Whither Section 230 Under Trump 2.0?

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As Donald Trump prepares to return to the White House, this time with a Republican Congress backing him up, change may soon sweep over the tech policy landscape. Already, Trump is expected to cancel President Biden’s executive order on artificial intelligence (which my colleague Kaylee Williams recently wrote about for CJR), loosen cryptocurrency regulations, and maybe save TikTok from a ban that was set to kick in early next year. While Trump was vocal about these issues during his campaign, he has been notably quiet on another major policy change even though he fought for it during his final days in office last time around: the repeal of Section 230, the law that shields social media platforms from legal liability when making decisions around users’ posts. 

In broad strokes, Section 230 is the platform equivalent of the “don’t shoot the messenger” rule. It was passed in 1996, as part of the Communications Decency Act, in response to the amount of pornographic, hateful, and defamatory content that was beginning to sweep the internet. Under previous publishing-liability rules, websites risked being sued if they removed such content; Section 230 was introduced to grant platforms immunity to moderate content if they found it objectionable “in good faith,” and to protect them from being held legally responsible for content posted by their users. “We came to call it the sword and the shield,” Ron Wyden, one of the coauthors of the law (and now a senator), told PBS. “The sword is the ability to take down horrible stuff on the internet. The shield is the protection from frivolous litigation.” 

Today, Section 230 has become a punching bag for politicians on both sides of the aisle. On the right, Trump and many other conservatives believe that Big Tech platforms are biased against them and that Section 230 grants them protection to moderate their content without facing liability. During the final days of his first term, Trump issued an executive order to limit the protection offered by the law, a move that came after Twitter (now known as X) put fact-checking labels on some of his tweets that claimed, without evidence, that mail-in ballots were fraudulent. 

Since leaving office, of course, Trump himself has started a social media company: Truth Social, which was founded in 2022 (at a time when he was still barred from Twitter owing to the insurrection of January 6, 2021). “From now on, digital platforms should only qualify for immunity protection under Section 230 if they meet high standards of neutrality, transparency, fairness, and non-discrimination,” Trump said in a video posted to Truth Social that year. Since then, however, he has stayed relatively quiet on issues related to Section 230. In August, Chamber of Progress, a progressive tech trade group, sent an open letter to Trump asking him to clarify his position on the law, pointing out that Truth Social itself relies on Section 230 to host and curate third-party content, and that if it weren’t for that provision, Trump’s platform might also face litigation over what users say on the platform, Adam Kovacevich, the CEO of Chamber of Progress, told the Washington Post. Section 230 also lets Truth Social moderate content as it sees fit, for instance when choosing not to take down medical misinformation or hateful content. 

The same principles, of course, apply to X, which, since Trump was last in office, has been acquired by Elon Musk, who is now an outspoken Trump ally. Last month, X invoked Section 230 to challenge a new California law that requires large online platforms to remove or label “deepfakes” related to elections and candidates in a set time period before and after that election. X alleges that the new law would prompt social media sites to lean toward labeling or removing legitimate election content out of caution, the Los Angeles Times reports. 

While Trump has remained quiet on Section 230, Brendan Carr, his pick to lead the Federal Communications Commission in his incoming administration, has made his position quite clear. Carr, a veteran Republican regulator who currently sits on the commission, wrote a chapter in Project 2025, the policy blueprint prepared by the right-wing Heritage Foundation, in which he called for a reinterpretation of the law, proposing that the FCC work with Congress to make legislative changes such that “Internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections.” In other words, a stab at content moderation. Platforms, according to Carr, should only be granted protection under Section 230 if they severely limit content moderation so as to only remove user-generated content that is illegal. Carr has also proposed that if content filters do exist, users should be able to personalize them.

But Carr may be getting ahead of himself: several experts have argued that it isn’t the FCC’s role to govern online speech. (The conservative Federalist Society, for example, has noted that nowhere in Section 230 does it say that the FCC has the authority to define the bounds of immunity.) In 2020, during Trump’s last days in office, there were some attempts within the FCC to argue that the agency had the authority to interpret Section 230, but these were eventually dropped, and such arguments seemed to fade as Democrats took control of the agency. 

Since then, Section 230 hasn’t just given Trump and other Republicans a headache. Many Democrats have been just as vocal about their dissatisfaction with the law, albeit for largely opposite reasons, arguing that Big Tech companies have exploited it to avoid cracking down on harmful content. In May, a bipartisan pair of legislators announced a draft bill to “sunset” Section 230 unless tech giants could suggest reforms. But some observers trashed the proposal. Mike Masnick, of Techdirt, accused legislators of effectively holding the internet at gunpoint and threatening to shoot unless Google and Facebook came up with a plan to appease Congress. In an op-ed for the Wall Street Journal at the time, Wyden and Christopher Cox, the coauthors of Section 230, made a similar point, describing the plan to eliminate the law as a reckless one that would be disastrous for the internet. Under the draft bill, they wrote, “if Congress can’t agree on a successor to Section 230 by Dec. 31, 2025, websites from Yahoo and Etsy to the local restaurant hosting customer reviews will become liable for every syllable posted on the site by a user or troll.” (The bill did not become law.)

Now, with a second Trump term ahead, it’s possible that the effort to reinterpret Section 230 will be revived. But, as per the Federalist Society, this process could be politically messy: “Given the radical change in administrative law since 2020—ironically made possible by the shift in the Court’s makeup thanks to President Trump’s first term appointments—transforming Section 230 from Big Tech’s safe harbor into a regulatory hammer may prove difficult.” Plus, with Trump’s own stake in Truth Social and Musk breathing down his neck, it’s not entirely convincing that reinterpreting or entirely revoking Section 230 will be the administration’s weapon of choice against content moderation. 

Other notable stories:

• Yesterday, Jeff Bezos, the owner of the Washington Post, spoke at the New York Times’ DealBook Summit and addressed his decision to bar the paper from endorsing Kamala Harris ahead of the election; critics suggested that Bezos was appeasing Donald Trump lest the latter go after his business interests in a second term, but Bezos denied this, reiterated that reader trust was the real reason, and insisted that the Post would “continue to cover all presidents very aggressively.” Also at the summit, Bezos said that he was “very optimistic” about Trump’s second term—in part because “he seems to have a lot of energy around reducing regulation”—and suggested that Trump has “probably grown in the last eight years.” And Bezos said that he would try to talk Trump out of his threats to the media, adding, “The press is not the enemy, let’s go persuade him of this.”

• Yesterday, David Frum appeared on Morning Joe on MSNBC and talked about allegations that Pete Hegseth, the Fox News host tapped by Trump to serve as defense secretary, has a drinking problem, quipping that “If you’re too drunk for Fox News, you’re very, very drunk indeed.” Later, a host apologized for that remark. In an essay for The Atlantic, Frum characterized the apology as a fearful capitulation; MSNBC denied this. Meanwhile, Mediaite’s Alex Griffing assessed whether Morning Joe’s ratings have really tanked since its hosts controversially met with Trump, a visit that itself sparked claims of appeasement. (The answer: not really.) And Oliver Darcy reports that Rashida Jones, the president of MSNBC, is considering quitting early next year. (Jones denies this.)

• For CJR, Bill Grueskin spoke with Dilan Gohill, a student reporter at Stanford who was arrested while covering a pro-Palestine occupation of the university president’s office earlier this year; Grueskin found that “by all accounts, Gohill was there only as a journalist,” and yet university officials want him prosecuted, and he could still face charges. “It isn’t clear why the district attorney is still reviewing the case, and it’s even less clear why Stanford has taken such an aggressive posture toward a student journalist with less than a year’s experience,” Grueskin writes. Gohill told him that while the experience was “super traumatic,” it was “important that someone was there.”

• Also over the summer, three journalists—Olga Fedorova, Josh Pacheco, and Sinna Nasseri—were arrested while covering a pro-Palestine protest outside Israel’s consulate in Chicago during the Democratic National Convention; police said that the journalists failed to comply with a dispersal order and scolded them for being too close to the protesters they were covering. Now the Freedom of the Press Foundation’s Seth Stern reports that charges of disorderly conduct against Fedorova and Pacheco have finally been dropped. (It’s not clear if Nasseri’s case was also dismissed.) 

• And—after Biden pardoned his son Hunter this week, eliciting much media uproar—Esquire’s Charles P. Pierce wrote a column urging people to “shut the fck up about” it; George H.W. Bush pardoned his son Neil when he was president, Pierce wrote, and yet “nobody defines” his legacy that way. This, however, is likely because Bush Sr. did not pardon his son. Esquire corrected Pierce’s column claiming as much, then retracted it altogether. The magazine said that it “regrets the mistake.”

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Sarah Grevy Gotfredsen is a computational investigative fellow at the Tow Center for Digital Journalism at Columbia University. She works on a range of computational projects on the digital media landscape, including influence operations conducted through news media and the information ecosystem. She graduated from Columbia University in 2022 with an MS degree in data journalism.