Balancing Interests Under Section 230(c) of the Communications Decency Act: Using the Sword as well as the Shield

Abstract

Perhaps no existing law faces more scrutiny than Section 230(c) of the Communications Decency Act (“Section 230(c)”). At one level, it is a simple edict: “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.” At another level, the law packs a punch. As author Jeff Kosseff put it in the title of his recent book, Section 230(c) contains “the twenty-six words that created the Internet.”

Enacted a quarter century ago to support a nascent industry, the law provides expansive immunity for internet companies that post third party content online. The consequences have provoked strong criticism from both sides of the political aisle. Those on the left assert that Section 230(c) allows large tech companies to profit from conduct that causes harm. Those on the right argue that it gives social media companies license to engage in viewpoint discrimination. Even one of the law’s original authors, Senator Ron Wyden, recently criticized Section 230(c), calling out tech companies’ lack of interest in self-moderation and warning that if “you don’t use the sword, there are going to be people coming for your shield.”

An increasing number of commentators contend that it is time to rethink Section 230(c). This Article joins the fray by considering some of its applications that have flown under the radar, including several cases with fact patterns that have engendered frustratingly inconsistent decisions. In these cases, judges encounter situations where a defendant’s own conduct is at play—activity beyond simply republishing content. Although this would seem to take such claims outside Section 230(c)’s purview, some courts continue to apply immunity nonetheless, elevating concerns about chilling online activity above all else. The Article takes issue with those decisions, noting their conflict with analogous principles of secondary liability and expressing skepticism that broad immunity is necessary to serve the statute’s policy of encouraging activity on the internet. The Article also proposes a better way for courts to balance interests, drawing parallels to well-established defamation law principles that weigh plaintiffs’ ability to protect reputational interests against concerns about chilling speech.