No…. Section 230 does not prohibit you from being responsible

There are three kinds of people who talk about Section 230: 1) Those who know the law and speak the truth, 2) Those who know the law, but lie, 3) Those who don’t know the law, and still spew stupidity.

I’m not going to try and separate the 2s from the 3s. I just want to spread the truth. But, once armed with the truth, would you dear readers please yell BULLSHIT at the 2s and 3s when you hear them speak?

A really brief overview: 47 USC Section 230 is the federal statute that provides legal immunity to online service providers for lawsuits based on content provided by third parties. Because of this law, if someone posts a defamatory comment on this blog, I am not liable for that content. Period. There are some very very narrow exceptions, which don’t warrant discussion for the purposes of this post — because we aren’t going to delve into nuance here.

I want to clear up one bit of bullshit that seems to continue to walk the earth, sort of like a legal bullshit zombie. The bullshit is the notion that if I delete ANY comments on this blog, then I lose my Section 230 immunity.

This comes to mind because this Friday, I had the pleasure of speaking at the Attorney At Blog conference. During that conference, a very nice lady “informed” the audience that her blog would delete problematic comments, but they couldn’t, lest they lose Section 230’s protection.

I felt like a dick having to correct her. But, I can’t let a room full of people leave dumber than they came in. If you come to a place for CLE credit, the least you should do is learn something true, right? Shockingly, she defended her position by saying that it was based on the advice of her attorney. I advised her to fire that attorney immediately.

Read the statutory language below:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) (emphasis added)

I do delete comments from time to time. If I notice them and they are “excessively violent” or “harassing” or “otherwise objectionable,” I delete them. Why? First, its my blog, so my fucking rules. You have a right to express yourself, but not necessarily here. Second, I have absolutely no doubt in my mind that I can delete one comment and leave 100 filthy, objectionable, harassing, defamatory, nasty, and brutish comments and still not be liable.

Section 230 has been a wonderful thing. It has allowed the Internet to grow, and allowed services like Facebook, Craigslist, Fling.com, Pissedconsumer.com, and any number of other fun websites to exist. It allows me to have a comments section on each post, without worrying about whether I’ll be liable for something posted there. It does foster free speech online. So hooray Section 230.

Despite the fact that Section 230 gives me the right to be arrogant when it comes to the comments on my blog, it does not prohibit me from being responsible. I know very well that Section 230 is not there because of any Constitutional mandate. It is an immunity from liability bestowed upon us by Congress — and what Congress gave us, Congress can take away. One day, I expect that Congress will take away Section 230 (at least in part).

Why?

Because we can’t have nice things… One day, it is going to be the wrong Senator’s daughter who gets a rape threat or defamed on a comment somewhere, and you’re going to see some rollback to the freedom that Section 230 has given us. And that will be too bad, because it didn’t need to be that way.

You see, lots of bloggers and tech companies realize that Section 230 does allow them to have their own rules – and they act responsibly in the face of that freedom. If someone posts a comment on my blog saying that they are going to rip a woman’s eyes out and fuck the eye sockets (a threat lobbed at the nice lady who was misinformed about Section 230) then by the power of The Dude, I will delete that comment (and ban the commenter forever)MJR Dudeist Minster

Unfortunately, there are Section 230 protected websites who decide that they will simply go all the way to the edge of what Section 230 protects today. I at least respect them (on some level) when their rationale is “fuck you, Section 230 says I can, so everyone can suck it.” But, there are the liars and dipshits who say “If I delete any posts, I lose my Section 230 protection.”

If you are at a fifth grade reading level or better, the plain language of the statue should make it clear to you that this just isn’t true.

If you’re a Section 230 protected website operator and your lawyer has ever told you that you can’t act responsibly, lest you lose protection, then pick up your phone and dial his number (or her number, whatever). I presume you’ll get his voicemail. Leave this message “Hey, you’re either really stupid, or fucking dishonest. In either event, you’re fired, fucktard.”

Thank you. You are now less stupid.

11 Responses to No…. Section 230 does not prohibit you from being responsible

  1. […] And they even used “expletives.” Oooh.  Despite this potential calming influence, the panel still nearly made Marco’s head explode. […]

  2. I have been surprised at how many newspaper editors believe they can’t moderate comments because of Section 230. It is important to note that not only can you delete comments, you can also edit them.

  3. […] Randazza has a must read piece at his blog on Section 230 that provides immunity to people like me from comments left by idiots […]

  4. Does 230 require you to take down some content in order to maintain protections? Like if I posted copyrighted material here you’d have to remove it if notified, correct? Seems to me this alone should be evidence to refute the woman’s contention that she’s not allowed to curate her own site.

    I solved this by not allowing comments. Or more accurately, I only allow comments to people with accounts and I am the only one that hands those out (so effectively I do not have comments).

    I tried allowing comments, but I had too much link spam, hate speech, incoherent ramblings, and personal threats. The signal to noise ratio was too low to merit my energy. It’s easier to just put up an email address I can ignore.

    • 230 does not require you to take anything down. the DMCA provides that you can be immune if you meet certain conditions, including notice and takedown, in the copyright context.

  5. What about the argument (which I don’t buy, but I’ve seen it over and over again) that if you are deleting or editing some comments but not others you are somehow publishing the non-edited comments and directing the discussion in an area that you want?

    Thanks for the good work, especially your recent judgment against Moore. Now make sure you record it and seek a citation to discover assets!

    • That argument is complete bullshit – and you should remind people of that ay time you see it. It is completely wrong, and seems to be perpetrated by assholes who simply want to lie about the law so that they can disclaim any responsibility for what they find on the site. There’s nothing necessarily wrong with saying “I will allow unfettered discussion, no matter what,” but when they say “because Section 230,” you need to call them out as liars.

      • Scott Jacobs says:

        Or it is an argument made but lying (or stupid) asshats who want to make the claim that some blog owner is not entitled to Section 230.

        “You sometimes moderate the comments, and you make comments yourself, therefore you can’t claim Section 230 protections!”

  6. […] TechDirt: “Why Moderating Comments Doesn’t Remove Section 230 Protection, And Why More Lawyers Need To Understand This” by Tim Cushing quotes Marco Randazza, of the blawg “The Legal Satyricon” in which Randazza published: “No…. Section 230 does not prohibit you from being responsible“: […]

  7. tomblvd says:

    Excellency, there are those who say that if you respond to comments in your comment section, you lose Section 230 protection. Now I realize how silly this is, if you are posting the article being commented on, it is silly in the extreme to assert you can’t comment. But, honestly, it would be nice to see it in print as proof for the most strident.

    Thanks.

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