Section 230 Is Under Attack — How That Threatens Adult Industry

LOS ANGELES—A battle taking place in Congress right now, as well as in the White House, the Justice Department, and the Federal Communications Commission, could easily end up making the internet a far more dangerous place for the adult industry — even driving adult content off the internet altogether. For that matter, all online content could be strictly censored if the fight over a law known by the innocuous name “Section 230” is lost.

“Efforts to roll back Section 230 protection will have a significant adverse impact on the adult entertainment industry if passed. Section 230 has been called the First Amendment of the internet for good reason,” First Amendment attorney Lawrence Walters told AVN. “Any change to Section 230 could result in restrictive content moderation rules or elimination of the platforms, themselves.”

To understand why, and what is going on in 2020, we have to go back a quarter century, to a time when the internet was still a new an exotic concept. 

In 1995, a mere 14 percent of American adults had access to the ‘net, according to a Pew Research survey, and for most, logging on was a tedious and cumbersome affair. Only 2 percent enjoyed what was then what was then considered the lightning-fast connection of a 28.8 baud, dial-up modem. In fact, according to the same Pew survey, nearly half of Amerians — 47 percent — said they had never even heard of the internet.

But one member of the United States House, Ron Wyden of Oregon, had a vision of the internet’s potential, even then. And he also envisioned what could go wrong.

Warning that the government could dispatch an “army of censors” to monitor and control content on the internet, Wyden and California Rep Christopher Cox drafted an amendment to a broad online regulation bill then under consideration in the House. Praised by groups on both the right and left ends of the political spectrum, the amendment was designed to prevent online censorship.

A year later, Wyden became a senator, and his House amendment became a key element — perhaps the key element — of a broader law, the Communications Decency Act of 1996. The anti-censorship amendment was enshrined in that bill as Section 230.    

The most important sections of the law, which has come to be called the “core pillar of internet freedom,” and the “internet’s First Amendment,” state that: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

What does that mean? It means that no internet platform, such as Facebook or Pornhub, is legally responsible for content posted by a user of that platform. In other words, if you host a blog, and someone posts a libelous or “obscene” comment on one of your entries, legally speaking, it’s not your fault. You cannot be sued, or held criminally responsible.

“Section 230 as far as I’m concerned is the leading law that led to the evolution of the internet, the expansion of the internet, and people’s ability to communicate with one another,” Corey Silverstein, a Michigan-based attorney who specializes in adult industry law, told AVN. “I would not touch it.”

But politicians and legislators on both sides of the aisle are not only trying to touch Section 230, they are actively attempting to cripple or even eliminate it. Democratic presidential candidate Joe Biden said most recently in late May that he wants to see Section 230 fully repealed, while Donald Trump around the same time issued an executive order for the FCC To “review” the law, claiming it allowed political "censorship" online

Acting on the Trump order, the National Telecommunications and Information Agency (a branch of the Commerce Department) in late July sent a memorandum to the FCC asking the commission to alter Section 230 in such a way that platforms would be required to engage in cumbersome moderation of the content that users post, or face loss of Section 230 protections.

The Justice Department under Attorney General William Barr has also proposed rollbacks to the protections given to online platforms under Section 230, and the bipartisan EARN IT Act — which now scheduled would also require platforms to “earn” the liability protections that are now a given under the 25-year-old law, by following a vaguely defined set of so-called “best practices” for content moderation.

EARN IT, in particular, “could result in a sanitization of adult content from the internet by U.S. platforms or websites,” according to Walters.

The EARN IT Act is now set to be debated and voted upon on the Senate floor, while a similar bipartisan proposal, the PACT Act, will soon receive a hearing in a Senate committee. PACT would require platforms to be more open, or “transparent” about their content moderation practices — an aim generally supported by digital civil liberties advocates — but it contains “problematic” measures for implementing that goal, according to the Electronic Frontier Foundation

But the current wave of legislation and executive actions are not the beginning of the attacks on Section 230. The 2018 FOSTA/SESTA law eliminated Section 230 protections if sites were deemed to be promoting “sex trafficking.” But the law appears to have done little but lead to the wave of censorship that Wyden feared 25 years ago. In fact, Wyden, a Democrat, and Republican Rand Paul of Kentucky, were the only two senators to vote against FOSTA/SESTA in 2018.

“This first effort to carve out an exception to Section 230 immunity resulted in widespread online censorship by platforms and many sites simply shut down due to the increased risks,” Walters told AVN. “Even advocacy and harm-reduction groups have had to censor their speech due to the significant criminal penalties imposed against platforms that do not adequately moderate their content.” 

That’s where the controversy over Section 230 gets most puzzling. There shouldn’t even be a controversy. Platforms cannot possibly be required to moderate every piece of content posted on their sites, and courts have long ruled that they don't have to. As one legal expert on media law, Ohio-based attorney Robert Hamilton, noted in a recent essay for TechDirt, existing law and Supreme Court decisions had already established protections for platforms — before the internet was even a twinkle in anyone’s eye.

“Prior to the enactment of Section 230, I believe the First Amendment, as construed by the U.S. Supreme Court in Smith v. California, provided online intermediaries the protection they needed from liability for unlawful or tortious third-party content that they did not know was on their systems,” Hamilton said in an email to AVN.  

Smith v. California was a 1959 case in which SCOTUS held that a bookstore owner could not be held liable for selling an “obscene” book, if he wasn’t aware of the book’s contents.

“The Court held that such a strict liability standard would cause booksellers to engage in an impermissible level of self-censorship, suppressing the distribution of constitutionally protected, non-obscene material,” Hamilton explained in a 1996 essay.

In other words, assuming online platforms were essentially the same as bookstores, they were already protected from liability even before Section 230 took effect. But that does not make the law unnecessary, according to Hamilton.

“The impact and importance of Section 230, however, was critical with respect to the second legal question that OSP’s faced,” he wrote in his email to AVN. “Which was, ‘what is our liability for content posted by our users that we know is on our system and we decide not to remove?’” (OSPs are "online service providers.")

Section 230 clearly protects platforms when they make their own moderation decisions, an area that was “uncertain, vague, and largely uncharted by prior case law,” according to Hamilton.

Even in the less aggressive attacks on Section 230, such as the PACT Act, those moderation decisions are under attack, and Section 230 liability protections could be taken away if moderators make the wrong ones. That's why the adult industry is especially vulnerable if Section 230 is weakened or repealed.

“One of the easiest things for the government to do, and this is why it affects adult so much, is to slap the words ‘sexual trafficking’ or ‘human trafficking’ onto a bill,” Silverstein said. “In the EARN IT Act, that’s what they claim it’s all about.”

With the proliferation of legislative assaults on Section 230 from both Democrats and Republicans, some sort of further rollbacks to the “First Amendment of the internet” appear inevitable. What happens to the adult industry then?

“There’s going to be an outflow of companies, to get away from the U.S. and move to other jurisdictions. But look at the most popular adult products right now. Look at AVN. You have your own social media now,” Silverstein said, referring to the AVN Stars platform. “Think about it, that’s all user-submitted content. Imagine a world where AVN could be legally liable for every single piece of that content, without even knowing what it is.”

But even with the threats to Section 230 now moving through Congress and the Executive Branch, Silverstein still sees some hope for reversing the trend — but not without pressure from voters who care not only about the adult industry, but about all online content.

“What people should be doing is finding out who their senator is and writing their senators letters saying, ‘It’s election season. I am not going to support you, and I am not going to support your party unless you come out and say that you are for Section 230.'”

Photo By Junior Teixeira / Pexels