoying that so many people seeking to attack CDA 230 lately have been claiming to do so on behalf of marginalized communities.

The services’ Section 230-aided commitment to their UGC especially benefits content from marginalized communities. Not only are marginalized voices more likely to be targeted by people in positions of power, but Internet services are less likely to worry about the consequences of removing content from marginalized communities. Compared to the First Amendment, Section 230 helps keep online the most “at risk” legitimate content.

I've seen some critics of CDA 230 already criticizing Goldman's paper, not on substance (because, how could they), but by misrepresenting it as suggesting that CDA 230 somehow supersedes the 1st Amendment. That's not what he's saying at all. What he argues -- clearly, carefully, and with great detail -- is that the procedural benefits of CDA 230 are vast and immense and are not simply replicated by the 1st Amendment should Congress continue to chip away at CDA 230.

Filed Under: 1st amendment, cda 230, civil procedure, eric goldman, free speech, procedures, section 230, speech enhancing