Berin Szóka (TechFreedom) has posted “Antitrust, Section 230 & the First Amendment” (CPI Antitrust Chronicle May 2021) on SSRN. Here is the abstract:
The First Amendment allows antitrust action against media companies for their business practices, but not for their editorial judgments. Section 230 mirrors this distinction by protecting providers of interactive computer services from being “treated as the publisher” of content provided by others, including decisions to withdraw or refuse to publish that content (230(c)(1)), and by further protecting decisions made “in good faith” to take down content, regardless of who created it (230(c)(2)(A)). Section 230 provides a critical civil procedure shortcut: when providers of interactive computer services are sued for refusing to carry the speech of others, they need not endure the expense of litigating constitutional questions. Thus, changing Section 230 could dramatically increase litigation costs, but it would not ultimately create new legal liability for allegedly “biased” or “unfair” content moderation. Nor will the First Amendment permit new quasi-antitrust remedies that compel websites to carry content they find objectionable.