I haven’t been blogging much lately because, along with my PFF colleagues Berin Szoka and Adam Marcus, I’m working on a lengthy paper about the importance of Section 230 to Internet freedom. Section 230 is the sometimes-forgotten portion of the Communications Decency Act of 1996 that shielded Internet Service Providers (ISP) from liability for information posted or published on their systems by users or other third parties. It was enshrined into law with the passage of the historic Telecommunications Act of 1996. Importantly, even though the provisions of the CDA seeking to regulate “indecent” speech on the Internet were struck down as unconstitutional, Sec. 230 was left untouched.
Section 230 of the CDA may be the most important and lasting legacy of the Telecom Act and it is indisputable that it has been remarkably important to the development of the Internet and online free speech and expression in particular. In many ways, Section 230 is the cornerstone of “Internet freedom” in its truest and best sense of the term.
In recent years, however, Sec. 230 has come under fire from some academics, judges, and other lawmakers. Critics raise a variety of complaints — all of which we will be cataloging and addressing in our forthcoming PFF paper. But what unifies most of the criticisms of Sec. 230 is the belief that Internet “middlemen” (which increasingly includes almost any online intermediary, from ISPs, to social networking sites, to search engines, to blogs) should do more to police their networks for potentially “objectionable” or “offensive” content. That could include many things, of course: cyberbullying, online defamation, harassment, privacy concerns, pornography, etc. If the online intermediaries failed to engage in that increased policing role, they would open themselves up to lawsuits and increased liability for the actions of their users.
The common response to such criticisms — and it remains a very good one — is that the alternative approach of strict secondary liability on ISPs and other online intermediaries would have a profound “chilling effect” on online free speech and expression. Indeed, we should not lose sight of what Section 230 has already done to create vibrant, diverse online communities. Brian Holland, a visiting professor at Penn State University’s Dickinson School of Law, has written a brilliant paper that does a wonderful job of doing just that. It’s entitled “In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism” and it can be found on SSRN here. I cannot recommend it highly enough. It is a masterpiece.
In the paper, Holland argues that Section 230 has helped give rise to our modern Web 2.0 world and that it “plays a vital role in [the] process of building heterogeneous communities that encourage collaborative production and communication.” Specifically, Holland argues that Sec. 230 immunity allows an online community:
to evolve and structure itself in the most efficient manner. To a limited extent, §230 immunity permits uncoordinated and uncoerced individual choice among different values and among different embodiments of those values. It further allows the intermediary to play an active role in facilitating the market in social norms and in creating enforcement mechanisms as a tool of self-governance. Those enforcement mechanisms can then themselves adapt. This allows not only for the development of distinct community values, but also for a means of tapping into incentives, adapting to evolving norms and conditions, and reducing costs associated with disputes. Within this framework, greater variations in community norms are possible. As communities grow, niche communities are formed at low cost. It… functions as a laboratory for testing social norms and values.
I think that is exactly right. Moreover, reading Professor Holland’s article got me thinking about something my favorite modern political philosopher, the late Harvard University philosophy professor Robert Nozick, said in his brilliant 1974 book, Anarchy, State, and Utopia. In a sense, Section 230 and existing online liability norms have helped foster what Nozick called “a utopia of utopias.”
Because people are all complex and quite different from one another, Nozick argued that, “There is no reason to think that there is one community which will serve as ideal for all people and much reason to think there is not.” Consequently, as a normative matter, it would be preferable for government to allow spontaneous community formation such that individuals can pursue their own interests. Nozick elaborated in the closing chapter of his book as follows:
The conclusion to draw is that there will not be one kind of community existing and one kind of life led in utopia. Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.
That last line almost perfectly encapsulates everything that is so wonderful about our modern Web 2.0 world. Netizens are free to pursue their own vision of a good life in a community of their choosing, free from centralized or coerced visions of what “a good life” should entail.
Web 2.0 is Nozick’s utopia of utopias, and Section 230 has been instrumental in fostering and protecting it. We shouldn’t forget that.