How is that a constitutional question?

The whole point of 230 was to answer that: "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".

Some courts had said that filtering makes the provider a publisher and liable for the content. Congress passed 230 to reverse that.

Do I understand you correctly that you're talking about whether discretionary content filtering by a platform makes them into a publisher? This would mean that protections that apply to platforms wouldn't apply to them anymore for things like copyright infringement, right?

Section 230 provides immunity to Google and similar for content posted by other users and services. The notion that section 230 requires that Google be neutral in order to maintain that protection is not in the text of the law, and appears to be made up out of whole cloth. I will quote the entirely of section 230 below, see for yourself.

> 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.

> Section 230 provides immunity to Google and similar for content posted by other users and services.

To be more clear, Google and other web publishers already enjoy immunity for content posted by other users and services. That is the default state of things under American law.

What section 230 does is preserve their immunity even if they exercise editorial discretion over some of the content that other users/services post. Without section 230, they would still have immunity. But they'd lose it as soon as they did any moderation at all of user-provided content.

This is not true. The default state of US law was that those who published without moderation were protected, and those that did moderate were not. Section 230 was created specifically because publishers who moderated user generated comments had been successfully sued for defamation [0].

Section 230 did not preserve any rights at all, it created entirely new ones. Companies were previously able to enjoy common carrier immunities, if they behaved like common carriers. Section 230 granted them those immunities without giving them the obligation to behave like common carriers.

It's hard to argue that the legislature in 1996 were imaging the future we would have in 2020 where the vast majority of content is controlled by such a small collection of companies, and where those companies often operate a lot like a cartel when it comes to moderation of that content. Section 230 is really the only example we have of common carrier immunities being granted to non-common carriers. The reason you don't see that more often is because it creates exactly this set of problems. It's clear that section 230 has had impact far beyond the scope of the 1996 legislation, the world has changed significantly since then, and those problems really should be addressed.

[0]: https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prod....

Congress couldn’t possibly imagine that Google would exist when they passed Section 230, because Google probably wouldn’t exist without Section 230. Section 230 is generally credited with helping birth the modern Internet, without Section 230 the Internet would still look like it did in the 1980s; small and non-commercial.

None of the innovation that Google brought to the internet on its' way to becoming an internet giant relied on Section 230. The business of search and adds do not rely on Section 230 protections in any way.

Like any other regulation, it harms small businesses disproportionately to the costs it imposes on large ones. There are plenty of examples of regulations that are appropriate to apply to large businesses, but much less appropriate to apply to small ones. Luckily, this incredibly old problem has been solved many times over through the idea of having regulations apply to companies after they reach a certain size. There is little harm to society in allowing small content distributors full editorial control over their distribution channels. There is significant harm to society in allowing that same level of control to entities which control an enormous majority of modern content distribution.

This trope that "the internet wouldn't exist without Section 230" is just an overused excuse that people peddle out to distract from the fact that regardless of how important it was in 1996, as the internet has changed, this law is now responsible for an entirely new category of very serious problems, that really weren't envisioned at the time it was written. It also ignores the fact that these problems can be easily fixed without removing the elements of it which have been beneficial to the growth of online services.

> This is not true. The default state of US law was that those who published without moderation were protected, and those that did moderate were not. Section 230 was created specifically because publishers who moderated user generated comments had been successfully sued for defamation [0].

> Section 230 did not preserve any rights at all, it created entirely new ones. Companies were previously able to enjoy common carrier immunities, if they behaved like common carriers. Section 230 granted them those immunities without giving them the obligation to behave like common carriers.

It's kind of funny for you to open with "this is not true" and then go on to agree with everything I said. What part did you think wasn't true?

The bit where you claim that section 230 does not in fact create an entirely new set of legal protections for content distributors...

Just think about it for a split second.

I said that in the world without section 230, you start with immunity from responsibility for content provided by other parties, and you lose that immunity if you moderate those other parties' content.

Whereas, in the world with section 230, you start with immunity from responsibility for content provided by other parties, and you keep that immunity if you moderate those other parties' content.

On the other hand, you've provided the counterpoint that everything I said is absolutely correct, and I should be ashamed of putting out such ridiculous misinformation.

You are trying to disagree as strongly as you possibly can -- despite the fact that you agree with me in full. What's going on?

> the term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information

By selectively funding the development of information they favor, YouTube or app stores could be considered in part responsible for the creation of that information, in which case that section would not protect them, because they would then be the information content provider, not merely a provider of an interactive computer service.

That strikes me as a theory that began with a desired outcome first, as the law does not use the language you’re using, nor does it include any of the distinctions you’re trying to draw. There is no “unless if there’s an ad revenue sharing system” exception to 230.

Aside from the details of 230, I would think long and hard about the unintended side effects of what you’re proposing. Attempts to control what Google and similar can and cannot moderate either results in Google having no moderation power at all (a disaster for the entire internet), or gives the government the power to decide what and what is not protected from Google’s moderation (which is contrary to the point of this exercise).

It's just a rephrasing of the theory that Google is acting like a publisher (information content provider) not a platform (interactive computer service), showing that interpretation is consistent with the text of the law. It's also consistent with the intentions of the lawmakers, as stated[1]:

> the Internet and other interactive computer services offer a forum for a true diversity of political discourse

> to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services

The law was not intended to protect a near-monopoly throwing its weight around in the political arena, or a duopoly blocking competition with their own apps.

And if that interpretation did somehow give the government the power to decide what is and what is not protected, that would still be an improvement over the present situation, because the government at least answers to the people and the Constitution, and right now nothing is protected.

1: https://www.law.cornell.edu/uscode/text/47/230

> It's just a rephrasing of the theory that Google is acting like a publisher (information content provider) not a platform (interactive computer service),

You are creating a test for platform vs. publisher that is not in the law. The law as linked does not even prohibit the censorship of political opinions, and in fact states that internet service providers may block constitutionally protected speech. It may be intended to free the Internet up for political discourse, but that doesn’t mean we get to totally ignore the text of the law and make up what we think it should be doing.

> The law was not intended to protect a near monopoly throwing its weight around

It wasn’t intended to do that, but that’s what it does. You don’t get to ignore the text of the law because you think it’s not acting the way you want it to. Legal systems work off the text of the laws, not what you think they should be doing.

Also, there are damn good reasons why I advise caution in these areas; unintended consequences are the norm and not the exception here. Section 230 wasn’t designed to protect monopolies, why do you think that trying to make Google “fair” wouldn’t have other unintended consequences?

Besides, if your problem with Google is that they’re a monopoly, why not use anti-monopoly laws? You can target Google specifically with those without the risk of putting all internet speech under the jurisdiction of the courts.

> And if that interpretation did somehow give the government the power to decide what is and what is not protected, that would still be an improvement

It might feel cathartic to use the power of government to force Google to do what you feel is expedient right now, but it’s something we’ll all come to regret. Understand that the nature of democracies is that people you disagree with will one day wield power, giving them the ability to control speech on the Internet is not a wise long term strategy.

> You are creating a test for platform vs. publisher that is not in the law.

There's a clear distinction between "publisher" (information content provider) and "platform" (interactive computer service) in the law. But the law provides no test for which category a particular entity falls into, so we have to provide this. No one is claiming that the proposed test is the current test, just that it's a good test, consistent with both the letter and the spirit of the law.

> That doesn’t mean you get to change what the law does on your own

Of course I don't. But the courts do, and when they do so, they consider the legislature's intent. If an interpretation is consistent with both the wording and intent, even if it isn't the original interpretation, it's possible to convince judges to adopt it.

> It might feel cathartic to use the power of government to force Google to do what you feel is expedient right now, but it’s something you’ll come to regret.

That sounds like fear mongering. If we can trust the US government to do anything, its to respect the first amendment. And if the day comes when we can no longer trust the US government to respect the first amendment, then this discussion is pointless, because at that point we'll have lost all freedoms.

But it's clear now that we cannot trust Google to respect freedom of speech. Of the two, in this narrow case, the government is more trustworthy than Google.

Section 230 provides a very clear definition of what an “Interactive Computer Service” is, and makes it very clear that someone who provides one cannot be considered to be the publisher, full stop.

> The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

> 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.

These two combined mean that you cannot find a way to consider Google to be a publisher under section 230. If they meet the definition of an Interactive Computer Service, then they cannot be a publisher under 230.

> But the courts do.

The courts have not weighed in on this aspect of Section 230, but they taken a very expansive view of the level of immunity that it grants. Particularly interesting here would be Blumenthal vs. Drudge, which granted AOL Section 230 immunity even though the content in question was written by AOL’s contractor, which is probably closer to the line than moderation.

Outside the courts, the general legal consensus is that Section 230 does not require impartiality or neutrality at all, based on both the text of the law and the congressional record around when it was passed.

> That sounds like fear mongering. If we can trust the US government to do anything, its to respect the first amendment.

Or, you know, it’s in line with the past few centuries of liberal democratic tradition to limit the power of the government in the area of free speech. The point of the 1st amendment is explicitly to get the government out of the business of deciding what is and is not acceptable speech. You would put it back into that process.

Also, you probably shouldn’t trust the government too openly here. Ever heard the phrase “shout fire in a crowded theater”? It comes from a supreme court case that jailed somebody for protesting WW1 (Schenck v. United States). That bad precedent stood for 50 years. Just saying.

Of course, there are so, so, so many practical problems with just saying “Google cannot block anything that’s protected speech.” Pornography is protected, violent videos are protected, hate speech is protected. Much of the internet becomes completely inoperable if you set the bar at protected speech; surely we’ve all seen enough poorly moderated forums to predict that.

It’s easy to imagine a scenario where Google can block “obscene” speech but not political speech. But where is that line? And who do you trust to have permanent, hegemonic power to decide what is and is not offensive for the entire Internet? Remember that we got into this mess partly because one group of people decided that another group of people’s political opinions were offensive; do not assume that they wouldn’t use the power of the government to suppress each other given the opportunity.

> Section 230 provides a very clear definition of what an “Interactive Computer Service” is, and makes it very clear that someone who provides one cannot be considered to be the publisher, full stop.

Note the word "another" in "another information content provider". The law plainly doesn't protect them for content they are responsible (even only in part) for creating, and by paying for some content and not other content, they're taking an active hand in choosing what content is created. In other words, they are, in part, responsible for the creation of that content.

> where is that line?

That's a question to be answered by democracy, not in a corporate board room.

And private control of the means of communication has never been unrestricted. Surely you're familiar with the regulations that once governed the television networks.

> If Google is paying for some content ... then they’re acting like a publisher.

There is case law to the contrary. AOL was granted 230 immunity when the issue at hand was about what a contractor of theirs said.

> That’s a question to be answered by democracy, not in a corporate board room

Or we could encourage a proliferation of choices on the internet, rather than handing whichever party is in power the right to suppress the speech of the other.

> Or we could encourage a proliferation of choices on the internet, rather than handing whichever party is in power the right to suppress the speech of the other.

I'm talking about preventing Google from exercising that power, not giving that power to the government. No one is proposing to repeal the first amendment.

I'm very much in favor of a proliferation of choices on the internet, but we don't really have that at the moment, and we need regulations that cover the situation we actually find ourselves in, not the ideal situation.

I’ve already made this point at least twice; getting the government involved in preventing Google from moderating content is giving the power to the government. Unless if you want to completely ban the ability of Google to moderate anything, then you are giving the power to someone to decide what is and is not protected from moderation on Google. This power to decide what is and is not immune from moderation would be hugely powerful, and would give the ability of the government to declare which ideological believes are and are not protected from moderation; which in effect would be hugely detrimental to the first amendment.

And even if you strip Google’s immunity from civil damages away, you are handing power over all internet speech over to the courts and anyone with enough time and money to use them. From a citizens perspective there is very little difference between censorship via the first or third branch of the government; both represent the erosion of the first amendment.

Similar regulations have existed in the past (common carrier and the fairness doctrine, for example) without giving the government the power to "declare which ideological believes are and are not protected from moderation".

The fairness doctrine was only constitutional because there were a limited number of channels (Red Lion Broadcasting Co. v. FCC), and it was impossible for anyone else to create one due to FCC regulations. I genuinely doubt that it would be constitutional today with cable television, let alone the internet.

I'm not proposing that we reestablish the fairness doctrine, just using it as an example of similar government regulation in the past that didn't have the disastrous effects you predicted.

But since you brought up the limited number of choices, I would like to mention that we find ourselves in that situation again today in the smartphone and online video markets, although for different reasons. And that's relevant because regulation is only necessary when the free market fails to provide the choices and freedoms we expect.

From what I gather this is largely addressed and the answer, it seems, is no [0,1]. (Disclaimer, IANAL and IANAUSC.)

[0]: https://abovethelaw.com/2019/06/explainer-how-letting-platfo...

[1]: https://www.law.cornell.edu/uscode/text/47/230 (Protection for “Good Samaritan” blocking and screening of offensive material)

How would that be a constitutional challenge? If you're arguing for a different interpretation of the CDA that seems like a legal challenge and argument.

What's the constitutional argument against the current legislation of the CDA?