Today's Section 230 examines the increasingly common complaint that 230 is the "censorship protection law." tl;dr: even in a world without 230, platforms could "censor" users as they want because they are not limited by the First Amendment.

I'm not exaggerating when I say that is the argument. This is a question that the Washington Examiner asked two weeks ago in its interview of an incoming U.S. Senator.

This kind of characterization is commonplace in the 230 debate, and it leaves the impression that without Section 230, platforms would have no choice but to allow users to post whatever they want.

To be sure, Section 230(c)(2) does enable platforms to avoid liability for "good faith" efforts to block access to objectionable content. This does allow claims arising from moderation to be dismissed early on, avoiding litigation costs.

But even without Section 230, it is difficult to imagine how a user could successfully sue a platform because that user has been suspended or banned, or had their content removed.

For nearly two decades, Internet users have tried to claim that their online services have violated their First Amendment rights. And courts have consistently rejected them.

For instance, in 2003, an AOL user argued that AOL's Community Guidelines violated his First Amendment rights. Here is what the Third Circuit said in rejecting that argument:

"AOL is a private, for profit company and is not subject to constitutional free speech guarantees. It is a fee-based Internet service provider that runs a proprietary, content-based online service."

The Third Circuit similarly dismissed his argument that AOL is "transformed into a state actor because AOL provides a connection to the Internet on which government and taxpayer-funded websites are found"

Likewise, the Third Circuit rejected the claim that "because AOL opens its network to the public whenever an AOL member accesses the Internet and receives email or other messages from non-members of AOL"

About 15 years later, PragerU, which produces conservative online content, sued Google because YouTube had demonetized some of its videos, and placed some videos into Restricted Mode.

The Ninth Circuit rejected PragerU's First Amendment claim, reasoning that YouTube is a private entity. "These are not antiquated principles that have lost their vitality in the digital age."

"YouTube may be a paradigmatic public square on the Internet, but it is 'not transformed' into a state actor solely by provid[ing] a forum for speech."

"Although we have not recently spoken on the issue, other courts have uniformly concluded that digital internet platforms that open their property to user-generated content do not become state actors."

Private companies may become subject to the First Amendment only if they perform public functions that are "traditionally and exclusively governmental." The 9th Circuit found that is not the case with YouTube.

"The relevant function performed by YouTube—hosting speech on a private platform—is hardly 'an activity that only governmental entities have traditionally performed.'"

PragerU also claimed that YouTube was a public forum because it was "opened up for public discourse," but the Ninth Circuit wasn't buying it.

"That YouTube is not owned, leased, or otherwise controlled by the government undermines PragerU's public forum theory. PragerU cannot avoid the state action question by calling YouTube a public forum."

The Court also rejected PragerU's reliance on YouTube's statements in support of free expression. "Whether a property is a public forum is not a matter of election by a private entity."

The opinion was written by Margaret McKeown, a Clinton appointee who worked in tech law and understands the Internet more than most judges. But joining her opinion was Jay Bybee, who, one might say, is not a liberal jurist.

The PragerU case is not an outlier. Courts around the country have dismissed similar claims against YouTube, Google, and Facebook. There simply is no viable argument to hold online platforms liable as First Amendment actors.

So this is a long way of saying that even without Section 230, platforms could "censor" all they want without violating the First Amendment.

What about "censorship"-related claims separate from the First Amendment? It's difficult to imagine what those might be.

Perhaps if a platform violated its own terms of use or community standards in taking down content. I think that's a shaky claim to begin with, but platforms would just avoid that liability by redrafting their terms/standards to give more leeway for moderation.

And prohibiting a platform from moderating would raise its own First Amendment concerns, which I will address separately.