Committee Talks Sunsetting Section 230 to Prompt Action by Big Tech

Section 230

Yesterday, the House Energy & Commerce Committee held a hearing to discuss draft legislation that would sunset Section 230 of the Communications Decency Act on December 31, 2025. If passed, the law would start a countdown toward abolishing Section 230 with the real intent to force Big Tech to cooperate on meaningful reform. Said reform would seek to mitigate the worst harms facilitated by misapplication of the law as a blanket liability shield for online service providers (OSPs) who host user generated content (UGC).

The Committee heard from witnesses Carrie Goldberg, a prominent attorney for victims of cybercrime; Marc Berkman, CEO of Organization For Social Media Safety; and Kate Tummarello, Executive Director of Engine, an advocate for “pro-startup and pro-innovation policy.” Goldberg and Berkman testified in favor of the sunset proposal, and Tummarello testified against the bill, though she stated more than once that her constituents are not opposed to Section 230 reform.

Thus far, most congressional hearings about “holding online platforms accountable” have been political theater, and this hearing was no different, other than the fact that the sunset proposal is overtly theater. Committee members acknowledge that the goal is not to abolish Section 230, or at least not its original intent, but we shall see whether the sunset bill becomes law and, if so, whether it compels the tech giants to negotiate in good faith.

In the meantime, it would help if Congress would stop echoing Big Tech’s main talking point—namely that Section 230 is about free speech, let alone speech neutrality. While most Committee Members reflected understanding about the serious harms facilitated by the erroneous application of Section 230, a few Members made parenthetical comments about protecting speech, and Rep. Harshbarger (R-TN) opined that “liberal sites like Facebook” censor “conservative” content.

Aside from this recurring allegation being unfounded in fact, Section 230 has nothing to do with the speech right or with viewpoint neutrality. Indeed, if it did—if Congress wrote a law mandating content neutrality, THAT would be a violation of the First Amendment. As Goldberg stated during questioning, “The platforms are free to moderate however they want.” So, every time Congress mentions speech in context to Section 230, it only amplifies Big Tech’s big lie that their platforms are an “engine of free expression,” which is unhelpful to sensible amendment of the law.

To clarify that point, yes, platforms host a lot of expression, but the OSPs are not bound to foster content neutrality by the First Amendment, and they do no such thing by operation of their sites. It is a matter of record that the social platforms adjust their algorithms to push or demote content for users based on user behavior in a constant and dynamic interplay between the two. The goal of these operational decisions has nothing to do with the speech right—indeed one can argue they stifle speech in several ways—and everything to do with maximizing profitability for the platform.

Next, it would be great if Congress could keep its eye on the ball and remember that Section 230 reform is not about creating new direct liability for all online platforms for harm done by users. To put it bluntly, Section 230 reform is about instructing the courts to stop tossing out every claim and every prayer for injunctive relief, solely on the basis that the statute requires this result at summary judgment. That was never the intent of the law, but the courts’ conclusions to the contrary demand that Congress act.

Nevertheless, during Q&A with witnesses, some Members seemed either to mischaracterize 230 reform as new regulation or as opening the door to a flood of direct liability claims. Here, Tummarello, as a representative for startups, stressed the fact that small companies cannot compete with the giants by moderating every post and comment on their sites. Frankly, the tech giants can’t achieve this goal either, but this is part of the theater because the concern is only relevant if Section 230 is indeed abolished.

By contrast, reforming the law does not need to oblige every platform to catch every potentially harmful bit of content. Indeed, sensible and workable reforms have been proposed by, for instance, Danielle Keats Citron recommending small but significant changes to the language. The goal is to retain the original intent to shield “Good Samaritans” against wanton lawsuits while directing the courts to find that relevant facts can void the liability shield.

For example, one of Carrie Goldberg’s high-profile cases involved a man named Juan Gutierez who used the dating app Grindr to target Matthew Herrick for harassment, abuse, and physical violence. Gutierez created a fake account pretending to be Herrick and invited random men to find him and fulfill his “rape fantasies.” Section 230 has nothing to do with the conduct of Gutierez, who was convicted for his crimes, but the law shielded Grindr from even going to court, despite Goldberg presenting evidence that volitional conduct by the platform caused and exacerbated the harm to Herrick. In short, Goldberg et al. are simply asking Congress to instruct the courts to allow meritorious claims against OSPs to be litigated—just as with any other defendant operating any other type of business.

Equally frustrating in this regard is the importance of injunctive relief, and I was surprised not to hear it come up during the hearing. Amid all the talk about Section 230 “fostering innovation” by shielding startups from a flurry of lawsuits, people lose sight of the fact that a platform need not be directly liable, or even a named party to a suit, to simply do the right thing and remove harmful material upon request. Unfortunately, the culture and profit motives of OSPs too often resists removing any material ever, and Section 230 has prevented courts from ordering those removals to mitigate harm to victims.

Presumably, there will be some wailing and teeth-gnashing from the usual suspects who defend the status quo of the “internet as we know it.” The EFF already groused about the sunset proposal ahead of the hearing, and we’ll see who else joins that peanut gallery. Either way, it is frustrating to know that meaningful reform can be achieved by changing a few key words in the statute—words that would maintain the original intent of Section 230 but which would stop protecting platforms over people. As Carrie Goldberg testified, the Seventh Amendment demands that victims of sexual abuse, trafficking, drug-related scams, harassment, and other devastating harms must all have their day in court.

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David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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