... Cox and Wyden’s bi-partisan collaboration gave us section 230 of the Communications Decency Act. The law did three things. First, it applied the common law rule that internet service companies like Prodigy are distributors, and not publishers of the third-party content they host. Second, the statute immunized the platforms from liability for certain “good faith” content moderation decisions. Third, the statute swept aside all State and local laws to the contrary. Instead of letting the law in this area develop, somehow this one-size-fits-all solution emerged from the Republican Revolution Congress. If you can find a provision for this tucked away inside the Contract with America, please let me know.
Section 230 has proven to be an impenetrable web for deplatforming plaintiffs. Courts have misinterpreted the statute to immunize Big Tech from liability, not just for third-party speech, which makes sense under the common law rule, but all moderation decisions. While small businesses are sued under any number of theories across this country ranging from false advertising to unfair and deceptive trade practices, Big Tech is largely exempt from these everyday challenges—regardless of the companies’ public, consumer-facing profession. Just think about Twitter executives’ public disavowals of shadow banning only to later learn that the company maintained blacklists without ever correcting the record in the same public way. You couldn’t run a lemonade stand like this without facing endless litigation, but Big Tech gets away with it....