Supporters of Section 230 argue that it protects free speech rights on the internet and minimizes the cost and burden of having to engage in lengthy litigation for millions of unmeritorious claims made against ISPs. They also argue that Section 230 encourages ISPs to self-regulate content without being overly pressured by the constant threat of lawsuits based on any potential post made using their services.
Section 230 immunity provides an all-encompassing defense to a myriad of potential civil claims and, thus, only requires the ISP to prove a single defense rather than having to combat each claim individually. This limits costs and allows courts to efficiently dispose of or sustain those claims. Without Section 230 protection, supporters contend that ISPs would be encouraged to censor user speech out of fear that they could be opening themselves up to lawsuits. Censorship of user speech could ultimately offend the core principles of the First Amendment.
Opponents of Section 230 argue that it puts plaintiffs with meritorious claims at a disadvantage and with limited or no other means of recovering for injuries suffered as a result of online content. They argue that courts have interpreted CDA immunity too broadly in protecting ISPs, especially when in traditional circumstances, outside of cyberspace, they would be liable for facilitating illegal activity.
For example, a physical magazine or newspaper that published nude photos or clearly defamatory gossip submitted by readers could be liable for that content. But under Section 230, websites who knowingly host the same content cannot be found liable. The original purpose of the CDA and Section 230 was to immunize ISPs who wanted to restrict access to objectionable and offensive material, rather than provide a safe harbor for ISPs to host unlawful content published by third-parties.
Opponents also argue that Section 230 immunity does not necessarily protect free speech rights but rather facilitates harassment and other unlawful forms of speech that would not otherwise be protected.
Hate speech, for instance, has proliferated the internet and can be directly linked to mass shootings committed in the U.S. in the last five years. But because of broad First Amendment protections regarding political opinions, hate speech is not generally considered illegal unless it directly incites violence. Tech companies and ISPs like 8chan are protected under Section 230 from any liability for hate speech. So long as the content is not illegal, they have no incentive to regulate hate speech published on their websites that could possibly lead to mass shootings or other hate crimes.
Section 230 immunity is particularly controversial with regard to sex trafficking cases and other online sexual victimization cases. The internet quickly became an easy way to commit, facilitate, and promote sex trafficking on a national and international scale, sometimes through the use of mainstream websites such as Facebook and Craigslist.
While many of the mainstream websites did work to block content related to sexual victimization after the CDA was enacted, websites like Backpage.com could not be held liable for enabling sex trafficking and victimization on their websites because of the broad scope of Section 230 immunity. A case in the Texas state court system against Facebook is currently being litigated to determine the scope of Section 230 immunity after the FOSTA exception was enacted in 2017.
For further information about Online Extortion and Sextortion, see How to Deal With Sextortion on the Internet.