REPLACING WHAT WORKS WITH WHAT SOUNDS GOOD: The Elusive Search for Workable Section 230 Reform

A Note by Kyler Baier

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Section 230 of the Communications Decency Act of 1996 was a tiny and overlooked fragment of a behemoth bill Congress passed to crack down on the pervasiveness of obscene and indecent communications online.[1] Yet, in the quarter-century since it was passed Section 230 has proven to be the only lasting piece of the Communications Decency Act and, indeed, the most important piece of legislation ever passed with respect to the internet.[2]

By emancipating interactive service providers (ISPs) from the whip hand of publisher’s liability, Section 230 became the liberating force that jolted the massive and sustained growth of the internet marketplace and the free and robust exchange of ideas online.[3] Since Section 230’s conception at law, critics of the legislation have been chipping away at its free market and free speech protections as slowly and surely as water erodes rock.[4] This Note intends to offer a counterpoint to that trend.

Part II of this Note will discuss the background against which Section 230 was enacted and subsequent developments which have affected the way Section 230 is interpreted. Part III of this Note will analyze the concerns Republicans and Democrats have about the law and how eliminating Section 230’s liability shield would hurt internet companies and constrict online free speech. Part IV of this Note will recommend that to maximize online free speech and ensure the continued growth of the digital marketplace, ISPs be considered common carriers and conferred total immunity against lawsuits arising from third-party content posted on their forums, except as already exempted by the current version of Section 230.

[1].                47 U.S.C. § 230.

[2].                Reno v. Am. C.L. Union, 521 U.S. 844, 873–85 (1997) (holding all the anti-indecency provisions of the Communications Decency Act unconstitutional as an abridgment of freedom of speech but leaving Section 230 intact).

[3].                See Jeff Kosseff, The Twenty-Six Words that Created the Internet, 3–4 (Cornell Univ. Press, 2019).

[4].                See, e.g., Allow State and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (codified as amended at 47 U.S.C. § 230(e)(5) (eliminating liability protections for material that promotes or facilitates prostitution)); Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (interpreting Section 230 as not offering liability protections to companies who contribute to the development of unlawful content); Exec. Order No. 13925, 85 FR 34079 (May 28, 2020) (ordering the “Secretary of Commerce, in consultation with the Attorney General,” to “file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify” the narrow breadth of Section 230 immunity protections).