The First Amendment allows antitrust action against media companies for their business practices, but not for their editorial judgments. Section 230 mirrors this distinction by protecting providers of interactive computer services from being “treated as the publisher” of content provided by others, including decisions to withdraw or refuse to publish that content (230(c)(1)), and by further protecting decisions made “in good faith” to take down content, regardless of who created it (230(c)(2)(A)). Section 230 provides a critical civil procedure shortcut: when providers of interactive computer services are sued for refusing to carry the speech of others, they need not endure the expense of litigating constitutional questions. Thus, changing Section 230 could dramatically increase litigation costs, but it would not ultimately create new legal liability for allegedly “biased” or “unfair” content moderation. Nor will the First Amendment permit new quasi-antitrust remedies that compel websites to carry content they find objectionable.
By Berin Szóka1
- INTRODUCTION
The media are not exempt from the antitrust laws. As the Supreme Court ruled in Associated Press (1945), publishers “are engaged in business for profit exactly as are other business men who sell food, steel, aluminum, or anything else people need or want… The fact that the publisher handles news while others handle food does not … afford the publisher a peculiar constitutional sanctuary
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