We begin with a brief survey of the background of § 230(c), as that background is useful in construing the statutory terms here at issue.
Title V of the Telecommunications Act of 1996, Pub.L. No. 104-104, is known as the “Communications Decency Act of 1996” [the “CDA” or “the Act”]. The primary goal of the Act was to control the exposure of minors to indecent material. See Pub.L. No. 104-104, Title v. (1996); see also H.R.Rep. No. 104-458, at 81-91 (1996); S.Rep. No. 104-230, at 187-193 (1996); S.Rep. No. 104-23, at 9 (1995). Parts of the Act have since been struck down as unconstitutional limitations on free speech, see Reno v. ACLU, 521 U.S. 844 (1997); United States v. Playboy Ent. Group, 529 U.S. 803 (2000), but the section at issue in this article, § 230, remains intact.
Section 230 was first offered as an amendment by Representatives Christopher Cox (R-Cal.) and Ron Wyden (D-Ore.). See 141 Cong. Rec. H4860 (August 4, 1995). The specific provision at issue here, § 230(c)(1), overrides the traditional treatment of publishers, distributors, and speakers under statutory and common law. As a matter of policy, “Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.” Blumenthal v.. Drudge, 992 F.Supp. 44, 49 (D.D.C.1998). Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and,indeed, at least with regard to publishers, even if unaware of the statement. See, e.g., *Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y.Sup. May 24, 1995) (pre-Communications Decency Act case holding internet service provider liable for posting by third party on one of its electronic bulletin boards). Congress, however, has chosen to treat cyberspace differently.
It is noted that some commentators have suggested that Congress intended for § 230(c) to override only publisher, not distributor, liability. See, e.g., Ballon § 42.05[B]; Susan Friewald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 Harv. J.L. & Tech 569, 637-42 (2001) (courts should leave distributor liability intact when applying § 230); David R. Sheridan, Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act upon Liability for Defamation on the Internet, 61 Alb. L.Rev. 147, 167-72 (1997) (“[W]hen Congress said ‘publisher,’ it meant ‘publisher,’ and not ‘distributor’.”).
Congress made this legislative choice for two primary reasons. First, Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of ecommerce.
Section 230(a), “Findings,” highlights that:
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
§ 230(a). Similarly, the listed policy objectives of the section include:
(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.
See § 230(b). Policy. It is the policy of the United States
(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.
Consistent with these provisions, courts construing § 230 have recognized as critical in applying the statute the concern that lawsuits could threaten the “freedom of speech in the new and burgeoning Internet medium.” Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997). “Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and accordingly, to keep government interference in the medium to a minimum.” Id.; see also Ben Ezra, Weinstein, and Co. v. America Online, Inc., 206 F.3d 980, 985n.3. Making interactive computer services and their users liable for the speech of third parties would severely restrict the information available on the Internet. Section 230 therefore sought to prevent lawsuits from shutting down websites and other services on the Internet.
The second reason for enacting § 230(c) was to encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material, so as to aid parents in limiting their children’s access to such material. See § 230(b)(4); see also 141 Cong. Rec. H8469-70 (Statements ofRepresentatives Cox, Wyden, and Barton); Zeran, 129 F.3d at 331; Blumenthal, 992 F.Supp. at 52. There is an apparent tension between Congress’s goals of promoting free speech while at the same time giving parents the tools to limit the material their children can access over the Internet. As a result of this apparent tension, some commentators have suggested that the Fourth Circuit in Zeran imposed the First Amendment goals on legislation that was actually adopted for the speech-restrictive purpose of controlling the dissemination of content over the Internet. See, e.g., Ballon § 42.05[B][iv]. These critics fail to recognize that laws often have more than one goal in mind, and that it is not uncommon for these purposes to look in opposite directions. The need to balance competing values is a primary impetus for enacting legislation. Tension within statutes is often not a defect but an indication that the legislature was doing its job. See, e.g., United States v. Kalustian, 529 F.2d 585, 588 (9th Cir.1975) (describing dual and somewhat competing purposes of the Federal wiretap statute of both protecting individual privacy and combating crime).
So, even though the CDA overall may have had the purpose of restricting content, there is little doubt that the Cox-Wyden amendment, which added what ultimately became § 230 to the Act, sought to further First Amendment and e-commerce interests on the Internet while also promoting the protection of minors. See 141 Cong. Rec. H8469-72 (Statements of Representatives Cox, Wyden, Lofgren, and Goodlatte). Fostering the two ostensibly competing purposes here works because parents best can control the material accessed by their children with the cooperation and assistance of Internet service providers (“ISPs”) and other providers and users of services on the Internet. Section 230(b)(4) describes this goal: “It is the policy of the United States … 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.” § 230(b) (4). Some blocking and filtering programs depend on the cooperation of website operators and access providers who label material that appears on their services.
On another note, at least some members of Congress suspected that much, if not most, of the Act would be struck down as unconstitutional. See 141 Cong. Rec. H8470 (the Cox-Wyden amendment sought to provide aid during the “flood of legal challenges” likely to prevent the rest of the Act from having any effect); see also Lawrence Lessig, Code and Other Laws of Cyberspace 174 (1999) (referring to the Act as “[a] law of extraordinary stupidity [that] practically impaled itself on the First Amendment.”). That position turned out to be prescient. See Playboy Ent. Group, 529 U.S. 803. Quite possibly in anticipation that other aspects of the Act would not survive, the Cox-Wyden amendment attempted to control content distributed to minors in a manner consistent with the First Amendment, by encouraging Internet companies to police the Internet for themselves or to assist parents in doing so. See 141 Cong. Rec. H8469-72.
Accordingly, the vast amount of material on the Internet makes it difficult for an independent board to rate all of the material, as the Motion Picture Association of America can do for the much smaller number of movies distributed. Some filtering systems therefore rely on self-labeling. See R. Polk Wagner, Filters and The First Amendment, 83 Minn. L.Rev. 755, 70- 65 (1999). Zoning, another approach to controlling content on the Internet by creating child-free zones accessible only with digital identification certificates and age verification, also works best with the cooperation of website operators and service providers. See Lawrence Lessig, What Things Regulate Speech: CDA 2.0 v. Filtering, 38 Jurimetrics J. 629 (1998); see also Reno, 521 U.S. at 886-97 (O’Connor, J., concurring in part and dissenting in part) (describing zoning approach to protecting minors from harmful Internet content).
Without the immunity provided in Section 230(c), users and providers of interactive computer services who review material could be found liable for the statements of third parties, yet providers and users that disavow any responsibility would be free from liability. Compare *Stratton Oakmont, 1995 WL 323710 (holding a service provider liable for speech appearing on its service because it generally reviewed posted content) with Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y.1991) (holding a service provider not liable for posted speech because the provider was simply the conduit through which defamatory statements were distributed).
In particular, Congress adopted § 230(c) to overrule the decision of a New York state court in *Stratton Oakmont, 1995 WL 323710. *Stratton Oakmont held that Prodigy, an Internet access provider that ran a number of bulletin boards, could be held responsible for libelous statements posted on its “Money Talk” bulletin board by an unidentified person. Id. The court relied on the fact that Prodigy held itself out as a service that monitored its bulletin boards for offensive content and removed such content. Id. at *2, *4. Prodigy used filtering software and assigned board leaders to monitor the postings on each bulletin board. Id. at *1-*2. Because of Prodigy’s active role in monitoring its bulletin boards, the court found, Prodigy was a publisher for purposes of state libel law and therefore could be held liable for any defamatory statements posted on the website. Id. at *4.
Although *Stratton was a defamation case, Congress was concerned with the impact such a holding would have on the control of material inappropriate for minors. If efforts to review and omit third-party defamatory, obscene or inappropriate material make a computer service provider or user liable for posted speech, then website operators and Internet service providers are likely to abandon efforts to eliminate such material from their site. See S.Rep. No. 104-230, at 194 (1996) (“One of the specific purposes of [Section 230] is to overrule *Stratton-Oakmont v. Prodigy and any other similar decisions….”); H.R. Conf. Rep. No. 104-458, at 194 (1996) (“The conferees believe that [decisions such as *Stratton Oakmont ] create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.”); 141 Cong. Rec. at H84691-70 (statement of Rep. Cox) (referring to disincentives created by *Stratton Oakmont decision); see also Zeran, 129 F.3d at 331 (emphasizing that § 230 was adopted to overrule *Stratton Oakmont, and to provide incentives to self-regulate the dissemination of offensive material); Harvey L. Zuckman et al., Modern Communication Law 615 (1999) (observing that it is “crystal clear that [Section 230 was] designed to change the result in future cases like *Stratton Oakmont “).
§ 230(c)(2) further encourages good samaritans by protecting service providers and users from liability for claims arising out of the removal of potentially “objectionable” material from their services. See § 230(c)(2). This provision insulates service providers from claims premised on the taking down of a customer’s posting such as breach of contract or unfair business practices. Cf. 17 U.S.C. § 512(g)(1) (providing similar protection for service providers who take down material alleged to violate copyright laws); H.R.Rep. No. 105-551, at 25 (1998).
The caveat? Does the CDA § 230 give malicious individuals free reign to publish whatever statements they want without liability and with total immunity? Emphatically, no! Service providers may have no liability, but the publisher of defamatory statements can be held liable for defamation and a host of other tort! (See Robert’s Legal Article on the California Anti-SLAPP law)
Take for example, what if an individual republishes defamation by disseminating it widely on the internet and other mediums; such as through posts, texts, or e-mails? No liability? Absolutely not! Remember:
“Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and,indeed, at least with regard to publishers, even if unaware of the statement.” Id., supra. § 230 does not apply to text messages.
It is important to remember that the laws of our nation are to protect citizens’ precious freedoms and liberties, not to abuse them with hate, malice, and ill-will. Our courts have always struck a careful balance.
Robert Rodriguez, Attorney at Law
Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Sound familiar?
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law & the federal courts he practices in. Robert Rodriguez is admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.