You've Been Referred Here Because You're Wrong About Section 230 of the CDA

But to address the argument as a hypothetical, I don't think it's a fully developed argument. Fledgling companies with small user bases have very little liability by virtue of their small community. A platform with a small community can't be used to do harmful things like incite riots and encourage hate crimes unless you are targeting a specific demographic. And if you're targeting a specific demographic that is prone to doing harmful things then you should be moderating it from day 1. If you aren't targeting a dangerous demographic you have to get pretty big before your platform gets dangerous by size alone, and I do think it's reasonable to expect companies to have some moderation figured out before their platform gets so big that it's dangerous. Plus, a small budget doesn't give founders/developers an excuse to not know what their platform is being used for. Hypothetically, if your platform was small and you didn't realize you were catering to Nazis, then you are liable if those Nazis use your platform to organize an armed march/protest that turns into a riot and people get killed. Or at least I think you should be, and that's why I think that Section 230 should be repealed and replaced with something in the middle- not a blanket protection for companies that don't even try to moderate their content, but some protection as long as they are actually trying.

Also remember that not moderating your platform doesn't mean that bad things will definitely happen and that you will get sued- Section 230 only applies to civil cases already, and there must be some sort of grievance for someone to sue you. The cops couldn't proactively shut someone down for lack of moderation. So even without Section 230, a company could roll the dice while they were on a shoestring budget if they decided that it was worth it to delay developing a moderation system in favor of a different feature. That's in their right, they just ought to accept the idea that they might get sued if something bad happened because they prioritized work on shiny features.

So I guess what I'm saying is yes, I don't think a shoestring budget is a defense for giving a company protections. A new car company can't avoid a lawsuit from ignoring a known safety defect just with the excuse that they didn't have the budget. A startup that can't afford to do something right either shouldn't be doing it or they should accrue some risk.

That's what I meant, but you're right, I wasn't entirely clear. Thanks.

That's a protection that neither social media nor the NYT (for comments) would have without Section 230 if they do any moderation (at least according to Stratton Oakmont, Inc. v. Prodigy Services Co.)

You're actually not too far off. I'm mad that companies are protected unevenly relative to normal people, which allows them to moderate unevenly and have no risk of downside resulting from their decisions. A law which protects a company when they do no moderation, but sets no restrictions on who they can moderate is lopsided. My personal viewpoint is in favor of having some standard of moderation, but the inconsistency is frustrating. I lean towards moderation, but I think we ought to be choosing between the options of "some moderation standard/required" or "no moderation allowed," and not the current option which privatizes the gains and forces losses onto the public. If Facebook decides not to moderate a hate group, they get ad revenue from all that traffic. But if that hate group, which Facebook is enabling, organizes an event where they march through a city and beat someone up, then I think that person should be able to sue Facebook (as well as pressing criminal charges and suing the people that performed the beating). The person that got beaten up would still have to demonstrate to the court that Facebook played some role in enabling the beating, even without Section 230.

So where would I set the bar? I would set it at the level that a company isn't at fault if their platform has the right kind or amount of moderation that the bad event that happened was unusual or couldn't have been expected. If someone gets hurt because Facebook didn't police an openly Nazi group, they should be liable. If someone gets hurt because Facebook has decent moderation procedures in place but the Nazi group was sneaky and posed as a sports fan club and used coded messages, then I think Facebook would have a pretty easy defense even without Section 230.

And you make it seem like judges are wildly political and the legal system is unreliable. There are a few bad judges, but 99% of cases that would be brought in the absence of Section 230 are so openly shut that they would be settled before they went to court. And in the cases that went to court, most judges are good people and want to do the right thing, regardless of their political leanings. The political affiliation of a judge really only matters when an issue is close and tough to call. Let's not give wholesale protection to tech companies from all of the obvious and easily decidable cases where they should be held responsible just because we're worried about a few bad calls.