In their haste to curb bad speech, regulators could endanger all speech

Unless you have a specific interest in sex-trafficking or proposed legislation aimed at reducing it, you might not be familiar with a bill that was has been making its way through Congress, a bill known as the Stop Enabling Sex Trafficking Act or SESTA. The bill has already been approved by the House, and on Wednesday was overwhelmingly approved by the Senate, which means it is on its way to President Trump for approval, and if he signs it — which seems likely, based on his previous comments — SESTA will become law.

Why should you care? Because in the process of trying to combat sex trafficking, Congress could wind up endangering free speech online. As CJR described in a piece on the proposed law last year, when it was still going through the House, SESTA effectively weakens one of the key pillars of online speech: Namely, Section 230 of the Communications Decency Act of **. That’s the clause that gives platforms like Facebook and Google immunity or “safe harbor” for the user-generated content that appears on their platforms.

In a nutshell, Section 230 is the reason Facebook, Google and Twitter can distribute your tweets or status updates or video clips without being legally liable for everything contained in them. SESTA removes that protection or safe harbor in the case of anything involving sex trafficking — which wouldn’t be a problem, except for the fact that by removing that protection, it weakens the entire edifice that is Section 230.

This isn’t happening in isolation. Section 230’s safe-harbor provisions were already coming under fire from Congress because of the belief that they insulate platforms like Facebook or YouTube from responsibility for other kinds of speech the government doesn’t like, including Russian troll campaigns, “fake news,” sexual harassment, neo-Nazi sentiments and anything that falls into the large and growing bucket labelled “terrorism.”

The risk is that if Section 230’s protections for speech are weakened — as similar protections are being weakened in Europe to try and stamp out fake news and hate speech — it gives everyone from trolls to governments license to go after all kinds of speech they dislike or disagree with. And while Facebook and Google might have the resources to deal with that, lots of smaller publishers and online services don’t.

As Senator Ron Wyden, one of the authors of Section 230, put it: “”In the absence of Section 230, the internet as we know it would shrivel,” Wyden said on the Senate floor ahead of the vote Wednesday. “Only the platforms run by those with deep pockets, and an even deeper bench of lawyers, would be able to make it.” That would only entrench the dominance that Facebook and Google and other massive platforms have.

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