Author: TSA Press

This is the time that the main opposition in Zimbabwe should be at its best, offering leadership, strategies and solutions to the multifaceted crisis, however, it is hamstrung by political bickering and personality clashes.

A pattern that continues to repeat itself, each time Zimbabweans are in desperate need of opposition leadership, an internal implosion occurs at the top, which throws the party into a state of confusion, compromising its ability to deliver change to its supporters and Zimbabweans at large.

That moment in history when the sheroes and heroes of our struggle should be rising and making a mark in the country’s unfolding politics, is being lost to an internecine warfare among factions of the main opposition party the MDC, as we knew it in 1999, now fighting from different corners and fractions.

A warfare Zanu PF according to character is taking full advantage of, one which I believe could have been avoided or at least mitigated, one which exposes some of the inherent weaknesses and vulnerabilities in the opposition which it needs to insulate itself against, if it is to survive the long haul to 2023.

The first concern is to do with moral leadership, what lessons can the MDC learn from the ‘struggles within the struggle’ during the war of liberation as documented by the late Masipula Sithole?

Sithole does not rule out the possibility of conflict in political organisations, however, he argues that what matters is how the leadership responds and handles the conflict.

Consequently, many begin to link internal party democratic processes or credentials as a reflection of the nature of politics an individual party will advance in national politics, charity they say begins at home. Humility, tolerance, forgiveness and political savvy in dealing with both internal and external challenges.

Tapping into institutional memory, in assessing the current state of the opposition, one senses a lack of ideological purity or clarity, that has often compromised its ability to assume power, as key leaders have often been found wanting in integrity and honesty, to advance the party’s agenda forward.

Horrible contradictions exist, baffling for instance is that in just two years the same leaders who endorsed the coup against the late former President Robert Mugabe, were soon in bed with him and are now working with his close allies.

Evident in the internal contradictions that are exposed each time the party splits, it is totally disconcerting for instance, given the risks involved, that in 2020 we should be convinced Thokozani Khupe, a former deputy Prime Minister seconded by the party to the GNU in 2013 and Tsvangirai’s deputy for several years has been working in collusion with Zanu PF.

Furthermore, to expose deceit, those who know the party’s history from the time the late Getrude Mtombeni was alive, that the Khupe of today is no different to the one the same leaders have shielded, worked with, promoted even in the midst of protestations from her own constituency. What has changed?

Again necessitating my question is Khupe an MDC or Zanu PF creation?

Rules have often been and continue to be flouted for political expediency creating political animals that are larger than the party.

No lessons are ever learnt.

Costly expediency, lets see for instance after the sudden appointment of Advocate Fadzai Mahere as party spokesperson, should a fallout ensue, that the same appointing authorities will soon be falling over each other convincing us from mountain tops, that she was never an MDC cadre anyway, pointing out her Zanu PF roots.

There is a method to this madness.

Had Khupe played ball and agreed to endorse the leadership of Advocate Nelson Chamisa after Morgan Tsvangirai’s death would we have ever known that she is a ‘double agent’ planted in the opposition leadership for all these past years?

Why wait for a fall out to expose agents?

The party fails to extricate itself from historical internal contradictions that militate against unity of purpose and cohesion in response to its main enemy Zanu PF.

Stuck in old populist self defeating arguments, as it fails to see the forest for the trees.

A more pragmatic leader’s preoccupation would be on how to weaken and stop Khupe a former ally and Cde from being a useful tool, an instrument and weapon of attack for Zanu PF?

It is demonstrably clear that populist arguments become irrelevant, if not futile, Khupe might never win an election or be loved by Zimbabweans, she remains a useful weapon in the hands of Zanu PF, slowing down the work of the MDC. Just like others before her did.

Elevating individuals to demi Gods, daily massaging their egos is part of the crisis we are faced with.

I contend in this article that a lot of the self inflicting pain, wounding and bleeding the party is going through could have been avoided, offering an opportunity for reflection and introspection in the opposition ranks on what could have been done, must be done differently, to avoid a recurrence of the same crisis.

Further arguing that none of those involved in the fighting that is traumatising Zimbabweans and faithful party supporters are innocent and should take equal responsibility, for the mess the party finds itself in. This way the party can redeem itself, if it is to survive and contain other opposition from emerging with the potential to pull rug from under its feet.

Gas-lighting, attacking and emotional blackmailing those who differ in perspective or opinion is pointless at this time, two years after the 2018 Presidential elections and three years to the next one. Time waits for no man.

At times you need to step back to move forward, in order to understand the current political political dynamics playing themselves out, fostering a healthy discourse that will help the opposition move forward.

Khupe is a product of MDC politics, through and through, there is nothing she is doing today, that has not been done before each time individual politicians have been cornered in the internal power struggles.

Furthermore, her takeover of Harvest House today is no different to the coup against Mrs Lucia Matibenga in Khupe’s Fast Climbers Restaurant in Bulawayo, in 2007.

That takeover was meant to neutralise the powerful Women’s Assembly led by Matibenga. In response to Matibenga’s firing I wrote this article for Pambazuka news, https://www.pambazuka.org/governance/dismantling-patriarchy-mdc .

Matibenga appealed in the courts of law and lost with MDC Secretary General, Tendai Biti, taking to the media gleefully expressing that they had been vindicated in firing her. The same courts that today are empowering Khupe in her arguments to do with constitutionalism taking over elected Mps and party asserts.

Mai Mati fought a silent painful battle at the time, perhaps her reason to never return to the party.

Consequently, a historical assessment of the MDC’s ability to deal with leadership differences of opinion or strategy, its ability to foster a culture of integrity, cohesion, and internal party democracy, with structures and processes that allow for dispute settlement, is once again under scrutiny.

Integrity means Mps do not accept diplomatic passports from President Emmerson Mnangagwa, whose legitimacy they do not accept.

*Consequently, there is a certain deception that needs to be exposed, the history of the party over the past two decades retold, so that a broader audience is able to place the ongoing bickering within its proper context, and advise MDC leaders properly and stop the bleeding.

Khupe is the villain in the unfolding story, joining other villains before her, the late Gibson Sibanda and Professor Welshman Ncube (2005 split over participation in the senate, forming MDC Green), Tendai Biti and Job Sikhala split after 2013 election loss, went on to form MDC Renewal.

All these leaders are on record of being associated with the dreaded Central Intelligence Organisation (CIO), go back into the files, you will read with certainty allegations that Ncube was rewarded with a farm for causing the first split, he is now the Vice President of the same party – who is fooling who?

Leaders can’t surround themselves with yes men and women it is a time for reflection, Zimbabweans have suffered enough.

Grace Kwinjeh is a journalist and and women’s rights advocate.

Post published in: Featured

The Zimbabwe Human Rights NGO Forum (the Forum), stands with victims of torture in calling for an end to the brutal attacks on life, human dignity and security of the person, both at the hands of State and non-State actors.

Torture and assault as instruments of inflicting harm, domination, control and unlawful investigation have been used historically in Zimbabwe, including during Gukurahundi, but continue to be used to this day. Recent prominent cases include the 1 August 2018 disturbances, the January 2019 ZimShutDown crackdown, and the May 2020 the abduction and torture of the three MDC Alliance youth leaders Joana Mamombe, Cecilia Chimbiri and Netsai Marova, the assault of Ntombizodwa and Nokuthula Mpofu from Cowdray Park, Bulawayo and the fatal shooting of Paul Munakopa from Bulawayo by the Zimbabwe Republic Police on 23 May 2020.

Since formation in 1998, the Forum has documented cases of horrific human rights violations perpetrated by State security agents in the course of law enforcement and for political ends, and by non-State actors with State complicity. Violations have ranged from extra-judicial killings, rape, sexual assault, arbitrary arrests and detentions, grievous bodily harm, disappearances, arson and destruction of property. These have often been accompanied with impunity. Survivors have been left with permanent physical and psychological injuries.

The abductions, torture and assault often form part of an apparent pattern. We have seen individuals exercising their constitutional rights to free speech and movement and freedoms of assembly and association, being targets for such crimes. Oftentimes, there is then limited attempts to investigate, identify perpetrators and prosecute.

In spite of Zimbabwe’s dark history with torture, Zimbabwe has not ratified the UNCAT. Domestically, the criminal law statute books do not have torture as a standalone offence to reflect its pervasiveness and seriousness. The Constitution of Zimbabwe, 2013 provides in section 53 that no person may be subjected to physical or psychological torture or to cruel inhuman or degrading treatment. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) provides for freedom from torture and inhuman and degrading treatment.

Since 1998, the Forum has stood side by side with over 20 000 victims of organized violence and torture and processed over 7 000 civil cases in local and international courts. The Forum continues to call for an end to human rights violations and impunity, and for the Government of Zimbabwe to ratify the UNCAT. The Forum echoes the words of the United Nations human rights experts who in a joint statement on 10 June 2020 stated that the Government of Zimbabwe must take all measures in its power to prevent abuse, to investigate suspected violations, and to bring any perpetrators to justice, under the absolute and non-derogable prohibition of torture and ill-treatment.

Post published in: Featured

HARARE, Zimbabwe 

Known as kombis in Zimbabwe, commuter omnibuses are no more, but in residential areas they have resurfaced, with conductors this time not shouting out for passengers, but for customers to rush for buying wares strewn on vehicles’ rooftops and seats once occupied by passengers before the pandemic.

Since the genesis of the nationwide lockdown to surmount coronavirus, now, many kombi conductors like 26-year old Dan Mugari based in Harare, have switched to vending using the same kombis.

Kombis, amongst other forms of public transport, remain banned in Zimbabwe since lockdown started this year.

This means, many others like Mugari, who have solely depended on transporting people, can no longer venture into the business.

“If police would find us transporting people anywhere, they would impound our vehicles or arrest us because government ordered us off the road when lockdown was announced,” Mugari told Anadolu Agency.

Mini-buses now mobile shops

Now, for Mugari and several other kombi crews, converting commuter omnibuses into mobile shops has become the way to go as they battle for survival during the lockdown to combat coronavirus in Zimbabwe.

Even for other Harare residents like 37-year old Mary Msindo, kombis, with their new roles, have made it easier for many like her “to easily access groceries that have been hard to find at the start of the lockdown.”

“It hasn’t been easy for me to leave home owing to the nationwide lockdown, but I have nothing to worry about now because commuter omnibuses which now function as mobile shops are delivering groceries at my door step,” Msindo told Anadolu Agency.

Mini-bus mobile shops illegal

It remains illegal even for omnibuses to make any business trips during the lockdown, and so, Mugari said: “We sneak into residential areas where we have ready clients for our goods.”

As such, even as soldiers and police remain on patrol enforcing lockdown rules, with their survival instinct in the midst of the ravages of coronavirus, kombi crews like Mugari, commuter omnibus drivers and conductors, have endured against all odds.

Endurance in running mobile shops

So, for transport operators, as lockdown rules derail their means to earn a living, it has become survival of the fittest during the pandemic storm as many like Mugari evade the law to survive.

The Zimbabwean government replaced the omnibuses with its own buses from the Zimbabwe United Passengers Company (ZUPCO).

As such, any other form of transport which is not ZUPCO and wants to be on the road is required to do so under the franchise of the government’s bus company.

Less returns working under ZUPCO franchise

But, many omnibus crews like Mugari have resisted the move to join ZUPCO siting poor returns at the end of the day.

“ZUPCO buses charge four Zimbabwean dollars, an equivalent of 0,25 US cents while kombis that have to join the ZUPCO franchise are forced to charge eight Zimbabwean dollars, also an equivalent of 0,32 US cents, which is way less for us to cover costs involved in maintaining our fleets,” Jameson Chihombeko, who owns a fleet of kombis in Harare, told Anadolu Agency.

Now, owners of the omnibuses, like Chihombeko, have opted to use their passenger vehicles stocking and ferrying groceries and vegetables, operating instead as mobile shops in a bid to remain in business.

Zimbabwe has been in lockdown since March 30, and since then, for commuters, life has not been easy with limited transport.

The Passengers Association of Zimbabwe, a civil society organization fighting for the rights of commuters in the country, has been at odds with the Zimbabwean government since the outset of the lockdown.

“Kombi operators have been driven out of business following the government decision to give a monopoly to ZUPCO and force operators who want to remain afloat to operate under the ZUPCO flagship,” Tafadzwa Goliath, the president of the association, told Anadolu Agency.

Goliath said: “Those kombi operators who have converted their vehicles into mobile shops are seeing an option for their own survival.”

Passengers shortchanged by ban of kombis

But, still, to Goliath, “lamentably, we passengers remain short-changed as we continue to face transport challenges especially during this winter and we need the commuter omnibuses to come back into operation.”

Meanwhile, with commuter omnibuses now turned into mobile shops by kombi crews who have switched to vending in their battle for survival, Goliath added: “Commuters are being forced to board open trucks with no social distancing in practice at the cost of their own health.”

Stringent requirements to join ZUPCO franchise

For Zimbabwe’s commuter omnibuses, it is also not easy for them to be placed under the franchise of the Zimbabwean government’s ZUPCO buses.

“Your fleet must pass the test for the expected fitness standards under ZUPCO requirements if you want to join the franchise and that is not easy and so the only alternative is to opt to use the kombis as mobile shops,” Derick Nhumwa, the owner of a fleet of 32 grounded kombis in Harare, told Anadolu Agency.

For Mugari, who now sees hope for the revival of his economic fortunes even amid the indefinite lockdown pronounced by Zimbabwean President Emmerson Mnangagwa, “moving with our mobile shops has become our way of life because we have to do anything to earn money.”

“This is all I know and personally I feel that we have to make use of the kombis for we cannot leave them parked, idle until they lose value,” said Mugari.

The International Bar Association (IBA) has spoken out against what it sees as the persecution of lawyers in Southern Africa, calling on the governments of Malawi and Zimbabwe to respect the independence of the judiciary and the legal profession.

In a statement, the IBA’s Human Rights Institute (IBAHRI) condemned what it called “the continued persecution of Constitutional Court judges in Malawi by the country’s President Peter Mutharika and his Democratic Progressive Party”.

It cited the government’s attempt to remove Chief Justice Andrew Nyirenda ahead of this week’s presidential election. Electoral results are not yet clear, but opposition leader Lazarus Chakwera appears to have won a comfortiable victory.

As leader of the Constitutional Court, Nyirenda led the panel of judges that annulled the 2019 presidential election, in which Mutharika claimed victory, on the grounds of electoral irregularities and vote tampering, a decision which led to this week’s re-run.

Attacks by Mutharika’s government included claiming that Nyirenda had to take his remaining leave days and step down, rather than see out his remaining term until December 2021, and the president publicly criticising the judiciary as an enemy of democracy.

IBAHRI co-chair Michael Kirby said: “President Mutharika is a distinguished and experienced lawyer. Therefore, he should understand the vital importance of upholding the integrity and independence of the judiciary. His attacks on court rulings are simply unacceptable. President Mutharika must recall his country’s 1994 adoption of multi-party democracy and reflect on the successes since that time in maintaining and defending an independent judiciary.”

Kirby went on to endorse the court’s decision to annul the election, as it “demonstrably contained manifest flaws”.

His IBAHRI co-chair Anne Ramberg added: “The personal attacks against judges must be halted immediately because they damage and diminish the public’s regard for the judiciary; an institution that should be considered a pillar of a properly functioning society. It needs to be widely understood that an independent judiciary is fundamental to the rule of law, which upholds the guarantee of human rights, in democratic societies. Intimidation should not be inflicted on judges for performing their judicial duty.”

ZIMBABWE ARRESTS

IBAHRI, has also called on the government of Zimbabwe to release several lawyers who have been arrested on what the organisation called “unfounded charges”, saying the group had been “carrying out their professional duties”.

In a letter addressed to President Emmerson Mnangagwa, signed by Kirby and Ramberg, IBAHRI called for the release of Thabani Mpofu, Tapiwa Makanza, Joshua Chirambwe, Choice Damiso, Dumisani Dube, Sylvester Hashiti and Patrick Tererai.

Mpofu, Makanza, Chirambwe and Damiso were accused of forging an affidavit while making a challenge to the appointment of Kumbirai Hodzi as prosecutor-general, while Dube, Hashiti and Tererai have been arrested over dissent.

The letter says “this spate of arrests point to a larger pattern of systemic harassment, humiliation and intimidation of lawyers, simply for carrying out their duties as legal practitioners”.

“The rule of law depends upon a strong and empowered legal profession, free from improper influence, and the IBAHRI is committed to calling to notice attacks against the rights of lawyers,” they continued.

Mnangagwa came to power in late 2017, bringing hopes of a fresh approach to attracting international investment, with building the country’s legal system and upholding rule of law at the heart of what international observers were hoping for. However, progress has been slow.

Last month, an IBA report endorsed Egypt’s recent legal reforms.

Post published in: Featured

This report covers two days, Tuesday 23 and Wednesday 24 June 2020 which marked days 86 and 87 of the national lockdown declared by President Emmerson Mnangagwa and has been in place since 30 March 2020 respectively.  By Wednesday 24 June 2020, confirmed COVID-19 cases had increased to five hundred and thirty (530). The number of cumulative tests done stood at sixty-four thousand five hundred and twenty (64 520). Of these, sixty-three thousand two hundred and fifty-seven (63 990) were negative. The number of recoveries increased to one hundred and twenty-three (123) and the death toll stood at six (6).2.0       Methodology
Information contained in this report is derived from the following Forum Members:

• Zimbabwe Peace Project (ZPP)
• Zimbabwe Lawyers for Human Rights (ZLHR)
• Counselling Services Unit (CSU)
• Zimbabwe Association of Doctors for Human Rights (ZADHR)
• Zimbabwe Human Rights Association (ZimRights)
• MISA Zimbabwe

Post published in: Featured

Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

A Washington D.C. district judge upheld new price transparency rules that would require hospitals to disclose negotiated rates with insurers, in addition to other price information. Could this be the first step toward patients getting more upfront information on healthcare costs?

“I don’t think this is going to revolutionize the industry overnight, but it’s a step in the right direction,” said Michael Abrams, managing partner of healthcare consulting firm Numerof and Associates.

If and when the new rule goes into effect, Abrams expects to see patients become more emboldened to haggle over healthcare prices.

“Given the amount of financial exposure consumers have now have by virtue of deductibles and copays, they have a very good reason to know what they’re in for. That shows no sign of going away,” he said. “I can’t see any response other than to start negotiating. Ultimately, that will lead to lower pricing.”

The rule, finalized by the Department of Health and Human Services last fall, would require hospitals to post negotiated rates with insurers and cash discounted prices for their services. They would also be required to disclose the minimum and maximum negotiated charge for 300 “shoppable” services.

Abrams expects the latter is “probably where the pressure will begin. Things like X-rays and lab tests. These are things that people understand, that they know what they are buying, and with good reason, they want to know before they walk in, what’s it going to cost me?”

Currently, hospitals are only required to disclose a list of standard charges, per the Affordable Care Act. These chargemaster prices typically have little bearing on the reality of what most patients pay, and are generally used as negotiating tools with insurers. For example, while the Medicare approved cost for an abdominal ultrasound is  $112, the actual listed price can be anywhere from $104 to $1,580, according to Healthcare Bluebook.

The new requirements by the Department of Health and Human Services are slated to go into effect in January. Of course, that could likely be delayed, as the American Hospital Association filed for appeal on Wednesday.

The legal argument

In its original argument, the American Hospital Association (AHA) claimed that HHS did not have the authority to interpret “standard charges” as anything beyond chargemaster prices. It also claimed that being required to disclose negotiated prices with insurers was a violation of commercial speech, and would result in higher costs.

In his decision, U.S. District Judge Carl Nichols pulled apart each of these claims, pointing out that patients can already see the negotiated adjustment in their explanation of benefits, but that hasn’t increased costs.

From a legal perspective, seeing the rule through to the finish line could take significantly longer. Amy Mackin, an attorney with Indianapolis-based firm Hall Render, said she expects to see hospitals continue to push against the disclosure of trade secrets, and continue the argument that “standard charges” unambiguously refers to the chargemaster prices.

“Both providers and payors have historically worked hard to keep rate information confidential for competitive and antitrust reasons, and now they would be forced to disclose it – which is particularly egregious when the information will not be directly meaningful to most patients (whose actual payment amounts are generally based on coinsurance calculations),” she wrote in an email.

She also expects for hospitals to push for the effective date to be moved back in light of the ongoing Covid-19 pandemic. Given that this is also an election year, that could affect the rule.

“It’s unusual for payors and providers to be so aligned in resisting a rule, and I think HHS has a pretty unrealistic view of how heavy the lift will be to compile all of this information and get it into the required formats so quickly,” she added.

What can patients do with it?

The AHA has said that even if patients had all of this information, they wouldn’t be able to put it to use in calculating their out-of-pocket costs, as much of that depends on plan design and whether they’ve met their deductible.

“In fact, the disclosure of negotiated charges between hospitals and health plans is more likely to confuse patients than to ameliorate any existing lack of information,” the AHA wrote in a letter to CMS Administrator Seema Verma last year disputing the proposed rule.

But others disagreed, saying patients could very well put this information to use, with the help of third parties.

“Once application developers believe that this requirement will be adhered to and is something they can count on, they will create consumer-friendly applications that make comparative price shopping that much easier,” Abrams said. “This will become easier for consumers to use over time.”

A company that does just that, Healthcare Bluebook, said it saw a big opportunity in pairing this data with outside information. For example, letting patients compare the cost of an MRI across hospitals as well as freestanding imaging centers.

Healthcare Bluebook Co-Founder and Senior Vice President of Analytics and Innovation Bill Kampine said it would also be important to include information on facility fees and other costs beyond the procedure itself. For instance, a joint replacement might be broken down into four separate fees: a hospital fee, a doctor fee, an anesthesia fee and a device fee.

“There is a challenge in putting all of the pieces together to understand the full service and make sense of the data,” he said. “While there is a challenge to that, to me that’s a great opportunity for third parties like Bluebook.”

He also recommended including a benchmark price, in the event that a patient lives in a location where prices at the closest facilities are all inflated.

“What if all three prices are outrageous? You choose what appears to be the best of the three prices without realizing there’s an alternative,” he said.

Bottom line, he saw the rule as a potential opportunity for patients, if it prevails.

“The way I characterize it is it’s a good, positive win for consumers, although we have to think this is a short-term win, because I imagine this will end up in appellate court,” he said.

Photo credit: zimmytws, Getty Images

A few weeks ago we highlighted Ron Wyden’s explanation of the intent of Section 230, which was useful since he was one-half of the team that wrote the law. Now, the other half of the team, Chris Cox has written a long and detailed article highlighting how nearly every attempt at reform of 230 misunderstands both the intent and history of the law. On the history side, he highlights the incorrect notion being spread by some that Section 230 was designed as “balance” to go along with the rest of the Communications Decency Act, which was written by porn-hating Senator James Exon. Some have argued that because the two were passed together, but then the rest of the CDA was thrown out as unconstitutional, that now means that 230 is somehow unbalanced.

As Cox points out, that’s completely untrue. The Cox-Wyden proposal was designed to be an alternative approach to Exon’s obviously crazy approach:

Exon’s Communications Decency Act and Section 230 became law at the same time, even though Section 230 was originally designed as a reproach of Exon. It declared federal regulation of online speech off limits and gave Internet platforms immunity from liability for their own efforts to moderate content. When these two opposite approaches were both included as amendments to a larger bill in a typical Washington backroom political deal, many observers scratched their heads and wondered what Congress was thinking.

But the claim now being made is that the two were actually like legislative epoxy, with one part requiring the other. Since Exon was tossed out, so the argument goes, Section 230 should not be allowed to stand on its own.

In fact, the revisionists contend, the primary congressional purpose back in 1996 was not to give Internet platforms immunity from liability as Section 230 does. Rather, the most important part of their imagined “package” was Exon’s radical idea of imposing stringent liability on websites for the illegal acts of others — an idea that Exon himself backed away from before his amendment was actually passed. Now, a quarter-century after the Supreme Court threw out the Exon bathwater, the neo-speech regulators are urging us to throw out the Section 230 baby along with it.

The reality is far different than this revisionist history would have it. As the original sponsor of Section 230, I know. I was there.

He describes the whole process by which he and Wyden came up with the plan for Section 230. It was designed to be a balance itself. How to incentivize the most good stuff and the least bad stuff:

We named our bill the Internet Freedom and Family Empowerment Act, to describe its two main components: protecting speech and privacy on the Internet from government regulation, and incentivizing blocking and filtering technologies that individuals could use to become their own censors in their own households. Pornographers illegally targeting minors would not be let off the hook: They would be liable for compliance with all laws, both civil and criminal, in connection with any content they created.

To avoid interfering with the essential functioning of the Internet, the law would not shift that responsibility to Internet platforms, for whom the burden of screening billions of digital messages, documents, images, and sounds would be unreasonable — not to mention a potential invasion of privacy. Instead, Internet platforms would be allowed to act as “Good Samaritans” by reviewing at least some of the content if they chose to do so in the course of enforcing rules against “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content.

The linking up of the larger CDA with the Cox-Wyden bill, (“the Internet Freedom and Family Empowerment Act”) was a cynical ploy by Exon to get his own anti-porn CDA bill passed. Indeed, the House debate shows overwhelming support for what became 230 and overwhelming disagreement with the Exon anti-porn bill:

In the end, not a single representative spoke against the bill. The final roll call on the Cox-Wyden amendment was 420 yeas to 4 nays. It was a resounding rebuke to the Exon approach in his Communications Decency Act. The House then proceeded to pass its version of the Telecommunications Act — with the Cox-Wyden amendment, and without Exon.

Putting the two bills together was a political process:

There was the sticky problem of 84 senators having already voted in favor of the Exon amendment. Once on record with a vote one way — particularly a highly visible vote on the politically charged issue of pornography — it would be very difficult for a politician to explain walking it back. The Senate negotiators, anxious to protect their colleagues from being accused of taking both sides of the question, stood firm. They were willing to accept Cox-Wyden, but Exon would have to be included, too.

The House negotiators, all politicians themselves, understood. This was a Senate-only issue, which could be easily resolved by including both amendments in the final product. It was logrolling at its best.

As Cox notes, he and Wyden always intended Section 230 to stand on its own:

The notion that the Communications Decency Act and Section 230 were conceived together is completely wrong. So is the notion that Exon enjoyed lasting congressional support. By the time the Telecommunications Act completed its tortuous legislative journey, support for the CDA had dwindled even in the Senate, as senators came to understand the mismatch between problem and solution that the bill represented. With the exception of its most passionate supporters, few tears were shed for the CDA at its final demise in 1997. Exon had retired even before his law was declared unconstitutional, leaving few behind him willing to carry the torch. His colleagues made no effort to “fix” and replace the Exon Amendment, after the amendment was unanimously struck down by the Supreme Court.

Meanwhile Section 230, originally introduced in the House as a freestanding bill, H.R. 1978, in June 1995, stands on its own, now as then. Its premise of imposing liability on criminals and tort-feasors for their own wrongful conduct, rather than shifting that liability to third parties, operates independently of (and indeed, in opposition to) Sen. Exon’s approach that would directly interfere with the essential functioning of the Internet.

Cox then concludes by talking about how important 230 is to a functioning internet:

It is also useful to imagine a world without Section 230. In this alternative world, websites and Internet platforms of all kinds would face enormous potential liability for hosting content created by others. They would have a powerful incentive to limit that exposure, which they could do in one of two ways. They could strictly limit user-generated content, or even eliminate it altogether; or they could adopt the “anything goes” model through which CompuServe originally escaped liability before Section 230 existed.

We would all be very much worse off were this to happen. Without Section 230’s clear limitation on liability it is difficult to imagine that most of the online services on which we rely every day would even exist in anything like their current form.

We’re now facing many calls by people who seem to think that bringing back Exon’s version of the CDA is necessary to “balance” 230. It wasn’t true back when the bill passed (and, indeed, the rest of the CDA was found unconstitutional) and it’s certainly not true now.

There are much more details and history in Cox’s essay, and I recommend reading the whole thing.

Author Of Section 230 Chris Cox Says All The Critics Are Wrong About The History And Intent Of 230

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.