* Background is here if you need it. From a Sun-Times op-ed by Seth Stern, the director of advocacy at Freedom of the Press Foundation and a First Amendment lawyer…
Illinois Sen. Dick Durbin wants to sunset Section 230 of the Communications Decency Act, which protects websites and apps from liability for posts created by users. Without it, the internet as we know it couldn’t function — the legal risks of interactivity would be too great.
Politicians often frame Section 230 as a gift to big tech. That’s incorrect. Big tech companies are the only ones that could afford to survive without it. Upstart competitors couldn’t. Independent news outlets that foster dialog certainly couldn’t. Illinois political blog CapitolFax.com says Durbin’s plan would put it out of business. […]
As was the case before Section 230, post-repeal platforms might be safer taking a completely hands-off approach to content moderation than risking negligence lawsuits for trying, but inevitably failing, to police speech. […]
Durbin’s disdain for censorship led him to support the PRESS Act. With a president eager to silence journalists, now’s not the time to risk silencing free speech. A two-year sunset period offers cold comfort absent a plan to mitigate the damage during that window. Even if Durbin had one, there’s no reason to believe our dysfunctional Congress can pass it.
Demanding the elimination of Section 230 is probably the dumbest thing that Sen. Durbin has ever done.
* Here’s what led to the original congressional passage of the Communications Decency Act of 1996…
In October 1994, an unknown user posted statements on Prodigy’s “Money Talk” bulletin board indicating that Stratton Oakmont, Inc., a Long Island securities brokerage firm, and its president, Daniel Porush, had committed criminal and fraudulent acts in connection with the initial public offering of Solomon-Page, Ltd. As a result, Stratton and Porush sued Prodigy and anonymous defendants in New York state court for defamation.
The plaintiffs argued that Prodigy should be considered a “publisher” of the anonymous poster’s statements. Under the common law of defamation, if Prodigy were considered a publisher, it could be held liable for the statements of the unknown user. Conversely, if it were found to be merely a “distributor,” it could not be held liable unless it knew or had reason to know about the allegedly defamatory statements.
“Money Talk” was, at the time, a widely read forum covering stocks, investments, and other business matters. Prodigy contracted with Charles Epstein to act as “Board Leader,” a position entailing, in part, participation in board discussions, board promotional efforts, and board supervision. In its argument that Prodigy was a publisher of the defamatory statements, the plaintiffs pointed to representations Prodigy had made in various newspaper articles representing itself as an organization that exercised editorial control over the content on its servers.
In making their case, the plaintiffs also pointed to Prodigy’s “content guidelines,” which stated rules that users were expected to abide by, a software screening program which filtered out offensive language, and the employment of moderators or “Board Leaders” who were responsible for enforcing the content guidelines.
In May 1995, on the plaintiffs’ motion for partial summary judgment, the court held that these representations and policies were sufficient to treat Prodigy as a publisher. In so holding, the court distinguished the case from an earlier one involving CompuServe, which was found merely to be an “electronic for-profit library” or repository and thus a passive distributor. In particular, the court pointed to Prodigy’s creation of an “editorial staff of Board Leaders who have the ability to continually monitor incoming transmissions.” The court noted, however, that bulletin boards should normally be considered distributors when they do not exercise significant editorial control, as Prodigy had done.
Prodigy moved for reconsideration of the May 1995 decision, but the party’s settled in October 1995, apparently before the motion was decided.
In passing the Communications Decency Act of 1996, which, among other things, established immunity for internet service providers for publishing “information provided by another information content provider,” 47 U.S.C. § 230(c)(1), the House explicitly stated its intent to overturn the result reached in the Prodigy case. See H.R. Conf. Rep. 104-58, at 194.
- Keyrock - Friday, Feb 28, 25 @ 11:32 am:
Keep at it, Rich. You’re totally correct.
It’s a shame Durbin spent any time on this, instead of working nonstop to highlight and limit the damage caused on a daily basis by the Musk/Trump Administration.
- Just a Citizen - Friday, Feb 28, 25 @ 11:42 am:
Be tenacious and let Durbin know what a dumb move this is.
- Free Speech - Friday, Feb 28, 25 @ 11:44 am:
This isn’t the dumbest thing Durbin has done. Getting in bed with Trump and McConnell and virtually everyone else in Congress to create a carve-out to the Communications Decency Act to put Backpage out of business was dumber. When the Senate votes 97-2 on a matter of free speech, expect bad results, just as we got with the Gulf of Tonkin resolution.
The current proposal threatens this platform and every other, large or small. The one that passed, with Durbin and Harris and Cruz and Pelosi and Trump breaking arms patting themselves on the back, set the stage. And it didn’t stop online sex trafficking. The servers went offshore.
- Cold of Winter - Friday, Feb 28, 25 @ 11:46 am:
Maybe they could at least hold the sites accountable for the user’s posting when that user is also an owner of the site.
- Lakeview Looker - Friday, Feb 28, 25 @ 11:50 am:
Section 230 isn’t perfect but there is no perfect answer to the cesspool/blessing that is the internet. I tend to err on the side of shielding publishers rather than the online ambulance chasers.
I also shudder to think of what a repeal of 230 could do to sites like Wikipedia that are SO useful but constantly being vandalized by bad actors.
- James - Friday, Feb 28, 25 @ 11:54 am:
There has to be some middle ground reforms to 230. While Cap Fax isn’t one of them, many of these platforms are use for all sorts of horrible criminal activity. Perhaps Durbin’s proposal is an effort to get a more meaningful conversation started. Which apparently that has happened, because Rich is madder than a cat in a room full of rocking chairs about it.
- Annonin' - Friday, Feb 28, 25 @ 12:05 pm:
Dumbest was keepin’ Lausch, but this could be #2
- Suburban Mom - Friday, Feb 28, 25 @ 12:09 pm:
to James — the EU has gone the opposite direction, they’ve subjected “Very Large Online Platforms” (VLOPs) like facebook and twitter and insta to special rules requiring MORE content moderation, while allowing small blogs/boards to continue under the status quo. I think that’s a better idea — allow small companies to continue under Section 230 until they cross a certain user number or profit number, which is when their effects on the public square significantly multiply.
- 47th Ward - Friday, Feb 28, 25 @ 12:11 pm:
===In October 1994, an unknown user posted statements on Prodigy’s “Money Talk” bulletin board indicating that Stratton Oakmont, Inc., a Long Island securities brokerage firm,…===
If Stratton Oakmont sounds familiar, you might have heard about it from the Wolf of Wall Street. They were engaged in fraud too, although I have no idea if the specific claims on Prodigy were accurate or not.
Jordan Belfort, played by Leonardo DiCaprio in the movie, wrote the story that became Martin Scorsese’s film. Belfort was encouraged to write it by his prison cell mate Tommy Chong.
Far out, man.
- ElTacoBandito - Friday, Feb 28, 25 @ 12:20 pm:
==Stratton Oakmont, Inc., a Long Island securities brokerage firm==
Huh, the Wolf of Wall Street led to Section 230. Who would have thought.
- @misterjayem - Friday, Feb 28, 25 @ 12:22 pm:
“While Cap Fax isn’t one of them, many of these platforms are use for all sorts of horrible criminal activity.”
Cellular telephone networks are also used to conduct “horrible criminal activity,” but we still don’t let people sue Verizon for the actions of its users.
The same self-evident logic applies to Sec. 203.
– MrJM
- Illinanny - Friday, Feb 28, 25 @ 1:02 pm:
Durbin hasn’t accomplished anything substantive for the state in years. Even the accomplishments on his website are focused on decades old efforts. He’s spent the last decade plus focused on grandstanding and stroking his own ego rather than bringing home the bacon for Illinois. This is just the latest example.