In 1996, when we were still using “dial up” to go online, Congress passed a law called the Telecommunications Act of 1996. Section 230 of the law immunized internet platforms such as Google, Facebook, Yahoo, and YouTube from liability based on online postings. The law says 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 that means is that so long as those companies simply serve as intermediaries and do not create or alter the content of what appears on their websites, they are treated like a bookstore, which is not responsible for checking the contents of the books it sells, rather than a newspaper, which is. There are exceptions to cover threats of violence or child pornography, but mostly these companies are off the hook.

The idea behind this so-called “safe harbor” was to encourage lively discussion of important subjects and thereby enhance the “marketplace of ideas.” Those words first appeared in a 1919 opinion by Justice Oliver Wendell Holmes, who believed that the “free trade in ideas” was the best way to know the truth. That was before the age of technology, not to mention social media.

When Congress passed the 1996 law, its co-sponsor, Oregon Sen. Wyden, praised it as a way to prevent “an army of censors.” That may not have been quite the right way to put it. Unlike censorship, this law is not about the government preventing certain speech. Rather it gives a get-out-of-jail-free card to companies whose products are delivered through cyberspace.

I disagree with those who argue that Section 230 simply codifies what the Constitution already requires. Freedom of speech is broad but not absolute. Ordinarily, if you say or publish something, it doesn’t matter whether the words originate with you or with someone else. In either case, you own them and can be held legally accountable.

But not for Internet providers. Section 230 removes constitutional guardrails that strike a balance between free speech and reputational harm. Modern constitutional law protects speakers’ and publishers’ “right to be wrong,” but not if they make false and defamatory statements intentionally (or, in some cases, carelessly). Section 230, however, entirely eliminates all risk.

In a sense, the laudable Congressional purpose looked back to the days when media communication was based on movable print and bandwidth. Alas, we no longer live in the communications marketplace dominated by the likes of Edward R. Murrow, Walter Cronkite, and Walter Lippman, who made broadcast and print journalism based on facts a noble calling. In Section 230, lawmakers simply failed to anticipate some of the law’s untoward consequences, where words like “bot” and “meme” would become part of the vocabulary.

In 2018, Congress created an exception to Section 230 which made it a crime to operate an online service for the purpose of promoting prostitution. That bipartisan legislation took care of such websites as the Craigslist personals section and, but it did not address fake news, racist hate speech, and the like.

Senator Josh Hawley (R-MO) has proposed a bill that would essentially eliminate Section 230, requiring companies to review all content before posting it and submit audits every two years to prove that they are “politically neutral.” According to a tech industry spokesman, the bill would require posting of “content from the KKK … alongside our family photos.” One scholar suggests that it would create “false equivalencies,” giving the American Nazi Party internet standing alongside Republicans and Democrats.

These warnings seem over the top, but the problem with this bill is that the supposed cure only creates a new disease, censorship in the guise of “fairness.” The notion that “political neutrality” should govern what has become our principal means of expression is contrary to basic principles of free speech. The Founding Fathers did not include an asterisk at the end of the First Amendment. Experiences teaches that America can live with such unpleasant byproducts of free speech as homophobic funeral pickets, on-campus intolerance, and even hate speech.

But the corrupt use of Internet platforms to influence free elections is another matter entirely. Fake news spreads a lot faster than the truth, and Section 230 serves as an unwitting ally. The Mueller report establishes beyond question that Russians used social media to spread misinformation to millions of Americans during the 2016 presidential campaign. We need to fix that, or a law designed to promote the exchange of ideas will instead serve as the handmaiden of those intent on undermining our electoral system and democracy itself.