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The past, present, and future of Section 230: Highlights from my conversation with Former Rep. Chris Cox (R-CA)

In addition to your former colleagues in Congress, some state governors, namely in Florida and Texas, have signed bills that purport to outlaw censorship of conservative voices on social media platforms. You are on the board of directors at NetChoice, which has sued both states for the introduction of these laws, but on First Amendment grounds, rather than because of Section 230. Can you walk us through that distinction?

Section 230 is relatively narrow and the First Amendment is very broad. Section 230 says liability for unlawful content rests with the creator of that content. The First Amendment says in the most sweeping terms possible that Congress shall make no law abridging free speech. And that’s a very well-protected fence around what not only the federal government but the state government can do. These are the most sweeping terms possible. The rights that are protected are those of every individual and every business in America. And that’s well-established.

The restraints we’re protected against are those imposed by governments, either federal or state — not restraints protected by private actors. So this is where the state laws run into trouble. They’re partially preempted by Section 230 to the extent that they’re inconsistent with federal law, but they’re almost entirely invalid because they attempt to regulate private speech through government action. That violates the First Amendment. Under the First Amendment, Congress can’t compel private tech platforms to host content they would otherwise choose to remove. And Florida and Texas have tried to do that.