• by Wendy Davis , Staff Writer @wendyndavis, May 13, 2024

Leaders of the House Energy and Commerce committee on Sunday unveiled draft legislation that would repeal Section 230 of the Communications Decency Act at the end of next year.

“Section 230 is now poisoning the healthy online ecosystem it once fostered,” Reps. Cathy McMorris Rodgers (R-Washington) and Frank Pallone, Jr. (D-New Jersey) wrote Sunday in an op-ed published in The Wall Street Journal.

The lawmakers say they want to work with tech companies and others to “evaluate and enact a new legal framework that will allow for free speech and innovation while also encouraging these companies to be good stewards of their platforms.”

Section 230, passed in 1996, generally immunizes social media platforms, web publishers and other interactive service companies from liability for content posted by consumers and other third parties.

Rodgers and Pallone contend that the current law means a social media company “can’t easily be held responsible if it promotes, amplifies or makes money from posts selling drugs, illegal weapons or other illicit content.”

It's worth noting, however, that Section 230 already has an exemption for content that violates federal criminal law. In 2011, the Department of Justice drew on that exception to fine Google $500 million for allowing Canadian pharmacies to advertise prescription drugs to U.S. consumers.

Also, even though tech companies historically tended to prevail in lawsuits over content, judges today appear increasingly inclined to allow claims against social media companies to move forward -- despite Section 230.

For instance, a New York state judge in March allowed victims of a racially motivated mass shooting in Buffalo to proceed with a lawsuit alleging that YouTube, Reddit and other platforms radicalized the shooter by showing him posts about the racist “replacement theory," which holds that white people in the United States are being replaced by non-white immigrants.

Erie County Supreme Court Justice Paula Feroleto rejected the tech companies' arguments that the case should be dismissed under both Section 230 of the Communications Decency Act and the First Amendment. Instead, Feroleto said the victims could attempt to argue that the companies' products are dangerously defective.

And last year, a federal judge and state judge in California said in separate rulings that teens who claimed they were harmed by addictive content on social media could proceed with lawsuits against Meta, Google, Snapchat, TikTok and other platforms.

Adam Kovacevich, CEO of the industry-funded think tank Chamber of Progress, blasted the new bill, saying it would hold Section 230 “hostage” without a replacement.

“If lawmakers believe Section 230 needs amendment, they should come up with a proposal instead of chasing headlines,” he stated Monday.