Reasonableness as Censorship: Section 230 Reform, Content Moderation, and The First Amendment
37 Pages Posted: 30 Mar 2021
Date Written: January 11, 2021
For the first time in the Internet’s history, revising the Communications Decency Act’s Section 230 to permit greater liability for social media platforms’ carriage of third-party content seems to many not just viable, but necessary. Most of these calls are built around the longstanding common law liability principles of duty and reasonableness. The use of reasonableness in the Section 230 context would condition the liability of social media platforms on a requirement that the platforms “take reasonable steps to prevent or address unlawful uses of their services.” These reforms are finding common cause with several legislative and executive efforts seeking to compel platforms to adhere to “reasonable” or “politically neutral” moderation policies, or else face increased liability. And calls for entirely new regulatory regimes for social media, some of which call for new federal agencies to implement them, advocate for similar approaches.
This Article is the first comprehensive response to these efforts. Using the guidance of the common law to unpack the connections between reasonableness, imminence, and intermediary liability, the Article argues that these proposed reforms are misguided as a matter of technology and information policy and are so legally dubious that they have little chance of surviving the court challenges that would inevitably follow their adoption. It demonstrates the many problems associated with adopting a common law-derived standard of civil liability like “reasonableness” as a regulatory baseline for prospective platform intermediary fault. The Article also discusses the challenges that the use of Artificial Intelligence-driven content moderation presents to the task of defining reasonableness, and considers the fit between content moderation and products liability, another common law fault theory increasingly used to argue expanding intermediary liability’s scope. “Reasonableness”-based Section 230 reforms would also lead to unintended, speech-averse results. And even if Section 230 were to be legislatively revised, serious constitutional problems would remain with respect to holding social media platforms liable, either civilly or criminally, for third-party user content.
Keywords: First Amendment; Technology Law; Internet Law; Constitutional Law; Torts
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