Section 230 — which we have lauded here before — is crucial to freedom of expression on the internet. It gives broad immunity (with the exception of copyright and federal criminal law) to blogs, forums, news services, and other web sites for comments or other content left by visitors. Thanks to Section 230, I can't be sued for what you say in the comments to this post. Absent Section 230, I would have to police my comments for potential defamation and potential violation of the laws of a thousand jurisdictions.
As the ACLU reports, several Attorneys General want to weaken Section 230 to create an exception for any federal or state statute. Their justification, not surprisingly, is Think of the Children! — specifically, the children who are victims of sex trafficking. The state Attorneys General do not explain why it is necessary to create an exception encompassing all state laws on whatever subject in order to address child sex trafficking.
What could possibly go wrong?
I mean, sure, this means that the proprietors of web sites can be prosecuted if one of their commenters says something that local police construe as a threat — as in the case of Justin Carter, prosecuted and jailed and stuck in solitary confinement for a stupid but clearly non-serious rhetorical flourish about an online game.
And, sure, some police departments think that satire is "cyberstalking," like the Renton Police Department, which sought search warrants to investigate cartoons making fun of the police. Sure, under the language sought by the Attorneys General, the police could pursue the hosts of such satire as well as the content-creators.
And sure, all sorts of local jurisdictions — and even states — have vague, broad laws forbidding speech, such as speech by electronic means that "annoys, ridicules, and disparages." Sure, blogs and forums and other sites could become criminally liable under those laws for the actions of their commenters.
And sure, some states have criminal defamation statutes, and on occasion some prosecutors have fallen so far as to obtain search warrants to investigate clearly satirical blogs. Sure, the Attorneys General plan would make that more likely.
Sure, some cops have a very broad view of what constitutes "harassment" and a willingness to use their power to threaten people who, for instance, leave negative Yelp reviews. Sure, the Attorneys General plan would let them threaten web sites as well as users.
And sure, courts across the country occasionally impose patently unconstitutional protective orders forbidding people from writing about specified subjects at all; under the regime proposed by the Attorneys General, web sites might be held liable for contempt along with their users if they allowed a user to address a subject in violation of such an abusive order.
And sure, under the Attorneys General plan, I will have to evaluate each demand or threat from local authorities across the United States, evaluate the laws of distant and unfamiliar jurisdictions, consider how judges and juries of other states might view me of my commenters leave disfavored speech, and risk financial ruin. Sure, the most rational response will often be to simply yield to criminal threats — whether from police or even from individuals threatening to make reports to police — rather than face criminal consequences to provide a forum for free expression. Sure, risk-adverse companies will be particularly likely to yield to threats.
But surely we can trust state and local law enforcement to wield this power responsibly, right?
I mean, sure, prosecutors are largely immune to any consequences for misconduct, and police use whatever tools available to them to attack expression they don't like. But we can trust law enforcement.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016