Section 230's Debts

Abstract

Much attention has been paid to the unknown First Amendment permissibility of the government regulating social media platforms’ carriage practices. The Supreme Court’s impending resolution of the NetChoice cases poses a high-stakes First Amendment question: “Can the government permissibly dictate what types of content platforms publish?”But how did the First Amendment stakes in NetChoice get so high?This Article identifies a long-standing gap in the Supreme Court’s First Amendment jurisprudence for platform regulation following its decision in Reno v. ACLU. This Article attributes that gap to the accumulation of both interpretive and legislative debts by Section 230 of the Communications Act that effectively have obviated the development of a substantive law of platform regulation. This Article explores three case studies for paying down Section 230’s debts: copyright law, the Fight Online Sex Trafficking Act (FOSTA), and the Florida and Texas social media laws at issue in NetChoice. Each case study highlights the possibilities and challenges for the tripartite gauntlet of substantive law, the First Amendment, and Section 230 itself that courts and legislatures must run to regulate platform carriage and moderation decisions.

Keywords: Internet law, First Amendment, Section 230, NetChoice, Paxton, Moody