Read: Donald Trump’s unprecedented assault on the media
Although the actual legal effect of the order remains unclear, its intent is not. Democracy is impossible if private citizens cannot publicly oppose their leaders. The ultimate goal of Trump’s retaliation is to chill criticism of his actions and behavior, by sanctioning online platforms that engage in such criticism. Contrary to the president’s claim, Twitter was not “stifling free speech” by criticizing the head of state. But in directing the federal government to punish Twitter and other social-media companies, Trump was engaging in a form of censorship.
Social-media companies have First Amendment rights. They are allowed to define their own terms of service, and to decide who is in violation of them. Twitter is no more obligated to let you use its service than a restaurant owner is to serve you if you are not wearing shoes or a shirt. This has worked to Trump’s benefit—although his posts frequently violate the terms of service of social-media platforms, his power and influence means that the companies are loath to remove him for his transgressions.
Nor would removing the liability protections of Section 230 necessarily lead to a fairer, less moderated internet. Although some conservatives, prodded by Republican lawmakers, have suggested that the law’s protections are conditioned on platforms’ remaining neutral toward political viewpoints, no such provision exists in the text of the law, and such a requirement would raise its own free speech issues.
What Section 230 does do is keep companies from being sued when one of their users makes a defamatory claim, like falsely accusing someone of murder, as Trump himself has done repeatedly to the conservative cable-news host Joe Scarborough over the past few weeks. Trump, as president, enjoys some protections against defamation suits, but removing the protections of Section 230 would make online publishers more, not less, likely to moderate the things their users write, lest they be sued for a fraudulent or defamatory claim. Every restaurant review, comment section, or status update would become a liability risk for the company hosting them.
There is a genuine debate to be had about the limits of Section 230. As Sarah Jeong wrote in The New York Times last July, the liability shield prevents platforms from being sued for libelous claims made by users, but it has also been used to protect companies that refuse to take down revenge porn. The presumptive Democratic nominee for president, Joe Biden, has argued that Section 230 should be revoked to prevent platforms like Facebook from promoting false information. Senator Ron Wyden of Oregon, the lawmaker who wrote Section 230, has defended the provision, arguing that “If you unravel 230, then you harm the opportunity for diverse voices, diverse platforms, and, particularly, the little guy to have a chance to get off the ground.” Whether you think these arguments are good or bad, they are at least tied to what the law actually does. As Jeong wrote, “there can be no honest debate over a version of C.D.A. 230 that doesn’t exist.”