By Amanda Kadish ’20
The Limits of Section 230
In October 2020, Glenn Greenwald, a well-known and controversial national security journalist, announced he was leaving The Intercept, an online publication he helped create, to start an email newsletter on Substack. In his first newsletter on the new platform, Greenwald wrote, “I will be publishing here… in order to practice journalism free of the increasingly repressive climate that is engulfing national mainstream media outlets across the country.”

Launched in 2018, Substack promises journalists and other writers independence and the opportunity to create their own mini media empires. Readers subscribe to their favorite writers and, in return for a small monthly fee, are emailed periodic newsletters. The platform is gaining traction. It has received funding and support from Y Combinator, a startup accelerator whose portfolio includes such household names as Airbnb, Stripe, and Dropbox. Journalists are also embracing the model, and are leaving more established publications such as Buzzfeed, Vox, Rolling Stone, and the New Yorker to start newsletters on the platform.

While it has long been argued that the news business is due for a remodeling, is Substack in the business of news? Not according to its co-founder and CEO, Chris Best. “I think our asset is the platform that we’re creating,” said Best in an interview with The Verge. “We aren’t a media company… The whole point of Substack is that, as a writer, you can use Substack to go independent, and we are spawning a million media companies.”

Despite Best’s contentions, Substack’s infrastructure says otherwise. The company has offered certain writers advances to join, as well as providing editorial support and the option to buy health insurance. It also offers, on a case-by-case basis, a legal defense program for writers facing “bogus legal threats” from politicians.

This kind of protection is exactly why journalists maintain their jobs at places like the New York Times or the Washington Post. So, why then is Substack not embracing the title of media company as opposed to tech platform? Likely because it wants a safety net of its own—Section 230 of the Communications and Decency Act.

Section 230—the “26 words that created the internet,” according to Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy—states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 establishes a baseline of protection for information platforms so they can avoid liability for their users’ content. Without it, many of today’s biggest tech companies wouldn’t be in existence.

As a result, tech companies such as Facebook, Google, and Twitter have gone to great lengths to prove they are not “publishers,” but “platforms.” While old media remains liable for the work it puts into the world, these companies argue they shouldn’t be subjected to costly litigation for the words that users put on their platforms.

Why is Substack not embracing the title of media company as opposed to tech platform? Likely because it wants the safety net of Section 230.
Section 230 finds itself in the crosshairs of both liberal and conservative politicians, who argue, for different reasons, that the law needs to be amended. Conservatives argue social media is censoring their voices, while liberals argue that a lack of censorship has led to the proliferation of misinformation. Regardless of the merits of either of these claims, it appears that even Facebook’s ability to label itself a platform may be coming to an end, making it even more unlikely that Substack could claim the same.

Given all this, perhaps it might be wisest for Substack to embrace the title of publisher. After all, it isn’t as though publishers haven’t been given a safety net of their own. One of the most well-cemented cases in First Amendment jurisprudence is New York Times v. Sullivan (1964). In its decision, the U.S. Supreme Court held that public officials suing publishers for libel could recover only if they showed by clear and convincing evidence that statements were made with “actual malice,” with knowledge that they either were false or were written with a reckless disregard for whether they were true.

This is likely a better standard for Substack, which seems to want to ensure that the work published on its site meets a certain standard of professionalism. As the company writes on its “About Us” page, “We started Substack because we believe that what you read matters and that good writing is valuable.” Substack shouldn’t shy away from embracing high-quality journalism. Although it may be tempting to follow in the footsteps of so many other Silicon Valley companies, they may find that the protections offered to them under First Amendment jurisprudence will better protect them, and better serve their mission to reshape the media landscape.

Amanda Kadish ’20 began law school as an evening student and graduated in December 2020. She was a member of the Moot Court Honor Society, where she was a quarterfinalist in the American Association for Justice Competition, and the Brooklyn Law Incubator & Policy Clinic.