Properly interpreted, Section 230 is not “anticompetitive” because it does not advantage one business or set of businesses over others that operate in the same market. Its core purpose is to allow online platforms to host and moderate speech under conditions that differ from those in the offline world. There have been attempts to use Section 230 to advantage some online businesses over direct competitors, for example, in the home rental and retail markets. But courts have generally concluded that Section 230 does not preclude regulation of business activities that do not themselves involve the publication or moderation of third-party speech, even though they may relate to it in some way.

By John Bergmayer1

 

I. INTRODUCTION

Section 230 of the Communications Act2 is a simple but wide-reaching law with significant competitive implications. Its core function of facilitating the hosting and moderation of third-party speech allows large and small online platforms and services to exist that otherwise would face a more challenging, or impossible, legal environment.

Among civil society groups, some argue that Section 230 allows platforms to serve as venues for free speech, and protects voices that would otherwise be silenced; some see it as a tool that allows hate, harassment, and harm to flourish online, giving victims no practical recourse.

Businesses whose operating models are challenged by the internet or by major platforms see Section 230 as a form of subsidy, allowi

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