I made two serious mistakes. Both my parent comment and 2OEH8eoCRo0's grandparent comment conflated the speech of the users (the actual posts) and the speech of the social media sites (the moderation decisions, and anything the company workers write while representing the company). Additionally, I incorrectly believed that the Florida and Texas laws were only about forcing social media sites to host speech, even though the case also involves questions of liability for users' speech. (However, the Florida and Texas laws are not like KOSA, which focuses on the supposed harm caused by the actual social media posts.)

I read an article [1] that cleared up my confusion about which speech is third-party and which speech is first-party. The grandparent comment by 2OEH8eoCRo0 said this:

> I don't think they should be able to have it both ways.

> Social media companies have speech? If they have speech then why aren't they liable for that speech?

There are "both ways" because there are two different kinds of speech at issue. The first kind of speech is the posts themselves, the content of which were written by users. The second kind of speech is what the social media website does with the post (boosts, downranks, deletes, marks with tags, bans the user of, etc.). (The second kind also includes whatever else someone representing the company writes, but that's not relevant to the confusion about Section 230.) Section 230 declares that the social media site cannot be held liable for the first kind of speech. Social media sites can still be held liable for the second kind of speech. Any harm caused by the very content of the post is actually harm caused by the first kind of speech, even if the social media site boosted the post; holding the social media company liable for boosting such a post would violate the social media company's First Amendment right to moderate. The right to moderate comes from the First Amendment, not from Section 230.

Suppose that I make a post about eating disorders on social media. The social media site boosts my post. Some kid sees it and later develops an eating disorder (correlation, with the question of causation to be decided in court). The parent sues the social media site and argues that the social media site should be liable because the social media site boosted the post.

Scenario 1. If Section 230 didn't exist, then the social media company would have to go through the entire court process. The social media site argues that "First, social media websites have a First Amendment right to moderate. Second, our moderators could not be expected to foresee that a mere discussion of eating disorders would cause more harm than help. Third, the liability should fall on the user who posted the speech". The social media company loses a lot of money, but the court rules that the social media company was not liable for the post.

Scenario 2. Since Section 230 does exist, then the social media company can say, "This lawsuit attempts to hold someone online liable for distributing speech made by someone else. Section 230 says that this liability will not exist." The court declares that the social media company cannot be held liable for the post, and dismisses the case early.

Either way, the social media company would not be liable. But Section 230 is still necessary to prevent social media companies from being overwhelmed with having to go through entire court cases. The parent could sue me. There's still no guarantee that I would be held liable for the specific example post I came up with. (And obviously, there can be no third-party liability on the social media website if the court in Scenario 1 decides that there would be no first-party liability on me.)

[1] https://www.techdirt.com/2024/03/01/we-cant-have-serious-dis...