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Republicans set their sights on Section 230

Today’s delayed newsletter is brought to you by United Airlines, where I just spent an agonized cross
November 27 · Issue #253 · View online
The Interface
Today’s delayed newsletter is brought to you by United Airlines, where I just spent an agonized cross-country flight to Washington, DC, without functional Wi-FI. But I come bearing a treat: a guest post from The Verge’s editor-in-chief, Nilay Patel. Nilay took note of comments today made by Josh Hawley, the incoming Republican senator from Missouri, about an issue we’ll be watching closely here next year: efforts on both on the left and the right to curtail Section 230, the portion of the Communications Decency Act that in most cases exempts internet platforms from liability for what their users publish. Nilay is a lawyer as well as an editor, and I hope you’ll enjoy his perspective here. I’ll have more to say about today’s UK and FTC hearings regarding our favorite internet platforms tomorrow.
Why do Republicans make fools of themselves by misreading Section 230 of the Communications Decency Act? It’s not a hard law to read, but conservatives constantly use it to threaten platforms with legal action over moderation decisions that 230 explicitly protects. Earlier this year it was Ted Cruz (a product of Harvard Law School!) getting 230 completely wrong while questioning Mark Zuckerberg. And today we have Republican Senator-elect Josh Hawley from Missouri tweeting this nonsense
Twitter recently banned a Marine vet & conservative pundit, Jesse Kelly, without explanation. This follows Twitter’s ban of Canadian feminist Megan Murphy for her speech. @jack told Congress Twitter doesn’t target political speech. Is that true?
The new Congress needs to investigate and find out. Twitter is exempt from liability as a “publisher” because it is allegedly “a forum for a true diversity of political discourse.”  That does not appear to be accurate.
In addition to being the Senator-elect, Hawley is the current attorney general Missouri, and is a self-proclaimed strict constructionist of the law. So it’s hard to imagine that he doesn’t know how to read the plain text and meaning of a statute — and doubly hard to imagine that he can’t read the explicit text of 203©(1), which simply says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Twitter, of course, is the provider of an interactive computer service, and thus not to be treated as a publisher in cases like the one Hawley mentions. This is about as simple a refutation of Hawley’s tweet as is possible. It’s all right there in the statute!
Second, and more importantly, the only reason Section 230 exists is to give platforms the ability to moderate free of liability. The law was implemented in response to Stratton Oakmont v. Prodigy, a 1995 case where the investment firm now immortalized in the film The Wolf of Wall Street sued Prodigy over message board posts it claimed were defamatory. The court found that since Prodigy moderated its message boards, it exerted the same editorial control as a publisher, and was thus liable for what was published. 
Holding Prodigy liable for every post on its message boards was, of course, insane, and Congress responded by including 230©(2) in the Communications Decency Act, which says ”No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 
You can see how Hawley might have gotten confused over this sequence of events if he were just a regular person and not, say, the current attorney general of Missouri.
Lately there’s been a bipartisan chatter around creating carve-outs to Section 230 that create liability for platforms on both sides of the aisle — the controversial FOSTA-SESTA bill most recently made platforms liable for posts that assist in sex trafficking. And Senator Ron Wyden, who wrote Section 230, told The Verge’s Colin Lecher in July that he’s open to more 230 carve-outs if the platforms don’t get their act together with moderation. 
But none of this has anything to do with the nonsense being peddled by Republicans like Hawley and Cruz,who seem intent on getting both the legislative intent and plain text of 230 exactly backwards. It’s baffling — especially since the underlying policy is so easy to understand. 

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