Liability or Liberty? Congress Should Think Twice Before Weakening Section 230

For thirty years, Section 230 has played a central role in protecting free expression online by shielding private enterprises from becoming tools of government censorship. Under Section 230, users are free to speak, websites are able to moderate content in good faith, and the state is barred from threatening legal punishment for every moderation decision. That structure has allowed online services to provide spaces for wide-ranging debate without getting sued into oblivion or turning into sterilized forums lacking free user expression.

Section 230’s longstanding framework has recently come under renewed scrutiny. Yet, weakening it would force businesses to manage speech differently, often deferring to the preferences of whatever political regime is in charge. Under Secretary of State Sarah B. Rogers recently summed it up perfectly: “CDA 230 […] gave rise to every social app that Americans (and Europeans, and the world) know and love. Censorship becomes the norm without it.”  

In a world where speech decisions are no longer guided by clear rules, but instead by fear of enforcement, one important question arises: who would gain power if liability replaces legal certainty as the foundation of online speech?

Europe may provide one potential answer to that question. Under the European Union’s Digital Services Act, for instance, covered platforms are expected to engage in continuous dialogue with government officials over individual content moderation decisions. Because there is a lack of clarity on what content moderation processes satisfy EU law, consultations with regulators are driven by an ever-shifting standard of what regulators expect public discourse to look like. With the additional threat of substantial financial penalties, these pressure campaigns encourage regulated platforms to err on the side of acquiescence rather than what is in the best interest of their digital community. This is a clear chilling effect on speech, and it extends far beyond social media.

In a world without Section 230, all online businesses would face a similar outcome, with heightened legal exposure for what users post. Every content moderation decision would ultimately be questioned and scrutinized by bureaucrats. And government actors could use the threat of enforcement actions to seek concessions from online services for speech and content moderation decisions which may not be reflective of individual users’ wishes. The framework for resolving speech disputes would drift away from unbiased legal principles toward administrative pressure and threats of retribution. 

The result is predictable: digital services will over-moderate to placate regulators rather than enable free enterprise and robust public debate. 

This is why Section 230 is critical. It is a bulwark against a European-style structure where the bureaucracy can nudge public discourse toward preferred outcomes with the threat of substantial liability unbound by any clearly defined contours or predictable outcomes. Without Section 230, uncertainty becomes the standard and regulators gain influence over online speech. 

For these reasons, Congress should think carefully before dismantling Section 230. Indeed, if it is gone, it will not be replaced by clear rules or consistent enforcement. Instead, more pressure, more scrutiny, and more restricted speech for all will become the norm. 

Again returning to Under Secretary of State Sarah B. Rogers, who concluded that “[t]hese regulatory approaches inaugurate a ‘reverse [Section] 230’ logic, designed to corrode internet freedom and chill internet speech.” The American way is to promote freedom and access for those who want it. We must follow that path and preserve Section 230.