Enough with Exceptions: Why Congress and the Courts Should Stop Chipping Away at Section 230 Immunity

Kevin Case
Volume 28
,  Issue 4


You are a teenager. And you cannot believe this is happening.1The following fact pattern is based on the facts set forth in Diamond Ranch Acad., Inc. v. Filer, No. 2:14-CV-751, 2016 WL 633351 (D. Utah Feb. 17, 2016). Your parents are forcing you to leave the only home you’ve ever known. They are sending you to a youth treatment center in Mexico. When you arrive across the border, things go from bad to worse. Treatment center staff are abusive and treat children terribly. You suffer experiences you will carry with you for the rest of your life.

You survive your hellacious experience in Mexico. But you cannot forget it. Other kids are being abused in similar treatment centers every day. And you cannot stand idly by. You speak out against these youth treatment centers every chance you get. You even create a website for fellow victims to share their stories.

This is Chelsea Filer’s story.2Id. at *1. She created “DRASurvivors.com” to spread awareness about a youth treatment center called Diamond Ranch Academy (“DRA”) and to provide a forum for DRA victims to share their stories.3Id. at *2. DRA sued Ms. Filer for defamation.4Id. Ms. Filer contended that her actions were protected by 47 U.S.C. section 230 (“Section 230”).5Id. at *20. Section 230 is supposed to shield websites from liability for content created by a third party.6See Jeff Kosseff, The Gradual Erosion of the Law That Shaped the Internet: Section 230’s Evolution Over Two Decades, 18 Colum. Sci. & Tech. L. Rev. 1, 28 (2016). Ms. Filer said she merely posted others’ stories about DRA with some minor edits.7Diamond Ranch Acad., 2016 WL 633351, at *20. But a district court in Utah held that Section 230 did not shield Ms. Filer from liability because she summarized the victims’ stories and used their stories to create her own work.8Id. at *21. The lawsuit proceeded—a victory for a treatment center trying to silence its victims.

Section 230 is supposed to protect people like Chelsea Filer. Its text limits a website’s liability to its own, original content.9See 47 U.S.C. § 230(c)(1). But courts have slowly chipped away at Section 230 immunity by creating a labyrinth of balancing tests and exceptions.10See Kosseff, supra note 6, at 37. Some of these exceptions may be warranted. For example, perhaps a website should not be able to hide behind the Section 230 shield if its users are participating in online sex trafficking or illicit drug sales.

It is hard to balance the harm caused by exceptions that limit free speech against the harm caused by crimes facilitated by free speech. But the pendulum has started to swing too far in one direction—legitimate speech across the internet is being chilled. The judiciary is not the only branch of government at fault; Congress has also contributed to the steady stream of piecemeal exceptions to Section 230.11Casey Newton, Everything You Need to Know About Section 230The Verge (Dec. 29, 2020, 4:50 PM), https://perma.cc/RU6L-7AYB.. It is time to stop the creation of these exceptions and restore the broad protections that Section 230 originally provided. Section 230 should be construed as it was shortly after its passage in 1996 in order to restore broad immunity to interactive computer services and protect free speech across the internet.

Part I of this Comment discusses the inception of the Communications Decency Act of 1996 and particularly the genesis of Section 230 and the immunity provided therein. Part I considers why the internet needed Section 230 to grow and what Congress intended to accomplish when it originally enacted Section 230. Part I also compares judicial application of Section 230 in the late 1990s and early 2000s to how courts are applying Section 230 today. Part II analyzes the exceptions to Section 230 immunity that the courts and Congress have created.

I.     Background

Today, Section 230 plays an integral part in the regulation of internet content. As Professor Jeff Kosseff writes in his book The Twenty-Six Words That Created the Internet, “Section 230 created the legal and social framework for the Internet we know today . . . .”12Jeff Kosseff, The Twenty-Six Words That Created The Internet 3 (2019). Kosseff posits that we need only consider the most popular websites on the internet to see this.13Id. at 4. Internet behemoths YouTube, Facebook, Reddit, Wikipedia, Twitter, and eBay “primarily rely on videos, social media posts, and other content provided by users.”14Id. Section 230 allows these websites to avoid liability for their user-created content15See 47 U.S.C. § 230.; without it, they could be sued for users’ defamatory tweets, slanderous Wikipedia postings, or violent videos. Kosseff explains that these websites could not exist without Section 230 because the possibility of lawsuits would force them “to reduce or entirely prohibit user-generated content.”16Kosseff, supra note 12, at 4.

But Section 230 also has some adverse effects. For example, the statute preempts state criminal law and thus disrupts local law enforcement.17See 47 U.S.C. § 230(e)(3) (“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”). This issue came to a head in 2013, when forty-seven state attorneys general signed a letter asking congressional leaders to remove this state law preemption from the statute.18Noah Tischler, Comment, Free Speech Under Siege: Why the Vitality of Modern Free Speech Hinges on the Survival of Section 230 of the Communications Decency Act, 24 Temp. Pol. & Civ. Rts. L. Rev. 277, 277–78 (2014). Specifically, the attorneys general believed that the preemption was interfering with their ability to investigate and prosecute child sex traffickers.19Id. at 278. Since then, Congress passed a bill that stops defendants from claiming Section 230 immunity on state civil or criminal suits related to federal sex-trafficking crimes.20See Tom Jackman, Trump Signs ‘FOSTA’ Bill Targeting Online Sex Trafficking, Enables States and Victims to Pursue Websites, Wash. Post (Apr. 11, 2018, 11:41 AM), https://perma.cc/V6J5-PYT9. Despite this exception, Section 230 continues to preempt most state criminal law.21See supra note 17 and accompanying text.

The heart of this controversial statute can be traced back to the tension between two New York courts that disagreed on whether internet service providers should be treated as publishers or distributors of online content for the purposes of liability.22Neville L. Johnson, Douglas L. Johnson, Paul Tweed & Rodney A. Smolla, Defamation and Invasion of Privacy in the Internet Age, 25 Sw. J. Int’l L. 9, 11 (2019); see also Vanessa S. Browne-Barbour, Losing Their License to Libel: Revisiting § 230 Immunity, 30 Berkeley Tech. L.J. 1505, 1520 (2015). Together, the holdings in Cubby, Inc. v. CompuServe, Inc.23776 F. Supp. 135 (S.D.N.Y. 1991). and Stratton Oakmont, Inc. v. Prodigy Services Co.24No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). encouraged Congress to act to resolve this publisher-distributor dispute.25Browne-Barbour, supra note 22, at 1519 (“Although the legislative history of § 230 does not reference Cubby by name, Cubby is discussed and distinguished factually in Stratton, which is mentioned by name in the congressional records.”). The trajectory of early internet regulation would be changed forever.

A.     Liability for Early Internet Service Providers

1.     Legal Liabilities of Publishers and Distributors

Under common law principles, the liabilities borne by publishers and distributors are quite different.26See David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 397–98 (2010). An intermediary who publishes a third-party statement “bears the same liability for the statement as if he or she had initially created it” because “they cooperate actively in the publication.”27Id. at 397; see also Restatement (Second) of Torts § 581(1) (Am. L. Inst. 1977) (“[O]ne who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.”). Intermediaries like newspapers and broadcasting companies are generally considered publishers under the common law.28See Ardia, supra note 26, at 383. The idea behind imposing this sort of liability is that we assume a publisher “usually knows or can find out whether a statement in a work produced by him is defamatory or capable of defamatory import.”29Restatement (Second) of Torts § 581(1) cmt. c (Am. L. Inst. 1977).

In contrast, an intermediary who merely distributes a third-party statement faces “far more limited” liability under the common law.30Ardia, supra note 26, at 397. A distributor is only liable for the statement of a third party if “he knows or has reason to know of its defamatory character.”31Restatement (Second) of Torts § 581(1) (Am. L. Inst. 1977). Intermediaries like bookstores and libraries are generally considered distributors under the common law.32Id. § 581(1) cmt. e. The idea behind imposing this sort of liability is that “a publisher inherently has knowledge of the content it is publishing, while a distributor does not.”33Ardia, supra note 26, at 398.

2.     Are Internet Service Providers Distributors?

In 1991, the US District Court for the Southern District of New York decided Cubby, Inc. v. CompuServe, Inc., which held that an internet service provider should be treated as a distributor.34Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140–41 (S.D.N.Y. 1991). In that case, CompuServe, a company that developed and provided computer-related services, was providing an “electronic library” to its subscribers.35Id. at 137. This electronic library service included access to an online forum known as the “Journalism Forum,” which independent contractor Cameron Communications, Inc. moderated.36Id.

The dispute arose out of one of the publications available within the Journalism Forum called Rumorville USA.37Id. at 137–38. Rumorville USA was a daily newsletter focused on the broadcast journalism business and mainly reported on news and gossip within the television and radio industries.38Id. at 137. Plaintiff Cubby, Inc. ran a competing daily newsletter on the broadcast journalism business called “Skuttlebut.”39Id. at 138. Cubby, Inc. claimed that Rumorville USA published false and defamatory statements concerning “Skuttlebut,”40Cubby, 776 F. Supp. at 138. and argued that CompuServe was liable for these statements because they existed within CompuServe’s Journalism Forum.41Id. at 139.

However, CompuServe did not have the opportunity to review each Rumorville USA newsletter before it was uploaded to its electronic library.42Id. at 137. The court reasoned that since CompuServe had no more editorial control over Rumorville USA than a book store has over the content of its books, CompuServe should be considered a distributor.43Id. at 140 (“[I]t would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”). The court further noted that considering CompuServe as anything other than a distributor would “impose an undue burden on the free flow of information” and would ignore relevant First Amendment considerations.44Id. at 140–41.

3.     Are Internet Service Providers Publishers?

In 1995, a different New York court reached a conflicting conclusion regarding the status of internet service providers as distributors.45Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *1 (N.Y. Sup. Ct. May 24, 1995). In Stratton Oakmont, Inc. v. Prodigy Services Co., a New York state trial court held that an internet service provider should be treated as a publisher.46Id. The defendant in Stratton Oakmont, Prodigy Services Co., operated a computer network that provided internet message boards for around two million subscribers.47Id. The controversy in the case centered around posts made on a message board titled “Money Talk,” where an anonymous subscriber posted allegedly defamatory statements about Stratton Oakmont, a securities investment banking firm.48Id.

The court distinguished the Stratton Oakmont case from the Cubby case on two separate grounds. First, the court noted that the defendant made public statements claiming that it controlled the content of its computer message boards, while the defendant in Cubby had not.49Id. at *4. Second, the court noted that Prodigy actually controlled the content of its message boards by implementing screening software and requiring employees to enforce content guidelines.50Id. The court found that “[b]y actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and ‘bad taste[,]’” Prodigy was making decisions that “constitute[d] editorial control.”51Stratton Oakmont, 1995 WL 323710, at *4. In the court’s words, Prodigy’s “conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice.”52Id. at *5.

4.     The Incentive Problem Created by Cubby and Stratton Oakmont

The holdings in Cubby and Stratton Oakmont established early guideposts for internet service providers and their liability. And they were strange guideposts. As Kosseff aptly pointed out in his article “The Gradual Erosion of the Law That Shaped The Internet: Section 230’s Evolution Over Two Decades,” “[c]ombined, the Cubby and Stratton Oakmontdecisions had the odd impact of immunizing online service providers from liability if they take an entirely hands-off approach to user-generated content, but holding them liable if they take some steps to moderate content.”53Kosseff,supra note 6, at 6. This left internet service providers with two distinct choices: (1) moderate any user content and be liable for all user content, or (2) moderate no user content and be liable for no user content.

These choices created an incentive problem for internet service providers at a time when more companies and families were gaining access to the internet.54Id. If a service provider wanted to enforce community guidelines to make its message boards more work appropriate or family friendly, it would be liable for any and all troublesome third-party content on its site.55Stratton Oakmont, 1995 WL 323710, at *5. The New York courts had created a “legal incentive for service providers to avoid creating community guidelines for user content.”56Kosseff, supra note 6, at 6. Interestingly, the court in Stratton Oakmont believed that economic effects would take care of this incentive problem.57Stratton Oakmont, 1995 WL 323710, at *5. As the court explained, “the fear that this Court’s finding of publisher status for Prodigy will compel all computer networks to abdicate control of their bulletin boards, incorrectly presumes that the market will refuse to compensate a network for its increased control and the resulting increased exposure.”58Id. As will be seen, Congress did not agree.

B.     Congress Creates Section 230

Funnily enough, the trial court in Stratton Oakmont seemed to have a hunch that its holding on internet service providers might not hold up for long.59Id. Writing for the majority, Justice Ain conceded that “the issues addressed herein may ultimately be preempted by federal law if the Communications Decency Act of 1995 . . . is enacted.”60Id.

1.     The Statutory Text

In 1996, President Clinton enacted the Communications Decency Act (“the Act”) as part of the larger Telecommunications Act of 1996.61Communications Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 133 (codified in scattered sections of 47 U.S.C.). As noted, the Act contains the provision herein referred to as Section 230.6247 U.S.C § 230. Two provisions of Section 230 attract the most attention and are paramount to the statute’s impact on internet speech. Sections 230(c)(1) and 230(c)(2) state:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker [-] 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 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; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).63Id. § 230(c)(1)–(2).

Additionally, Section 230 defines an interactive computer service as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”64Id. § 230(f)(2). This definition is broad enough to include the defendant in Stratton Oakmont and generally includes websites and apps that utilize user-generated content.65Kosseff, supra note 6, at 8. These websites include internet giants like YouTube, Facebook, Reddit, Wikipedia, Twitter, and eBay.66Kosseff, supra note 12, at 4. According to Section 230, interactive computer services are not to be treated as publishers of any information that comes from third parties.67See 47 U.S.C. § 230(c)(1). Conversely, information content providers, which do not receive immunity under Section 230, are defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”68Id.

These definitions shift the incentives for websites that want to moderate user content. With Section 230 in place, websites can create and enforce community guidelines for user-generated content and still avoid legal liability for their user-generated content.69See, e.g., Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008). For example, in 2008 a mother tried to hold social media giant MySpace liable for failing to prevent communications between a minor and a nineteen-year-old that led to the sexual assault of the minor.70Id. at 416. The Court of Appeals for the Fifth Circuit held that Section 230 barred the plaintiff’s claims because MySpace was an interactive computer service and the plaintiff’s claims were “directed toward MySpace in its publishing, editorial, and/or screening capacities.”71Id. at 420 (quoting Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 849 (W.D. Tex. 2007)). In contrast, under the holding in Stratton Oakmont, MySpace would have been liable for these communications because it was actively moderating some user-generated content on its site.72See Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *5 (N.Y. Sup. Ct. May 24, 1995).

It is important to note that under Section 230, websites are still liable for content they create or develop.73See, e.g., FTC v. Accusearch, Inc., 570 F.3d 1187, 1191 (10th Cir. 2009). This is because when a website creates or develops content, it is acting as an information content provider.7447 U.S.C. § 230(f). Generally, a court will decide if Section 230 immunity should apply to a defendant after a plaintiff has filed suit.75Kathleen Ann Ruane, Cong. Rsch. Serv., The Communications Decency Act: Section 230(c)(1) and Online Intermediary Liability 7 (2010). In the simplest terms, courts are likely to apply Section 230 immunity where: “(1) a defendant is a provider or user of an interactive computer service; (2) the defendant is being treated as a publisher or speaker of the challenged content for liability purposes; and (3) the content at issue is information provided by another information content provider.”76Id.

2.     Legislative Purpose

While the legal ramifications of Section 230 are most important, it is also worth briefly detailing why Congress passed the law. Clearly, Representatives Chris Cox and Ron Wyden wrote Section 230 to solve the incentive problem created by the conflicting decisions in Stratton Oakmont and Cubby.77H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.). The congressional conference report for the Communications Decency Act states in part that “[o]ne of the specific purposes of this section is to overrule Stratton Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.”78Id. But, as the report notes, overruling Stratton Oakmont was just one of a few specific purposes of Section 230.79Id. Other alternative purposes reveal themselves in the congressional findings explicitly listed in the statute:

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(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, witha minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.8047 U.S.C. § 230(a).

Most notable in these passages is Congress’s emphasis on how the internet increases the “availability of educational and informational resources,” and how interactive computer services “offer a forum for a true diversity of political discourse.”81Id. The congressional conference report and the congressional findings listed in Section 230 show that the statute has two aims: (1) to incentivize operators of interactive computer services to moderate content, and (2) to promote the growth of a free and lightly regulated internet.82Kosseff, supra note 6, at 8 (“Section 230 represents a remarkably effective alliance of two very different interest groups: those that wanted the nascent commercial Internet to thrive with minimal regulation, and those that wanted to ensure individuals and service providers had the tools to filter pornography and similar content from the Internet.”).

C.     Courts’ First Cracks at Interpreting Section 230

Shortly after Section 230’s enactment, courts began interpreting the breadth of the immunity Congress created.83See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997). In 1997, the Court of Appeals for the Fourth Circuit decided Zeran v. America Online, Inc.84129 F.3d 327 (4th Cir. 1997). and became the first federal appellate court to weigh-in on the issue.85Kosseff, supra note 6, at 11. The holding in Zeran would become the dominant interpretation of the immunity provision contained in Section 230(c).86Id.

1.     Zeran Creates Broad Immunity

In Zeran, Ken Zeran brought suit against America Online, Inc. (“AOL”), alleging that AOL was negligent for the delayed removal of defamatory postings authored by an unidentified third party on an AOL bulletin board.87Zeran,129 F.3d at 328. The allegedly defamatory statements advertised that Mr. Zeran was selling shirts featuring offensive slogans related to the 1995 Oklahoma City Bombing.88Id. at 329. In order to purchase a shirt, interested AOL users were supposed to call “Ken” at his home telephone number.89Id. In actuality, Mr. Zeran was not involved in the making or selling of any such shirts.90Id. As a result of this brutal prank, Mr. Zeran received an enormous number of angry phone calls, including some death threats.91Id. Mr. Zeran contacted AOL and the false postings were eventually removed.92Id. However, over the next several days, an unidentified AOL user continued to post similar advertisements urging interested buyers to call “Ken.”93Zeran, 129 F.3d at 329.

Mr. Zeran argued that Section 230 left intact liability for interactive computer services which were acting as distributors and not publishers.94Id. at 328. The Fourth Circuit did not find this distinction compelling.95Id. Even assuming, for the sake of Mr. Zeran’s argument, that AOL could be considered a distributor, the court held that distributor liability “is merely a subset, or a species, of publisher liability, and is therefore also foreclosed by [Section] 230.”96Id. at 332. More important than the specific holding, however, was the way the Fourth Circuit panel chose to read Section 230. The court stated that the plain language of the statute “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”97Id. at 330. This effectively barred any lawsuit seeking to hold a service provider liable for publishing, withdrawing, or altering content.98Id.

The court also stated that the congressional findings listed in the text of Section 230 supported its interpretation of the statute.99Zeran, 129 F.3d at 330. Based on the congressional findings listed in the statute, the court stated that one of the purposes of Section 230 was “to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.”100Id.

2.     Batzel Further Expands Section 230 Immunity

In 2003, the Court of Appeals for the Ninth Circuit announced an even more expansive reading of Section 230 immunity in Batzel v. Smith.101333 F.3d 1018 (9th Cir. 2003). Batzel involved an arguably more extravagant set of facts than Zeran. In Batzel, a contracted handy-man claimed that one of his clients told him that she was a distant relative of “one of Adolph Hitler’s right-hand men.”102Id. at 1021. Following that exchange, the handy-man began to suspect that much of the old artwork the woman had on her walls was taken from Jewish individuals during World War II.103Id. The handy-man sent an email to the operator of a website called the Museum Security Network.104Id. The website operator made minor edits to the handy-man’s email, sent it out via the network’s email listserv, and published it to the network’s website.105Id. at 1021–22. Several months later, the handy-man’s client discovered the email and filed suit alleging defamation against the handy-man, the Museum Security Network, the website operator, and a sponsor of the website.106Id. at 1022.

The Ninth Circuit decided that Section 230 immunized the website operator, the Museum Security Network, and the website sponsor from defamation liability.107Batzel, 333 F.3d at 1031. This decision turned on whether the website operator became an “information content provider” when he chose to make minor edits and publish the handy-man’s email.108Id. (“The pertinent question therefore becomes whether [the handy-man] was the sole content provider of his e-mail, or whether [the website operator] can also be considered to have ‘creat[ed]’ or ‘develop[ed]’ [the handy-man’s] e-mail message forwarded to the listserv.”). Under Section 230, an entity is an information content provider if it is responsible, at least in part, for the “development of information provided through the Internet.”10947 U.S.C. § 230(f)(3). The Ninth Circuit reasoned that the development of information had to mean “something more substantial than merely editing portions of an e-mail and selecting material for publication” and “[b]ecause [the website operator] did no more than select and make minor alterations to [the handy-man’s] e-mail, [the website operator] cannot be considered the content provider of [the handy-man’s] e-mail for purposes of [Section] 230.”110Batzel, 333 F.3d at 1031.

The holding in Batzel extended the Fourth Circuit’s holding in Zeran by affirming that Section 230 immunity extended to publishers who took active steps to edit and publish specific content.111See id. Recall that in Zeran,the allegedly defamatory posts were created by an anonymous user and passively published to the AOL bulletin board automatically.112Zeran v. Am. Online, Inc., 129 F.3d 327, 329 (4th Cir. 1997). But, in Batzel, the operator of the Museum Security Network website actively reviewed the handy-man’s email, made minor changes to the email, and then published the email.113Batzel, 333 F.3d at 1022–23. The Ninth Circuit’s decision in Batzel seemed to render the distinction between passive publication and active publication totally irrelevant.114Kosseff, supra note 6, at 14.

D.     Courts and Congress Pierce the Section 230 Immunity Shield

1.     Judicial Action

The unfettered immunity given to internet service providers by Zeran, Batzel, and their progeny did not last forever.115See, e.g., Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008); FTC v. Accusearch, Inc., 570 F.3d 1187, 1199 (10th Cir. 2009). In 2008, the Ninth Circuit produced an en banc opinion that limited Section 230 immunity.116See Roommates.com, 521 F.3d at 1161. In Fair Housing Council of San Fernando Valley v. Roommates.com,117521 F.3d 1157 (9th Cir. 2008). a company was operating a website to help property owners rent out their spare rooms.118Id. at 1161. Before potential renters could search property listings, they were required to create profiles on the website that disclosed their sex, sexual orientation, and whether they had children.119Id. It is important for the purposes of the case that both the Federal Housing Act (“FHA”) and analogous California law made it illegal to discriminate against renters based on sex, sexual orientation, and family status.120Id. at 1162 n.4.

The Fair Housing Councils of San Fernando Valley and San Diego filed suit alleging that Roommates.com’s business violated the FHA and California law.121Id. at 1162. But the district court held that the company was immune from suit under Section 230.122Id. The Ninth Circuit held on appeal that Rommates.com could not avoid liability for publishing the allegedly unlawful content in its users’ profiles.123Roommates.com, 521 F.3d at 1165. The court reasoned that by requiring potential renters to answer specific questions and providing a limited set of pre-populated answers, the company was in part developing the allegedly illegal content in the profiles.124Id. at 1166. Further, because it was developing information, the company became an information content provider under Section 230 and thus lost its immunity.125Id. The Ninth Circuit stipulated that, moving forward, a company would be found to have developed unlawful content “if it contributes materially to the alleged illegality of the conduct.”126Id. at 1168.

2.     Legislative Action

The Roommates.com holding is an example of the courts creating a functional exception to Section 230. In the years since Roommates.com was decided, Congress has also become more active with respect to creating exceptions to Section 230 immunity. In April of 2018, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act,127Pub. L. No. 115-164, 132 Stat. 1253 (codified as amended at 18 U.S.C. §§ 1591, 1595, 2421A and 47 U.S.C. § 230). commonly known as “FOSTA.”128Jackman, supra note 20. That bill amended portions of four federal laws, including the addition of a clause in Section 230 that stopped defendants from claiming immunity on civil or state criminal suits related to federal sex-trafficking crimes.129Id. That clause states:

(5) No effect on sex trafficking law

Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

(A) any claim in a civil action brought under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of Title 18; or

(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of Title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.13047 U.S.C. § 230(e)(5).

Congress specified that FOSTA was meant to target interactive computer services functioning as online marketplaces by eliminating Section 230 immunity for services that (1) did not remove ads for sex work, or (2) actively solicited ads for sex work.131Lura Chamberlain, Note, FOSTA: A Hostile Law with A Human Cost, 87 Fordham L. Rev. 2171, 2187 (2019); see also Pub. L. No. 115-164, 132 Stat. 1253. Additionally, the preamble to FOSTA implied that the original writers of Section 230 would never have wanted these types of interactive computer services to enjoy immunity, writing that Section 230 “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”132Pub. L. No. 115–164, 132 Stat. 1253.

If politicians have it their way, FOSTA will not be the last bill to amend Section 230. In 2019, a few different politicians introduced bills to modify Section 230 immunity.133Elizabeth Nolan Brown, Section 230 Is the Internet’s First Amendment. Now Both Republicans and Democrats Want To Take It Away, Reason (July 29, 2019, 8:01 AM), https://perma.cc/P3WA-WE94.. On the right side of the aisle, Republican Senator Josh Hawley introduced the “Ending Support for Internet Censorship Act.”134Press Release, Josh Hawley, U.S. Sen., Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies (June 19, 2019), https://perma.cc/94FS-4KJZ. This piece of legislation proposes removing “the immunity big tech companies receive under Section 230 unless they submit to an external audit that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.”135Id. Similarly, Representative Louie Gohmert introduced a bill “conditioning Section 230 protection on sites displaying user content in chronological order.”136Brown, supra note 133. On the left side of the aisle, Democrats have their own criticisms of Section 230 immunity. Vice President Kamala Harris has floated the idea that we should “hold social media platforms accountable for the hate infiltrating their platforms.”137Id. (quoting Vice President Kamala Harris). Meanwhile, Democratic Senator Mark Warner has stated that companies “could see changes to Section 230 if they don’t address political disinformation.”138Id.

If 2019 saw a steady trickle of Section 230 bills, then the floodgates have burst open in the two years since.139SeeKiran Jeevanjee, Brian Lim, Irene Ly, Matt Perault, Jenna Ruddock, Tim Schmeling, Niharika Vattikonda & Joyce Zhou, All the Ways Congress Wants to Change Section 230, Slate (Mar. 23, 2021, 5:45 AM), https://perma.cc/82EQ-2L95. A barrage of bills was introduced between 2020 and 2021, with “roughly 12 bills introduced in the last four months of 2020 alone.”140Id. A survey of all the proposed legislation is beyond the scope of this paper.141Id. (noting that “[e]ven for tech policy diehards who spend their mornings reading tech policy newsletters and keep close tabs on press releases from congressional offices, trying to piece together the Section 230 reform puzzle can be a full-time job”). But this much is clear: Legislators on both sides of the aisle are hell-bent on amending one of the laws the modern internet was built upon.

E.     Overbreadth, Vagueness, and Laws that Chill Protected Speech

For the sake of argument, assume Congress is successful in passing a bill to amend Section 230 in some form or fashion. This new law would likely butt up against First Amendment principles. The First Amendment to the US Constitution provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”142U.S. Const. amend. I. That free speech clause limits the government’s ability to police verbal speech, printed words, expressive conduct, and symbolic speech.143Practical Law Government Practice, Free Speech Limitations on Government Regulation: Overview (2019), Westlaw W-015-3053. In general, these four types of speech may never be limited based on their ideas, subject matter, or content.144United States v. Stephens, 559 U.S. 460, 468 (2010) (citing Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002)). However, “the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations.’”145Id. (quoting R.A.V. v. St. Paul, 505 U.S. 377, 382–83 (1992)). These limited content areas of unprotected expression include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.146Id. But even when the government writes laws that limit unprotected speech, citizens may challenge the precision of these laws using two doctrines.147Free Speech Limitations, supra note 143.

1.     The Overbreadth Doctrine

The overbreadth doctrine prohibits the government from limiting unprotected speech if it chills a substantial amount of protected speech in the process.148Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002). In Ashcroft v. Free Speech Coalition,149535 U.S. 234 (2002). the Supreme Court noted that, “[t]he Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.”150Id. at 255. The reasoning for this doctrine was best explained in Broadrick v. Oklahoma,151413 U.S. 601 (1973). where the Supreme Court postulated that “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.”152Id. at 612.

Sometimes it is clear when a law is chilling a substantial amount of protected speech and sometimes it is not.153See, e.g., Bd. of Airport Comm’rs of the City of L.A. v. Jews for Jesus, 482 U.S. 569 (1987); but see Broadrick, 413 U.S. at 601. For example, in Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus,154482 U.S. 569 (1987). a resolution at Los Angeles International Airport (“LAX”) stated that LAX “is not open for First Amendment activities by any individual and/or entity” and “any individual/or entity [who] seeks to engage in First Amendment activities within the Central Terminal Area . . . shall be deemed to be acting in contravention of the stated policy of the Board of Airport Commissioners.”155Id. at 574 (internal quotation marks omitted). The Supreme Court noted that this resolution “prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing.”156Id. at 575. The Court held that the resolution was unconstitutionally overbroad because it was an absolute ban of First Amendment protected speech.157Id.

In City of Houston v. Hill,158482 U.S. 451 (1987). which was also decided in 1987, the Supreme Court held that a Houston city ordinance was unconstitutionally overbroad.159Id. at 467. In that case, the ordinance made it illegal to “oppose, molest, abuse or interrupt any policeman in the execution of his duty.”160Id. at 455. While the ordinance was not an absolute ban of First Amendment expression, the Court reasoned that it was a general prohibition on speech that had no core of constitutionally unprotected expression to which it might be limited.161Id. at 468–69.For this reason, the Court held that the Houston city ordinance was unconstitutionally overbroad.162Id.

Despite the two aforementioned applications of the overbreadth doctrine, the Supreme Court has noted that application of the doctrine is “manifestly[] strong medicine.”163Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). In Broadrick, the Court noted that the doctrine “has not been invoked when a limiting construction has been or could be placed on the challenged statute.”164Id.

2.     The Vagueness Doctrine

The vagueness doctrine states that a law is unconstitutionally vague if it “[1] fails to provide a person of ordinary intelligence fair notice of what is prohibited, or [2] is so standardless that it authorizes or encourages seriously discriminatory enforcement.”165United States v. Williams, 553 U.S. 285, 304 (2008). The Supreme Court has used this doctrine on several occasions to strike down imprecise laws.166See, e.g., City of Chicago v. Morales, 527 U.S. 41, 64 (1999); Kolender v. Lawson, 461 U.S. 352, 361–62 (1983); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). For example, in Coates v. City of Cincinnati,167402 U.S. 611 (1971). a Cincinnati city ordinance made it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . .”168Id. at 611. The Court noted that “[c]onduct that annoys some people does not annoy others,” and thus “no standard of conduct is specified at all.”169Id. at 614. Since the ordinance subjected “the exercise of the right of assembly to an unascertainable standard[,]” the Court held that the ordinance did not provide fair notice and was unconstitutionally vague.170Id.

In comparison, more than a decade later, the Supreme Court voided a law for vagueness because it encouraged discriminatory enforcement.171Kolender, 461 U.S. at 361. In Kolender v. Lawson172461 U.S. 352 (1983). the plaintiff challenged a criminal statute that required people who were loitering on the streets to give “credible and reliable” identification when requested by a peace officer.173Id. at 352. According to the statute, a person who did not provide “credible and reliable” identification could be arrested.174Id. at 357. The Court reasoned that the statute had no standard for determining how a suspect could satisfactorily provide a “credible and reliable” identification, and thus vested total discretion in the hands of the police to determine whether or not a suspect could be arrested.175Id. at 358. The Court held that the statute was unconstitutionally vague because it encouraged seriously discriminatory enforcement.176Id. at 361–62.

3.     The Overbreadth and Vagueness Doctrines as Applied to Internet Speech

In 1997, the Supreme Court applied the overbreadth and vagueness doctrines in a case concerning imprecise laws written to govern internet speech.177Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997). While Section 230 of the Communications Decency Act is still on the books today, a substantial portion of the Act was gutted twenty-two years ago in Reno v. American Civil Liberties Union.178521 U.S. 844 (1997). Reno concerned two provisions of the Communications Decency Act; one of these provisions prohibited “the knowing transmission of obscene or indecent messages to any recipient under [eighteen] years of age[,]” while the other prohibited “the knowing sending or displaying of patently offensive messages in a manner that is available to a person under [eighteen] years of age.”179Id.at 859.

The Court first addressed the vagueness of the provisions, noting that the key terms “indecent” and “patently offensive” were not defined anywhere in the act.180Id. at 871. It noted that the vagueness of the act was particularly problematic because (1) it was a content-based regulation of speech, and (2) it was a criminal statute.181Id.at 871–72. The majority explained that a content-based regulation “raises special First Amendment concerns because of its obvious chilling effect on free speech” and a content-based regulation that is a criminal statute “may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.”182Id.

The Court then concluded that the vagueness of the statute contributed to its unconstitutional overbreadth, writing that “[g]iven the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection.”183Id. at 874. It pointed out that it had previously held that “sexual expression which is indecent but not obscene is protected by the First Amendment.”184Reno, 521 U.S. at 874. (quoting Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989)) (internal quotation marks omitted). Ultimately, the majority held that the provisions of the Communications Decency Act were unconstitutionally overbroad because they were suppressing indecent expression in an attempt to “deny minors access to potentially harmful speech.”185Id. at. 874.

II.     Analysis

Section 230 states that interactive computer services cannot be held liable for information posted by a third party.18647 U.S.C. § 230. It was passed to encourage interactive computer services to moderate content after the controversial holding in Stratton Oakmont.187H.R. Rep. No. 104-458, at 174 (1996) (Conf. Rep.) (“One of the specific purposes of this section is to overrule Stratton Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.”). Additionally, Congress’s policy findings included in Section 230 note that the internet increases the “availability of educational and informational resources,” and that interactive computer services “offer a forum for a true diversity of political discourse.”18847 U.S.C. § 230(a). These policy findings show that Section 230 was also passed to encourage the free flow of information on the internet and to discourage government intervention.189See id.

Early judicial interpretations of Section 230 broadened the immunity available to interactive computer services. In Zeran, the Fourth Circuit made clear that interactive computer services could exercise traditional publisher functions and still maintain their Section 230 immunity.190Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). Batzel further broadened Section 230 immunity when the Ninth Circuit held that even interactive computer services that took active steps to review and edit third-party content could maintain Section 230 immunity.191Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). But the broadening of Section 230 did not continue in perpetuity. Five years after the Batzel decision, the Ninth Circuit decided to narrow Section 230 immunity with its decision in Roommates.com.192Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170 (9th Cir. 2008). Soon thereafter, Congress joined the courts in creating an exception to Section 230 immunity by passing FOSTA.193See supra note 127 and accompanying text.

In light of the issues that come with the free exchange of information online, it may seem reasonable to narrow the scope of Section 230 immunity. However, the costs of narrowing that immunity exceed the potential benefits. Undoubtedly, there are more than a few interactive computer services that allow users to get away with morally despicable actions.194See, e.g., Andy Greenberg, Feds Dismantled the Dark-Web Drug Trade – But It’s Already Rebuilding, Wired (May 9, 2019, 7:00 AM), https://perma.cc/4LLK-ZB5E; Timothy McLaughlin, The Weird, Dark History of 8chan, Wired (Aug. 6, 2019, 6:00 PM), https://perma.cc/Z7GK-JQ64.. So, what is the issue with Congress and the courts trying make the internet a safer and more wholesome place?

The issue is that in trying to make the internet safer, both Congress and the courts are beginning to chill protected speech. The internet is an information highway, and Congress and the courts are beginning to narrow the lanes. In moving away from the Zeran court’s reading of Section 230, courts are creating uncertainty for interactive computer services which previously relied on Section 230 immunity without a second thought.195Kosseff, supra note 6, at 37 (“As courts continue to carve new exceptions to Section 230—and enlarge existing exceptions—websites, apps, and other online service providers will be increasingly reluctant to transmit user-generated content.”). Similarly, while the intentions behind passing FOSTA were good, the law as written forces interactive computer services to guess at what user-generated content they will be liable for. Because of the uncertainty created by these exceptions to Section 230, this Comment proposes that both exceptions created by the courts and by Congress are stifling protected speech.

A.     Why the Zeran Court Got It Right

The court in Zeran produced the correct reading of Section 230 because it both adhered to the plain meaning of the statutory text and also kept in mind the underlying policy goals. It should be noted that the Fourth Circuit wrote that the plain language of the statute “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”196Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). To be clear, the court used the term “immunity,” even though that term does not appear in the Communications Decency Act.197See 47 U.S.C. § 230. However, the absence of the term does not necessarily mean that the Zeran court’s reading is incorrect. As Mark Quist points out in his commentary of the Zeran opinion, Black’s Law Dictionary defines immunity as “any exemption from a duty, liability, or service of process[.]”198Mark D. Quist, Comment, “Plumbing the Depths of the CDA: Weighing the Competing Fourth and Seventh Circuit Standards of ISP Immunity Under Section 230 of the Communications Decency Act, 20 Geo. Mason L. Rev. 275, 299 & n.186 (2012) (citing Black’s Law Dictionary 817–18 (9th ed. 2009)) (internal quotation marks omitted). Recall that Section 230(c)(1) states that “[n]o 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.”19947 U.S.C. § 230(c)(1). This clause clearly serves as an exemption for service providers, as it keeps them from being treated as publishers for third-party content they didn’t create.200Quist, supra note 198, at 299. As Quist concludes, there is no reason to dismiss the Fourth Circuit’s reading of Section 230 as a grant of immunity as unfaithful to the plain meaning of the statute.201Id.

Additionally, this reading of Section 230 comports with the congressional findings and policies set out at the beginning of the statute.202Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). The court in Zeran believed that these findings and policies revealed that one of the purposes of Section 230 was to “maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.”203Id. In contrast, the court in Roommates.com believed that there was no way Congress could have intended to exempt online behavior that would have been illegal in person.204Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1167 (9th Cir. 2008) (“If such screening is prohibited when practiced in person or by telephone, we see no reason why Congress would have wanted to make it lawful to profit from it online.”). The congressional findings and policies clearly support the Zeran court and call the Roommates.com court’s rationale into question.205See 47 U.S.C. § 230(a). Few of the policies and findings in Section 230(a) and Section 230(b) have much to do with moderating user behavior, yet four of the five “findings” are related to how the internet is an important technological leap that should be free of oppressive governmental oversight.206See id. § 230(a)–(b). By reading Section 230 as a grant of immunity, the Zeran court interpreted the statute with the concerns that Congress had in mind when it passed the Communications Decency Act.

B.     Roommates.com and the Chilling of Internet Speech

The court in Roommates.com insisted that its opinion was not meant to substantially erode Section 230 immunity.207Roommates.com, 521 F.3d at 1174. Judge Kozinski, writing for the majority, memorably stated that close cases “must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly accented to—the illegality of third parties.”208Id. (emphasis added). But as Professor Eric Goldman correctly predicted shortly after Roommates.com was decided, “lots of duck-biting plaintiffs [would] try to capitalize on this opinion.”209Eric Goldman, Roommates.com Denied 230 Immunity by Ninth Circuit En Banc (With My Comments), Tech. & Mktg. L. Blog (Apr. 3, 2008), https://perma.cc/6GB4-LESU. For example, just a year after Roommates.com was decided, the Court of Appeals for the Tenth Circuit held that a website that was selling personal information was an information content provider and thus should not receive Section 230 immunity.210FTC v. Accusearch, Inc., 570 F.3d 1187, 1196–201 (10th Cir. 2009). More recently, Kosseff examined every Section 230 opinion between July 1, 2015 and June 30, 2016, finding that in fourteen of twenty-seven decisions, the court declined to grant full Section 230 immunity to the online intermediary.211Kosseff, supra note 6, at 22. Kosseff wrote that the twenty-seven decisions, taken together, “reflect a growing reluctance of courts to apply Section 230 in the broad manner of the Zeran days.”212Id.

In other words, the courts are allowing duck-biting plaintiffs to gnaw away at Section 230 immunity. This gnawing will inevitably cause uncertainty for operators of interactive computer services, who will become increasingly unsure about what user-generated content they will be held liable for. When faced with the choice of allowing questionable user-generated content or limiting user-generated content to avoid liability, it is hard to say what an interactive computer service might do. The current uncertainty created by recent court decisions incentivizes operators of interactive computer services to chill questionable user speech, to make sure they avoid legal liability for that speech.

C.     FOSTA and the Chilling of Internet Speech

FOSTA narrows Section 230 immunity by stopping defendants from claiming immunity on civil or state criminal suits related to federal sex-trafficking crimes.213See supra note 127 and accompanying text. This bill stirred little controversy on Capitol Hill, clearing the Senate by a 97–2 vote.214Jackman, supra note 20. Notably, one of those two “nay” votes was voiced by Senator Ron Wyden, one of the original authors of the Communications Decency Act.215Id. Senator Wyden expressed his opinion that it was a mistake to change the law and that it would have unforeseen consequences on the internet.216Id.

Senator Wyden was correct. The unforeseen effects Senator Wyden spoke of come from FOSTA’s propensity to compel censorship.217Chamberlain, supra note 131, at 2189 (“Since FOSTA does not extend immunity to good-faith efforts to expunge objectionable content, and as it lacks a ‘notice-and-takedown mechanism’ common to other types of internet liability, UISPs may be forced to overmoderate content or entirely prohibit any speech that could potentially reach controversial topics.”). Without protection from Section 230 immunity, interactive computer services are incentivized to censor anything that seems remotely related to sex trafficking. FOSTA targets users of interactive computer services who use the service “with the intent to promote or facilitate the prostitution of another person.”21818 U.S.C. § 2421A. But absent from the statutory text are applicable definitions for the verbs “promote” or “facilitate.”219Id.

FOSTA is unconstitutionally overbroad and chills protected speech. Recall that the Court in Reno wrote that the vagueness of a criminal statute that regulates speech based on its content “raises special First Amendment concerns because of its obvious chilling effect on free speech.”220Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871–72 (1997). Such a criminal statute has a chilling effect on free speech because it “may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.”221Id. at 872. The provisions being challenged in Reno failed to define the key terms “indecent” and “patently offensive.”222Id. at 871.Similarly, FOSTA fails to define the key terms “promote” or “facilitate.”22318 U.S.C. § 2421A. The Court in Reno concluded that the challenged provisions were unconstitutionally overbroad, writing that “[g]iven the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection.”224Reno, 521 U.S. at 874. FOSTA is overbroad for the same reason—it is unquestionably silencing internet speech surrounding sex.

This silencing effect is not speculative; it is real. As Lura Chamberlain observes in her commentary on FOSTA, the passage of FOSTA left interactive computer services with three choices:

(1) check each piece of user content with human eyes prior to posting, which requires significant resources; (2) enlist technological efforts to moderate content, like “machine-learning algorithms to filter and block anything that relates to sex, including activities that have nothing to do with sex trafficking”; or (3) steer clear of all such topics entirely.225Chamberlain, supra note 131, at 2197–98.

Some websites have already chosen the third option, causing tons of internet speech surrounding sex to disappear.226Jackman, supra note 20. Moving forward, it’s probable that more interactive computer services will refuse to provide any sort of forum related to sex, for fear that users may somehow “promote” or “facilitate” prostitution. Indeed, on the day that FOSTA was signed into law, Craigslist had already shut down its personals, missed connections, and dating sections.227Id. The company posted a message in those sections that read:

US Congress just passed HR 1865, FOSTA, seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking Craigslist personals offline.228Id.


Section 230 was passed into law both to incentivize interactive computer services to moderate content and to promote the growth of a free and lightly regulated internet. In modifying Section 230 immunity, both Congress and the courts have lost sight of this second purpose. Both should stop trying to chip away at one of the cornerstones that the internet was built upon.

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