Section 230 Didn’t Fail Rand Paul. He Just Doesn’t Like the Remedy That Worked.

from the do-you-even-1st-amendment,-bro? dept

Rand Paul is furious. That’s because someone posted a video falsely accusing the Kentucky senator of taking money from Venezuela’s Maduro regime.

Paul should know that the First Amendment sets a deliberately high bar for defamation of public officials like him. Under New York Times v. Sullivan, he must show not just falsity, but that the speaker knew it was false or had serious doubts about the validity and published it anyway That demanding standard known as “actual malice” exists for a reason — to ensure that fear of lawsuits does not silence criticism of those who hold power, even when the speech is offensive, wrong, or deeply unfair.

Instead of fighting this battle in court against the person who created this video, Paul has redirected his anger toward Section 230, the law often described as the 26 words that created the modern Internet. Although he once defended the law’s provisions that shield online platforms from liability for user speech, Paul now argues in a recent New York Post op-ed that the only solution is to tear it down. 

At the heart of Paul’s argument is a simple demand: YouTube should have stepped in, judged the accusation against him to be false, and removed it. Once notified that the video was false, the platform should have been legally responsible for leaving it up. Section 230, he argues, prevents that from happening. 

But who decides what is false? Who decides what is defamatory? And how quickly must those judgments be made — under threat of crushing lawsuits — by platforms hosting speech from millions of users around the world?

It’s surprising to see Senator Paul, who’s been vocal against government jawboning of speech, pledge to pursue legislation that would amend the law because a private platform failed to moderate speech the way he wanted.

Paul insists this distinction is hypocritical because platforms removed his COVID-era statements they deemed as false while leaving up a lie about him. This argument collapses under its own weight. The Supreme Court has repeatedly held that private companies can make editorial decisions. They are allowed to be inconsistent, mistaken, biased, or wrong. 

As the Court affirmed in Moody v. NetChoice, “it is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased [ . . . ] That principle works for social-media platforms as it does for others.” In other words, the First Amendment protects editorial discretion precisely because the government cannot be trusted with it.

If Section 230 protections are rolled back, the consequences could be profound. Some platforms will over-moderate to avoid legal exposure, removing lawful but controversial content. Others will under moderate, allowing harmful content to spread unchecked since any moderation decision could open them up to liability. 

Such a shift will not harm the powerful but the vulnerable, the dissenters, and the voices that depend on intermediaries to be heard. Smaller platforms and start-ups may shut down,  avoid hosting speech, or change their business models altogether due to litigation risk.

Paul draws a comparison between platforms and newspapers, arguing that publishers historically avoided defamation through editorial judgment. But newspapers choose what they print before publication. Platforms host speech created entirely by others, at unimaginable scale. The New York Post is still protected by Section 230 from being liable for the comment section on its online articles.

The real, speech-protective answer is defamation law. If Paul believes that a video contains lies about him, he could sue the creator for defamation and prove actual malice under the Sullivan standard. 

But we cannot and should not dismantle the legal foundation of online speech because it failed to protect one powerful man. That sets a precedent that will harm millions of marginalized voices. 

Ashkhen Kazaryan is a Senior Legal Fellow at The Future of Free Speech, a nonpartisan think tank at Vanderbilt University.

Filed Under: 1st amendment, defamation, free speech, nyt v. sullivan, rand paul, section 230