Biden said on the campaign trail he wanted to ‘revoke’ Section 230. So why did the DOJ just defend it?

November 25, 2021, 1:00 PM UTC

President Joe Biden made no secret of his dislike for Section 230 of the Communications Decency Act when he was campaigning for the White House. 

The policy, passed in 1996, shields internet platforms from liability for content posted by third parties, and became a major talking point among activists and politicians when social media played a significant role in the Jan. 6 insurrection at the U.S. Capitol. 

“Section 230 should be revoked, immediately,” Biden told the New York Times editorial board in January 2020, adding that it has allowed social media companies to propagate “falsehoods they know to be false.”

But that didn’t stop Biden’s own Justice Department from defending the law in court this week. On Monday, the DOJ intervened in Donald Trump’s lawsuit against Facebook that attacks section 230, arguing that the U.S. government “has an unconditional right to intervene to defend the statute.”

Trump filed three class-action suits against Facebook, Twitter, and YouTube this summer, over their decision to suspend his account following the Capitol riot. In the Facebook suit, Trump is arguing that Section 230 violates his First Amendment rights because it allows internet companies to suppress his speech on their platforms.

“As long as there’s at least a plausible argument for defending the constitutionally of the statute—which I think it clearly is here—then it’s not particularly surprising to me that DOJ would jump in and defend the constitutionality of the statute,” Samir Jain, policy director at the Center for Democracy & Technology, told Fortune.

This is not the first time the DOJ has weighed in on the law. Earlier this year, the department intervened in two Section 230-related lawsuits against Google.  

“The judges still decide whether or not Section 230 is constitutional,” said Eric Goldman, a law professor at Santa Clara University and co-director of the High Tech Law Institute. “They are likely to listen carefully to the DOJ, but judges will still make their decisions independently.”

The White House did not respond to Fortune’s request for comment. 

While Biden and Trump have both spoken out against Section 230, their critiques couldn’t be more different: Biden thinks tech companies need to take more responsibility in moderating content (namely misinformation) on their sites; Trump wants totally open platforms with no content moderation. 

“Trump wants to say that the providers are the equivalent of state actors and therefore the First Amendment applies to them and obligates them to essentially carry any content, any protected speech. In that case, they have no editorial discretion in terms of what they can and can’t carry,” Jain said.

If Trump’s lawsuit were to succeed and overturn Section 230, it could have the counterintuitive effect of opening companies up to an avalanche of defamation lawsuits, forcing them to further restrict free speech on their platforms, according to Goldman. 

“That’s why I’m baffled when I see the conservative viewpoint that [by repealing Section 230] they’re promoting more speech,” Goldman said. “Actually, they’re promoting less speech.”

It could also create an environment wherein tech companies—not just Facebook and Twitter, but also firms like Yelp and TripAdvisor—couldn’t monetize their services, according to Goldman. As a result, companies could either shut down or restrict speech altogether. 

“Advertisers won’t display their advertising against terrible content—the content that’s protected will be protected under Trump’s lawsuit,” he said. “It’s not monetizable through advertising. And it’s not monetizable through subscription services. Who wants to pay to get access to a database of garbage?” The more terrible content takes over a site, it drives away the legitimate content.”

However, Trump’s lawsuit is unlikely to prevail, and his previous attempts to get rid of Section 230 have failed. In 2020, he signed an executive order to repeal the law, but that was revoked by Biden before any actions were taken. Trump was also influential in Republican Sen. Josh Hawley’s 2020 bill to allow Americans to sue tech companies for censoring political speech, something that is forbidden by 230. But that effort also went nowhere

Goldman suspects this latest try will fall similarly flat. “The mechanism for repealing Section 230 is through the legislature, not through the judicial branch,” he said. 

That’s not to say that internet advocates don’t want to see some major updates to the law.  

“Most proponents of reform want to force the tech industry to take more seriously issues of privacy and safety, while continuing to encourage a free, open, and fair exchange of ideas,” said Hany Farid, a professor at the University of California, Berkeley, who focuses on misinformation. “Modest revisions of 230, that create some liability, could force tech to do what we know they can do — take some responsibility for how their services are being weaponized against individuals, societies, and democracies and make their products safer.”

In the meantime, Section 230 appears to be safe under the protection of the DOJ, even if the sitting president isn’t its biggest fan.

Subscribe to Fortune Daily to get essential business stories straight to your inbox each morning.

Read More

Biden AdministrationUkraine InvasionInflationEnergyCybersecurity