Don’t Repeal the Law That Created the Internet

by BERIN SZ Ó KA

Whatever reforms they might propose, serious legal scholars understand that Section 230 includes the twenty-six words that created the Internet. Drafted by Rep. Chris Cox (R-CA), the law is exactly the kind of “ forward-looking leadership” and “ pragmatic ” legislation the Ripon Society was founded to promote. Without Section 230’s protections, both providers and users of “ interactive computer services” could be sued as the “ publisher” of content they didn’t create – providers for hosting it and users for resharing or quoting it. Such lawsuits would be easy and cheap to file but many times more expensive to defend; and with billions of pieces of content posted each day, there would be an avalanche of them.

Some note that other countries seem to do well enough without Section 230. True, but none has anything like our legal system. In virtually every other democracy, the loser pays both sides’ costs of litigation. Not so in America, where defending against litigation is also uniquely expensive.

In the sorts of lawsuits websites would face routinely without Section 230, a defendant’s motion to dismiss a complaint routinely costs $15,000 - $80,000. Unless a judge grants such a motion, plaintiffs can compel defendants to produce extensive internal correspondence and witnesses. Battling over discovery can cost defendants hundreds of thousands of dollars.

A motion for summary judgment, usually prepared after discovery, can cost another $15,000 - $150,000. Trials cost much more. Juries regularly award staggering damages, often based largely on their antipathy towards a defendant. Add to that the uniquely American proliferation of class actions, which multiply damage claims across tens or hundreds of millions of users. Considering all this, it is unsurprising that the U.S. has fifteen times more lawyers per capita than Canada. Truly, we live in a lawyer’s paradise.

Without Section 230, as one leading appellate judge (a Republican appointee) put it, websites would “ face death by ten thousand duck-bites.” Most websites that host usergenerated content aren’t run by corporate titans; they’re small, community-based, or hobbyist endeavors, often nonprofits, with modest budgets and few lawyers. A single lawsuit would crush most of them.

Facing such costs routinely , who would ever risk liability for user-generated content? From blogs to podcasts, from Wikipedia to social networks, today’s user-driven Internet simply wouldn’ t exist. Section 230 ’s unserious critics never acknowledge that the law protects all these services — and users — equally. They call the law a special subsidy for “ Big Tech.” Those companies didn’t exist back in 1996 and they never would have gotten off the ground without Section 230.

And who would use a social networking service? Would you retweet someone else’s content if you risked being sued for it? Ask President Donald Trump, who invoked Section 230 to dismiss just such a defamation lawsuit.

(cont’d on page 23)