Photo by Carlos M. Vazquez II on Wikimedia Commons

The Future of Section 230 as a New Administration Takes Office

As President Trump feuded with social media giants Twitter and Facebook throughout 2020, Section 230 also had a rather tumultuous year. Section 230 of the Communications Decency Act shields online intermediaries from liability for user-generated content, was thrust into a surprisingly prominent place on the legislative agenda. In the waning weeks of his presidency, Trump vetoed the National Defense Authorization Act, an annual ‘must pass’ military spending bill because it failed to address his Section 230 concerns. The following week, Sen. Mitch McConnell tied a repeal of Section 230 to high-profile Covid-19 relief legislation in a move widely regarded as a poison pill attempt to defeat the legislation. Then, following the deadly January 6 attack by rioters on the U.S. Capitol, Twitter, Facebook, and other platforms permanently banned Trump’s accounts in a move that significantly altered public perception of the role of social media platforms in public discourse.

As the new Administration settles into office, it is worth considering what is next for Section 230. While President Trump was unsuccessful in passing any repeal or reform of the law during his term, he succeeded in bringing the provision to the forefront. Democrats and Republicans have both criticized the protections afforded by Section 230, increasing the likelihood for open debate that may trigger reform. While President Biden may place Section 230 reform lower on his priority list than President Trump did, Biden’s own attempt to suppress an ad circulated on Facebook accusing him of blackmail in Ukraine led him to say that Section 230 should be ”revoked, immediately.” In that interview, Biden suggested that social media companies which propagate known falsehoods should be held liable as publishers, similar to newspapers and print media. Bruce Reed, Biden’s incoming Deputy Chief of Staff, indicated that it was time to start holding social media companies accountable, and the events of January 6 have only made calls for regulation more urgent.

Although both parties seem to agree that Section 230 needs an overhaul, the parties’ different motivations for this change could serve as a barrier to finding agreement on reform. Section 230 shields companies like Twitter and Facebook from liability for choosing to moderate content on their platforms and applications, but it also shields companies like Parler and Gab from liability for choosing not to moderate content. While many Republicans are focused on a perceived anti-conservative bias on the major platforms, most Democrats are more concerned with the spread of misinformation and hate speech on unmoderated platforms. In short, conservatives want to restrict social media platforms from taking too much action on content moderation, while liberals want platforms to rein in misinformation. These differing motivations make it unclear whether major areas of agreement can be reached in the immediate future.

However, even if these differences make major overhaul unlikely, there are some specific areas of consensus that would allow targeted amendments to succeed. These consensus goals include greater preventative measures against the proliferation of illicit material, including child abuse media, terrorist propoganda, online harassment, and copyright violations. The Justice Department cited this illicit material concern as a secondary purpose for its September reform proposal on Section 230.

On January 20, Democrats gained control of the House, Senate, and Presidency for the first time in a decade, and we can expect the Democrats will propose a flurry of legislation during this period of unified governance. It is still unclear whether Congress will prioritize potential Section 230 reform, but the recent controversy over platform accountability suggests that it will be an important issue to monitor over the next two years.

Sam Pickerill

GLTR Staff Editor; Georgetown University Law Center, J.D. 2021; Duke University, B.A. 2018