Americans Would Probably Love Section 230 — If They Understood It – Knight Foundation

Americans Would Probably Love Section 230 — If They Understood It

A new Gallup/Knight report looks at how Americans weigh free expression online against the threats posed by harmful content. Gallup and Knight invited several experts to weigh in on these findings and to place them within the broader context of public debates about online media and free expression. Their views are offered in a personal capacity and do not reflect the views of Gallup, Knight Foundation, or the organizations with which they are affiliated.

Section 230 says that websites are not liable for third-party content, subject to some key limits. It has been the law of the (U.S.) internet for a quarter-century, but most consumers have never heard of it. As a result, consumers do not appreciate how Section 230 facilitates the services they value the most: free email services; free access to the largest and most powerful searchable database ever created; free videoconferencing services; free access to a comprehensive and constantly updated encyclopedia; millions of hours of free video content on services like YouTube; and free publishing tools that can reach billions of people. Consumers have no awareness of how these services depend critically on Section 230.

Due to their lack of background knowledge, surveying consumers about Section 230 is tricky. To obtain informed feedback, the survey questions need to educate consumers about the law, which introduces potential bias. As the Gallup/Knight survey acknowledges, the information it provided respondents about Section 230 “could make a difference in how people answer.”

Let’s consider how that may have happened. One survey question asked respondents if Section 230 has done more harm than good. To educate survey respondents, the question characterized Section 230’s harm as: Section 230 “has not made the companies accountable for illegal content on their sites and apps.” The question characterized Section 230’s benefit as: Section 230 “has allowed the internet to grow as a place people can communicate and say what they think.”

In my opinion, this framing distorts the characterization of Section 230’s harms and benefits. Regarding the harms:

  • The question implies that Section 230 creates a lack of accountability, which prompts respondents to prefer more accountability. Furthermore, “accountability” can come from a range of sources: civil lawsuits, government regulation, criminal prosecutions, marketplace discipline, public opprobrium, and more. Which, if any, of these options were on respondents’ minds?
  • The question does not distinguish between first-party and third-party “content.” (The introductory paragraph referenced this distinction, but the question itself did not). Thus, it implies that Section 230 reduces companies’ accountability for their own content.
  • It’s confusing to characterize content as “illegal.” Few categories of content are always “illegal” (child pornography is the leading, and perhaps only, example). Other content categories are not inherently illegal; the legality can depend on the speaker’s identity or the factual context surrounding its publication. Also, respondents may conflate illegal content with “lawful but awful” content, i.e., content that grossly violates social norms but is nevertheless legal. How did respondents interpret the term “illegal content”?
  • The question incorrectly implies that Section 230 enables all “illegal content.” Section 230 has statutory exclusions — for intellectual property, federal criminal and other violations — that permit “accountability” for illegal third-party content. Thus, the question mischaracterizes Section 230’s effects.

While the question overstates Section 230’s harms, I believe it also understates Section 230’s benefits:

  • Growth of the internet is not inherently a benefit. Instead, because the question’s harm statement prompted respondents to consider Section 230’s facilitation of “illegal” content, respondents may have considered “growth” of such content unfavorably.
  • The question focuses on free speech in the abstract, not as a personal benefit. Respondents may not worry if Section 230 protects their free speech because they optimistically assume it is not in jeopardy — even though, without Section 230, it probably is.
  • The question highlights Section 230’s free speech benefit, but Section 230 has equally important benefits for the economy, employment, innovation, competition, the country’s global position, and more. Featuring those other benefits might have been more impactful on respondents.

Because of the question’s strong statement of harms and weak statement of benefits, it’s perhaps not surprising that a small majority (54%) recognized the harms over the benefits.

Nevertheless, in a separate question, respondents decisively endorsed the principle underlying Section 230. Sixty-six percent of respondents favored keeping Section 230 so that people cannot sue internet companies for content posted by others on their sites, while 31% preferred to change Section 230 so that internet companies can be held liable for such content.

How to reconcile these two survey results? The question framing surely played a role. The first question provided imprecise summaries of harms and benefits, while the second question succinctly presents the key underlying policy principle — who should bear responsibility for harmful content online? Because the second question provides cleaner insights into consumers’ priorities, it might better gauge true consumer support for Section 230.

Even so, any binary survey questions about Section 230 are likely to produce unsatisfying results. Like many legal policies, Section 230 involves difficult tradeoffs between important social values. It would be enlightening to understand how consumers prioritize those tradeoffs. A future study using conjoint analysis of various tradeoff considerations might better expose those insights.

Eric Goldman is professor of law and co-director of the High Tech Law Institute at Santa Clara University School of Law.

Image (top) by John Schnobrich on Unsplash.