Reasons Why Section 230 Remains Essential for the Internet

Ron Wyden has been a senator from Oregon since 1996 and is a co-author of Section 230 of the Communications Decency Act. In American politics, it has become common to attribute nearly all internet problems to this law that I wrote. From former President Donald Trump to some of my Democratic colleagues, many argue that Section 230 allows large tech platforms to overly moderate or insufficiently moderate content. The Chairman of the Federal Communications Commission during the Trump administration, Brendan Carr, has already expressed his intention to reinterpret the law.

However, many of these claims give Section 230 too much credit. While it is fundamental to free speech on the internet, its impact is lesser compared to the First Amendment and the decisions that Americans make about what they want to see online. I am convinced that this law remains as necessary today as when I drafted it with Representative Chris Cox in 1996.

Trump criticized Section 230 during his first term as president. In his second term, his administration is using its influence to pressure television stations, newspapers, and social media companies to align with its will. The large tech platforms, which have powerful legal teams, seem willing to accommodate Trump and other government censors, as long as they are allowed to continue earning billions through targeted advertising and the handling of Americans' private information. Without Section 230, potential competitors would have little chance of emerging.

An example of this is Bluesky, which has gained millions of users in just a few months as users leave X. Without Section 230, anyone dissatisfied with a moderation decision by Bluesky could initiate a devastating lawsuit for multiple reasons, drowning it in legal costs even if they won. The next emerging platform might never launch, leaving users with no alternatives against the government-favored Big Tech cartel.

Critics of Section 230 often argue that the internet has fundamentally changed in the last three decades. However, the 26 key words of the bill were drafted to address the same challenges we face today: keeping children safe online, leveling the playing field between established corporate interests and small innovators, and ensuring that it is individuals—rather than the government—who control what we see on the internet.

This occurred in 1995, when Chris Cox and I had a weekly lunch at a small space near the House of Representatives’ official dining room. No one was surprised to see a conservative House member from California and a liberal congressman from Oregon exchanging ideas, unless someone happened to pass by and overhear our conversation about the internet. In 1995, only about 20 million people in the U.S. had access to the web, there were approximately 100,000 websites (today there are over 2 billion), and the most popular destinations we know today did not exist.

For both of us, the internet represented a crucial opportunity for our communities. Oregon's economy was booming thanks to its timber sector, but I knew my state needed to attract new industries. Chris’s district had been a center for the aerospace industry for decades, but the end of the Cold War had hit the sector hard. For us, the internet was “one of the hottest new markets in years,” according to Morgan Stanley, which accelerated the pulse of two young congressmen seeking to create good jobs in their districts.

During that period, Congress was in the middle of a necessary review of the Communications Act of 1934, which regulated the phone industry and the radio spectrum. Most lawmakers saw this as an opportunity to eliminate stifling regulatory restrictions. However, while some of us saw economic growth opportunities in the internet, others associated it with pornography.

During the discussion of the new communications law in 1995, a senator from Nebraska, James Exon, read a sentence in the Congressional Record calling for “the wisdom to create regulations” aimed at “controlling the pollution of computer communications.” Exon proposed a separate bill to ban “obscene, indecent, and harmful” content on the internet. Known as the Communications Decency Act, its intention was to prevent anyone under age from encountering “any comment, request, suggestion, proposal, image, or other communication that, in context, represents or describes, in terms patently offensive by contemporary community standards, sexual or excretory activities or organs.” The legislation not only penalized those who drafted or produced such content but also the websites and internet service providers that allowed access to it.

The CDA would have stifled the internet from its inception. Exon believed that if the government had used FCC licensing and the so-called fairness doctrine to regulate broadcast speech for decades, the same could be done with speech on the web. But at that time, there were about 15,000 radio stations and 1,700 television stations in the U.S., and only a handful of national networks. On the internet, as Chris wrote in a later analysis, “the number of content creators—each a ‘broadcaster’, so to speak—was equal to the number of users. Soon it would expand from hundreds of millions to billions.”

Since then, both Chris and I understood that it was physically impossible for the government, service providers, or platforms to pre-filter the avalanche of internet content to detect any “indecency.” Exon’s proposal was a recipe for establishing new, vast, intrusive, and ineffective government bureaucracies. Furthermore, a couple of recent court decisions had created a troubling precedent, effectively punishing internet portals—what would later be similar to Facebook or TikTok—for trying to remove that type of “indecent” content that Exon and other lawmakers feared.

Despite this, in the U.S. Senate, less than half of the senators had email. Exon’s bill passed with a vote of 84 to 16. Our colleagues in the House were not much better off, as barely a quarter had email, and we were quite sure they would support the proposal. Who wanted to appear weak in the face of pornography?

We needed an idea that could connect many dots. It had to be big but simple. It had to appeal not only to both political parties but also to the conservative and liberal factions within each party. The idea I proposed to Chris was to create a shield of liability that combined conservative and liberal concepts. From the Republican orthodoxy, we would draft a law that evaded Big Government and leaned 100% in favor of parental control over children’s internet use. From the liberal Democratic side, we would create a law that blocked government censorship of speech and would be uncompromisingly pro-user privacy.

With these elements in mind, we named our project the Internet Freedom and Family Empowerment Act. Some critics of Section 230 argue that it has granted special rights to internet platforms. However, at the heart of our proposal, we simply applied four principles and rights rooted in the internet.

First, a distributor is not an editor. My wife, Nancy Bass Wyden, is the third generation of owners of the famous New York bookstore Strand, which offers 2.5 million titles, but none of them are edited. Chris and I wanted to clarify that the same relationship existed between websites and the individual creators who published there.

Second, the distribution of content is as protected as its creation. Governments do not only lack the authority to prohibit an editor from printing a book, but they cannot stop a bookstore from carrying it either. Chris and I regarded this as a perfect analogy for the danger online sites faced that accepted user submissions, and we wanted to make it clear that content creators on the internet and their distributors had the same protections as those working in print or broadcasting.

Third, distributors have the right to determine what content they will carry and under what conditions, and that those decisions do not turn them into editors. Fourth, only the speaker, writer, or actual editor of the content is responsible for that content. Can people be defamed on the internet? Absolutely. Can innocent parties be affected by misinformation or negligence? Certainly. Can the legal system provide remedies? Of course: the same kind of remedies available for individuals who claim to have been harmed by content in other media.

The main objective for Chris Cox and me was to give the internet the same fundamental principles of freedom and responsibility that other media had. The best part—something we thought then, and I still think now—is that we encapsulated these principles in the simplest way possible, using 26 carefully selected words: “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.”

Internet pornographers who illegally target children, or people who defame and harass others, remained subject to the same laws that applied to them. However, that heavy burden did not fall on internet platforms and service providers.

We made it very clear to House members that they faced a choice: they could empower parents to filter the content their children could access, or they could establish a Big Brother-style censorship program, with thousands of government employees using hundreds of millions of taxpayer dollars to review and approve every piece of content before it reached the web.

The fate of our project was an anti-climax, but a welcome one. It passed with an overwhelming 420 to 4 in the House. A few months later, the Supreme Court unanimously declared most of Exon's Communications Decency Act unconstitutional. Only the provision of 26 words, still known as Section 230 of the CDA, survived.

What Chris Cox and I observed in a nation without Section 230 was a media and technology world dominated by the big gatekeepers who had governed their industries for much of the 20th century; a world where hosting a website would require an army of lawyers, creating a new barrier to entry that would keep media in the hands of a few. The law we drafted was an affirmation of the right to publish freely in this technology-enabled world. We knew well the old adage of A. J. Liebling, “Freedom of the press is guaranteed only to those who own one.” We wanted to continue guaranteeing that freedom in the new world, where everyone owns a press they carry in their pockets.