§ 230 and the SAFE TECH Act

The PDF version of my testimony and the testimony of the witnesses can be viewed here. However, I decided to blog it as I had commented on each proposal separately. You will see that my goal was mostly to give an objective analysis of the proposed proposals. However, I did not focus on obvious effects. Some of these proposals have influenced my opinions, however I’ll try to separate them from the objective analysis.


There are many provisions in this bill. Let me just focus on the most obvious.

[A.]Removal of Immunity from Paid Hosting Services, e.g. WordPress
Platforms Which Share Ad Revenue With Creators (e.g. YouTube)
Platforms that Subsidize Content

Providers who have accepted payment for the speech or created the speech or paid the money to create it would be denied immunity (sec. 2(1)(A)(iii)).

This would threaten liability for any service that charges to provide hosting—for instance, blogging platforms such as WordPress or hosting services such as Amazon Web Services. Because they accept it,[]They will pay for the speech to be made available. This is not surprising since they are in this business to make money. Advertising-supported free services (which generally make money by selling access to their users, and their users’ data) would still be immune, so the market would be strongly pushed in that direction.

This section also would expose YouTube’s liability for sharing its advertising revenue to creators. YouTube could be considered “in part” if it allowed popular video providers to monetize their videos.[] . . . Fund[ing]The creation of the speech.” Providers will have likely created these videos with the expectation that they would make money on YouTube. Any money made could be used to fund the creation of future videos. Creators are less likely to be paid a portion of their earnings if they earn enough to justify the risks of being sued.

This section will also expose providers to liability if they provide grant support for journalism in local areas or any other similar projects (something like Google News Initiative).[4]Because there, the providers will again have “in part”[] . . . “Funded the creation of this speech.” This would make it less likely that providers will support journalism or other expressions directly and indirectly.

[B.]The Affirmative Defense is a Way to Turn Immunity into Immunity: It’s Probably a Very Ineffective Modification

Sec. Sec. 2(1)(A), (iv), provides that providers seeking to be exempt from liability could assert that immunity is an “affirmative defense” and that they “are a provider, user or provider of interactive computer services and are being treated like a publisher or speaker for speech provided by an information content provider.” However, this is not likely to make much difference.

It is crucial to understand the burden of proof or persuasion. Factual disputes. It might be important to determine who bears the proof if the case is close. But the placement of the burden  generally doesn’t much affect It is legal Questions such as what a statute should be read or how to describe a legal claim.

Although it is possible to determine whether a defendant was a user or provider of interactive computer services, this question can only be answered by facts. Twitter clearly is a provider for an interactive computer service.

It is unclear whether defendants are being considered “publisher or speaker of speech provided via another information content supplier” in the plaintiff’s complaint. This legal question is not likely to be affected by the burdens of persuasion. For example, see the landmark decision in Zeran v. America Online, Inc.The court ruled that AOL is a publisher and plaintiff’s suit was therefore preempted. 129 F.3d 327, 333 (4th Cir. 1997). However, Fair Housing Council of San Fernando Valley and concluded, as a matter of law, that § 230 didn’t apply, because plaintiff’s claim was that a roommate advertising website’s practices made it “become much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.” 521 F.3d 1157, 1166 (9th Cir. 2008). In both cases, the burden of persuasion did not matter.

Nor would making clear that § 230 immunity is an affirmative defense preclude early motions to dismiss. Indeed, courts have already recognized that § 230 immunity is an affirmative defense, yet allowed such motions. Preemption under the Communications Decency Act can be used to support a motion for dismissal if it is clear that the statute is preventing the suit from proceeding. Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014); See also Ricci. 456, 781 F.3d 25, 28 (2d Cir. 2015); Marshall’s Locksmith Services. Inc. v. Google, LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019). Not only would this statement regarding the burden of persuasion not replace the principle that Section 230 immunity, just like all other forms, is generally given effect at first logical stage of the litigation process.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 254 (4th Cir. 2009), usually, the motion to disqualify.

[C.]Legalizing State Civil Rights Laws that Ban Political Discrimination

The bill would modify § 230 to provide that “Nothing in this section shall be construed to limit, impair, or prevent any action alleging discrimination on the basis of any protected class, or conduct that has the effect or consequence of discriminating on the basis of any protected class, under any Federal or State law.” A number of state legislatures have begun to discuss making political ideologies a protected class under their state public accommodations laws. They also plan on applying these laws to social media platforms.

For example, D.C. law already considers political party membership to be a protected class alongside religion and sex.[5]More broadly, the Montana Constitution provides that no “firm, corporate, or institution” shall discriminate against anyone in exercising his civil rights. . . Rights based on race, color or sex or culture or other political or religious beliefs[6]Some cities like Seattle, Madison or Champaign, Champaign, Urbana ban discrimination at public accommodations due to political ideology.[7]Similar laws may be adopted by the state legislatures.

It is difficult to know if such social media platform bans against political discrimination are constitutionally protected under the First Amendment.[8] But the bill would make clear that § 230 doesn’t preclude such bans.


[5] D.C. Code §§ 2-1401.02(25), -1402.31(a).

[6] Mont. Const. art. II, § 4.

[7] Look! Eugene Volokh, Public Housing and Public Accommodation: No Political Discrimination, 15 NYU J. L. & Lib. 709 (forthcoming 2021),

[8] Look! Eugene Volokh, Social Media Platforms As Common Carriers, 1 J. Free Speech L. 377 (2011),