Ron Wyden Is Begging His Colleagues To Stop Trying To Hand Trump A Censorship Weapon

from the how-many-times-are-we-going-to-do-this? dept

We’ve been writing about Section 230 for a very long time. We’ve written about why it matters, why the people attacking it are wrong, and why most of the proposed “reforms” would make the internet dramatically worse for everyone except the already powerful. And for just about as long as we’ve been doing that, Senator Ron Wyden—who co-authored Section 230 three decades ago—has been doing the same thing, often as a lonely voice in a Senate full of colleagues who either don’t understand the law or are actively trying to destroy it.

The Communications Decency Act just turned 30, and Wyden marked the occasion with an op-ed in MSNow that lays out, clearly and forcefully, why Section 230 matters more right now than it has in years. And the piece is a must-read, because it highlights something that should be blindingly obvious to Democrats in Congress but apparently remains invisible to far too many of them: gutting Section 230 while Donald Trump is president would be handing him the pen to rewrite the rules of online speech.

As President Donald Trump and his administration wage war against free speech, it is vital that Americans have a free and open internet where they can criticize the government, share personal health information and simply live their lives without government censorship and repression. For those of us who value the ability for regular people to speak and be heard online, preserving Section 230 is one of the most consequential ways to prevent Trump and the cabal of MAGA billionaires from controlling everything Americans see and read.

You’d think this would be uncontroversial among Democrats. You’d think that watching the Trump administration wage open war on free expression—retaliating against media companies, threatening platforms, unleashing threats from federal agencies on critics—would make it crystal clear that now is not the time to blow up the legal framework that protects people’s ability to speak freely online.

And yet…

Senator Dick Durbin, a Democrat, is still co-sponsoring legislation with Lindsey Graham to repeal Section 230 entirely within two years. This is beyond absurd. A senior Democratic senator is actively working to hand this administration the ability to reshape online speech liability from scratch.

In what universe does that end well?

If you need a refresher on what these senators are proposing to gut, Wyden lays it out plainly:

Section 230 is a simple law: In effect, it says the person who creates a post is the one responsible for it. Without it, goodbye retweets and reskeets, Reddit mods, Wikipedia editors and the people curating feeds on Bluesky. The ability to rapidly reshare information online is only possible because of the law.

That’s it. That’s what they want to hand Trump the power to rewrite.

And it gets worse.

Wyden highlights a category of proposal that perfectly encapsulates why building government censorship tools “for the right reasons” always backfires:

Other proposals include repealing Section 230 for posts the Health and Human Services secretary decides are medical misinformation. This was introduced in 2021 in response to the proliferation of COVID-19 misinformation, but today it would essentially give HHS Secretary Robert F. Kennedy the power to silence critics of his anti-vaccine agenda.

You might recall this one if you’re a regular Techdirt reader. Introduced by Democratic Senators Amy Klobuchar and Ben Ray Lujan, we called out how dangerous (and unconstitutional) it was back in 2021, and then reminded Senators Klobuchar and Lujan of this when RFK Jr. was first nominated to head HHS.

As Wyden notes, a bill written and supported by Democrats, designed to combat COVID misinformation by “reforming” Section 230, if it were law, would now hand Robert F. Kennedy Jr.—the most prominent anti-vaccine activist in American public life—the authority to define what constitutes medical “misinformation” online.

The person who has spent decades spreading conspiracy theories about vaccines would get to decide which health speech is acceptable on the internet. This is exactly the kind of scenario that people like us (and Wyden) have been warning about for years: the regulatory environment you create to fight the speech you don’t like today will be wielded by the people you trust least tomorrow.

Democrats like Durbin, Klobuchar, and Blumenthal spent years convinced that weakening Section 230 would force Big Tech to clean up its act. The counterargument—made by Wyden, by us, by basically everyone who actually read the law—was always the same: any power you create to shape online speech rules will eventually be used by people whose priorities look nothing like yours. That day has arrived. Those same Democrats are somehow still pushing the same bills.

So what would actually happen if they got their way? Nothing good. Wyden points to how Americans have been using platforms to document what’s actually happening with immigration enforcement:

Americans have used WhatsApp, Signal, Bluesky and TikTok to document violent, lawless activities by Immigration Customs Enforcement and Customs and Border Protection across the country. While corporate news organizations like CBS News have buried stories about Trump administration immigration abuses and are increasingly pushing disingenuous “both sides” reporting, regular Americans have helped to change public opinion with their first-hand videos of government-sanctioned violence that have spread across the internet. 

That was possible because of Section 230. Take it away and you would see ICE agents bring bad faith lawsuits against those platforms, perhaps claiming that Meta helped incite anti-ICE protests or defamed them by carrying posts alleging excessive force. To understand what would be possible, just look at how police departments and Big Oil have used civil suits to try and silence their biggest critics.

This is the part that the “repeal 230” crowd never seems to grapple with. Without Section 230, the platforms hosting that content become legally vulnerable for the content their users post. And the people with the deepest pockets and the most to hide—government agencies, corporations, the powerful—are exactly the ones who would use that vulnerability to silence critics through litigation. We’ve talked about this for years. It wouldn’t be Big Tech that suffers from a 230 repeal. Big Tech can afford armies of lawyers. The people who get crushed are the small platforms, the community forums, the individual users who share and reshare information that the powerful would prefer stayed hidden.

Wyden drives this home with another relevant example:

Or look at the Jeffrey Epstein case. It took dogged journalism by the Miami Herald and activism from Epstein’s victims to keep the story alive. But without Section 230, anyone who merely shared a story or allegation about Epstein and his associates on their social media could be sued by Epstein’s deep-pocketed pals, along with the site that hosted those posts.

He also takes a moment to push back on the persistent myth that Section 230 gives Big Tech blanket immunity to do whatever it wants—a myth that has fueled much of the bipartisan rage against the law:

Critics of Section 230 often misunderstand it. The statute only protects companies when a lawsuit tries to treat a company as the speaker of the post they find offensive or harmful. 

However, courts can and have held companies liable for their own speech and business practices. For example, Amazon has tried and failed to use Section 230 to avoid lawsuits about dangerous batteries it helped sell. Meta also tried and failed to use Section 230 to dodge responsibility for helping place discriminatory ads. And Big Tech is going to trial, after a California state court found that Section 230 did not protect certain social media design features.

(Wyden’s right that 230 isn’t the blanket immunity its critics claim—though where courts have drawn those lines remains hotly contested, and some of us would argue several of these rulings created more problems than they solved. In fact, the fallout from some of those rulings actually serves to show why Section 230 is so important.)

Either way, none of this should be new information, given how many times it’s been litigated and explained. But apparently it bears repeating every single time this debate comes up, because the same wrong arguments keep getting trotted out by the same people who refuse to read 26 words of statute.

Wyden closes with a warning that should be required reading for every legislator contemplating a 230 “reform” bill:

Opening up Section 230, especially right now, while Trump is president, would give him the pen to rewrite online speech rules. Given his administration’s attacks on free speech, I think that would be disastrous.

It says something profoundly depressing about the state of Congress that the guy who wrote the law 30 years ago is still the one who understands it best, and that he has to keep explaining it to colleagues who should know better. Wyden has been right about this from the start. He was right when Republicans attacked Section 230 because they wanted to force platforms to carry their content. He was right when Democrats attacked it because they wanted to force platforms to remove content they didn’t like. And he’s right now, when tearing it down would hand the most speech-hostile administration in modern memory the tools to reshape online expression however it sees fit.

Happy 30th birthday, Section 230. Here’s hoping your co-author can keep his colleagues from smothering you in your sleep.

Filed Under: amy klobuchar, dick durbin, donald trump, intermediary liability, ron wyden, section 230