Section 230 Reform in the Era of “Big Tech”: What Does That Mean for Antitrust?

Today, online platforms such as Facebook, YouTube, and Twitter have become the primary means of expression and source of information for many Americans. Since their inception, these platforms have enjoyed legal immunities under Section 230 of the Communications Decency Act — a 25-year old statute that largely shields them from liability for hosting and moderating content posted by their users. For years, Section 230 was seen as striking the right balance between encouraging free expression on the internet and protecting content moderation by online platforms. But as both sides of the political aisle start to criticize “Big Tech,” the once-obscure statute, which is seen as providing sweeping immunities to some of the largest companies in the world, is taking fire from all directions. Multiple reform bills have been proposed by legislators, including ones that would prevent online platforms from using Section 230 as a defense in cases brought under antitrust law. Some have suggested that a Section 230 reform would broaden the reach of antitrust law and make it more likely for an antitrust case against “Big Tech” to succeed. This article explains why we believe a Section 230 reform would have little impact on antitrust law.

By Zhao Liu¹

I. INTRODUCTION

Section 230 of the Communications Decency Act (“Section 230”) has never been in the forefront of national debate like it is today. Once hailed as the Magna Carta of the internet, this 25-year old statut