Academic journal article Harvard Law Review

Section 230 as First Amendment Rule

Academic journal article Harvard Law Review

Section 230 as First Amendment Rule

Article excerpt

Section 230 of the Communications Decency Act of 1996 (1) has been lauded as "the most important law protecting internet speech" and called "perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive." (2) The law's tremendous importance stems from the shield it provides to websites against suits based on torts committed by users. For instance, Wikipedia cannot be held liable for defamation posted by a user. This intermediary liability protection encourages websites to engage in content moderation without fear that their efforts to screen content will expose them to liability for defamatory material that slips through. Without this protection, websites would have an incentive to censor constitutionally protected speech in order to avoid potential lawsuits. (3)

But [section] 230 is under attack on multiple fronts. (4) From the popular media (5) to Capitol Hill, (6) some view the law with disdain. Various scholars have also heavily criticized [section] 230, saying amending the law would help to reduce defamation online. (7) And, in the courts, 2016 was perhaps a nadir for [section] 230, as judges repeatedly adopted narrow readings of the law. (8)

Against this current, this Note provides the first thorough argument that the First Amendment requires [section] 230's bar on holding websites liable for the defamation of their users. While the First Amendment does not "require" the federal statute, of course, this Note argues that the First Amendment rule should be the same as [section] 230's rule. Under the Supreme Court's First Amendment case law on defamation, the private censorship produced by defamation liability for internet intermediaries cannot be justified by a government interest in defamation law. Recognizing [section] 230's more stable constitutional provenance explains why courts traditionally adopted a broad reading of the law, demonstrates the law's substantive importance, and helps predict what might occur should detractors succeed in achieving amendment by Congress.

Part I describes secondary liability for defamation and [section] 230. Part II explains the prevailing assumption among judges and scholars that the First Amendment does not require [section] 230. Part III then challenges this assumption, arguing that the Constitution protects internet intermediaries from liability for defamation committed by their users. The censorship that would result from internet intermediary liability for defamation cannot be saved by the government's interest in imposing liability. (9) Part IV discusses this Note's implications and concludes.

I. Defamation, Intermediary Liability, and [section] 230

Defamation is a common law tort that protects individuals against the publication of harmful false statements about them. (10) "Publication" includes intentional and unreasonable failure to remove defamatory material under one's control. (11) Distributors, such as booksellers, may be held liable for defamation they transmit if they knew or had reason to know of its defamatory nature, but are not under a general duty to screen the items they retail. (12)

In the 1990s, courts began to apply these doctrines to internet services. In Cubby, Inc. v. CompuServe Inc., (13) a district court held that an internet service provider was not liable for allegedly defamatory content in one of its online forums because it had "no more editorial control" than would "a public library, book store, or newsstand," (14) and therefore was a mere distributor that did not know or have reason to know of the content. (15) Later, in Stratton Oakmont, Inc. v. Prodigy Services Co., (16) a state court held that because an owner of online bulletin boards had exercised "editorial control" over offensive content, it could be held liable as a publisher of defamatory posts. (17) This pair of cases posed a troubling choice for websites. If they took a hands-off approach to moderation, they received significant protection from liability. …

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