Four Ways to Reform Section 230 and What Each Would Do to Real Websites

Every Section 230 reform plan sounds wonderful at the podium. Nobody has ever introduced a bill called the "Make Things Worse for Everyone Act." The title always promises accountability, fairness, protecting children, and a pony. The trouble starts when you ask the dull question that sinks most good-sounding laws: who, exactly, does this hit on a Tuesday afternoon?

So let's run the test. Below are three made-up websites, and I want you to keep them in your head the way you would keep three neighbors in your head. Then we will push four reform ideas through each one and do the arithmetic. If the sums look ugly, I will say so, and if a plan holds up, I will say that too. If you want the background on what the law actually says first, start with Section 230 Explained in Plain English, Down to the Twenty-Six Words and come back.

Everything below is a hypothetical. The sites, the numbers and the lawsuits are invented to show how incentives work. They are not real cases, and none of the figures is a statistic about any real company. Where I name a real law or case, I say so.

Three sites we will test

Site one: the Hickory Creek Hunting Forum. A hobby site, run by two volunteer moderators in their spare time, with a message board where members swap stories about deer stands, trail cameras and bad dogs. Hypothetical numbers: 4,000 posts a month, which is 48,000 a year (4,000 times 12). It earns $6,000 a year from a few ads and a small donation button. That works out to $6,000 divided by 48,000, or $0.125 in revenue per post: twelve and a half cents.

Site two: the Tri-County Gazette. A small local newspaper with a comment section under each article. Hypothetical numbers: 500 reader comments a week, which is 26,000 a year (500 times 52). Total revenue for the whole paper, newsroom, printing and all: $900,000 a year.

Site three: Megaplatform. A giant social network. Hypothetical number: 500 million posts a day. Over a year, that is 500 million times 365, or 182.5 billion posts. It has a legal department larger than the Gazette's entire staff.

The arithmetic of risk

One more piece of setup, because it explains almost everything that follows. A website that can be sued over what its users post will do what any business does: it will look at the expected cost.

Suppose, hypothetically, that one post in every 4,000 draws a legal complaint, and that defending a complaint costs $25,000 even if you win. (That is an invented figure, chosen because it is round. Real costs vary a great deal. The point is the method.)

• The expected cost of one post is $25,000 divided by 4,000, which is $6.25.
• The Hickory Creek forum earns $0.125 per post.
• $6.25 divided by $0.125 is 50. Each post carries fifty times as much expected legal cost as revenue.

Over a year, 48,000 posts divided by 4,000 is 12 complaints. Twelve times $25,000 is $300,000. The forum's revenue is $6,000. Divide: $300,000 divided by $6,000 is 50 again. The forum would owe fifty years of income in one year of defense bills.

Now you can predict what a rational forum does under that rule. It does not wait for the complaints. It shuts the forum, it requires every post to be approved in advance by a human being it cannot afford, or it deletes anything that could conceivably annoy someone. That is the logic behind the law's existence. Keep that logic in mind, because every reform below changes the numbers in that arithmetic.

Reform one: repeal Section 230 outright

The idea is simple: delete the section, and let state defamation, negligence and other laws apply to websites the way they apply to anyone else. Supporters say the platforms have enjoyed a privilege no newspaper or TV station ever had, and the privilege has made them arrogant.

The best case for it. I will state it fairly. A company that profits from hosting speech and that actively sorts, ranks and promotes it should answer for the harm. Repeal restores the common-law rule: if you amplify a lie, you can be sued for it. And the existing law has a real cost, because the victim of a vicious post often has nowhere to turn.

What happens to Hickory Creek. Go back to the arithmetic. With no shield, the forum faces the $300,000 expected defense bill against $6,000 in revenue. It closes, or it goes behind a login that nobody will use. The same old rule from the days of the 1995 Stratton Oakmont case would return: if you moderate, you look like a publisher, and if you do not, you look like a distributor who might be told about a bad post. A forum run by volunteers does not hire a legal department.

What happens to the Gazette. Reader comments under news stories are more heated than posts about deer stands, so assume, hypothetically, that one comment in 2,600 draws a complaint. Then 26,000 divided by 2,600 is 10 complaints a year. Ten times $25,000 is $250,000. As a share of $900,000 in total revenue, that is $250,000 divided by $900,000, or about 27.8 percent. More than a quarter of the whole paper's revenue would go to defending comment-section fights. The Gazette turns the comments off, and the town loses its one public bulletin board. (Local papers have been in trouble for other reasons for years. This is a rule that could finish the job.)

What happens to Megaplatform. Suppose one post in ten million draws a suit. 182.5 billion divided by 10 million is 18,250 suits a year. At $25,000 each, that is $456,250,000, or roughly $456 million. For a giant company, that is a line in the budget. It can pay lawyers, build compliance teams and lobby. It also has the engineering staff to remove anything with a risk profile. So repeal does not kill Megaplatform. It kills its competitors.

The conservative free-market verdict. Repeal is a tax on the small and a gift to the large. The Hickory Creek hunters and the Gazette, the people who built things without asking Washington's permission, are the ones who disappear. The company with the best lawyers survives, and it does not become more friendly to your speech, since it now has a legal reason to delete more of it. I do not believe a movement that talks about small business every day should vote for a rule that only a giant can afford to live under.

Reform two: narrow the good-faith test

This plan keeps the shield but tightens (c)(2), the part that protects removing content. Instead of "otherwise objectionable," a platform would need to point to a specific list of categories, such as unlawful material, obscenity, harassment or material promoting self-harm. Remove something outside the list, and you lose protection for that decision. Some versions also add an explicit requirement that removal be based on an "objectively reasonable belief."

The best case for it. "Otherwise objectionable" is a blank check, and critics say it has been read to mean "objectionable to us." A list gives a user a rule to point to and a judge something to measure. It is aimed at the complaint conservatives raise most often: inconsistent enforcement.

What happens to Hickory Creek. Suppose a member posts a long, rude rant calling another member's hunting ethics disgraceful. It is not unlawful, not obscene, not harassment on any strict reading, but it ruins the board. The two volunteers delete it. Under the narrow list, the removal falls outside the safe categories. The member who was deleted sues, claiming bad faith. Here is the catch: "good faith" is a question of fact. A judge cannot throw out a fact question on day one. It goes to discovery, and discovery is where the money goes. Suppose, hypothetically, that getting past discovery costs $25,000, the same as before. One such suit costs the forum four years of revenue ($25,000 divided by $6,000 is about 4.2). The volunteers learn the lesson: do not remove anything that is not on the list. The forum fills with the rudeness it was created to avoid.

What happens to the Gazette. The paper removes a comment that names a neighbor and accuses him of a crime. Is that "unlawful"? Maybe, maybe not. The lawyer's advice, in this hypothetical, is to leave it up or delete the whole thread. Neither helps the neighbor.

What happens to Megaplatform. It writes a ten-thousand-word terms-of-service document with a category for everything, and it hires more lawyers. The big company adjusts, as it always does.

The verdict. There is a sound conservative instinct in this plan: say what the rules are and apply them evenly. But the way it is built hands a litigation weapon to anyone who is deleted, and the cost lands hardest on the site that has the least money. If the goal is consistency, the cure has to be cheaper than the disease.

Reform three: condition protection on neutrality

Under this idea, a platform keeps its shield only if it is politically neutral, or only if it operates as a "neutral public forum." The appeal is obvious: if you want the benefit, behave like a utility.

The best case for it. The platforms are bigger than any publisher in history, and the people who run them hold views most of us do not share. A neutrality condition says: you do not get a special legal privilege and also get to put your thumb on the scale.

The problem, in two parts. The first is practical: who decides what is neutral? Say the rule is enforced by a federal agency or by judges. Then the government's officials, appointed by whichever party holds the White House, would be judging whether the Hickory Creek moderators were fair to hunters who dislike one candidate. That is a government agency reviewing the editorial choices of a speaker. Conservatives who remember the Fairness Doctrine, which the FCC applied to broadcasters until it dropped enforcement in 1987, should know where this goes. I wrote about it in The Fairness Doctrine From 1949 to 1987 and Why Its Repeal Still Matters, and I think it is a warning and not a model.

The second part is constitutional. The government cannot generally force a private publisher to carry speech it does not want to carry. In Miami Herald v. Tornillo (1974), the Supreme Court struck down a Florida law that gave political candidates a right to reply in newspapers that criticized them. A neutrality condition tries to get the same result through a back door: carry everyone or lose your legal protection.

What happens to Hickory Creek. Imagine the forum bans all discussion of politics because it wants a place for hunters, not brawls. Is that neutral? Probably, since it is neutral by subject. But now imagine a pro-life pregnancy center's site, a church's message board or a gun-rights group's forum. Each is a point-of-view community. Under a strict neutrality condition, each risks losing its shield if it declines to host opposing views, and a Christian website that removes an atheist's attack on its pastor is not "neutral." The plan designed to protect conservatives could expose conservative sites first.

What happens to the Gazette. The paper's editor, who removes comments that attack named neighbors, is told she must apply the same standard to every political view, in writing, with a paper trail. She must keep records for 26,000 comments a year. That is not a free-speech remedy. It is a compliance job.

What happens to Megaplatform. It hires a "neutrality" division, issues a report, and lobbies the agency. It gets better at looking neutral, which is a different thing from being neutral.

The verdict. The impulse is understandable. The instrument is wrong. Do not hand the government the job of grading everybody's editorial fairness, because the party that holds the grader's pen changes, and the pen will be used on you.

Reform four: transparency and process, without touching liability

This plan leaves the liability shield alone. It changes what platforms must tell you: publish clear rules, give notice when a post or account is removed, state the reason, and allow an appeal. Penalties come from consumer-protection law, not from stripping immunity.

The best case for it. Much of the anger at the platforms is not that they remove things, but that they remove things without saying why, and that nobody can find out who decided. Notice and appeal costs little to explain and respects the user.

What happens to Hickory Creek. Hypothetically, the forum must post its rules and send a short reason for every removal. Suppose compliance costs $4,000 a year in volunteer time and software. That is $4,000 divided by $6,000, or about 66.7 percent of the forum's revenue. Painful. But there is a fix that conservatives like: scale the obligation. A small site could be exempt below a size threshold, or required only to post its rules. It is a smaller cost than a lawsuit, and it is a known cost, not a lottery.

What happens to the Gazette. The editor posts a one-page comment policy and sends a note when a comment is removed. Manageable.

What happens to Megaplatform. It publishes a transparency report. A cost of $4 million to a company of that size is a rounding error. Which means transparency, by itself, will not constrain a giant. It tells you what the giant did. It does not stop it.

The verdict. This is the least harmful plan of the four, and the most honest about what it can do. It works best if it applies lightly to small sites and heavily to large ones, if the penalty is a fine and not a loss of the shield, and if it comes with a plain-language rule for how the appeal works. It will not satisfy people who want platforms punished. It will do something for people who want to know why they were silenced.

The side-by-side

Here is how the four land on each site, in the hypothetical.

What a free-market conservative should say instead

The honest answer is that Section 230 is not the source of every grievance people have with big platforms, and changing it is a blunt tool. If a company breaks its own written promises, consumer-protection law can handle that. If a company gains too much market power, antitrust law, which is built for that job, can be applied by the Justice Department and the Federal Trade Commission. If you want choice, support competition and make it easier for new sites to start, which means do not pass a law that only a billion-dollar company can obey. And if you think a specific category of content should be unlawful, write that law narrowly and let a court decide, rather than hoping a liability rule will do the job by indirect pressure.

If you want the argument over whether a platform's choices are its own speech, I take it up in Private Company Is Not the End of the Debate Over Platform Power, and for the wider rules on what government may and may not compel, see Seven Things Americans Get Wrong About the First Amendment. The reason the right was early to the open internet in the first place is in The Internet Broke the Gatekeepers, and the Right Was Quick to See It.

I am not telling you the status quo is sacred. I am telling you that the person who proposes a change to a law that governs every website in the country owes you the numbers. You now know how to ask for them.

The bottom line

• Test every plan on a small site first. If a reform only works for a company with a legal department, it is a gift to the big players who already have one.
• Repeal helps the giants. In the hypothetical, a forum that earns $6,000 faces $300,000 in expected defense costs. Big companies absorb that and small ones close.
• A neutrality test makes Washington the editor. Remember the Fairness Doctrine and Miami Herald v. Tornillo, and remember who could be graded unfavorably next.
• Transparency is the cheapest fix. Rules, reasons and appeals, scaled by size, with fines instead of lost protection.
• Ask for the numbers. When a politician says "just reform it," ask what it costs a church forum and a local paper. If he cannot say, he has not done the math.