Tim Wu has been tapped by the Biden administration to join the National Economic Council. This is a significant appointment for Mr. Wu, a former Supreme Court clerk (Stephen Breyer) and law professor whose career has focused on how to modernize antitrust law.
Mr. Wu’s views on antitrust law have been laid out in great detail in a number of his books, including The Curse of Bigness: Antitrust in the New Gilded Age. In that book and in other essays, Mr. Wu advocated busting up monopolies so that small entrepreneurs would have a meaningful chance to drive innovation.
Despite Mr. Wu's bold stance on antitrust enforcement, his views on repealing or amending Section 230 of the Communications Decency Act (“CDA”) are somewhat surprising. In a Medium post, Mr. Wu has taken the position that repealing Section 230 would not do much good. While many believe that platform companies are able to spread disinformation and propaganda because they are immunized from liability under Section 230, Mr. Wu denies that this is the case.
In fact, Mr. Wu argues that repealing Section 230 would probably do two things: First, it would make defamation lawsuits easier to bring, which would cripple the way in which platform companies are able to foster critical, sustained discussion about heated social, political, and economic issues. Second, according to Wu, repealing Section 230 would benefit the largest social networks and platform companies because their scale and resources would place them in an enviable position. After all, with ample resources to pay for an army of content screeners, the larger platforms could avoid liability in a post-Section 230 world.
We will watch with great interest how the Biden administration approaches the regulation of social media properties in general, as well as how President Biden and his team of expert advisors approach the increasingly vocal calls to amend or repeal Section 230 of the CDA.