Communications Decency Act

Over the past few years, you may have heard various people express support for or opposition to Section 230 of the Communications Decency Act. While President Trump and others have accused Internet content publishers of using it to discriminate against conservative points of view, the reality is quite different and actually not political at all. While people will often disagree about specific examples of political speech online, the irony is that political speech would have a hard time existing on the Internet without Section 230.

Some quick history: Prior to the World Wide Web, Internet content was only easily accessible through a few major sites, such as AOL, CompuServe, and Prodigy. I think everyone alive in the U.S. in the 1990s remembers getting CDs inviting them to sign up for one of those services. These sites tried to balance their roles as both access providers and content publishers. On the one hand, if they didn’t curate their content, they could turn off consumers, but if they exercised editorial control, they could be held liable by the courts. For example, in 1991, a court found that Compuserve was not liable for defamatory content on its bulletin boards because it didn’t exercise any more control than “a public library, book store, or newsstand”. The opposite result occurred in Stratton Oakmont, Inc. v. Prodigy Services Co., when a state court held that Prodigy had exercised editorial control and therefore was liable for defamatory content. The sites were in a no-win situation.

In 1996, the modern World Wide Web was only about two years old, but it was gaining popularity quickly as an easy way to access information on the Internet. Congress wanted to encourage the growth of the Internet and World Wide Web, while limiting the access of children to obscene and pornographic content. The result was the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 230. While much of the CDA was struck down by the courts as overbroad, Section 230 survived, as it was more narrowly tailored.

To give you a sense of the CDA’s balancing act, this is the “Policy” section of the act::

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

Two essential elements of the CDA are included in the “Good Samaritan” protection section (Section 230(c)):

1) …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.
2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of… (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected… 

The law was targeted at restricting access to pornography by minors, while ensuring that access providers and publishers wouldn’t be liable for information published on their platforms as long as they made good-faith efforts to restrict access to objectionable material “whether or not such material is constitutionally protected”. This enabled the growth of myriad places on the Internet in which people of any affiliation, interest, or political perspective could find information. Comment sections arose on news websites, encouraging interaction and dialogue on issues of the day. Of course, the publishers quickly saw that the level of discourse was not necessarily what they hoped for. Personal attacks and unpopular (or false) viewpoints shared by fringe elements became a visible and unwelcome presence, resulting in consumers pressuring website publishers to crack down on this content. They were able to do so because of the “good Samaritan” provisions of Section 230(c) of the CDA. Within these parameters, there was an explosion of opinions and content on the Internet.

You begin to see where issues arise. One person’s free speech is another’s objectionable content, and it greatly depends on the political lens through which you see the world. Businesses traditionally have been apolitical, since taking a political stand will alienate a large portion of their customers. But they can’t take a completely hands-off stance, since that would also alienate customers who are being confronted with objectionable or offensive content. Businesses are therefore caught in the middle. Twitter and Facebook have been in the spotlight in recent years, when they restrict content that is false or inflammatory. Yes, this is hugely unpopular with the supporters of those speakers, but the platforms have the right under Section 230 to restrict this content.

What would happen if Section 230 were repealed? If Facebook were my client (one can dream), and didn’t have the protections of Section 230, I would have to advise them that they could face a tsunami of litigation if they restricted content. This would likely result in a “wild west”, which would turn off consumers who just didn’t want to be exposed to content which they found objectionable. Faced with a customer revolt, litigation, or both, platforms would choose to limit any discourse. It’s a bit like talking politics at Thanksgiving; there’s very little upside and tremendous downside.

Section 230 is imperfect, but its intentions were laudable. Without a new consensus on what is “objectionable”, it is hard to imagine that a revised version will satisfy everyone. This is due in part to the proliferation of countless sites, on which users can see and hear views that match their worldview, completely removed from sites reflecting other worldviews.

And how did this stratification of worldviews come to be? Starting in 1996, websites were free to publish content without the fear of litigation, as long as they filtered out objectionable content, as required by Section 230. Congress planted the seeds for our current environment 25 years ago. They continue to research and debate the CDA today. Who knows what the next 25 years will bring.

— Joshua D. Waterston, Esq.