Part III then challenges this assumption, arguing that the Constitution protects internet intermediaries from liability for defamation committed by their users.
Part II explains the prevailing assumption among judges and scholars that the First Amendment does not require § 230. Part I describes secondary liability for defamation and § 230. Recognizing § 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. 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. 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 § 230’s rule. 4, 2017), (collecting cases).Īgainst this current, this Note provides the first thorough argument that the First Amendment requires § 230’s bar on holding websites liable for the defamation of their users. Eric Goldman, Ten Worst Section 230 Rulings of 2016 (Plus the Five Best), Tech. And, in the courts, 2016 was perhaps a nadir for § 230, as judges repeatedly adopted narrow readings of the law. See, e.g., Ann Bartow, Section 230 Keeps Platforms for Defamation and Threats Highly Profitable, Law.com: The Recorder (Nov. Various scholars have also heavily criticized § 230, saying amending the law would help to reduce defamation online. 7, 2017), (addressing congressional efforts to amend § 230). See, e.g., Eric Goldman, How SESTA Undermines Section 230’s Good Samaritan Provisions, Tech. Obama, Tear Down This Liability Shield, TechCrunch (Sept. Cindy Cohn & Jamie Williams, 20 Years of Protecting Intermediaries: Legacy of “Zeran ” Remains a Critical Protection for Freedom of Expression Online, Law.com: The Recorder (Nov. 2032–47.īut § 230 is under attack on multiple fronts.
Without this protection, websites would have an incentive to censor constitutionally protected speech in order to avoid potential lawsuits. 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. For instance, Wikipedia cannot be held liable for defamation posted by a user. The law’s tremendous importance stems from the shield it provides to websites against suits based on torts committed by users.
SLAVANIA DELCONCY FREE
ha been among the most important protections of free expression in the United States in the digital age.”) David Post, A Bit of Internet History, or How Two Members of Congress Helped Create a Trillion or So Dollars of Value, Wash. Balkin, Old-School/New-School Speech Regulation, 127 Harv. CDA 230: The Most Important Law Protecting Internet Speech, Electronic Frontier Found., accord Jack M. 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 × 2. Section 230 of the Communications Decency Act of 1996 1 × 1.
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