> Your assumptions about how the First Amendment applies to unprotected speech are naive and unfounded, and have no basis in reality. You are never going to prevail on the theory that, e.g., laws prohibiting distribution of child pornography are unconstitutional because the least restrictive means test requires going after producers only.

I made a fatal mistake in my previous comment. I forgot to explain that strict scrutiny doesn't apply to unprotected speech, but it does apply to laws which intend to penalize/remove unprotected speech but end up affecting protected speech in practice. When I wrote this terrible sentence from my previous comment:

> Allowing lawsuits against only the originators of the unprotected speech, would be the least restrictive means of reducing unprotected speech, and allowing lawsuits against a website over a particular instance of unprotected speech would violate strict scrutiny in most cases.

... I intended for "least restrictive means" to mean "the effective method which is least restrictive of protected speech" I completely failed to make this clear in my previous comment, so let this comment be my correction of my previous comment. Allowing lawsuits against only the originators of unprotected speech rather than also the website is less likely to restrict protected speech. Allowing lawsuits on websites changes the way the lawsuits moderate, and aggressive moderation to avoid liability regularly removes protected speech on accident. Depending on the severity of the unprotected speech (true positives), a greater amount of collateral damage to protected speech (false positives) is constitutional.

In cases of CSAM, I would assume that any amount of CSAM anywhere is per se harmful. That's not an assumption I'm willing to make with other forms of unprotected speech. Copyright infringement has a cost, but sometimes it has a benefit [1] regardless of whether the author would accept a benefit arising from copyright infringement. Discussion of body image might be harmful to children who already have severe self-esteem issues or unencouraging family environments with respect to body image, but can be helpful as well to children who want to discuss it with people their age. A constitutionally acceptable degree of incidental restrictions of protected speech resulting from legal measures against CSAM might be too high for incidental restrictions of protected speech resulting from legal measures against all social media posts which are harmful to children.

[1] https://www.vice.com/en/article/vbwedx/online-piracy-can-be-...

The measure of what "least restrictive to protected speech" means is conditioned on how effective the measure is (according to strict scrutiny [2]). If the lawmakers cannot demonstrate that a law regulating unprotected speech would be effective, then the law should not pass, because the inevitable incidental restrictions of protected speech would have no basis to stand on. But if the lawmakers have at least some evidence that the law would help reduce the unprotected speech, then a proportionate level of incidental restrictions of protected speech would be acceptable, and would increase or decrease depending on how effective the measure turns out to be in practice.

[2] https://en.wikipedia.org/wiki/Strict_scrutiny

Is there evidence that repealing Section 230 and placing third-party liability on social media sites for the harms that otherwise protected speech supposedly cause to children would be more effective at reducing those harms than keeping the status quo? The only supporting consequence I'm aware of is that most social media sites will remove so many false positives or shut down entirely and thus take away both harmful speech and benign speech in equal measure. Big Tech sites in particular would be able to eat the court costs from erring too far toward keeping grey area speech up, while smaller sites would lean toward taking more grey area speech down. Again, would third-party liability on websites be effective at reducing harm to children while restricting protected speech to a sufficiently low degree? "Sufficiently low degree" is subjective, I know. To me, lawmakers have yet to gather marginally consistent evidence that social media in the last 5-10 years has been harmful overall to children, rather than neutral or helpful [3].

[3] https://www.techdirt.com/2024/01/05/utah-governor-absolutely...

I ran Ctrl-F for "lawsuit" in the oral arguments for Gonzalez v. Google LLC (2023) [4]. Below are some excerpts.

[4] https://www.supremecourt.gov/oral_arguments/argument_transcr... https://www.supremecourt.gov/oral_arguments/audio/2022/21-13...

Justice Thomas noted that the First Amendment without Section 230 would lead to eventual dismissal of many third-party liability lawsuits about algorithmic moderation [4]:

> Now the choice between those two modes of operating the platform, it's extraordinarily unlikely, almost inconceivable that it could ever give rise to legal liability, but those are choices made by the platforms themselves. They are not choices made by any third party. They just don't implicate 230(c)(1).

> And the choice -- the -- any conceivable lawsuit about the decision to use one mode of operation rather than the -- another, presumably, would be dismissed on the merits.

Justice Kagan noted that lawsuits will happen even if there is no liability found later [4]:

> Now I appreciate what you're saying is like, well, that doesn't mean that you're going to have liability in every case, but -- but -- but still, I mean, you are creating a world of lawsuits.

Justice Roberts agreed [4]:

> And, as Justice Kagan suggested, under your view, every one of those would be a possibility of a lawsuit if they thought there was something that the algorithm referred that was defamatory, that, you know, whatever it is, exposed them to harmful information. And so that may be the analogy doesn't fit the particular -- particular context.

Justice Kavanaugh agreed as well [4]:

> And I'm just not sure -- you know, if we -- if we go down this road, I'm not sure that's going to really pan out. Certainly, as Justice Kagan says, lawsuits will be nonstop --

The oral arguments and final decision focused on the First Amendment, so I still have to engage with the rest of your argument about Section 230.

> if immunity for distributors is constitutionally required

That's the thing. It isn't. Without fair use, copyright law would be incompatible with the First Amendment. Congress codified common law fair use in 17 U.S. Code § 107 [5]. Fair use is not an immunity. It's an affirmative defense. Being sued for copyright infringement and winning the case with a fair use defense will still leave you on the hook for court costs, so copyright holders with money to burn (such as large publishers) can still impose chilling effects with lawsuits against what later turn out to be fair uses. According to the Supreme Court, the copyright legal framework is constitutional just like this. I have no doubt that removing the fair use statute would lead to even more chilling effects. In Lenz v. Universal Music Corp. (2019), the Ninth Circuit Court of Appeals based its decision on the fair use statute, not merely on common law fair use [6]:

> Importantly, the court viewed fair use not as a valid excuse for otherwise infringing conduct, but rather as consumer behavior that is not infringement in the first place. "Because 17 U.S.C. § 107[9] created a type of non-infringing use, fair use is 'authorized by the law' and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)."[1]

[5] https://www.law.cornell.edu/uscode/text/17/107

[6] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

In other words, having a statute rather than relying on only the precedent generated previously by the statute is important for maintaining First Amendment rights. I believe that this flavor of Chesterton's fence applies just as well to Section 230. To return to your full sentence:

> Your position is also absurd in the context of this discussion, because if immunity for distributors is constitutionally required, then Section 230 is irrelevant, and its repeal would have no effect.

I would like to say that existing court precedent on Section 230 would leave in the early dismissal opportunity even if Section 230 were repealed, but without Section 230 then what would textualists say about the relationship between the First Amendment and third-party liability for online speech? But I digress.

Repealing Section 230 wouldn't have "no effect". One explicit function of Section 230 is preeempting states from passing laws imposing third-party liability for distributing other people's online speech! See the official text at 47 U.S. Code § 230 [7]:

> (3)State law

> Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

[7] https://www.law.cornell.edu/uscode/text/47/230

I know that many states aren't waiting for Section 230 to be repealed before they pass overbroad regulations on protected speech online [8]. I believe that a repeal of Section 230 would embolden the same states and more to continue passing such overbroad regulations and worsen chilling effects even before the laws would go into effect.

[8] https://www.techdirt.com/2023/07/07/netchoice-challenges-yet...

> Lastly, my comment was about the causal connection between liability and incentives

Thanks for correcting me. I think my excerpts about Gonzalez v. Google LLC from source [4] above are enough to provide a causal connection between the threat of liability and moderation incentives. Being sued enough times in lawsuits that fail to establish liability on the merits might as well be the same as actually being held liable. Section 230 doesn't prevent all un-merited lawsuits about third-party liability, but I assume that removing Section 230 would inevitably lead to more such state laws triggering more lawsuits. And I still believe that not having Section 230 would make those lawsuits harder to dismiss early.