Section 230: An Overview

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Section 230: An Overview
~~April 7, 2021~~January 4, 2024
Section 230 of the Communications Act of 1934, enacted as part of the Communications Section 230 of the Communications Act of 1934, enacted as part of the Communications
Decency Act of 1996, provides limited federal immunity to providers and users of interactive Decency Act of 1996, provides limited federal immunity to providers and users of interactive
Valerie C. Brannon
computer services. The computer services. The ~~law~~statute generally precludes providers and users from being held liable— generally precludes providers and users from being held liable—~~that~~
Legislative Attorney Legislative Attorney
that is, legally responsible—for information provided by is, legally responsible—for information provided by ~~a third party~~another person, but does not prevent , but does not prevent ~~them from~~

them from being held legally responsible for information that they have developed or for being held legally responsible for information that they have developed or for ~~activities unrelated~~
Eric N. Holmes
activities unrelated to third-party content. Courts have interpreted Section 230 to foreclose a wide to third-party content. Courts have interpreted Section 230 to foreclose a wide ~~variety of lawsuits~~
~~Legislative Attorney~~
Attorney-Adviser variety of lawsuits and to preempt laws that would make providers and users liable for third-party and to preempt laws that would make providers and users liable for third-party (Constitution Annotated) content. For content. For

example, the law has been applied to protect online service providers like social example, the law has been applied to protect online service providers like social media media
companies from lawsuits based on their decisions to transmit or take down user-generated companies from lawsuits based on their decisions to transmit or take down user-generated

content. content.
Two provisions of Section 230 are the primary framework for this immunity. First, Section 230(c)(1) specifies that service Two provisions of Section 230 are the primary framework for this immunity. First, Section 230(c)(1) specifies that service
providers and users may not “be treated as the publisher or speaker of any information provided by another information providers and users may not “be treated as the publisher or speaker of any information provided by another information
content provider.” In content provider.” In Zeran v. America Online, Inc., an influential case interpreting this provision, a federal appeals court said , an influential case interpreting this provision, a federal appeals court said
that Section 230(c)(1) bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional that Section 230(c)(1) bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional
editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” Second, Section 230(c)(2) editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” Second, Section 230(c)(2)
states that service providers and users may not be held liable for voluntarily acting in good faith to restrict access to “obscene, states that service providers and users may not be held liable for voluntarily acting in good faith to restrict access to “obscene,
lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material. Section 230(c)(2) is thus more lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material. Section 230(c)(2) is thus more
limited: it applies only to good-faith takedowns of objectionable material, while courts have interpreted Section 230(c)(1) to limited: it applies only to good-faith takedowns of objectionable material, while courts have interpreted Section 230(c)(1) to
apply to both distribution and takedown decisions. apply to both distribution and takedown decisions.
Section 230 contains statutory exceptions. This federal immunity generally will not apply to suits brought under federal Section 230 contains statutory exceptions. This federal immunity generally will not apply to suits brought under federal
criminal law, intellectual property law, any state law “consistent” with Section 230, certain privacy laws applicable to criminal law, intellectual property law, any state law “consistent” with Section 230, certain privacy laws applicable to
electronic communications, or certain federal and state laws relating to sex trafficking. electronic communications, or certain federal and state laws relating to sex trafficking.
~~In recent years, legislators~~Government officials and outside commentators have debated the proper scope of Section 230. While the law and outside commentators have debated the proper scope of Section 230. While the law ~~does have~~
has a number of defenders, others have argued that courts have interpreted Section 230 immunity too broadly. a number of defenders, others have argued that courts have interpreted Section 230 immunity too broadly. ~~In the 116th~~
~~Congress, 26 bills~~ Recent Congresses have seen a number of bills that would have amended the scope of Section 230 immunity. These proposals ranged from outright repeal, to would have amended the scope of Section 230 immunity. These proposals ranged from outright repeal, to
placing certain conditions on immunity, to creating narrower exceptions allowing certain types of lawsuits. Some bills sought placing certain conditions on immunity, to creating narrower exceptions allowing certain types of lawsuits. Some bills sought
to amend the scope of Section 230(c)(1), limiting “publisher” immunity in an attempt to encourage sites to take down certain to amend the scope of Section 230(c)(1), limiting “publisher” immunity in an attempt to encourage sites to take down certain
types of undesirable content. Others sought to encourage sites to host more content by narrowing immunity for certain types types of undesirable content. Others sought to encourage sites to host more content by narrowing immunity for certain types
~~of takedown decisions.~~
~~The executive branch also weighed in on Section 230 reform in 2020, with proposals from the National Telecommunications~~
~~and Information Administration and the Department of Justice. One issue raised by these proposals concerned whether the~~
~~Federal Communications Commission (FCC) has regulatory authority to implement Section 230. While the FCC generally~~
~~has authority to administer the Communications Act of 1934, to date, the FCC has not played a role in interpreting or~~
~~applying Section 230, and Section 230 does not explicitly mention the FCC. Commentators have thus disputed whether~~
~~Congress intended to vest the FCC with regulatory authority over Section 230 and whether the statute contains any~~
~~ambiguous language that could be clarified through FCC regulation.~~
~~In addition, proposals~~of takedown decisions. Proposals to amend Section 230 may raise two distinct types of First Amendment issues. The first issue is to amend Section 230 may raise two distinct types of First Amendment issues. The first issue is
whether any given proposal infringes the constitutionally protected speech of either providers or users. This concern may be whether any given proposal infringes the constitutionally protected speech of either providers or users. This concern may be
especially acute if a proposal restricts providers’ editorial discretion or creates content- or viewpoint-based distinctions. The especially acute if a proposal restricts providers’ editorial discretion or creates content- or viewpoint-based distinctions. The
second issue is whether, if Section 230 is repealed in whole or in part, the First Amendment may nonetheless prevent private second issue is whether, if Section 230 is repealed in whole or in part, the First Amendment may nonetheless prevent private
parties or the government from holding providers liable for publishing content. The First Amendment might prevent some parties or the government from holding providers liable for publishing content. The First Amendment might prevent some
claims premised on decisions to host or restrict others’ speech, but its protections are likely less extensive than the current claims premised on decisions to host or restrict others’ speech, but its protections are likely less extensive than the current
scope of Section 230 immunity. scope of Section 230 immunity.
Congressional Research Service Congressional Research Service

Section 230: An Overview

n 1996, Congress passed a suite of measures to amend the Communications Act of 1934 in n 1996, Congress passed a suite of measures to amend the Communications Act of 1934 in
order to protect children on the internet. The new measures were known collectively as the order to protect children on the internet. The new measures were known collectively as the
I Communications Decency Act (CDA).1 Some portions of the CDA directly imposed liability I Communications Decency Act (CDA).1 Some portions of the CDA directly imposed liability
for transmitting obscene or harassing material online,2 including two provisions that the Supreme for transmitting obscene or harassing material online,2 including two provisions that the Supreme
Court struck down as unconstitutional in 1997.3 The CDA’s new Section 230 of the Court struck down as unconstitutional in 1997.3 The CDA’s new Section 230 of the
Communications Act4 took a different approach.5 It sought to allow users and providers of Communications Act4 took a different approach.5 It sought to allow users and providers of
“interactive computer services” to make their own content moderation decisions, while still “interactive computer services” to make their own content moderation decisions, while still
permitting liability in certain limited contexts.6 permitting liability in certain limited contexts.6
Since its passage, federal courts have interpreted Section 230 as creating expansive immunity for Since its passage, federal courts have interpreted Section 230 as creating expansive immunity for
claims based on third-party content that appears online.7 Consequently, internet companies and claims based on third-party content that appears online.7 Consequently, internet companies and
users frequently rely on Section 230’s protections to avoid liability in federal and state litigation. users frequently rely on Section 230’s protections to avoid liability in federal and state litigation.
But in recent years, commentators and jurists have expressed concern that the broad immunity But in recent years, commentators and jurists have expressed concern that the broad immunity
courts have recognized under Section 230 is beyond the law’s intended scope.8 courts have recognized under Section 230 is beyond the law’s intended scope.8
This report explores the origins, current application, and future of Section 230. It first discusses This report explores the origins, current application, and future of Section 230. It first discusses
the history and passage of Section 230 and the CDA. The report then analyzes how courts have the history and passage of Section 230 and the CDA. The report then analyzes how courts have
applied Section 230 in litigation. The report concludes with a discussion of proposed reforms to applied Section 230 in litigation. The report concludes with a discussion of proposed reforms to
Section 230 and legalSection 230 and legal ~~and constitutional~~ considerations relevant to reform efforts. considerations relevant to reform efforts.
This report This report ~~does not discuss the possible international trade implications of amending Section~~
~~230. This issue is discussed briefly in CRS Legal Sidebar LSB10484,~~ ~~UPDATE: Section 230 and~~
~~the Executive Order on Preventing Online Censorship, by Valerie C. Brannon et al.~~
focuses on Section 230 protections from liability and does not more broadly address the potential liability other laws may impose for hosting or restricting others’ content.9 This report also does not discuss the possible international trade implications of amending Section 230.10 Text and Legislative History
Congress enacted the CDA as part of the Telecommunications Act of 1996.Congress enacted the CDA as part of the Telecommunications Act of 1996.911 According to the According to the
conference report, the CDA as a whole was intended to “modernize the existing protections conference report, the CDA as a whole was intended to “modernize the existing protections

1 Pub. L. No. 104-104, Tit. V, 110 Stat. 133 (1996). 1 Pub. L. No. 104-104, Tit. V, 110 Stat. 133 (1996).
2 2 E.g., 47 U.S.C. § 223(d). , 47 U.S.C. § 223(d).
3 Reno v. ACLU, 521 U.S. 844, 882 (1997). 3 Reno v. ACLU, 521 U.S. 844, 882 (1997).
4 47 U.S.C. § 230. Although Section 230 is sometimes referred to as “Section 230 of the CDA” or “CDA Section 230,” 4 47 U.S.C. § 230. Although Section 230 is sometimes referred to as “Section 230 of the CDA” or “CDA Section 230,”
“Section 230” more accurately refers to the statute’s place in the Communications Act. “Section 230” more accurately refers to the statute’s place in the Communications Act.
5 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Ron Wyden) (noting that the approach of Section 5 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Ron Wyden) (noting that the approach of Section
230 stands “in sharp contrast to the work of the other body,” which sought “to try to put in place the Government rather 230 stands “in sharp contrast to the work of the other body,” which sought “to try to put in place the Government rather
than the private sector about this task of trying to define indecent communications and protecting our kids”). than the private sector about this task of trying to define indecent communications and protecting our kids”).
6 6 See 47 U.S.C. § 230(b) (expressing a deregulatory policy goal); 47 U.S.C. § 230(b) (expressing a deregulatory policy goal); id. § 230(e) (providing limited exceptions). § 230(e) (providing limited exceptions).
7 7 See, e.g., Zeran v. Am. Online, Inc. 129 F.3d 327, 330–31 (4th Cir. 1997), Zeran v. Am. Online, Inc. 129 F.3d 327, 330–31 (4th Cir. 1997).
8 8 See, e.g., Force v. Facebook, Inc., 934 F.3d 53, 84 (2d Cir. 2019) (Katzmann, J., concurring in part) (opining that , Force v. Facebook, Inc., 934 F.3d 53, 84 (2d Cir. 2019) (Katzmann, J., concurring in part) (opining that
Section 230 as applied creates “extensive immunity . . . for activities that were undreamt of in 1996” and “[i]t therefore Section 230 as applied creates “extensive immunity . . . for activities that were undreamt of in 1996” and “[i]t therefore
may be time for Congress to reconsider the scope of § 230”); Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, may be time for Congress to reconsider the scope of § 230”); Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC,
141 S. Ct. 13, 14–15 (2020) (Thomas, J., statement respecting the denial of certiorari) (positing that the “modest 141 S. Ct. 13, 14–15 (2020) (Thomas, J., statement respecting the denial of certiorari) (positing that the “modest
understanding” of what Section 230 is meant to do based on its text “is a far cry from what has prevailed in court”); 1 understanding” of what Section 230 is meant to do based on its text “is a far cry from what has prevailed in court”); 1
R. SMOLLA, LAW OF DEFAMATION § 4.86 (2d ed. 2019) (“[C]ourts have extended the immunity in § 230 far beyond R. SMOLLA, LAW OF DEFAMATION § 4.86 (2d ed. 2019) (“[C]ourts have extended the immunity in § 230 far beyond
anything that plausibly could have been intended by Congress.”). anything that plausibly could have been intended by Congress.”).
9 9 See, e.g., Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) (holding that social media platform was not liable for claims brought under the Anti-Terrorism Act irrespective of whether the platform was eligible for protection under Section 230). Whether a plaintiff has stated a legally actionable claim will depend on the particular claim alleged and the facts present in each case—issues that are outside the scope of this report. 10 The legal aspects of this issue are discussed briefly in CRS Legal Sidebar LSB10484, UPDATE: Section 230 and the Executive Order on Preventing Online Censorship, by Valerie C. Brannon et al. 11 Pub. L. No. 104-104, § 501, 110 Stat. 133–43 (1996). Pub. L. No. 104-104, § 501, 110 Stat. 133–43 (1996).
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Section 230: An Overview

against obscene, lewd, indecent or harassing uses of a telephone.” against obscene, lewd, indecent or harassing uses of a telephone.”1012 Since its enactment in 1996, Since its enactment in 1996,1113
Section 230 has been amended twice: once to add a new obligation for interactive computer Section 230 has been amended twice: once to add a new obligation for interactive computer
services to notify customers about parental control protections,services to notify customers about parental control protections,1214 and once to and once to ~~except its~~
~~application in~~create an exception for certain civil and criminal cases involving prostitution or sex trafficking. certain civil and criminal cases involving prostitution or sex trafficking.1315
Section 230 contains Section 230 contains ~~findings14~~findings16 and policy statements, and policy statements,1517 expressing, among other things, that expressing, among other things, that
Congress sought to promote the free development of the internet, while also “remov[ing] Congress sought to promote the free development of the internet, while also “remov[ing]
disincentives” to implement “blocking and filtering technologies” that restrict “children’s access disincentives” to implement “blocking and filtering technologies” that restrict “children’s access
to . . . inappropriate online material”to . . . inappropriate online material”1618 and “ensur[ing] vigorous enforcement of Federal criminal and “ensur[ing] vigorous enforcement of Federal criminal
laws to deter and punish trafficking in obscenity, stalking, and harassmentlaws to deter and punish trafficking in obscenity, stalking, and harassment ~~by means of~~
~~computer.”17~~” online.19 The heart of Section 230, however, is arguably the immunity created in subsection The heart of Section 230, however, is arguably the immunity created in subsection
(c): (c):
(c) PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE (c) PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE
MATERIAL.— MATERIAL.—
(1) (1) TREATMENT OF PUBLISHER OR SPEAKER.—No provider or user of an interactive 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 computer service shall be treated as the publisher or speaker of any information provided
by another information content provider. by another information content provider.
(2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be (2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be
held liable on account of— held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability (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, of material that the provider or user considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable, whether or not such excessively violent, harassing, or otherwise objectionable, whether or not such
material is constitutionally protected; or material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers (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 [subparagraph or others the technical means to restrict access to material described in [subparagraph
(A)].(A)].18

1020 Thus, Section 230(c) contains two distinct provisions that together create a broad immunity from suit for a “provider or user of an interactive computer service.” Section 230(c)(1) specifies that service providers may not “be treated as the publisher or speaker of any information provided by 12 S. REP. NO. 104-23, at 59 (1995); S. REP. NO. 104-23, at 59 (1995); see also id. (“The decency provisions increase the penalties for obscene, indecent, . (“The decency provisions increase the penalties for obscene, indecent,
harassing or other wrongful uses of telecommunications facilities; protect privacy; protect families from uninvited and harassing or other wrongful uses of telecommunications facilities; protect privacy; protect families from uninvited and
unwanted cable programming which is unsuitable for children and give cable operators authority to refuse to transmit unwanted cable programming which is unsuitable for children and give cable operators authority to refuse to transmit
programs or portions of programs on public or leased access channels which contain obscenity, indecency, or nudity.”). programs or portions of programs on public or leased access channels which contain obscenity, indecency, or nudity.”).
The Supreme Court struck down some of these provisions as unconstitutional in The Supreme Court struck down some of these provisions as unconstitutional in Reno v. ACLU, 521 U.S. 844, 882 , 521 U.S. 844, 882
(1997). (1997).
1113 Pub. L. No. 104-104, § 509, 110 Stat. 137–39 (1996). Pub. L. No. 104-104, § 509, 110 Stat. 137–39 (1996).
1214 Pub. L. No. 105-277, § 1404, 112 Stat. 2681-739 (1998). This 1998 law also amended 47 U.S.C. § 230(e)(1) to Pub. L. No. 105-277, § 1404, 112 Stat. 2681-739 (1998). This 1998 law also amended 47 U.S.C. § 230(e)(1) to
clarify that Section 230 should not be construed to impair the enforcement of 47 U.S.C. § 231, a new provision created clarify that Section 230 should not be construed to impair the enforcement of 47 U.S.C. § 231, a new provision created
by the 1998 law. by the 1998 law. Id. .
1315 Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), Pub. L. No. 115-164, § 4, 132 Stat. Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), Pub. L. No. 115-164, § 4, 132 Stat.
1253 (2018). FOSTA also created criminal and civil liability for owning, managing, or operating an interactive 1253 (2018). FOSTA also created criminal and civil liability for owning, managing, or operating an interactive
computer service “with the intent to promote or facilitate the prostitution of another person . . . .” computer service “with the intent to promote or facilitate the prostitution of another person . . . .” Id. § 3. § 3.
1416 47 U.S.C. § 230(a). 47 U.S.C. § 230(a).
1517 Id. § 230(b). . § 230(b).
1618 Id. § 230(b)(4). § 230(b)(4).
1719 Id. § 230(b)(5). § 230(b)(5).
1820 Id. § 230(c). Courts have read 47 U.S.C. § 230(c)(2)(B)’s reference to “paragraph (1)” to mean § 230(c)(2)(A). § 230(c). Courts have read 47 U.S.C. § 230(c)(2)(B)’s reference to “paragraph (1)” to mean § 230(c)(2)(A). E.g.
Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173 n.5 (9th Cir. 2009) (“We take it that the reference to the Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173 n.5 (9th Cir. 2009) (“We take it that the reference to the
‘material described in paragraph (1)’ is a typographical error, and that instead the reference should be to paragraph (A), ‘material described in paragraph (1)’ is a typographical error, and that instead the reference should be to paragraph (A),
i.e., § 230(c)(2)(A). . . . Paragraph (1) pertains to the treatment of a publisher or speaker and has nothing to do with i.e., § 230(c)(2)(A). . . . Paragraph (1) pertains to the treatment of a publisher or speaker and has nothing to do with
‘material,’ whereas subparagraph (A) pertains to and describes material.”) (citation omitted). ‘material,’ whereas subparagraph (A) pertains to and describes material.”) (citation omitted).
Congressional Research Service Congressional Research Service
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Section 230: An Overview

~~Thus, Section 230(c) contains two distinct provisions that together create a broad immunity from~~
~~suit for a “provider or user of an interactive computer service.” Section 230(c)(1) specifies that~~
~~service providers may not “be treated as the publisher or speaker of any information provided by~~
~~another information content provider,”19~~another information content provider,”21 while Section 230(c)(2) ensures that service providers while Section 230(c)(2) ensures that service providers
may not be held liable for voluntarily acting to restrict access to objectionable material.may not be held liable for voluntarily acting to restrict access to objectionable material.2022
Both “interactive computer service” and “information content provider” are statutorily defined Both “interactive computer service” and “information content provider” are statutorily defined
terms.terms.2123 An “interactive computer service” is “any information service, system, or access software An “interactive computer service” is “any information service, system, or access software
provider that provides or enables computer access by multiple users to a computer server.”provider that provides or enables computer access by multiple users to a computer server.”22
~~Courts~~24 In a computer network, a server is generally the hardware or software that provides a service, such as transmitting information, to another piece of hardware or software called the client. Courts have accordingly interpreted “interactive computer service” broadly.25 They have considered online service providers such as Google, have considered online service providers such as Google,~~23 Yahoo!,24 Facebook,25~~26 Facebook,27 Amazon,28 and Craigslist29 ~~and~~
~~Craigslist26~~ to be “interactive computer service” providers. to be “interactive computer service” providers.2730 Given the breadth of this definition, Given the breadth of this definition,
courts have also concluded that it extends to companies that provide broadband internet courts have also concluded that it extends to companies that provide broadband internet ~~access28~~
access31 or web hostingor web hosting~~,29 as well as entities such as libraries30 or employers31~~.32 Most litigation has focused on online service providers, but the definition can include services providing access to private servers33 and brick-and-mortar entities such as libraries34 or employers35 who provide computer who provide computer
~~access. An “information content provider” is “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.”32 Thus, Section 230 distinguishes those who create content from~~
~~those who provide access to that content, providing immunity from suit to the latter group.33 An~~
~~entity may be both an “interactive computer service” provider and an “information content~~
~~provider,” but the critical inquiry for applying Section 230’s immunity provisions is whether the~~
~~service provider developed the content that is the basis for liability.34~~
~~Section 230(e) contains “exceptions” to the law’s immunity provision:35~~

~~19 47 U.S.C. § 230(c)(1).~~
~~20 Id. § 230(c)(2).~~
~~21 Id. § 230(f).~~
~~22 Id. § 230(f)(2).~~
~~23 E.g., Marshall’s Locksmith Serv. v. Google, LLC, 925 F.3d 1263, 1268 (D.C. Cir. 2019).~~
~~24 E.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009).~~
~~25 E.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).~~
26access.36 21 47 U.S.C. § 230(c)(1). 22 Id. § 230(c)(2). 23 Id. § 230(f). For more information on “online platforms” more generally, see CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho. 24 47 U.S.C. § 230(f)(2). 25 See, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d 25, 27–28 (2d Cir. 2015) (observing that the definition of interactive computer service “has been construed broadly to effectuate the statute’s speech-protective purpose”); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (observing that reviewing courts have “adopt[ed] a relatively expansive definition of ‘interactive computer service’”); IAN C. BALLON, 4 E-COMMERCE & INTERNET LAW 37.05[2] (2020 update) (“[A]lmost any networked computer service would qualify as an interactive computer service, as would an access software provider.”). 26 E.g., Marshall’s Locksmith Serv. v. Google, LLC, 925 F.3d 1263, 1268 (D.C. Cir. 2019). 27 E.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). 28 E.g., Erie Ins. Co. v. Amazon.com, Inc., 925 F.3d 135, 139 (4th Cir. 2019). 29 Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008). Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008).
2730 See also Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (“Providing access to the Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (“Providing access to the
Internet is . . . not the only way to be an interactive computer service provider.”). Internet is . . . not the only way to be an interactive computer service provider.”).
2831 See e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D. Ill. 2008); e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D. Ill. 2008); see also, e.g., Winter v. Bassett, , Winter v. Bassett,
No. 1:02CV00382, 2003 WL 27382038, at *6 (M.D.N.C. Aug. 22, 2003) (concluding Section 230 protects Verizon and No. 1:02CV00382, 2003 WL 27382038, at *6 (M.D.N.C. Aug. 22, 2003) (concluding Section 230 protects Verizon and
AT&T as interactive computer service providers). AT&T as interactive computer service providers).
2932 Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015); Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015); see also, e.g., Gucci Am., Inc. v. Hall & , Gucci Am., Inc. v. Hall &
Assocs., 135 F. Supp. 2d 409, 412 (S.D.N.Y. 2001) (describing Mindspring, a web hosting service, as an “interactive Assocs., 135 F. Supp. 2d 409, 412 (S.D.N.Y. 2001) (describing Mindspring, a web hosting service, as an “interactive
computer service”). computer service”).
3033 Cf., e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1175 (9th Cir. 2009) (rejecting argument that definition includes only services that enable “people to access the Internet or access content found on the Internet”); In re Zoom Video Commc’ns Privacy Litig., 525 F. Supp. 3d 1017, 1030 (N.D. Cal. 2021) (ruling the definition “does not recognize a public/private distinction”). 34 The statute specifically provides that the definition includes “such systems operated or services offered by libraries The statute specifically provides that the definition includes “such systems operated or services offered by libraries
or educational institutions.” 47 U.S.C. § 230(f)(2). or educational institutions.” 47 U.S.C. § 230(f)(2). See, e.g., Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772, , Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772,
777 (Cal. Ct. App. 2001) (“Respondent provides an ‘interactive computer service’ in this case because its library 777 (Cal. Ct. App. 2001) (“Respondent provides an ‘interactive computer service’ in this case because its library
computers enable multiple users to access the Internet.”). computers enable multiple users to access the Internet.”).
3135 E.g., Miller v. Fed. Express Corp., 6 N.E.3d 1006, 1017 (Ct. App. Ind. 2014). , Miller v. Fed. Express Corp., 6 N.E.3d 1006, 1017 (Ct. App. Ind. 2014).
~~32 47 U.S.C. § 230(f)(3).~~
~~33 See id. § 230(c), (f).~~
~~34 See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008).~~
~~35 E.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007) (“[Plaintiff] has attempted to~~
~~plead around that immunity . . . by asserting causes of action that purportedly fall into one of the statutory exceptions to~~
~~Section 230 immunity.” (emphasis added)).~~
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3

~~link to page 28~~ ~~Section 230: An Overview~~
36 Section 230 applies to both providers and users of interactive computer services. Some courts have opined that website operators are themselves users of interactive computer services (such as internet access service) and therefore are entitled to Section 230’s protection regardless of whether the website in question provides an interactive computer service. See, e.g., Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). Congressional Research Service 3 Section 230: An Overview An “information content provider” is “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.”37 Thus, Section 230 distinguishes those who create content from those who provide access to that content, providing immunity from suit to the latter group.38 An entity may be both an “interactive computer service” provider and an “information content provider,” but the critical inquiry for applying Section 230’s immunity provisions is whether the service provider developed the content that is the basis for liability.39 Section 230(e) contains “exceptions” to the law’s immunity provision:40
(e) EFFECT ON OTHER LAWS.— (e) EFFECT ON OTHER LAWS.—
(1) NO EFFECT ON CRIMINAL LAW.—Nothing in this section shall be construed to (1) NO EFFECT ON CRIMINAL LAW.—Nothing in this section shall be construed to
impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity)
or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any
other Federal criminal statute. other Federal criminal statute.
(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW.—Nothing in this section shall be (2) NO EFFECT ON INTELLECTUAL PROPERTY LAW.—Nothing in this section shall be
construed to limit or expand any law pertaining to intellectual property. construed to limit or expand any law pertaining to intellectual property.
(3) STATE LAW.—Nothing in this section shall be construed to prevent any State from (3) STATE LAW.—Nothing in this section shall be construed to prevent any State from
enforcing any State law that is consistent with this section. No cause of action may be enforcing any State law that is consistent with this section. No cause of action may be
brought and no liability may be imposed under any State or local law that is inconsistent brought and no liability may be imposed under any State or local law that is inconsistent
with this section.with this section.3641
(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW.—Nothing in this section shall (4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW.—Nothing in this section shall
be construed to limit the application of the Electronic Communications Privacy Act of 1986 be construed to limit the application of the Electronic Communications Privacy Act of 1986
or any of the amendments made by such Act, or any similar State law. or any of the amendments made by such Act, or any similar State law.
(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than (5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than
subsection (c)(2)(A)) shall be construed to impair or limit: 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 (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; 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 (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 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 (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 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 promotion or facilitation of prostitution is illegal in the jurisdiction where the
defendant's promotion or facilitation of prostitution was targeted.defendant's promotion or facilitation of prostitution was targeted.3742
Courts have interpreted the language providing that Section 230 will not “limit” or “impair the Courts have interpreted the language providing that Section 230 will not “limit” or “impair the
enforcement of” other laws as creating “exceptions” to Section 230.enforcement of” other laws as creating “exceptions” to Section 230.3843 As one court reasoned, if As one court reasoned, if
intellectual property laws would impose liability on a provider, then applying Section 230 to bar intellectual property laws would impose liability on a provider, then applying Section 230 to bar
that lawsuit “would ‘limit’ the laws pertaining to intellectual property in contravention of that lawsuit “would ‘limit’ the laws pertaining to intellectual property in contravention of
37 47 U.S.C. § 230(f)(3). 38 See id. § 230(c), (f). 39 See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (en banc). 40 E.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007) (“[Plaintiff] has attempted to plead around that immunity . . . by asserting causes of action that purportedly fall into one of the statutory exceptions to Section 230 immunity.” (emphasis added)). 41~~§ 230(e)(2).”39 Accordingly, Section 230 immunity generally will not apply to suits brought under~~
~~federal criminal law,40 intellectual property law,41 any state law “consistent” with Section 230,42~~
~~certain electronic communications privacy laws,43 or certain federal and state laws relating to sex~~
~~trafficking.44~~

36 In contrast to the exceptions created by most of subsection (e), courts have read the second sentence of Section In contrast to the exceptions created by most of subsection (e), courts have read the second sentence of Section
230(e)(3) to “preempt contrary state law.” 230(e)(3) to “preempt contrary state law.” E.g., Doe v. GTE Corp., 347 F.3d 655, 658 (7th Cir. 2003). , Doe v. GTE Corp., 347 F.3d 655, 658 (7th Cir. 2003).
3742 47 U.S.C. § 230(e). 47 U.S.C. § 230(e).
3843 See, e.g., , Universal Commc’n Sys., Inc., 478 F.3d at 418. , 478 F.3d at 418.
~~39 Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001).~~
~~40 47 U.S.C. § 230(e)(1).~~
~~41 Id. § 230(e)(2). As discussed in more detail below, courts have disagreed about whether this exception includes only~~
~~federal laws, or state laws as well. Infra “Intellectual Property Law.”~~
~~42 47 U.S.C. § 230(e)(3).~~
~~43 Id. § 230(e)(4).~~
~~44 Id. § 230(e)(5).~~
~~Congressional Research Service~~
4

~~Section 230: An Overview~~
Congressional Research Service 4 link to page 30 Section 230: An Overview § 230(e)(2).”44 Accordingly, Section 230 immunity generally will not apply to suits brought under federal criminal law,45 intellectual property law,46 any state law “consistent” with Section 230,47 certain electronic communications privacy laws,48 or certain federal and state laws relating to sex trafficking.49
Section 104: Online Family Empowerment
Representatives Cox and Wyden offered the provision that would become Section 230 as Section Representatives Cox and Wyden offered the provision that would become Section 230 as Section
104 of House Bill 1555,104 of House Bill 1555,4550 an amendment to the House version of the CDA titled “Online Family an amendment to the House version of the CDA titled “Online Family
Empowerment.”Empowerment.”4651 Representative Cox stated that Section 104 would serve two purposes: Representative Cox stated that Section 104 would serve two purposes:
First, it will protect computer Good Samaritans, online service providers, anyone who First, it will protect computer Good Samaritans, online service providers, anyone who
provides a front end to the Internet, let us say,provides a front end to the Internet, let us say, who takes steps to screen indecency and who takes steps to screen indecency and
offensive material for their customers. It will protect them from taking on liability . . . . offensive material for their customers. It will protect them from taking on liability . . . .
Second, it will establish as the policy of the United States that we do not wish to have Second, it will establish as the policy of the United States that we do not wish to have
content regulation by the Federal Government of what is on the Internet . . . .content regulation by the Federal Government of what is on the Internet . . . .4752
Many of those who spoke in favor of this amendment on the floor of the House argued that it Many of those who spoke in favor of this amendment on the floor of the House argued that it
would allow private parties, in the form of parents and internet service providers, to regulate would allow private parties, in the form of parents and internet service providers, to regulate
offensive content, rather than the FCC.offensive content, rather than the FCC.4853 In particular, then-Representative Wyden emphasized In particular, then-Representative Wyden emphasized
that “parents and families are better suited to guard the portals of cyberspace and protect our that “parents and families are better suited to guard the portals of cyberspace and protect our
~~children than our Government bureaucrats,” and argued against federal censorship of the~~
~~Internet.49~~
~~The conference report echoed these concerns:~~
~~This section provides “Good Samaritan” protections from civil liability for providers or~~
~~users of an interactive computer service for actions to restrict or to enable restriction of~~
~~access to objectionable online material. 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. The conferees believe that such~~
~~decisions create serious obstacles to the important federal policy of empowering parents to~~

~~45 H.R. 1555, 104th Cong. (1995).~~
~~46 See 141 CONG. REC. H8468 (daily ed. Aug. 4, 1995).~~
47 See ~~141 CONG. REC. H8470 (daily ed. Aug. 4, 1995)~~ 44 Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001). 45 47 U.S.C. § 230(e)(1). 46 Id. § 230(e)(2). As discussed in more detail below, courts have disagreed about whether this exception includes only federal laws, or state laws as well. Infra “Intellectual Property Law.” 47 47 U.S.C. § 230(e)(3). 48 Id. § 230(e)(4). 49 Id. § 230(e)(5). 50 H.R. 1555, 104th Cong. (1995). 51 See 141 CONG. REC. H8468 (daily ed. Aug. 4, 1995). 52 See Id. (statement of Rep. Christopher Cox). (statement of Rep. Christopher Cox). See also, e.g., Carafano v. Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) (“Congress enacted this provision as part of the Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) (“Congress enacted this provision as part of the
Communications Decency Act of 1996 for two basic policy reasons: to promote the free exchange of information and Communications Decency Act of 1996 for two basic policy reasons: to promote the free exchange of information and
ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.”); Zeran v. Am. ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.”); Zeran v. Am.
Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997) (“Section 230 was enacted, in part, to maintain the robust nature of Online, Inc., 129 F.3d 327, 330–31 (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. . . . Another Internet communication and, accordingly, to keep government interference in the medium to a minimum. . . . Another
important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material
over their services.”). over their services.”).
48 53 See 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox) (“[W]e do not wish to have 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox) (“[W]e do not wish to have
a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has
grown up to be what it is without that kind of help from the Government.”); grown up to be what it is without that kind of help from the Government.”); id. at H8470 (statement of Rep. Joe . at H8470 (statement of Rep. Joe
Barton) (arguing this amendment provides “a reasonable way to . . . help [service providers] self-regulate . . . without Barton) (arguing this amendment provides “a reasonable way to . . . help [service providers] self-regulate . . . without
penalty of law”); penalty of law”); id. at H8471 (statement of Rep. Rick White) (arguing the responsibility for “protect[ing children] . at H8471 (statement of Rep. Rick White) (arguing the responsibility for “protect[ing children]
from the wrong influences on the Internet” should lie with parents instead of federal government); from the wrong influences on the Internet” should lie with parents instead of federal government); id. at H8471 . at H8471
(statement of Rep. Zoe Lofgren) (arguing that amendment should be adopted to “preserve . . . open systems on the (statement of Rep. Zoe Lofgren) (arguing that amendment should be adopted to “preserve . . . open systems on the
Net”); Net”); id. at H8471 (statement of Rep. Bob Goodlatte) (“The Cox-Wyden amendment is a thoughtful approach to keep . at H8471 (statement of Rep. Bob Goodlatte) (“The Cox-Wyden amendment is a thoughtful approach to keep
smut off the net without government censorship.”). Some have questioned whether the text of the amendment, in fact, smut off the net without government censorship.”). Some have questioned whether the text of the amendment, in fact,
prevented the federal government from regulating the Internet. prevented the federal government from regulating the Internet. See Robert Cannon, Robert Cannon, The Legislative History of Senator
Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED. COMM. L.J. , 49 FED. COMM. L.J.
51, 68 (1996) (“The opposition [to the Senate version of the CDA] proclaimed that the Cox/Wyden Amendment 51, 68 (1996) (“The opposition [to the Senate version of the CDA] proclaimed that the Cox/Wyden Amendment
forbade FCC regulation of the Internet; it did not. The opposition claimed that it preempted state regulation of the forbade FCC regulation of the Internet; it did not. The opposition claimed that it preempted state regulation of the
Internet; it did not.”) (citations omitted). Internet; it did not.”) (citations omitted).
~~49 141 CONG. REC. H8470 (daily ed. Aug 4, 1995) (statement of Rep. Ron Wyden).~~
~~Congressional Research Service~~
5

~~Section 230: An Overview~~

Congressional Research Service 5 Section 230: An Overview children than our Government bureaucrats,” and argued against federal censorship of the Internet.54 The conference report echoed these concerns: This section provides “Good Samaritan” protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material. 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. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive determine the content of communications their children receive through interactive
computer services.computer services.5055
As originally introduced and passed by the House, Section 104 also contained a section stating As originally introduced and passed by the House, Section 104 also contained a section stating
that the CDA should not be construed “to grant any jurisdiction or authority” to the Federal that the CDA should not be construed “to grant any jurisdiction or authority” to the Federal
Communications Commission (FCC) to regulate the Internet.Communications Commission (FCC) to regulate the Internet.5156 However, this language was However, this language was
removed during the conference committee on the bill.removed during the conference committee on the bill.5257
Stratton Oakmont, Inc. v. Prodigy Services Co.
As As ~~noted~~observed on the floor of the on the floor of the ~~House53~~House58 and in the conference report, and in the conference report,5459 the amendment that would the amendment that would
become Section 230 sought to overturn the result in become Section 230 sought to overturn the result in Stratton Oakmont, Inc. v. Prodigy Services
Co., a 1995 New York state trial court decision., a 1995 New York state trial court decision.5560 The plaintiff in that case had sued Prodigy for The plaintiff in that case had sued Prodigy for
libel—that is, defamation in written form.libel—that is, defamation in written form.5661 Although Prodigy, an internet service provider, Although Prodigy, an internet service provider,5762 had had
not itself made the allegedly libelous statements, the plaintiff alleged that Prodigy was legally not itself made the allegedly libelous statements, the plaintiff alleged that Prodigy was legally
responsible for publishing those statements because it hosted the message boards on which the responsible for publishing those statements because it hosted the message boards on which the
statements were posted.statements were posted.5863 Prodigy’s liability depended on a determination that the company was a Prodigy’s liability depended on a determination that the company was a
“publisher,” because under ordinary principles of defamation law, a publisher like a newspaper “publisher,” because under ordinary principles of defamation law, a publisher like a newspaper
“who repeats or otherwise republishes a libel is subject to liability as if he had originally “who repeats or otherwise republishes a libel is subject to liability as if he had originally
~~published it.”59 By contrast, speech “distributors” such as libraries or newsstands may be held~~
~~liable for circulating publications that contain defamatory statements only if they know or have~~
~~reason to know of the defamatory statements.60 A 1991 decision from a federal trial court,~~ ~~Cubby~~
~~v. CompuServe, Inc., applied this notice-based distributor liability to another early internet service~~
~~provider, CompuServe, that the court determined was sufficiently similar to a newsstand.61~~

50 54 141 CONG. REC. H8470 (daily ed. Aug 4, 1995) (statement of Rep. Ron Wyden). 55 S. REP. NO. 104-230, at 194 (1996). S. REP. NO. 104-230, at 194 (1996).
5156 See H.R. REP. NO. 104-223, at 29 (1995); 141 CONG. REC. H8469 (daily ed. Aug. 4, 1995); 141 CONG. REC. H9988 H.R. REP. NO. 104-223, at 29 (1995); 141 CONG. REC. H8469 (daily ed. Aug. 4, 1995); 141 CONG. REC. H9988
(daily ed. Oct. 12, 1995). (daily ed. Oct. 12, 1995).
5257 See S. REP. NO. 104-230, at 86–87 (1996). For more information on conference committees, see CRS Report 98-696, See S. REP. NO. 104-230, at 86–87 (1996). For more information on conference committees, see CRS Report 98-696,
Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses, by , by
Elizabeth Rybicki. Elizabeth Rybicki.
5358 141 CONG. REC. H8469–70 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox). 141 CONG. REC. H8469–70 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox).
5459 S. REP. NO. 104-230, at 194 (1996). S. REP. NO. 104-230, at 194 (1996).
5560 Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). In Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). In
contrast, Representative Cox noted approvingly a federal trial court decision holding that CompuServe could not be contrast, Representative Cox noted approvingly a federal trial court decision holding that CompuServe could not be
held liable for allegedly defamatory statements that were posted on an internet forum over which it exercised no held liable for allegedly defamatory statements that were posted on an internet forum over which it exercised no
editorial control. 141 CONG. REC. H8469 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox); Cubby, Inc. v. editorial control. 141 CONG. REC. H8469 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox); Cubby, Inc. v.
CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991). CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991).
5661 Stratton Oakmont, Inc., 1995 WL 323710, at *1. , 1995 WL 323710, at *1.
5762 Prodigy was “a consumer-oriented online service” that allowed users to “trade emails, participate in online message Prodigy was “a consumer-oriented online service” that allowed users to “trade emails, participate in online message
board discussions, read the daily news, shop for mail-order items, check the weather, stocks, sports scores, play games, board discussions, read the daily news, shop for mail-order items, check the weather, stocks, sports scores, play games,
and more.” Benj Edwards, and more.” Benj Edwards, Where Online Services Go When They Die, THE ATLANTIC (July 12, 2014), , THE ATLANTIC (July 12, 2014),
https://www.theatlantic.com/technology/archive/2014/07/where-online-services-go-when-they-die/374099. “It was https://www.theatlantic.com/technology/archive/2014/07/where-online-services-go-when-they-die/374099. “It was
very much like a microcosm of the modern Internet—if the entire World Wide Web was published by a single very much like a microcosm of the modern Internet—if the entire World Wide Web was published by a single
company.” company.” Id.
5863 See Stratton Oakmont, Inc., 1995 WL 323710, at *2. Congressional Research Service 6 Section 230: An Overview published it.”64 By contrast, speech “distributors” such as libraries or newsstands may be held liable for circulating publications that contain defamatory statements only if they know or have reason to know of the defamatory statements.65 A 1991 decision from a federal trial court, Cubby v. CompuServe, Inc., applied this notice-based distributor liability to another early internet service provider, CompuServe, that the court determined was sufficiently similar to a newsstand.66~~, 1995 WL 323710, at *2.~~
~~59 Id. at *3.~~
60 Id.
~~61 Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140–41 (S.D.N.Y. 1991). See id. at 140 (“A computerized~~
~~database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower~~
~~standard of liability to an electronic news distributor such as CompuServe than that which is applied to a public library,~~
~~Congressional Research Service~~
6

~~Section 230: An Overview~~

The plaintiffs in The plaintiffs in Stratton Oakmont argued that Prodigy should be considered a publisher rather argued that Prodigy should be considered a publisher rather
than a distributor because it “held itself out as an online service that exercised editorial control than a distributor because it “held itself out as an online service that exercised editorial control
over the content of messages posted on its computer bulletin boards.”over the content of messages posted on its computer bulletin boards.”6267 Prodigy argued in Prodigy argued in
response that it was more like a bookstore or newsstand than a newspaper, citing response that it was more like a bookstore or newsstand than a newspaper, citing Cubby and and
claiming that it did not exercise “sufficient editorial control over its computer bulletin boards to claiming that it did not exercise “sufficient editorial control over its computer bulletin boards to
render it a publisher” of the allegedly unlawful material.render it a publisher” of the allegedly unlawful material.6368 Prodigy pointed out that it did not— Prodigy pointed out that it did not—
and could not—manually review “all messages prior to posting” them.and could not—manually review “all messages prior to posting” them.6469
The court concluded that Prodigy was a publisher of the alleged libel because it controlled the The court concluded that Prodigy was a publisher of the alleged libel because it controlled the
content of its message boards through an “automatic software screening program” and “Board content of its message boards through an “automatic software screening program” and “Board
Leaders” who removed messages that violated Prodigy’s guidelines.Leaders” who removed messages that violated Prodigy’s guidelines.6570 The court held that “[b]y The court held that “[b]y
actively utilizing technology and manpower to delete notes from its computer bulletin boards on actively utilizing technology and manpower to delete notes from its computer bulletin boards on
the basis of offensiveness and ‘bad taste,’ for example, [Prodigy] is clearly making decisions as to the basis of offensiveness and ‘bad taste,’ for example, [Prodigy] is clearly making decisions as to
content . . . , and such decisions constitute editorial control.”content . . . , and such decisions constitute editorial control.”6671 The court emphasized that it was The court emphasized that it was
Prodigy’s “conscious choice” to exercise editorial control, implemented through “policies, Prodigy’s “conscious choice” to exercise editorial control, implemented through “policies,
technology and staffing decisions,” that had “opened it up to a greater liability.”technology and staffing decisions,” that had “opened it up to a greater liability.”6772
One of the sponsors of Section 104 argued on the floor of the House that the ruling against One of the sponsors of Section 104 argued on the floor of the House that the ruling against
Prodigy was “backward.”Prodigy was “backward.”6873 Representative Cox argued that Congress should be encouraging Representative Cox argued that Congress should be encouraging
internet service providers “like Prodigy, like CompuServe, like America Online, like the new internet service providers “like Prodigy, like CompuServe, like America Online, like the new
Microsoft network, to do everything possible for us, the customer, to help us control, at the Microsoft network, to do everything possible for us, the customer, to help us control, at the
portals of our computer, at the front door of our house, what comes in and what our children portals of our computer, at the front door of our house, what comes in and what our children
see.”see.”6974 It was to this end, Representative Cox contended, that Section 104 sought to protect It was to this end, Representative Cox contended, that Section 104 sought to protect
“computer Good Samaritans,” protecting them “from taking on liability such as occurred in the “computer Good Samaritans,” protecting them “from taking on liability such as occurred in the
~~Prodigy case in New York that they should not face for helping us and for helping us solve this~~
~~problem.”70 Ultimately, Section 104 made it into the CDA, largely unchanged, as Section 230.71~~

64 Id. at *3. 65 Id. 66 Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140–41 (S.D.N.Y. 1991). See id. at 140 (“A computerized database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower standard of liability to an electronic news distributor such as CompuServe than that which is applied to a public library, book store, or newsstand would impose an undue burden on the free flow of information.”). book store, or newsstand would impose an undue burden on the free flow of information.”).
6267 Stratton Oakmont, Inc., 1995 WL 323710,, 1995 WL 323710, at *2. at *2.
6368 Id. at *3. at *3.
6469 Id.
6570 Id. at *4. at *4.
6671 Id. (citation omitted). (citation omitted).
6772 Id. at *5. at *5. Cf. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991) (“[A third party] uploads the Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991) (“[A third party] uploads the
text of Rumorville into CompuServe’s data banks and makes it available to approved . . . subscribers [to CompuServe’s text of Rumorville into CompuServe’s data banks and makes it available to approved . . . subscribers [to CompuServe’s
publishing service] instantaneously. CompuServe has no more editorial control over such a publication than does a publishing service] instantaneously. CompuServe has no more editorial control over such a publication than does a
public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every public library, book store, or newsstand, and it 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.”); publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”); id. at at
140–41 (holding CompuServe could not be held liable unless “it knew or had reason to know of the allegedly 140–41 (holding CompuServe could not be held liable unless “it knew or had reason to know of the allegedly
defamatory Rumorville statements”). defamatory Rumorville statements”).
6873 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox). 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox).
6974 Id. See also id. at H8471 (statement of Rep. Ron Wyden) (“Under our approach and the speed at which these at H8471 (statement of Rep. Ron Wyden) (“Under our approach and the speed at which these
technologies are advancing, the marketplace is going to give parents the tools they need . . . .”). technologies are advancing, the marketplace is going to give parents the tools they need . . . .”).
~~70 Id. at H8470 (statement of Rep. Christopher Cox).~~
~~71 See S. REP. NO. 104-230, at 86–87 (1996).~~
~~Congressional Research Service~~
7

~~link to page 17~~ ~~Section 230: An Overview~~
Congressional Research Service 7 link to page 19 link to page 4 Section 230: An Overview Prodigy case in New York that they should not face for helping us and for helping us solve this problem.”75 Ultimately, Section 104 made it into the CDA, largely unchanged, as Section 230.76
Judicial Interpretation
Courts have interpreted Section 230 as creating broad immunity that allows the early dismissal of Courts have interpreted Section 230 as creating broad immunity that allows the early dismissal of
many legal claims against interactive computer service providers,many legal claims against interactive computer service providers,7277 preempting lawsuits and preempting lawsuits and
statutes that would impose liability based on third-party content.statutes that would impose liability based on third-party content.78 Courts have generally Courts have generally
interpreted Section 230(c)’s two separate provisions as creating two distinct liability shields. interpreted Section 230(c)’s two separate provisions as creating two distinct liability shields.
Section 230(c)(1) states that interactive computer service providers and users may not “be treated Section 230(c)(1) states that interactive computer service providers and users may not “be treated
as the publisher or speaker of any information provided by another” person.as the publisher or speaker of any information provided by another” person.7379 Section 230(c)(2) Section 230(c)(2)
provides that interactive computer service providers and users may not be “held liable” for any provides that interactive computer service providers and users may not be “held liable” for any
voluntary, “good faith” action “to restrict access to or availability of material that the provider or voluntary, “good faith” action “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 user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable.”objectionable.”7480 One conception of these two provisions is that Section 230(c)(1) applies to One conception of these two provisions is that Section 230(c)(1) applies to
claims for content that is “left up,” while Section 230(c)(2) applies to claims for content that is claims for content that is “left up,” while Section 230(c)(2) applies to claims for content that is
“taken down.”“taken down.”7581 In practice, however, courts have also applied Section 230(c)(1) to “take down” In practice, however, courts have also applied Section 230(c)(1) to “take down”
claims, and courts sometimes collapse Section 230’s two provisions into a single liability shield claims, and courts sometimes collapse Section 230’s two provisions into a single liability shield
or do not distinguish between the two provisions.or do not distinguish between the two provisions.7682 A defendant’s chosen statutory basis for A defendant’s chosen statutory basis for
immunity under Section 230 is consequential: Section 230(c)(2) includes a good faith immunity under Section 230 is consequential: Section 230(c)(2) includes a good faith
requirement absent from Section 230(c)(1), while Section 230(c)(1) is limited to claims based on requirement absent from Section 230(c)(1), while Section 230(c)(1) is limited to claims based on
another’s content.another’s content.7783
Section 230’s provisions apply to users and providers of “interactive computer services Section 230’s provisions apply to users and providers of “interactive computer services~~.”78 The~~
~~statute 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,” specifically mentioning services that provide access to the internet and services operated~~
~~by libraries or educational institutions.79 Reviewing courts have understood this term to cover~~
~~various services, including “broadband providers, hosting companies, and website operators.”80~~

72,” a defined term discussed above.84 Under this definition, courts have recognized that a website operated by a print or broadcast media provider may be an interactive computer service.85 Thus, a “traditional” media outlet could receive protection under Section 230 for material posted on its 75 Id. at H8470 (statement of Rep. Christopher Cox). 76 See S. REP. NO. 104-230, at 86–87 (1996). 77 But see G.G. v. Salesforce.com, Inc., 76 F.4th 544, 566 (7th Cir. 2023) (saying Section 230(c)(1) does not create “immunity” but functions as an affirmative defense). 78 See, e.g., David S. Ardia, , 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, 438–39 (2010) (reporting , 43 LOY. L.A. L. REV. 373, 438–39 (2010) (reporting
that almost all unreversed federal decisions involving invocations of Section 230 between Section 230’s passage and that almost all unreversed federal decisions involving invocations of Section 230 between Section 230’s passage and
September 30, 2009September 30, 2009, happened at the motion to dismiss or summary judgment stage). happened at the motion to dismiss or summary judgment stage).
7379 47 U.S.C. § 230(c)(1). 47 U.S.C. § 230(c)(1).
7480 Id. § 230(c)(2). § 230(c)(2).
7581 E.g., Doe v. GTE Corp., Doe v. GTE Corp.. 347 F.3d 655, 659 (7th Cir. 2003); 347 F.3d 655, 659 (7th Cir. 2003); cf. Malwarebytes, Inc. v. Enigma Software Grp. USA, Malwarebytes, Inc. v. Enigma Software Grp. USA,
LLC, 141 S. Ct. 13, 15 (LLC, 141 S. Ct. 13, 15 (2020) (Thomas, J., statement respecting the denial of certiorari) (articulating this view of Section 230 Thomas, J., statement respecting the denial of certiorari) (articulating this view of Section 230
before positing that “[t]his modest understanding is a far cry from what has prevailed in court”).before positing that “[t]his modest understanding is a far cry from what has prevailed in court”).
7682 E.g., , ~~Domen v. Vimeo, Inc., No. 1:19-cv-08418, 2020 WL 217048, slip op. at *13 (S.D.N.Y. Jan. 15, 2020) (holding~~
~~that 230(c)(1) and (2) both provided immunity for claims arising from video hosting provider’s decision to remove~~
~~content);~~ ~~see~~ Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1103 (9th Cir. 2009) (saying that imposing liability for removing content would treat a party as “a publisher” under Section 230(c)(1)); Malwarebytes, 141 S. Ct. at 17 (Thomas, J., statement respecting the denial of certiorari) (collecting , 141 S. Ct. at 17 (Thomas, J., statement respecting the denial of certiorari) (collecting
~~cases); see also Riggs v. Myspace, Inc., 444 F. App’x 986 (9th Cir. 2011) (analyzing a social media website’s decision~~
~~to delete user profiles under 230(c)(1)); Ebeid v. Facebook, Inc., No. 18-CV-07030, 2019 WL 2059662, at *5 (N.D.~~
~~Cal. May 9, 2019) (classifying a decision to remove posts as “publisher” conduct under 230(c)(1)).~~
77cases). 83 Although Section 230(c)(1) refers to content created by “another information content provider,” there is not judicial Although Section 230(c)(1) refers to content created by “another information content provider,” there is not judicial
agreement about whether Section 230(c)(1) applies when a plaintiff’s own content is at issue—in other words, courts agreement about whether Section 230(c)(1) applies when a plaintiff’s own content is at issue—in other words, courts
are divided as to whether a plaintiff itself may be “another information content provider” under Section 230(c)(1). For are divided as to whether a plaintiff itself may be “another information content provider” under Section 230(c)(1). For
more discussion of this issue, more discussion of this issue, see infra nonote ~~142~~166.
7884 47 U.S.C. § 230(c); see supra “Text and Legislative History.” 85 See, e.g., Straw v. Streamwood Chamber of Commerce, Inc., No. 1-14-3094, 2015 IL App (1st) 143094-U, at *8 (Ill. App. Ct. Sept. 29, 2015) (applying Section 230 to a letter to the editor published on a newspaper’s website). Congressional Research Service 8 link to page 4 link to page 9 Section 230: An Overview ~~47 U.S.C. § 230(c).~~
~~79 Id. § 230(f)(2).~~
~~80 Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 406 n.2 (6th Cir. 2014); see Ricci v. Teamsters Union~~
~~Local 456, 781 F.3d 25, 27–28 (2d Cir. 2015) (noting that the definition of interactive computer service “has been~~
~~construed broadly to effectuate the statute’s speech-protective purpose”); Carafano v. Metrosplash.com, Inc., 339 F.3d~~
~~1119, 1123 (9th Cir. 2003) (noting that reviewing courts have “adopt[ed] a relatively expansive definition of~~
~~Congressional Research Service~~
8

~~link to page 4~~ ~~Section 230: An Overview~~

~~Courts have also recognized that a website operated by a print or broadcast media provider may~~
~~be an interactive computer service.81 Thus, a “traditional” media outlet could receive protection~~
~~under Section 230 for material posted on its~~ website while facing a different standard for material website while facing a different standard for material
it prints or broadcasts.it prints or broadcasts.8286 That said, courts may deny Section 230’s protections without That said, courts may deny Section 230’s protections without
determining whether a party claiming its protections is a provider or user of an interactive determining whether a party claiming its protections is a provider or user of an interactive
computer service, as detailed below.computer service, as detailed below.83
87 Section 230(c)(1): Publisher Activity
Section 230(c)(1) states that a provider or user of an interactive computer service will not be Section 230(c)(1) states that a provider or user of an interactive computer service will not be
considered a publisher or speaker of content “provided by another information content considered a publisher or speaker of content “provided by another information content
provider.”provider.”8488 Courts asked to apply Section 230(c)(1) to dismiss legal claims therefore ask three Courts asked to apply Section 230(c)(1) to dismiss legal claims therefore ask three
~~questions85~~questions89: :
1. Is the defendant a provider or user of an interactive computer service? 1. Is the defendant a provider or user of an interactive computer service?8690
2. Does the plaintiff seek to hold the defendant liable as a publisher or speaker? 2. Does the plaintiff seek to hold the defendant liable as a publisher or speaker?
3. Does the plaintiff’s claim arise from information provided by another 3. Does the plaintiff’s claim arise from information provided by another
information content provider? information content provider?
If the answer to any of these questions is “no,” Section 230(c)(1) will not bar liability. If the answer to any of these questions is “no,” Section 230(c)(1) will not bar liability.
As discussed above, courts have construed the definition of “interactive computer service” As discussed above, courts have construed the definition of “interactive computer service”
broadly.broadly.8791 Cases thus often turn on the answers to the other two questions, which depend on the Cases thus often turn on the answers to the other two questions, which depend on the
legal claims’ specific facts: an entity may act as an information content provider for certain legal claims’ specific facts: an entity may act as an information content provider for certain
content, but still be entitled to protection under Section 230(c)(1) for other content.content, but still be entitled to protection under Section 230(c)(1) for other content.8892 This section This section
will first summarize Section 230(c)(1) case law before probing specific judicial interpretations of will first summarize Section 230(c)(1) case law before probing specific judicial interpretations of

~~‘interactive computer service’”); IAN C. BALLON, 4 E-COMMERCE & INTERNET LAW 37.05[2] (2020 update) (“[A]lmost~~
~~any networked computer service would qualify as an interactive computer service, as would an access software~~
~~provider.”). But see FTC v. LeadClick Media, LLC, 838 F.3d 158, 175 (2d Cir. 2016) (expressing doubt that a~~
~~marketing company that tracked website traffic was an interactive computer service).~~
~~81 See, e.g., Straw v. Streamwood Chamber of Commerce, Inc., No. 1-14-3094, 2015 IL App (1st) 143094-U, at *8 (Ill.~~
~~App. Ct. Sept. 29, 2015) (applying Section 230 to a letter to the editor published on a newspaper’s website).~~
82when a service provider is acting as a publisher of another’s information or an information content provider. Early Interpretations: Zeran v. America Online, Inc. While the legislative history of Section 230 reflects, among other things, an intent to overturn the result in Stratton Oakmont, as discussed above,93 courts have applied Section 230(c)(1) broadly to cover other circumstances. The first federal court of appeals decision to examine the scope of 86 Cf. Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998) (“Congress decided not to treat providers of interactive Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998) (“Congress decided not to treat providers of interactive
computer services like other information providers such as newspapers, magazines or television and radio stations[.]”). computer services like other information providers such as newspapers, magazines or television and radio stations[.]”).
8387 See, e.g., , ~~LeadClick Media~~FTC v. Leadclick Media, LLC, 838 F.3d , 838 F.3d ~~at 176 (determining that claims against defendant~~ 158, 176 (2d Cir. 2016) (ruling that claims were based on information were based on information
developed by defendant); FTC v. Accusearch, Inc., 570 F.3d 1187, 1197–98 (developed by defendant); FTC v. Accusearch, Inc., 570 F.3d 1187, 1197–98 (10th Cir. 2009) (reaching the same conclusion and reaching the same conclusion and
~~choosing to leave~~leaving the question of whether defendant is an interactive computer service “to another day”). the question of whether defendant is an interactive computer service “to another day”).
8488 47 U.S.C. § 230(c)(1). 47 U.S.C. § 230(c)(1).
8589 See, e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); Jones v. Dirty World , Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); Jones v. Dirty World
Entm’t Recordings LLC, 755 F.3d 398, 409 (6th Cir. 2014). Entm’t Recordings LLC, 755 F.3d 398, 409 (6th Cir. 2014).
8690 Although many cases involving Section 230(c)(1) are brought against providers of interactive computer services, Although many cases involving Section 230(c)(1) are brought against providers of interactive computer services,
Section 230(c)(1) also provides protection to users of interactive computer services. Section 230(c)(1) also provides protection to users of interactive computer services. See, e.g., Barrett v. Rosenthal, 146 , Barrett v. Rosenthal, 146
P.3d 510, 526–27 (Cal. 2006) (applying Section 230(c)(1) to an individual who posted a third-party article on a P.3d 510, 526–27 (Cal. 2006) (applying Section 230(c)(1) to an individual who posted a third-party article on a
message board); message board); see also Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (opining that a website’s operator is a Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (opining that a website’s operator is a
“user” of interactive computer services, such as internet access service, and is therefore entitled to protection under “user” of interactive computer services, such as internet access service, and is therefore entitled to protection under
Section 230(c)(1)). Section 230(c)(1)).
8791 See supra “Text and Legislative History.” ”
8892 See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008, Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (observing that a ) (observing that a
website may avoid liability under Section 230(c)(1) for “passively display[ing] content that is created by third parties,” website may avoid liability under Section 230(c)(1) for “passively display[ing] content that is created by third parties,”
but such website could be subject to liability for “content that it creates itself”). but such website could be subject to liability for “content that it creates itself”).
93 See supra “Stratton Oakmont, Inc. v. Prodigy Services Co.” Congressional Research Service Congressional Research Service
9 9

link to page 9 link to page 9 Section 230: An Overview

~~when a service provider is acting as a publisher of another’s information or an information~~
~~content provider.~~
~~Early Interpretations: Zeran v. America Online, Inc.~~
~~While the legislative history of Section 230 reflects, among other things, an intent to overturn the~~
~~result in Stratton Oakmont, courts have applied Section 230(c)(1) broadly to cover other~~
~~circumstances. The first federal court of appeals decision to examine the scope of Section~~
Section 230(c)(1) was the Fourth Circuit’s 1997 decision in 230(c)(1) was the Fourth Circuit’s 1997 decision in Zeran v. America Online, Inc.,,8994 a case with a case with
several differences from several differences from Stratton Oakmont. Since its publication, other courts of appeals have . Since its publication, other courts of appeals have
largely adopted largely adopted Zeran’s’s reasoning and broadly construed Section 230(c)(1)reasoning and broadly construed Section 230(c)(1)~~.90~~,95 although some more recent cases have signaled a potential retreat from Zeran.96
In In Zeran, an unidentified user on an America Online (AOL) bulletin board posted an , an unidentified user on an America Online (AOL) bulletin board posted an
advertisement for T-shirts featuring slogans celebrating the bombing of the Alfred P. Murrah advertisement for T-shirts featuring slogans celebrating the bombing of the Alfred P. Murrah
Federal Building in Oklahoma City.Federal Building in Oklahoma City.9197 The user invited AOL subscribers interested in purchasing The user invited AOL subscribers interested in purchasing
these shirts to call the plaintiff, Kenneth Zeran, at his home phone number and “ask for Ken” these shirts to call the plaintiff, Kenneth Zeran, at his home phone number and “ask for Ken”
upon calling.upon calling.9298 Despite this invitation, Zeran did not post the ad himself, nor did he direct anyone Despite this invitation, Zeran did not post the ad himself, nor did he direct anyone
to post the ad on his behalf.to post the ad on his behalf.9399 Zeran received harassing and threatening calls, and consequently he Zeran received harassing and threatening calls, and consequently he
contacted AOL and asked the company to remove the ad.contacted AOL and asked the company to remove the ad.94100 An AOL employee assured Zeran that An AOL employee assured Zeran that
AOL would take down the ad, but after AOL removed the ad, a similar ad took its place.AOL would take down the ad, but after AOL removed the ad, a similar ad took its place.95101 Zeran Zeran
brought negligence claims against AOL on the theory that once Zeran notified AOL of the ads, brought negligence claims against AOL on the theory that once Zeran notified AOL of the ads,
AOL had a duty to remove the ads, notify users that the ads were deceptive, and screen for similar AOL had a duty to remove the ads, notify users that the ads were deceptive, and screen for similar
postings.postings.96102
Zeran premised his claim against AOL on a theory of “distributor” liability. Zeran premised his claim against AOL on a theory of “distributor” liability.97103 At common law, as At common law, as
discussed above,discussed above, 98104 vendors and distributors of defamatory publications are liable for the content vendors and distributors of defamatory publications are liable for the content
of those publications if they know or have reason to know of the illegal or tortious content.of those publications if they know or have reason to know of the illegal or tortious content.99105
Central to Zeran’s theory was the notion that, although Section 230(c)(1) prohibited the court Central to Zeran’s theory was the notion that, although Section 230(c)(1) prohibited the court

89from holding AOL liable as a “publisher” of the defamatory statements, as the court treated Prodigy in Stratton Oakmont,106 it did not eliminate notice-based distributor liability. In support of this argument, Zeran noted that Section 230 specifically uses the term “publisher.”107 94 Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997). For purposes of brevity, references to a particular circuit in Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997). For purposes of brevity, references to a particular circuit in
this this ~~memorandum~~report (e.g., the Fourth Circuit) refer to the U.S. Court of Appeals for that particular circuit (e.g., the U.S. (e.g., the Fourth Circuit) refer to the U.S. Court of Appeals for that particular circuit (e.g., the U.S.
Court of Appeals for the Fourth Circuit). Court of Appeals for the Fourth Circuit).
9095 See Ben Ezra, Weinstein, & Co., Inc. v. Am. Online, Inc., 206 F.3d 980 (10th Cir. 2000); Green v. Am. Online Ben Ezra, Weinstein, & Co., Inc. v. Am. Online, Inc., 206 F.3d 980 (10th Cir. 2000); Green v. Am. Online
(AOL), 318 F.3d 465 (3d Cir. 2003); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Universal Commc’n Sys., Inc. v. (AOL), 318 F.3d 465 (3d Cir. 2003); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Universal Commc’n Sys., Inc. v.
Lycos, Inc., 478 F.3d 413 (1st Cir. 2007); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008); Johnson v. Arden, 614 Lycos, Inc., 478 F.3d 413 (1st Cir. 2007); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008); Johnson v. Arden, 614
F.3d 785 (8th Cir. 2010); Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014); Jones v. Dirty World Entm’t F.3d 785 (8th Cir. 2010); Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014); Jones v. Dirty World Entm’t
Recordings LLC, 755 F.3d 398 (6th Cir. 2014); Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2d Cir. 2015); Recordings LLC, 755 F.3d 398 (6th Cir. 2014); Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2d Cir. 2015); see
also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) (recognizing agreement among other courts of Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) (recognizing agreement among other courts of
appeals but reaching a decision on other grounds); appeals but reaching a decision on other grounds); cf. Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v.
Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (partially rejecting the reasoning in Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (partially rejecting the reasoning in Zeran but nonetheless finding that but nonetheless finding that
Section 230 barred Fair Housing Act claims against online service provider). Section 230 barred Fair Housing Act claims against online service provider).
~~91 Zeran, 129 F.3d at 329.~~
92 Id.
9396 See, e.g., Henderson v. Source for Pub. Data, L.P., 53 F.4th 110, 121–22 (4th Cir. 2022) (discussing the definition of “publisher”). 97 Zeran, 129 F.3d at 329. 98 Id. 99 Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1126 (E.D. Va. 1997). Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1126 (E.D. Va. 1997).
94100 Zeran, 129 F.3d at 329. , 129 F.3d at 329.
95101 Id.
96102 Id. at 330. at 330.
97103 Though Zeran characterized his claims as stemming from America Online’s negligence, the Fourth Circuit noted that Though Zeran characterized his claims as stemming from America Online’s negligence, the Fourth Circuit noted that
the claims were “indistinguishable from a garden variety defamation action.” the claims were “indistinguishable from a garden variety defamation action.” Id. at 332. at 332.
98104 See supra “Stratton Oakmont, Inc. v. Prodigy Services Co.”
99105 See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139–40 (S.D.N.Y. 1991). This limitation on distributor Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139–40 (S.D.N.Y. 1991). This limitation on distributor
liability is rooted in the First Amendment. liability is rooted in the First Amendment. Id. (citing Smith v. California, 361 U.S. 147, 152–53 (1959)). (citing Smith v. California, 361 U.S. 147, 152–53 (1959)).
~~Congressional Research Service~~
10

~~Section 230: An Overview~~

~~from holding AOL liable as a “publisher” of the defamatory statements, as the court treated~~
~~Prodigy in Stratton Oakmont, 100 it did not eliminate notice-based distributor liability. In support~~
~~of this argument, Zeran noted that Section 230 specifically uses the term “publisher.”101~~106 Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995). 107 See Zeran, 129 F.3d at 331–32. Congressional Research Service 10 link to page 17 link to page 17 Section 230: An Overview
The Fourth Circuit rejected this argument. Writing for a unanimous panel, Chief Judge Wilkinson The Fourth Circuit rejected this argument. Writing for a unanimous panel, Chief Judge Wilkinson
posited that “distributor” liability depends on a distributor’s publication of tortious material, and a posited that “distributor” liability depends on a distributor’s publication of tortious material, and a
distributor is therefore a publisher.distributor is therefore a publisher.~~102~~108 Judge Wilkinson therefore reasoned that both at common Judge Wilkinson therefore reasoned that both at common
law and in Section 230, the use of the term “publisher” includes original publishers as well as law and in Section 230, the use of the term “publisher” includes original publishers as well as
distributors.distributors.~~103~~109 The court suggested that subjecting a computer service provider to liability based The court suggested that subjecting a computer service provider to liability based
on the provider’s knowledge would “reinforce[] service providers’ incentives to restrict speech on the provider’s knowledge would “reinforce[] service providers’ incentives to restrict speech
and abstain from self-regulation” and “deter service providers from regulating the dissemination and abstain from self-regulation” and “deter service providers from regulating the dissemination
of offensive material over their own services.”of offensive material over their own services.”~~104~~110 Chief Judge Wilkinson therefore concluded that Chief Judge Wilkinson therefore concluded that
reading Section 230(c)(1) to leave notice-based distributor liability intact would conflict with reading Section 230(c)(1) to leave notice-based distributor liability intact would conflict with
Section 230’s purposes.Section 230’s purposes.~~105~~111
As discussed below, As discussed below, Zeran has informed the approach of a vast number of courts interpreting has informed the approach of a vast number of courts interpreting
Section 230(c)(1). As one commentator has noted, “the rule of Section 230(c)(1). As one commentator has noted, “the rule of Zeran [barring distributor liability] [barring distributor liability]
has been uniformly applied by every federal circuit court to consider it and by numerous state has been uniformly applied by every federal circuit court to consider it and by numerous state
courts.”courts.”~~106~~112 Even so, some jurists have expressed skepticism Even so, some jurists have expressed skepticism ~~with~~about the Fourth Circuit’s approach. In the Fourth Circuit’s approach. In
a statement written to accompany a denial of certiorari in a Section 230 case, U.S. Supreme Court a statement written to accompany a denial of certiorari in a Section 230 case, U.S. Supreme Court
Justice Clarence Thomas suggested, contrary to the holding in Justice Clarence Thomas suggested, contrary to the holding in Zeran, that Section 230(c)(1) , that Section 230(c)(1)
might not limit distributor liability.might not limit distributor liability.~~107~~
113 Two federal appellate judges concurring in separate Section 230 cases also questioned whether Zeran’s definition of “publisher” interpreted Section 230(c)(1) beyond its intended scope.114 In addition to the skepticism expressed by individual jurists, a 2022 Fourth Circuit opinion appeared to narrow Zeran’s conception of “publisher” activity without disturbing its basic ruling on distributor liability.115 This decision is discussed below.116 Service Provider Role as Publisher
While While Zeran may be understood as addressing Section 230(c)(1)’s general scope, the case also may be understood as addressing Section 230(c)(1)’s general scope, the case also
addressed how courts may determine whether a addressed how courts may determine whether a ~~defendant claiming protection under Section~~
~~230(c)(1) should be treated~~claim treats a defendant as a “publisher or speaker” of another’s content. as a “publisher or speaker” of another’s content.~~108~~117 The The Zeran court court
determined that the provision bars “lawsuits seeking to hold a service provider liable for its determined that the provision bars “lawsuits seeking to hold a service provider liable for its
exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, exercise of a publisher’s traditional editorial functions—such as deciding whether to publish,
withdraw, postpone, or alter content.”withdraw, postpone, or alter content.”~~109 More generally, the Fourth Circuit interpreted Section~~
~~230(c)(1) as “creat[ing] 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.”110 This~~

~~100 Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995).~~
~~101 See Zeran, 129 F.3d at 331–32.~~
~~102~~118 More 108 Id. at 332 (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 113, at 803 (5th ed. 1984)). at 332 (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 113, at 803 (5th ed. 1984)).
~~103~~109 Id. at 333–34. at 333–34.
~~104~~110 Id. at 333. at 333.
~~105~~111 Id.
~~106~~112 Ian C. Ballon, Zeran v. AOL Ian C. Ballon, Zeran v. AOL and Its Inconsistent Legacy, LAW JOURNAL NEWSLETTERS (Dec. 2017), , LAW JOURNAL NEWSLETTERS (Dec. 2017),
https://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/12/01/zeran-v-aol-and-its-inconsistent-https://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/12/01/zeran-v-aol-and-its-inconsistent-
legacy/?slreturn=20201103124726 (noting, though, that different federal appeals courts apply legacy/?slreturn=20201103124726 (noting, though, that different federal appeals courts apply Zeran differently). differently).
~~107~~113 Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13, 15–16 (2020) (Thomas, J., statement Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13, 15–16 (2020) (Thomas, J., statement
respecting the denial of certiorari) (arguing that the imposition of distributor liability elsewhere in the CDA and the use respecting the denial of certiorari) (arguing that the imposition of distributor liability elsewhere in the CDA and the use
of terms different from those used in of terms different from those used in Stratton Oakmont might suggest that Section 230 was not meant to limit might suggest that Section 230 was not meant to limit
distributor liability). distributor liability).
~~108~~114 E.g., Force v. Facebook, Inc., 934 F.3d 53, 84 (2d Cir. 2019) (Katzmann, J., concurring in part) (opining that Section 230 as applied creates “extensive immunity . . . for activities that were undreamt of in 1996”); Gonzalez v. Google, LLC, 2 F.4th 871, 915 (9th Cir. 2021) (Berzon, J., concurring) (arguing that the legislative history of Section 230 does not support a broad reading of publisher functions). 115 Henderson v. Source for Public Data, L.P., 53 F.4th 110, 121 n.12 (4th Cir. 2022). 116 Infra text accompanying notes 146 to 150. 117 See generally Force v. Facebook, Inc., 934 F.3d 53, 64 n.18 (2d Cir. 2019) (discussing the scope of “publisher Force v. Facebook, Inc., 934 F.3d 53, 64 n.18 (2d Cir. 2019) (discussing the scope of “publisher
liability”). liability”).
~~109~~118 Zeran, 129 F.3d, 129 F.3d at 330. at 330.
110 Id.
Congressional Research Service Congressional Research Service
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Section 230: An Overview

generally, the Fourth Circuit interpreted Section 230(c)(1) as “creat[ing] 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.”119 This interpretation would apply beyond the defamation claims brought in interpretation would apply beyond the defamation claims brought in Zeran and and Stratton Oakmont, ,
and courts of appeals have barred many claims on the theory that the defendant computer service and courts of appeals have barred many claims on the theory that the defendant computer service
is being treated as a publisher or speaker.is being treated as a publisher or speaker.~~111~~120 Many Many courts have used this “traditional editorial functions”121 standard to interpret the scope of “publisher” immunity under Section 230.122 For instance, the D.C. Circuit affirmed the dismissal of a lawsuit claiming Facebook acted negligently in failing to promptly remove an allegedly threatening page, saying that deciding “whether to print or retract a given piece of content” constitutes “the very essence of publishing.”123 A number of courts have held that Section 230 not only bars lawsuits seeking monetary damages, but also bars suits for injunctive relief that would require sites to take specific actions with respect to third-party content.124 For example, in Hassell v. Bird, the California Supreme Court said that Section 230 required the dismissal of a claim that sought to enforce a court order against Yelp.125 The plaintiffs had sued the author of allegedly defamatory statements posted about their business on Yelp and obtained a default judgment in their favor after the defendant failed to respond to the lawsuit.126 The plaintiff then attempted to enforce that judgment against Yelp, who was not originally a party to the litigation, asking the court to enter an injunction requiring Yelp to take down the defamatory statements.127 In the state court’s view, the lawsuit sought “to overrule Yelp’s decision to publish the three challenged reviews,” impermissibly treating it as a publisher of third-party information.128 The court said that allowing injunctions could “impose substantial burdens” on internet intermediaries, contrary to Section 119 Id. 120~~courts have used the Zeran court’s description~~
~~of “traditional editorial functions”112 to determine whether a claim would impermissibly treat a~~
~~service provider or user as a publisher or speaker of another’s content.113~~
~~For instance, courts have held that Section 230(c)(1) barred several claims seeking to hold sites~~
~~liable for failing to adopt safety features or content policies that plaintiffs claim would have~~
~~prevented violence.114 To take one example, in Doe v. MySpace, the Fifth Circuit affirmed the~~
~~dismissal of a lawsuit alleging that MySpace acted negligently in failing “to implement basic~~
~~safety measures to prevent sexual predators from communicating with minors on its Web site.”115~~
~~The plaintiff, a minor, had used the site to meet and communicate with an older teenager who~~
~~later sexually assaulted her at an in-person meeting.116 The plaintiff argued that her negligence~~
~~claims depended on “MySpace’s failure to implement basic safety measures” and therefore would~~
~~not treat the site as a publisher.117 The Fifth Circuit disagreed, saying the allegations were “merely~~
~~another way of claiming that MySpace was liable for publishing the communications.”118 In the~~
~~court’s view, the negligence claims hinged on MySpace’s publisher functions: its decisions~~
~~relating to the “monitoring, screening, and deletion” of third-party content.119 As a result, Section~~
~~230(c)(1) barred liability.120~~
~~A number of courts have held that Section 230 not only bars lawsuits seeking monetary damages,~~
~~but also bars suits for injunctive relief that would require sites to take specific actions with respect~~
~~to third-party content.121 For example, in Hassell v. Bird, the California Supreme Court said that~~

~~111~~ See, e.g., Doe v. Backpage.com, LLC, 817 F.3d 12, 18–24 (1st Cir. 2016) (applying Section 230(c)(1) to claims , Doe v. Backpage.com, LLC, 817 F.3d 12, 18–24 (1st Cir. 2016) (applying Section 230(c)(1) to claims
brought under federal and state sex trafficking statutes); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) brought under federal and state sex trafficking statutes); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008)
(rejecting negligence liability for a service provider when an adult user used the service to meet and allegedly abuse (rejecting negligence liability for a service provider when an adult user used the service to meet and allegedly abuse
minor children); Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668–69 (7th minor children); Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668–69 (7th
Cir. 2008) (affirming dismissal of a federal housing discrimination claim); Force v. Facebook, Inc.Cir. 2008) (affirming dismissal of a federal housing discrimination claim); Force v. Facebook, Inc.., 934 F.3d 53, 65–, 934 F.3d 53, 65–
68 (2d Cir. 2019) (applying Section 230(c)(1) to federal civil claims based on terrorist attacks encouraged and 68 (2d Cir. 2019) (applying Section 230(c)(1) to federal civil claims based on terrorist attacks encouraged and
coordinated by users of a service); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) coordinated by users of a service); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007)
(affirming dismissal of claims brought under state securities and cyberstalking laws). (affirming dismissal of claims brought under state securities and cyberstalking laws).
~~112~~121 Zeran, 129 F.3d, 129 F.3d at 330. at 330.
113 See, e.g.~~, Hassell v. Bird, 420 P.3d 776, 789 (Cal. 2018);~~ 122 See, e.g., Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d
398, 407 (6th Cir. 2014); Barnes v. Yahoo! Inc., 398, 407 (6th Cir. 2014); Barnes v. Yahoo! Inc., 570 F.3d 1096, 1102 (9th Cir. 2009); Shiamili v Real Estate Grp. of N.Y., Inc., 952 N.E.2d 1011, 1019 (N.Y. 2011). 123~~570 F.3d 1096, 1102 (9th Cir. 2009).~~
~~114 See, e.g., Herrick v. Grindr LLC, 765 Fed. App’x 586, 590–91 (2d Cir. 2019) (affirming dismissal of product~~
~~liability, negligence, and infliction of emotional distress claims alleging Grindr should have adopted safety features that~~
~~would have prevented a user from an ex-boyfriend’s “campaign of harassment” conducted on the service);~~ Klayman v. Klayman v.
~~Zuckerberg, 753 F.3d 1354, 1355 (D.C. Cir. 2014) (affirming dismissal of assault and negligence claims alleging~~
~~Facebook should have removed “Third Palestinian Intifada” page).~~
~~115 Doe v. MySpace, 528 F.3d 413, 416 (5th Cir. 2008).~~
~~116 Id. The suit was brought by the minor and her mother under the aliases Jane and Julie Doe. See id. at 415–16. This~~
~~report refers to a singular plaintiff for convenience.~~
~~117 Id. at 419.~~
~~118 Id. at 420.~~
~~119 See id. (quoting Green v. Am. Online (AOL), 318 F.3d 465, 471 (3rd Cir. 2003)).~~
~~120 Id. at 422.~~
~~121~~Zuckerberg, 753 F.3d 1354, 1355 (D.C. Cir. 2014). 124 See, e.g., Hassell v. Bird, 420 P.3d 776, 788 (Cal. 2018) (plurality opinion); , Hassell v. Bird, 420 P.3d 776, 788 (Cal. 2018) (plurality opinion); id. at 794 (Kruger, J., concurring); at 794 (Kruger, J., concurring);
~~Giordano v. Romeo, 76 So. 3d 1100, 1102 (Fla. Dist. Ct. App. 2011);~~ see also Noah v. AOL Time Warner Inc., 261 F. Supp. 2d Noah v. AOL Time Warner Inc., 261 F. Supp. 2d
532, 532, 539–540 (E.D. Va. 2003)540 (E.D. Va. 2003). See also Noah~~, 261 F. Supp. 2d at 539–40~~ (collecting Section 230 cases dismissing claims (collecting Section 230 cases dismissing claims
for injunctive relief and concluding that the “continuing authority” of a 1998 trial court case holding that Section 230 for injunctive relief and concluding that the “continuing authority” of a 1998 trial court case holding that Section 230
~~did not bar injunctive relief was “questionable”).~~
~~Congressional Research Service~~
12

~~Section 230: An Overview~~

~~Section 230 required the dismissal of a claim that sought to enforce a court order against Yelp.122~~
~~The plaintiffs had sued the author of allegedly defamatory statements posted about their business~~
~~on Yelp, and obtained a default judgment in their favor after the defendant failed to respond to the~~
~~lawsuit.123 The plaintiff then attempted to enforce that judgment against Yelp, who was not~~
~~originally a party to the litigation, asking the court to enter an injunction requiring Yelp to take~~
~~down the defamatory statements.124 In the state court’s view, the lawsuit sought “to overrule~~
~~Yelp’s decision to publish the three challenged reviews,” impermissibly treating it as a~~ did not bar injunctive relief was “questionable”); Republican Nat’l Comm. v. Google, Inc., No. 2:22-cv-01904, 2023 WL 5487311, at *8 (E.D. Cal. Aug. 24, 2023) (concluding injunctive relief was also barred under Section 230(c)(2)). 125 Hassell, 420 P.3d at 778–79 (plurality opinion); id. at 794 (Kruger, J., concurring). 126 Id. at 780–81 (plurality opinion). 127 Id. at 781–82. 128 Id. at 789; accord id. at 794 (Kruger, J., concurring). See also id. at 790 (plurality opinion) (“The duty that plaintiffs would impose on Yelp, in all material respects, wholly owes to and coincides with the company’s continuing role as a publisher publisher
of thirdof third~~-party information.125 The court said that allowing injunctions could “impose substantial~~
~~burdens” on internet intermediaries, contrary to Section~~ party online content.”). Congressional Research Service 12 Section 230: An Overview 230’s goal of “spar[ing] republishers of 230’s goal of “spar[ing] republishers of
online content . . . from this sort of ongoing entanglement with the courts.”online content . . . from this sort of ongoing entanglement with the courts.”~~126~~129
In limited circumstances, courts have concluded that a particular claim does not treat a defendant In limited circumstances, courts have concluded that a particular claim does not treat a defendant
as a publisher or speaker and is thus not barred by Section 230. One such case as a publisher or speaker and is thus not barred by Section 230. One such case decided by the Ninth Circuit, Doe v. Internet Brands, Inc., involved a involved a
negligent failure to warn claim against a service provider, arguing that under state law, the negligent failure to warn claim against a service provider, arguing that under state law, the
provider had a duty to warn users that third parties had used its site to target and lure victims in a provider had a duty to warn users that third parties had used its site to target and lure victims in a
“rape scheme.”“rape scheme.”~~127~~130 The court held that Section 230 did not bar the claim because the alleged duty The court held that Section 230 did not bar the claim because the alleged duty
resulted from information the service provider acquired offline, rather than from user content resulted from information the service provider acquired offline, rather than from user content
generated on the provider’s website, and the service provider could satisfy this duty to warn generated on the provider’s website, and the service provider could satisfy this duty to warn
without removing any user content or changing how it monitored user content.without removing any user content or changing how it monitored user content.~~128~~ 131 Similarly, the Similarly, the
Ninth Circuit refused to bar a state contract law claim based on a provider’s promise to remove Ninth Circuit refused to bar a state contract law claim based on a provider’s promise to remove
third-party content.third-party content.~~129~~132 The court said that liability for the “promissory estoppel” claim came “not The court said that liability for the “promissory estoppel” claim came “not
from [the provider’s] publishing conduct, but from [the provider’s] manifest intention to be from [the provider’s] publishing conduct, but from [the provider’s] manifest intention to be
legally obligated to do something, which happens to be removal of material from publication.”legally obligated to do something, which happens to be removal of material from publication.”~~130~~
133 Another case decided by the Seventh Circuit involved a claim against a provider of customer relationship management software based on the provider’s alleged knowing participation in sex trafficking undertaken by one of its clients, a website that used its software.134 The court held that this claim depended on the provider’s offering of business support to its client, rather than its publication of any particular content.135 Claims founded on economic regulations of online services have also survived Section 230(c)(1) Claims founded on economic regulations of online services have also survived Section 230(c)(1)
preemption. For example, in preemption. For example, in City of Chicago v. Stubhub!, Inc., the Seventh Circuit declined to , the Seventh Circuit declined to
apply Section 230(c)(1) to bar collection of a city amusement tax from an online ticket resale apply Section 230(c)(1) to bar collection of a city amusement tax from an online ticket resale
platform, noting that the tax “does not depend on who ‘publishes’ any information or is a platform, noting that the tax “does not depend on who ‘publishes’ any information or is a
‘speaker.’”‘speaker.’”~~131 Similarly~~136 Likewise, the Ninth Circuit held that Section 230(c)(1) did not preempt a local , the Ninth Circuit held that Section 230(c)(1) did not preempt a local
ordinance regulating short-term property rentals, as applied to websites that hosted listings of ordinance regulating short-term property rentals, as applied to websites that hosted listings of
such rentals.such rentals.~~132 Among other provisions, the ordinance prohibited hosting platforms “from~~

~~122 Hassell, 420 P.3d at 778–79 (plurality opinion); id. at 794 (Kruger, J., concurring).~~
~~123 Id. at 780–81 (plurality opinion).~~
~~124 Id. at 781–82.~~
~~125 Id. at 789; accord id. at 794 (Kruger, J., concurring). See also id. at 790 (plurality opinion) (“The duty that plaintiffs~~
~~would impose on Yelp, in all material respects, wholly owes to and coincides with the company's continuing role as a~~
~~publisher of third party online content.”).~~
~~126~~137 In the Ninth Circuit’s view, the ordinance merely required platforms to monitor booking transactions listed in a city-run registry of rental properties and did not require platforms to police the content of third-party listings.138 The court thus did not believe that the ordinance would impermissibly treat the platforms as publishers of third-party content.139 Courts have also 129 Id. at 791 (plurality opinion). at 791 (plurality opinion). See also Noah, 261 F. Supp. 2d at 540 (“[G]iven that the purpose of § 230 is to shield , 261 F. Supp. 2d at 540 (“[G]iven that the purpose of § 230 is to shield
service providers from legal responsibility for the statements of third parties, § 230 should not be read to permit claims service providers from legal responsibility for the statements of third parties, § 230 should not be read to permit claims
that request only injunctive relief. After all, in some circumstances injunctive relief will be at least as burdensome to that request only injunctive relief. After all, in some circumstances injunctive relief will be at least as burdensome to
the service provider as damages, and is typically more intrusive.”). the service provider as damages, and is typically more intrusive.”).
~~127~~130 Doe v. Internet Brands, Inc., 824 F.3d 846, 849 (9th Cir. 2016). Doe v. Internet Brands, Inc., 824 F.3d 846, 849 (9th Cir. 2016).
~~128~~ 131 Id. at 851. at 851.
~~129~~132 Barnes v. Yahoo! Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th Cir. 2009). Inc., 570 F.3d 1096, 1107 (9th Cir. 2009).
~~130~~133 Id. See also, e.g., Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2016 WL 6540452, at *8 (N.D. Cal. Nov. , Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2016 WL 6540452, at *8 (N.D. Cal. Nov.
2, 2016) (“Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing . . . is not precluded by 2, 2016) (“Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing . . . is not precluded by
§ 230(c)(1) because it seeks to hold defendants liable for breach of defendants’ good faith contractual obligation to § 230(c)(1) because it seeks to hold defendants liable for breach of defendants’ good faith contractual obligation to
plaintiff, rather than defendants’ publisher status.”). plaintiff, rather than defendants’ publisher status.”).
~~131~~134 G.G. v. Salesforce.com, Inc., 76 F.4th 544, 548 (7th Cir. 2023). 135 Id. at 567. 136 City of Chicago v. Stubhub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010). City of Chicago v. Stubhub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010).
~~132~~137 HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019). HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019).
138 Id. at 682. 139 Id. at 682–83; see also In re Zoom Video Commc’ns Privacy Litig., 525 F. Supp. 3d 1017, 1033 (N.D. Cal. 2021) (continued...) Congressional Research Service Congressional Research Service
13 13

link to page link to page 1921 link to page link to page 1921 Section 230: An Overview sometimes found claims arising from an online marketplace’s role as a seller of a defective product to fall outside of Section 230’s protection.140 ~~Section 230: An Overview~~

~~completing any booking transaction for properties not licensed and listed” in a city-run registry of~~
~~rental properties.133 In the Ninth Circuit’s view, the ordinance merely required platforms to~~
~~monitor booking transactions and did not require platforms to police the content of third-party~~
~~listings.134 The court thus did not believe that the ordinance would impermissibly treat the~~
~~platforms as publishers of third-party content.135~~
Federal courts have also declined to apply Section 230(c)(1) to lawsuits brought by the Federal Federal courts have also declined to apply Section 230(c)(1) to lawsuits brought by the Federal
Trade Commission (FTC) against service providers alleging violations of Section 5 of the Federal Trade Commission (FTC) against service providers alleging violations of Section 5 of the Federal
Trade Commission Act.Trade Commission Act.~~136~~141 The first Court of Appeals to address this issue was the Tenth Circuit in The first Court of Appeals to address this issue was the Tenth Circuit in
FTC v. Accusearch, Inc.~~137~~142 The majority opinion in The majority opinion in Accusearch did not decide whether the did not decide whether the
defendant was being treated as a publisher or speaker, instead concluding that Section 230 did not defendant was being treated as a publisher or speaker, instead concluding that Section 230 did not
bar the suit because the defendant had contributed to the allegedly unlawful content.bar the suit because the defendant had contributed to the allegedly unlawful content.~~138~~143 However, However,
Judge Tymkovich wrote in a concurring opinion that the cause of action sought to hold the Judge Tymkovich wrote in a concurring opinion that the cause of action sought to hold the
defendant liable for its own conduct, rather than for third-party content, and thus the defendant defendant liable for its own conduct, rather than for third-party content, and thus the defendant
was not being treated as a publisher or speaker.was not being treated as a publisher or speaker.~~139~~144 In In FTC v. Leadclick Media, LLC, the Second , the Second
Circuit agreed with Judge Tymkovich’s concurrence and determined that a claim brought under Circuit agreed with Judge Tymkovich’s concurrence and determined that a claim brought under
Section 5 of the FTC Act depended on the defendant’s own deceptive acts or practices and Section 5 of the FTC Act depended on the defendant’s own deceptive acts or practices and
therefore did not treat the defendant as a publisher or speaker.therefore did not treat the defendant as a publisher or speaker.~~140~~145 One recent decision signals an approach that may define publisher activity more narrowly than some courts previously applied Zeran. In Henderson v. Source for Public Data, L.P., the Fourth Circuit held that to treat a service provider as a publisher or speaker, a claim must hold a service provider liable based on the improper content of the disseminated information.146 The court drew this requirement from defamation law, under which a defendant’s liability as a publisher depends on the improper, “false and defamatory” nature of the material published.147 Under this view,
~~Information Provided by Another Information Content Provider~~
~~Section 230(c)(1)’s protections extend only to claims that would hold a defendant liable for~~
~~“information provided by another information content provider.”141 Put another way, Section~~
~~230(c)(1) does not protect defendants from claims arising from their own content.142 For example,~~
~~Section 230(c)(1) would not bar a defamation claim against a social media website based on the~~

~~133 Id. at 680.~~
~~134 Id. at 682.~~
135 Id. ~~at 682–83~~Section 230 did not bar claims alleging that a website had failed to comply with the Fair Credit Reporting Act.148 Although the claims would have held the site liable for improperly disseminating information, they did not depend on the information’s content being improper.149 The opinion cited and purported to apply Zeran, but Henderson appeared to add a new requirement given that Zeran made no reference to the content of information.150 Several subsequent decisions from state and federal courts outside of the Fourth Circuit have declined to (characterizing this as “content-neutral liability”).. Cf. Airbnb, Inc. v. City of Boston, 386 F. Supp. 3d 113, 120–24 (D. Mass. 2019) (ruling that a similar Airbnb, Inc. v. City of Boston, 386 F. Supp. 3d 113, 120–24 (D. Mass. 2019) (ruling that a similar
regulation was not preempted by Section 230, but concluding Section 230 likely did preempt portions of the regulation regulation was not preempted by Section 230, but concluding Section 230 likely did preempt portions of the regulation
requiring a “booking agent” to remove improper listings). requiring a “booking agent” to remove improper listings).
~~136 15 U.S.C. § 45.~~
~~137~~140 See, e.g., Lee v. Amazon.com, Inc., 291 Cal. Rptr. 3d 332, 378–79 (Cal. Ct. App. 2022); Erie Ins. Co. v. Amazon.com, Inc., 925 F.3d 135, 139–40 (4th Cir. 2019). As discussed, the unavailability of Section 230 in cases brought against online marketplaces does not necessarily mean the marketplace will face liability. See, e.g., Erie Ins. Co., 925 F.3d at 142 (holding that Amazon was not liable for sale of a defective product). 141 15 U.S.C. § 45. 142 FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009).
~~138~~143 Id.
~~139~~144 Id. at 1204 (Tymkovich, J., concurring). For more discussion of at 1204 (Tymkovich, J., concurring). For more discussion of Accusearch, see , see infra “Subsequent Developments in
Material Contribution Analysis.”
~~140~~145 FTC v. Leadclick Media, LLC, 838 F.3d 158, 176–77 (2d Cir. 2016). FTC v. Leadclick Media, LLC, 838 F.3d 158, 176–77 (2d Cir. 2016).
~~141 47 U.S.C. § 230(c)(1) (emphasis added).~~
~~142 A separate but related question is whether a plaintiff bringing claims based on their own content is “another~~
~~information content provider” under Section 230(c)(1). Some courts have declined to apply Section 230(c)(1) to~~
~~content created by a plaintiff, reasoning that allowing Section 230(c)(1) to cover such content would render Section~~
~~230(c)(2) superfluous. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017~~
~~WL 2210029, at *3 (M.D. Fl. Feb. 8, 2017) (declining to apply Section 230(c)(1) to unfair competition claims based on~~
~~Google’s removal of plaintiff’s advertising material). Other courts have applied Section 230(c)(1) to such claims.~~ ~~See,~~
~~e.g., Riggs v. MySpace, Inc., 444 F. App’x 986, 987 (9th Cir. 2011) (affirming dismissal under Section 230(c)(1) of~~
~~claims based on removal of plaintiff-created profile pages); Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F.~~
~~Supp. 3d 1088, 1093–94 (N.D. Cal. 2015) (applying Section 230(c)(1) to dismiss claims based on blocking access to~~
~~plaintiff-created page); cf. Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (interpreting Section 230(c)(1)’s~~
~~reference to “another information content provider” to “distinguish[] the circumstance in which the interactive~~
~~computer service itself meets the definition of ‘information content provider’ with respect to the information in~~
~~question”).~~
~~Congressional Research Service~~
14

~~Section 230: An Overview~~

~~content of a label or disclaimer added by the website to third-party content.143 But as recognized~~
~~in Zeran and other cases, Section 230(c)(1) does allow a defendant to make some editorial~~
~~adjustments to third-party content without being considered the provider of that content.144~~
~~Whether a defendant is being treated as the publisher of information provided by “another~~
~~information content provider” depends in part on whether the defendant is an information content~~
~~provider itself.145 As defined in Section 230, an “information content provider” is “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.”146 When a case involves~~
~~third-party content, courts routinely focus on the defendant’s role in the “creation or~~
~~development” of the content.147~~
~~Fair Housing Council v. Roommates.com, LLC~~
~~A foundational case on this issue is the Ninth Circuit’s decision in~~ ~~Fair Housing Council v.~~
~~Roommates.com, LLC~~ ~~(Roommates).148 In Roommates, housing agencies in San Diego and the~~
~~San Fernando Valley sued the operators of the website Roommates.com,149 a website that allows~~
~~individuals to locate prospective roommates.150 New Roommates.com users were required to~~
~~complete a questionnaire that included the user’s preferences for a roommate’s age, gender,~~
~~sexual orientation, and number of children.151 Roommates.com then displayed the answers to~~
~~these questions in personal profiles, which users of the site could search and view.152 The housing~~
~~agencies alleged that Roommates.com had violated a provision of the Fair Housing Act that~~
~~prohibits publishing advertisements for the sale or rental of a dwelling that indicate any~~
~~preference based on sex, familial status, or other protected characteristics.153 In defense,~~
~~Roommates.com argued that the housing agencies were seeking to hold Roommates.com liable~~
~~for content generated by individual users and therefore Section 230(c)(1) would bar liability.154 In~~

143 Cf. ~~Maffick, LLC v. Facebook, Inc., No. 20-05222, 2020 WL 5257853~~146 Henderson v. Source for Public Data, L.P., 53 F.4th 110, 122 (4th Cir. 2022). 147 Id. (citing RESTATEMENT (SECOND) OF TORTS § 558(a) (AM. L. INST. 1965)). 148 Id. at 117. 149 Id. at 123–24. 150 See Zeran v. Am. Online, Inc. 129 F.3d 327, 330 (4th Cir. 1997) (referencing the exercise of “traditional editorial functions” without reference to the content of information). Because the material at issue in Zeran was allegedly defamatory, see id., the Fourth Circuit’s decision in Henderson does not call into question the outcome of Zeran. Congressional Research Service 14 Section 230: An Overview follow Henderson, reasoning that the decision conflicts with binding precedent in their jurisdictions that reads Section 230(c)(1) more broadly.151 Product Design Claims Courts have seen a rise in suits alleging, often as product liability claims,152 that online services were designed negligently.153 Some opinions have held that Section 230(c)(1) barred claims seeking to hold sites liable for failing to adopt safety features that plaintiffs claim would have prevented violence.154 To take one example, in Doe v. MySpace, Inc., the Fifth Circuit affirmed the dismissal of a lawsuit alleging that MySpace acted negligently in failing “to implement basic safety measures to prevent sexual predators from communicating with minors on its Web site.”155 The plaintiff, a minor, had used the site to meet and communicate with an older teenager who later sexually assaulted her at an in-person meeting.156 The plaintiff argued that her negligence claims depended on “MySpace’s failure to implement basic safety measures” and therefore would not treat the site as a publisher.157 The Fifth Circuit disagreed, saying the allegations were “merely another way of claiming that MySpace was liable for publishing the communications.”158 In the court’s view, the negligence claims hinged on MySpace’s publisher functions: its decisions relating to the “monitoring, screening, and deletion” of third-party content.159 As a result, Section 230(c)(1) barred liability.160 In contrast, the Ninth Circuit determined more recently that claims brought against the maker of Snapchat for negligently designing its platform to include a “speed filter” that encouraged users to drive at recklessly high speeds would not be barred by Section 230(c)(1).161 The Ninth Circuit determined that the claims based on Snapchat’s speed filter did not treat the platform as a “publisher or speaker,” because the claims “treat[ed] Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect.”162 Citing Internet Brands, the failure to warn case discussed above, the court observed that “Snap could have satisfied” the alleged obligation to design a better product “without altering the content that Snapchat’s users 151 E.g., Divino Grp. LLC v. Google LLC, No. 19-04749, 2023 WL 218966, at *2 (N.D. Cal. Jan. 17, 2023) (“Henderson is not binding on this Court; and . . . the Fourth Circuit’s narrow construction of Section 230(c)(1) appears to be at odds with Ninth Circuit decisions indicating that the scope of the statute’s protection is much broader.”); Prager Univ. v. Google LLC, 85 Cal. App. 5th 1022, 1033 n.4 (Cal. Ct. App. 2022) (“Henderson’s narrow interpretation of section 230(c)(1) is in tension with the California Supreme Court’s broader view, which we follow, absent a contrary ruling by the United States Supreme Court.”). 152 For a discussion of products liability claims, see CRS In Focus IF11291, Introduction to Tort Law, by Andreas Kuersten. 153 See generally, e.g., Peter Karalis & Golriz Chrostowski, Analysis: Product Claims Spike as SCOTUS Ponders Section 230 Fix, BLOOMBERG LAW (Mar. 2, 2023), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-product-claims-spike-as-scotus-ponders-section-230-fix. 154 E.g., Herrick v. Grindr LLC, 765 F. App’x 586, 590–91 (2d Cir. 2019) (affirming dismissal of product liability, negligence, and infliction of emotional distress claims alleging Grindr should have adopted safety features that would have protected a user from an ex-boyfriend’s “campaign of harassment” conducted on the service). 155 Doe v. MySpace, Inc., 528 F.3d 413, 416 (5th Cir. 2008). 156 Id. The suit was brought by the minor and her mother under the aliases Jane and Julie Doe. See id. at 415–16. This report refers to a singular plaintiff for convenience. 157 Id. at 419. 158 Id. at 420. 159 See id. (quoting Green v. Am. Online (AOL), 318 F.3d 465, 471 (3rd Cir. 2003)). 160 Id. at 422. 161 Lemmon v. Snap, Inc., 995 F.3d 1085, 1091–94 (9th Cir. 2021). 162 Id. at 1092. Congressional Research Service 15 link to page 16 link to page 16 Section 230: An Overview generate.”163 A state court in Georgia reached a similar conclusion, holding that claims based on Snapchat’s speed filter did “not seek to hold Snapchat liable for publishing” and therefore could proceed.164 Information Provided by Another Information Content Provider Section 230(c)(1)’s protections extend only to claims that would hold a defendant liable for “information provided by another information content provider.”165 Put another way, Section 230(c)(1) does not protect defendants from claims arising from their own content.166 For example, Section 230(c)(1) would not bar a defamation claim against a social media website based on the content of a label or disclaimer added by the website to third-party content.167 But as recognized in Zeran and other cases, Section 230(c)(1) does allow a defendant to make some editorial adjustments to third-party content without being considered the provider of that content.168 Whether a defendant is being treated as the publisher of information provided by “another information content provider” depends in part on whether the defendant is an information content provider itself.169 As defined in Section 230, an “information content provider” is “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.”170 When a case involves third-party content, courts routinely focus on the defendant’s role in the “creation or development” of the content.171 163 Id.; see supra text accompanying notes 130 to 131. 164 Maynard v. Snapchat, Inc., 816 S.E.2d 77, 81 (Ga. Ct. App. 2018). The court emphasized that the alleged liability stemmed from actions taken before a third party had posted any content. Id. at 80. 165 47 U.S.C. § 230(c)(1) (emphasis added). 166 A separate but related question is whether a plaintiff bringing claims based on their own content is “another information content provider” under Section 230(c)(1). Some courts have declined to apply Section 230(c)(1) to content created by a plaintiff, reasoning that allowing Section 230(c)(1) to cover such content would render Section 230(c)(2) superfluous. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3 (M.D. Fla. Feb. 8, 2017) (declining to apply Section 230(c)(1) to unfair competition claims based on Google’s removal of plaintiff’s advertising material). Other courts have applied Section 230(c)(1) to such claims. See, e.g., Riggs v. MySpace, Inc., 444 F. App’x 986, 987 (9th Cir. 2011) (affirming dismissal under Section 230(c)(1) of claims based on removal of plaintiff-created profile pages); Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1093–94 (N.D. Cal. 2015) (applying Section 230(c)(1) to dismiss claims based on blocking access to plaintiff-created page), aff’d, 697 F. App’x 526 (9th Cir. 2017); cf. Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (interpreting Section 230(c)(1)’s reference to “another information content provider” to “distinguish[] the circumstance in which the interactive computer service itself meets the definition of ‘information content provider’ with respect to the information in question”). 167 Cf. Maffick, LLC v. Facebook, Inc., No. 20-05222, 2020 WL 5257853, at *1 (N.D. Cal. Sept. 3, 2020) (ignoring Section (N.D. Cal. Sept. 3, 2020) (ignoring Section
230 entirely in a case based on Facebook’s labeling of user accounts as “Russia state-controlled media”)230 entirely in a case based on Facebook’s labeling of user accounts as “Russia state-controlled media”)~~; see also, e.g.,~~
~~Maynard v. Snapchat, 816 S.E.2d 77, 79 (Ga. Ct. App. 2018) (concluding Section 230 did not bar negligence claim~~
~~premised on Snapchat’s “Speed Filter,” which superimposed the user’s speed over user pictures or videos).~~
~~144~~. 168 Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir.
2003) (making minor alterations to email before posting email to listserv did not render defendant liable for third-party 2003) (making minor alterations to email before posting email to listserv did not render defendant liable for third-party
content); Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 985–86 (10th Cir. 2000) (deleting content); Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 985–86 (10th Cir. 2000) (deleting
erroneous information from a database containing third-party content did not render defendant liable for third-party erroneous information from a database containing third-party content did not render defendant liable for third-party
content); Blumenthal v. Drudge, 992 F. Supp. 44, 51–52 (D.D.C. 1998) (reserving right to “require reasonable content); Blumenthal v. Drudge, 992 F. Supp. 44, 51–52 (D.D.C. 1998) (reserving right to “require reasonable
changes” to content did not render service provider liable for content). changes” to content did not render service provider liable for content).
~~145~~169 See 47 U.S.C. § 230(c)(1). 47 U.S.C. § 230(c)(1).
~~146~~170 Id. § 230(f)(3). § 230(f)(3).
~~147~~171 See, e.g., , Batzel, 333 F.3d at 1031;, 333 F.3d at 1031; Ben Ezra, Weinstein, & Co., 206 F.3d at 985. , 206 F.3d at 985.
~~148 Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).~~
~~149 The defendant’s corporate name in Roommates is the singular Roommate.com, LLC. However, the domain of the~~
~~website operated by the defendant is the plural roommates.com. This linguistic mismatch resulted in the party being~~
~~named as “Roommates.com” in the Ninth Circuit case. Cf. Fair Hous. Council v. Roommate.com, LLC, No. 03-09386,~~
~~2004 WL 3799488 (C.D. Cal. Sept. 30, 2004). For clarity, this report will refer to the defendant website operator as~~
~~“Roommates.com.”~~
~~150 Roommates, 521 F.3d at 1162.~~
~~151 Id. at 1161.~~
152 Id.
~~153 42 U.S.C. § 3604(c).~~
~~154 Roommates, 521 F.3d at 1162.~~
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~~Section 230: An Overview~~

~~an en banc rehearing~~ Congressional Research Service 16 Section 230: An Overview Fair Housing Council v. Roommates.com, LLC A foundational case on this issue is the Ninth Circuit’s decision in Fair Housing Council v. Roommates.com, LLC (Roommates).172 In Roommates, housing agencies in San Diego and the San Fernando Valley sued the operators of the website Roommates.com,173 a website that allows individuals to locate prospective roommates.174 New Roommates.com users were required to complete a questionnaire that included the user’s preferences for a roommate’s age, gender, sexual orientation, and number of children.175 Roommates.com then displayed the answers to these questions in personal profiles, which users of the site could search and view.176 The housing agencies alleged that Roommates.com had violated a provision of the Fair Housing Act that prohibits publishing advertisements for the sale or rental of a dwelling that indicate any preference based on sex, familial status, or other protected characteristics.177 In defense, Roommates.com argued that the housing agencies were seeking to hold Roommates.com liable for content generated by individual users, and therefore Section 230(c)(1) would bar liability.178 In an en banc ruling, the Ninth Circuit rejected this contention, saying that Roommates.com’s , the Ninth Circuit rejected this contention, saying that Roommates.com’s
required questionnaire “induce[d] third parties to express illegal preferences.”required questionnaire “induce[d] third parties to express illegal preferences.”~~155~~179 According to the According to the
court, because this questionnaire was created by Roommates.com and not its users, Section court, because this questionnaire was created by Roommates.com and not its users, Section
230(c)(1) did not apply.230(c)(1) did not apply.~~156~~180
Addressing Roommates.com’s liability for displaying its user’s preferences on personal profiles, Addressing Roommates.com’s liability for displaying its user’s preferences on personal profiles,
the court acknowledged that the “illegal preferences” at issue were pieces of information the court acknowledged that the “illegal preferences” at issue were pieces of information
provided by information content providers other than Roommates.com.provided by information content providers other than Roommates.com.~~157~~181 But the Ninth Circuit But the Ninth Circuit
noted that Roommates.com may still have “develop[ed] . . . in part” this information, such that noted that Roommates.com may still have “develop[ed] . . . in part” this information, such that
Roommates.com could be considered the “information content provider” of the information.Roommates.com could be considered the “information content provider” of the information.~~158~~182
The court determined that by requiring users to answer its questionnaire, Roommates.com had at The court determined that by requiring users to answer its questionnaire, Roommates.com had at
least in part developed the information.least in part developed the information.~~159~~183 The Ninth Circuit cabined the reach of its holding by The Ninth Circuit cabined the reach of its holding by
specifying that “passive conduits” or “specifying that “passive conduits” or “neutral tools,” such as a search engine that filters content tools,” such as a search engine that filters content
only by user-generated criteria, would not be responsible for developing contentonly by user-generated criteria, would not be responsible for developing content~~, and that~~
~~“development” as used in Section 230 means “materially contributing to its alleged~~
~~unlawfulness.”160 The court also concluded that Section 230(c)(1) did bar liability for user~~
~~comments made in an “Additional~~ .184 The court also concluded that Section 230(c)(1) did bar liability for user comments made in an “Additional 172 Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc). 173 The defendant’s corporate name in Roommates is the singular Roommate.com, LLC. However, the domain of the website operated by the defendant is the plural roommates.com. This linguistic mismatch resulted in the party being named as “Roommates.com” in the Ninth Circuit case. Cf. Fair Hous. Council v. Roommate.com, LLC, No. 03-09386, 2004 WL 3799488 (C.D. Cal. Sept. 30, 2004). For clarity, this report will refer to the defendant website operator as “Roommates.com.” 174 Roommates, 521 F.3d at 1162. 175 Id. at 1161. 176 Id. 177 42 U.S.C. § 3604(c). 178 Roommates, 521 F.3d at 1162. 179 Id. at 1165. 180 Id. 181 Id. 182 Id.; see 47 U.S.C. § 230(c)(1) (applying only to information provided by “another information content provider”). 183 Roommates, 521 F.3d at 1166. 184 Id. at 1167–69. Congressional Research Service 17 Section 230: An Overview Comments” section of user profiles, a blank box where users Comments” section of user profiles, a blank box where users
could post text with no constraints.could post text with no constraints.~~161~~185
Writing for the majority, Chief Judge Kozinski summarized the Writing for the majority, Chief Judge Kozinski summarized the Roommates court’s holding: “a court’s holding: “a
website helps to develop unlawful content . . . if it contributes materially to the alleged illegality website helps to develop unlawful content . . . if it contributes materially to the alleged illegality
of the conduct.”of the conduct.”~~162~~186 In a later Ninth Circuit opinion, the court clarified that this “material In a later Ninth Circuit opinion, the court clarified that this “material
contribution” test “draw[s] the line at ‘the crucial distinction between, on the one hand, taking contribution” test “draw[s] the line at ‘the crucial distinction between, on the one hand, taking
actions (traditional to publishers) that are necessary to the display of unwelcome and actionable actions (traditional to publishers) that are necessary to the display of unwelcome and actionable
content and, on the other hand, responsibility for what makes the displayed content illegal or content and, on the other hand, responsibility for what makes the displayed content illegal or
actionable.’”actionable.’”~~163~~187
Subsequent Developments in Material Contribution Analysis
Since the Ninth Circuit’s decision in Since the Ninth Circuit’s decision in Roommates, other federal courts of appeals , other federal courts of appeals and state courts have adopted have adopted
variations on variations on ~~the~~ Roommates’ “material contribution” analysis in determining whether a defendant “material contribution” analysis in determining whether a defendant
is the information content provider of the information at issue.is the information content provider of the information at issue. The next federal appeals court to The next federal appeals court to
consider consider Roommates was the Tenth Circuit in was the Tenth Circuit in FTC v. Accusearch, Inc., which adopted—and , which adopted—and
possibly expanded upon—the Ninth Circuit’s reasoning in possibly expanded upon—the Ninth Circuit’s reasoning in Roommates..~~164~~188 At issue in At issue in Accusearch
was whether a website that sold information contained in telephone records could claim Section was whether a website that sold information contained in telephone records could claim Section
230 protection from an FTC enforcement action when the operator acquired these 230 protection from an FTC enforcement action when the operator acquired these records from third parties.189~~records from~~

~~155 Id. at 1165.~~
156 Id.
157 Id.
~~158 Id.; see 47 U.S.C. § 230(c)(1) (applying only to information provided by “another information content provider”).~~
~~159 Roommates, 521 F.3d at 1166.~~
~~160 Id. at 1167–69.~~
~~161 Id. at 1173–75; see also Chi. Lawyers’ Comm. for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d 666, 671~~
~~(2008) (concluding Section 230(c)(1) barred a similar Fair Housing Act case brought against website that hosted~~
~~apartment listings, but listings were written entirely by users).~~
~~162 Roommates, 521 F.3d at 1168.~~
~~163 Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269 n.4 (9th Cir. 2016) (quoting Jones v. Dirty World Entmt. Recordings~~
~~LLC, 755 F.3d 398, 413–14 (6th Cir. 2014).~~
~~164 FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009).~~
~~Congressional Research Service~~
16

~~Section 230: An Overview~~

~~third parties.165~~ Accusearch Accusearch argued that it did not add anything to the information after receiving it argued that it did not add anything to the information after receiving it
and thus was not an information content provider of the information.and thus was not an information content provider of the information.~~166~~190 In an opinion written by In an opinion written by
Judge Hartz, the Tenth Circuit held that a defendant’s solicitation of and payment for telephone Judge Hartz, the Tenth Circuit held that a defendant’s solicitation of and payment for telephone
records rendered the defendant an information content provider of these records.records rendered the defendant an information content provider of these records.~~167~~191
The Tenth Circuit focused on whether the defendant had played any role in “developing” the The Tenth Circuit focused on whether the defendant had played any role in “developing” the
information. Judge Hartz opined that the inclusion of two terms—“creation” and information. Judge Hartz opined that the inclusion of two terms—“creation” and
“development”—in Section 230’s definition of “information content provider” suggested that the “development”—in Section 230’s definition of “information content provider” suggested that the
two terms had distinct meanings.two terms had distinct meanings.~~168~~192 Unwilling to adopt a redundant definition of “development,” Unwilling to adopt a redundant definition of “development,”
the court turned to dictionary definitions of the term and determined that information may be the court turned to dictionary definitions of the term and determined that information may be
“developed” when the information is made “‘visible,’ ‘active,’ or ‘usable.’”“developed” when the information is made “‘visible,’ ‘active,’ or ‘usable.’”~~169~~193 The Tenth Circuit The Tenth Circuit
therefore concluded that by making telephone records public on its website, the defendant had therefore concluded that by making telephone records public on its website, the defendant had
“developed” those records.“developed” those records.~~170~~194 Noting that Section 230 defines an information content provider as Noting that Section 230 defines an information content provider as
one “responsible, in whole or in part” for the creation or development of content,one “responsible, in whole or in part” for the creation or development of content,~~171~~195 the the
Accusearch court followed court followed Roommates in holding that a party is “responsible” for content only in holding that a party is “responsible” for content only
185 Id. at 1173–75; see also Chi. Lawyers’ Comm. for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d 666, 671 (2008) (concluding Section 230(c)(1) barred a similar Fair Housing Act case brought against website that hosted apartment listings, but listings were written entirely by users). 186 Roommates, 521 F.3d at 1168. 187 Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269 n.4 (9th Cir. 2016) (quoting Jones v. Dirty World Entmt. Recordings LLC, 755 F.3d 398, 413–14 (6th Cir. 2014). 188 FTC v. Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009). 189 Id. at 1190. 190 Id. at 1197–98. 191 Id. at 1200. 192 Id. at 1198. 193 Id. (quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 618 (2002)). 194 Id. 195 47 U.S.C. § 230(f)(3). Congressional Research Service 18 Section 230: An Overview when the party “in some way specifically encourages development of what is offensive about the when the party “in some way specifically encourages development of what is offensive about the
content.”content.”~~172~~196 To the Tenth Circuit, what was “offensive” about the information at issue was that it To the Tenth Circuit, what was “offensive” about the information at issue was that it
had been publicly exposed: as the court observed, federal law generally prohibits the disclosure of had been publicly exposed: as the court observed, federal law generally prohibits the disclosure of
telephone records to third parties.telephone records to third parties.~~173~~197 Judge Hartz noted that Accusearch had “affirmatively Judge Hartz noted that Accusearch had “affirmatively
solicited” telephone records from its paid researchers and “knowingly sought to transform solicited” telephone records from its paid researchers and “knowingly sought to transform
virtually unknown information into a publicly available commodity,” and was therefore virtually unknown information into a publicly available commodity,” and was therefore
responsible for the records being made public.responsible for the records being made public.~~174~~198
Courts interpreting Courts interpreting Roommates and and Accusearch have attempted to define the contours of when a have attempted to define the contours of when a
defendant has or has not “materially contributed” to content. A North Carolina appellate court defendant has or has not “materially contributed” to content. A North Carolina appellate court
held that “a website must effectively control the content . . . or take other actions which held that “a website must effectively control the content . . . or take other actions which
essentially ensure the creation of unlawful content” to be considered an information content essentially ensure the creation of unlawful content” to be considered an information content
provider.provider.~~175~~199 The Sixth Circuit has emphasized that mere encouragement does not rise to the level The Sixth Circuit has emphasized that mere encouragement does not rise to the level
of material contribution, asserting that holding otherwise “would inflate the meaning of of material contribution, asserting that holding otherwise “would inflate the meaning of
‘development’ to the point of eclipsing the immunity from publisher-liability that Congress ‘development’ to the point of eclipsing the immunity from publisher-liability that Congress
established.”established.”~~176~~200 Even the Ninth Circuit has cautioned against Even the Ninth Circuit has cautioned against the broad application of broad application of Roommates, ,
declining to hold, for example, that a defendant materially contributed to content when the declining to hold, for example, that a defendant materially contributed to content when the

~~165 Id. at 1190.~~
~~166 Id. at 1197–98.~~
~~167 Id. at 1200.~~
~~168 Id. at 1198.~~
~~169 Id. (quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 618 (2002)).~~
170 Id.
~~171 47 U.S.C. § 230(f)(3).~~
~~172 Accusearch, 570 F.3d at 1199.~~
~~173 Id.; see 47 U.S.C. § 222.~~
~~174 Accusearch, 570 F.3d at 1200.~~
~~175 Hill v. Stubhub, Inc., 727 S.E.2d 550, 561 (N.C. App. 2012).~~
~~176~~defendant did not “require[] users to post specific content,” as Roommates.com did by requiring users to complete its questionnaire.201 In one of the few instances where a court has recognized material contribution, a California Court of Appeal decision applying Roommates held that a social media platform’s advertising tools, which required advertisers to select a target age range and gender, materially contributed to the alleged proliferation of discriminatory advertisements on the platform.202 Algorithmic Sorting and Promotion A recurring issue in Section 230 cases is whether Section 230(c)(1) immunizes the use of algorithms to filter and sort content in a particular way—a common feature on social media websites and search engines.203 Claims brought against websites for their use of algorithms often cast a website’s use of algorithms either as “development” of third-party content, much like the theories of Roommates and Accusearch, or as nonpublisher activity to which Section 230(c)(1) would not apply. Federal courts of appeals that have considered this issue thus far have uniformly rejected these theories.204 For a more detailed discussion of these cases and recent developments, see CRS Report R47753, Liability for Algorithmic Recommendations, by Eric N. Holmes. 196 Accusearch, 570 F.3d at 1199. 197 Id.; see 47 U.S.C. § 222. 198 Accusearch, 570 F.3d at 1200. 199 Hill v. Stubhub, Inc., 727 S.E.2d 550, 561 (N.C. App. 2012). 200 Jones v. Dirty World Entmt. Recordings LLC, 755 F.3d 398, 414 (6th Cir. 2014); Jones v. Dirty World Entmt. Recordings LLC, 755 F.3d 398, 414 (6th Cir. 2014); see Fair Hous. Council v. Fair Hous. Council v.
Roommates.com, LLC, 521 F.3d 1157, 1161 n.19 (9th Cir. 2008Roommates.com, LLC, 521 F.3d 1157, 1161 n.19 (9th Cir. 2008) (en banc) (noting that Roommates.com “does much more than ) (noting that Roommates.com “does much more than
~~encourage or solicit”).~~
~~Congressional Research Service~~
17

~~Section 230: An Overview~~

~~defendant did not “require[] users to post specific content,” as Roommates.com did by requiring~~
~~users to complete its questionnaire.177~~
~~Algorithmic Sorting~~
~~A recurring issue in Section 230 cases is whether Section 230(c)(1) immunizes the use of~~
~~algorithms to filter and sort content in a particular way—a common feature on social media~~
~~websites and search engines. Claims brought against websites for their use of algorithms often~~
~~cast a website’s use of algorithms either as “development” of third-party content, much like the~~
~~theories of Roommates and Accusearch, or as nonpublisher activity to which Section 230(c)(1)~~
~~would not apply. Federal courts of appeals that have considered this issue thus far have uniformly~~
~~rejected these theories.178~~
encourage or solicit”). 201 Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1099 (9th Cir. 2019). 202 Liapes v. Facebook, Inc., 313 Cal. Rptr. 3d 330, 346 (Cal. Ct. App. 2023). 203 For more information on content recommendation and moderation algorithms, see CRS In Focus IF12462, Social Media Algorithms: Content Recommendation, Moderation, and Congressional Considerations, by Kristen E. Busch. 204 E.g., Dyroff, 934 F.3d at 1098–99 (opining that plaintiffs could not frame “website features as content” and that the site’s recommendation and notification functions did not materially contribute to alleged unlawfulness of content); Force v. Facebook, Inc., 934 F.3d 53, 66–69 (2d Cir. 2019) (rejecting theories that algorithmic sorting rendered website a nonpublisher or materially contributed to development of content); Marshall’s Locksmith Serv., Inc. v. Google, LLC, (continued...) Congressional Research Service 19 Section 230: An Overview A thorough examination of the relationship between algorithmic content and Section 230 is the A thorough examination of the relationship between algorithmic content and Section 230 is the
Second Circuit’s opinion in Second Circuit’s opinion in Force v. Facebook, Inc., a case brought by victims of terrorist attacks , a case brought by victims of terrorist attacks
allegedly coordinated and encouraged on Facebook by individual users.allegedly coordinated and encouraged on Facebook by individual users.~~179~~205 In In Force, the plaintiffs , the plaintiffs
contendedcontended that Facebook’s use of algorithms to display personalized content and friend that Facebook’s use of algorithms to display personalized content and friend
suggestions was nonpublisher activity outside Section 230’s scope or, alternatively, materially suggestions was nonpublisher activity outside Section 230’s scope or, alternatively, materially
contributed to the development of user content by “mak[ing] that content more visible, available, contributed to the development of user content by “mak[ing] that content more visible, available,
and usable.”and usable.”~~180~~206 The Second Circuit declined to endorse either of these arguments and instead held The Second Circuit declined to endorse either of these arguments and instead held
that Section 230 barred the plaintiffs’ claims.that Section 230 barred the plaintiffs’ claims.~~181~~207 Addressing the first argument, the court Addressing the first argument, the court ~~noted~~decided
that how and where to display content is a quintessential editorial decision protected under that how and where to display content is a quintessential editorial decision protected under
Section 230, and therefore plaintiffs sought to hold Facebook liable as a publisher.Section 230, and therefore plaintiffs sought to hold Facebook liable as a publisher.~~182~~208 The Second The Second
Circuit likewise held that Facebook had not developed user content when its algorithms “take the Circuit likewise held that Facebook had not developed user content when its algorithms “take the
information provided by Facebook users and ‘match’ it to other users—again, materially information provided by Facebook users and ‘match’ it to other users—again, materially
unaltered—based on objective factors applicable to any content.”unaltered—based on objective factors applicable to any content.”~~183~~209
The The Force court’s treatment of algorithmic sorting applies the “neutral tools” language first court’s treatment of algorithmic sorting applies the “neutral tools” language first
appearing in appearing in Roommates..~~184~~210 Several earlier cases adopt a similar approach to such neutral tools Several earlier cases adopt a similar approach to such neutral tools
that, though originating with this language from that, though originating with this language from Roommates, slightly diverges from , slightly diverges from Roommates’’
material contribution analysis. In an early case on the issue, the D.C. Circuit held that “a website material contribution analysis. In an early case on the issue, the D.C. Circuit held that “a website

~~177 Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1099 (9th Cir. 2019).~~
~~178 E.g., id. at 1098–99 (opining that plaintiffs could not frame “website features as content” and that the site’s~~
~~recommendation and notification functions did not materially contribute to alleged unlawfulness of content); Force v.~~
~~Facebook, Inc., 934 F.3d 53, 66–69 (2d Cir. 2019) (rejecting theories that algorithmic sorting rendered website a~~
~~nonpublisher or materially contributed to development of content); Marshall’s Locksmith Serv., Inc. v. Google, LLC,~~
does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.”211 Both the D.C. Circuit and the Second Circuit have elaborated on particular features that may make a website’s tools “neutral.” In Marshall’s Locksmith Service, Inc. v. Google, a case involving search engines that automatically converted addresses provided by third parties into “pinpoints” appearing on the search engines’ mapping websites, the D.C. Circuit emphasized that the search engines’ tools did “not distinguish” between different types of user content.212 Instead, the algorithm translated all types of information, both legitimate and scam information, in the same manner.213 The Second Circuit in Force characterized Facebook’s involvement in user content as “neutral” when Facebook did not require users to provide more than “basic identifying information” and its sorting algorithms used “objective factors” that applied in the same way “to any content.”214 925 F.3d 1263, 1271 (D.C. Cir. 2019) (declining to treat search engines’ conversion of fraudulent addresses from 925 F.3d 1263, 1271 (D.C. Cir. 2019) (declining to treat search engines’ conversion of fraudulent addresses from
webpages into “map pinpoints” as developing content). webpages into “map pinpoints” as developing content).
~~179 Force v. Facebook, Inc., 934 F.3d 53, 57 (2d Cir. 2019).~~
~~180~~205 Force, 934 F.3d at 57. 206 Id. at 70 (internal quotations omitted); at 70 (internal quotations omitted); id. at 65–66. at 65–66.
~~181~~207 Id. at 71. In a partially dissenting opinion, Chief Judge Katzmann wrote that he would not apply Section 230(c)(1), at 71. In a partially dissenting opinion, Chief Judge Katzmann wrote that he would not apply Section 230(c)(1),
reasoning that claims based on Facebook’s friend and content suggestion systems did not treat Facebook as a publisher reasoning that claims based on Facebook’s friend and content suggestion systems did not treat Facebook as a publisher
of another’s content. of another’s content. Id. at 76–89 (Katzmann, J., concurring in part and dissenting in part). at 76–89 (Katzmann, J., concurring in part and dissenting in part).
~~182~~208 Id. at 66–67 (majority opinion); at 66–67 (majority opinion); see Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124–25 (9th Cir. 2003) Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124–25 (9th Cir. 2003)
(applying Section 230 to a website’s “decision to structure the information provided by users”); (applying Section 230 to a website’s “decision to structure the information provided by users”); Marshall’s Locksmith
Serv., 925 F.3d at 1269 (holding that “the choice of presentation” is a publisher function protected by Section 230); , 925 F.3d at 1269 (holding that “the choice of presentation” is a publisher function protected by Section 230); cf.
O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (applying Section 230 to “automated editorial acts”). O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (applying Section 230 to “automated editorial acts”).
~~183~~209 Force, 934 F.3d at 70. , 934 F.3d at 70.
~~184~~210 Id. at 66 (“[W]e find no basis . . . for concluding that an interactive computer service is not the ‘publisher’ of third- at 66 (“[W]e find no basis . . . for concluding that an interactive computer service is not the ‘publisher’ of third-
party information when it uses tools such as algorithms that are designed to match that information with a consumer’s party information when it uses tools such as algorithms that are designed to match that information with a consumer’s
interests.”) (citing Fair Hous. Council v. Roommates.com, Inc., 521 F.3d 1157, 1172 (9th Cir. 2008)interests.”) (citing Fair Hous. Council v. Roommates.com, Inc., 521 F.3d 1157, 1172 (9th Cir. 2008)).
~~Congressional Research Service~~
18

~~link to page 11~~ ~~Section 230: An Overview~~

~~does not create or develop content when it merely provides a neutral means by which third parties~~
~~can post information of their own independent choosing online.”185 Both the D.C. Circuit and the~~
~~Second Circuit have elaborated on particular features that may make a website’s tools “neutral.”~~
~~In Marshall’s Locksmith Service v. Google, a case involving search engines that automatically~~
~~converted addresses provided by third parties into “pinpoints” appearing on the search engines’~~
~~mapping websites, the D.C. Circuit emphasized that the search engines’ tools did “not~~
~~distinguish” between different types of user content.186 Instead, the algorithm translated all types~~
~~of information, both legitimate and scam information, in the same manner.187 The Second Circuit~~
~~in Force characterized Facebook’s involvement in user content as “neutral” when Facebook did~~
~~not require users to provide more than “basic identifying information” and its sorting algorithms~~
~~used “objective factors” that applied in the same way “to any content.”188~~
(en banc)). 211 Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014); accord Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270 (9th Cir. 2016) (characterizing a rating system based on third-party input as a “neutral tool”). 212 Marshall’s Locksmith Serv., 925 F.3d at 1271. 213 Id. 214 Force, 934 F.3d at 70. Congressional Research Service 20 link to page 11 link to page 26 Section 230: An Overview The Ninth Circuit reached a similar conclusion in a since-vacated decision in Gonzalez v. Google LLC, which also involved claims brought by victims of terrorist attacks against social media providers.215 As in Force, two members of the three-judge panel held that Section 230 would bar these claims because they sought to impose liability based on a decision not to remove terrorist content and because Google’s algorithms applied to terrorist content no differently than they applied to other content.216 The Supreme Court granted certiorari in Gonzalez, but vacated the Ninth Circuit’s judgment without addressing Section 230.217 Section 230(c)(2)(A): Restricting Access to Objectionable Material
Section 230(c)(2)(A) states that service providers and users may not “be held liable” for Section 230(c)(2)(A) states that service providers and users may not “be held liable” for
voluntary, “good faith” actions “to restrict access to or availability of material that the provider or voluntary, “good faith” actions “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 user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.”objectionable, whether or not such material is constitutionally protected.”~~189~~218 This provision is This provision is
more limited than Section 230(c)(1) in a few ways. First, as discussed above,more limited than Section 230(c)(1) in a few ways. First, as discussed above,~~190~~219 while a number while a number
of courts have held that Section 230(c)(1) shields decisions both to distribute and to restrict of courts have held that Section 230(c)(1) shields decisions both to distribute and to restrict
others’ content, Section 230(c)(2) applies only to decisions to restrict content. For example, others’ content, Section 230(c)(2) applies only to decisions to restrict content. For example,
providers have successfully invoked Section 230(c)(2) in claims challenging decisions to providers have successfully invoked Section 230(c)(2) in claims challenging decisions to ~~remove~~restrict
user videos,user videos,~~191~~220 suspend accounts, suspend accounts,~~192~~221 prevent unsolicited bulk emails, prevent unsolicited bulk emails,~~193 or decisions~~ 222 or not to run not to run
certain ads.certain ads.~~194~~ 223 In addition, unlike Section 230(c)(1), Section 230(c)(2) applies only to voluntary, In addition, unlike Section 230(c)(1), Section 230(c)(2) applies only to voluntary,
good-faith actions, and it applies only to the listed categories of “objectionable” material.good-faith actions, and it applies only to the listed categories of “objectionable” material.~~195~~

~~185 Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014); accord Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270~~
~~(9th Cir. 2016) (characterizing a rating system based on third-party input as a “neutral tool”).~~
~~186 Marshall’s Locksmith Serv., 925 F.3d at 1271.~~
187 Id.
~~188 Force, 934 F.3d at 70.~~
~~189 47 U.S.C. § 230(c)(2)(A).~~
~~190 Supra note 76 and accompanying text.~~
~~191 Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 603–04 (S.D.N.Y. 2020) (involving free speech and discrimination~~
~~claims).~~
~~192 Dipp-Paz v. Facebook, No. 18-CV-9037, 2019 WL 3205842, at *3 (S.D.N.Y. July 12, 2019) (involving~~
~~constitutional free speech claims); Cox v. Twitter, Inc., No. 2:18-2573-DCN-BM, 2019 WL 2513963, at *3 (D.S.C.~~
~~Feb. 8, 2019) (involving unclear legal claims).~~
~~193~~224 These limits on Section 230(c)(2) immunity have been litigated in the courts and have led courts to conclude, in some circumstances, that providers cannot claim Section 230 immunity.225 215 Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021), vacated, 598 U.S. 617 (2023) (per curiam). 216 Id. at 892, 896. 217 Gonzalez v. Google LLC, 598 U.S. 617, 621 (2023) (per curiam) (ruling the complaint failed to state a claim for aiding and abetting an act of international terrorism). 218 47 U.S.C. § 230(c)(2)(A). 219 Supra note 82 and accompanying text. 220 E.g., Divino Grp. LLC v. Google LLC, No. 19-cv-04749-VKD, 2022 WL 4625076, at *18 (N.D. Cal. Sept. 30, 2022) (involving state discrimination and unfair competition claims). 221 E.g., Berenson v. Twitter, Inc., No. 21-09818, 2022 WL 1289049, at *2 (N.D. Cal. Apr. 29, 2022) (involving, among others, federal and state unfair competition laws and state common carrier law); Dipp-Paz v. Facebook, No. 18-CV-9037, 2019 WL 3205842, at *3 (S.D.N.Y. July 12, 2019) (involving constitutional free speech claims). 222 E.g., Green v. Am. Online (AOL), 318 F.3d 465, 473 (3rd Cir. 2003) (involving negligence, breach of contract, Green v. Am. Online (AOL), 318 F.3d 465, 473 (3rd Cir. 2003) (involving negligence, breach of contract,
constitutional free speech, and consumer fraud claims); Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, constitutional free speech, and consumer fraud claims); Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097,
1105 (N.D. Cal. 2011) (involving, among others, intentional interference with contract and intentional interference with 1105 (N.D. Cal. 2011) (involving, among others, intentional interference with contract and intentional interference with
prospective business advantage claims); prospective business advantage claims); ~~360Insight~~e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D. Ill. 2008) , LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D. Ill. 2008)
(involving federal Computer Fraud and Abuse Act, constitutional free speech, tortious interference with prospective (involving federal Computer Fraud and Abuse Act, constitutional free speech, tortious interference with prospective
economic advantage, and consumer fraud claims). economic advantage, and consumer fraud claims).
~~194~~223 E.g., Langdon v. Google, Inc., 474 F. Supp. 2d 622, 630–31 (D. Del. 2007) (involving free speech, fraud, breach of Langdon v. Google, Inc., 474 F. Supp. 2d 622, 630–31 (D. Del. 2007) (involving free speech, fraud, breach of
contract, deceptive business practices, and “public calling” claims). contract, deceptive business practices, and “public calling” claims).
~~195~~224 See 47 U.S.C. § 230(c). 47 U.S.C. § 230(c). See also, e.g., Fyk v. Facebook, Inc., 808 Fed. App’x 597, 598 (9th Cir. 2020) (“Unlike 47 , Fyk v. Facebook, Inc., 808 Fed. App’x 597, 598 (9th Cir. 2020) (“Unlike 47
U.S.C. § 230(c)(2)(A), nothing in § 230(c)(1) turns on the alleged motives underlying the editorial decisions of the U.S.C. § 230(c)(2)(A), nothing in § 230(c)(1) turns on the alleged motives underlying the editorial decisions of the
provider of an interactive computer service.”). provider of an interactive computer service.”).
~~Congressional Research Service~~
19

~~Section 230: An Overview~~

~~These limits on Section 230(c)(2) immunity have been litigated in the courts and have led courts~~
~~to conclude, in some circumstances, that providers cannot claim Section 230 immunity.196~~
As discussed below, some courts have interpreted these categories broadly. See infra “Objectionable Material.” 225 See, e.g., Enhanced Athlete Inc. v. Google LLC, No. 19-cv-08260-HSG, 2020 WL 4732209, at *4 (N.D. Cal. Aug. 14, 2020); e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3 (M.D. Fla. Feb. 8, 2017); Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2016 WL 6540452, at *8 (N.D. Cal. Nov. 2, 2016). Congressional Research Service 21 Section 230: An Overview Good Faith
Providers or users may claim immunity under Section 230(c)(2)(A) only if they act in “good Providers or users may claim immunity under Section 230(c)(2)(A) only if they act in “good
faith.”faith.”~~197~~226 The statute does not itself define what it means to act in good faith, and courts have The statute does not itself define what it means to act in good faith, and courts have
applied a few different understandings of the term. Some trial court decisions have denied applied a few different understandings of the term. Some trial court decisions have denied
immunity and allowed claims to proceed where the plaintiff alleged that a service provider acted immunity and allowed claims to proceed where the plaintiff alleged that a service provider acted
with an anticompetitive motive.with an anticompetitive motive.~~198~~227 For example, one court declined to dismiss a lawsuit alleging For example, one court declined to dismiss a lawsuit alleging
that Google had engaged in unfair competition by removing a company’s websites from its search that Google had engaged in unfair competition by removing a company’s websites from its search
results.results.~~199~~228 Although Google said it had removed the results because they were “webspam” that Although Google said it had removed the results because they were “webspam” that
violated its guidelines, the plaintiff claimed that Google actually had acted with an violated its guidelines, the plaintiff claimed that Google actually had acted with an
anticompetitive motive, because the plaintiff, which specialized in search engine optimization, anticompetitive motive, because the plaintiff, which specialized in search engine optimization,
“was cutting into Google’s revenues.”“was cutting into Google’s revenues.”~~200~~229 The court ruled that the plaintiff had presented enough The court ruled that the plaintiff had presented enough
evidence “to raise a genuine issue of fact” as to whether Google acted in good faith, preventing evidence “to raise a genuine issue of fact” as to whether Google acted in good faith, preventing
the court from dismissing the claim under Section 230.the court from dismissing the claim under Section 230.~~201~~230 To take another example, a different To take another example, a different
court allowed a claim to proceed where the plaintiff alleged that YouTube removed her video to court allowed a claim to proceed where the plaintiff alleged that YouTube removed her video to
punish her for working with a competitor rather than buying Google’s advertising services.punish her for working with a competitor rather than buying Google’s advertising services.~~202~~231
In evaluating whether a provider acted in good faith, courts have also looked to whether the In evaluating whether a provider acted in good faith, courts have also looked to whether the
provider’s rationale for restricting content is “pretextual.”provider’s rationale for restricting content is “pretextual.”~~203~~232 As one trial court put it, for a As one trial court put it, for a
removal to be made in good faith, “the provider must actually believe that the material is removal to be made in good faith, “the provider must actually believe that the material is
objectionable for the reasons it gives.”objectionable for the reasons it gives.”~~204~~233 Under this view, if a provider says it is enforcing its Under this view, if a provider says it is enforcing its
terms of service, but is in fact motivated by some other reason, the provider may be acting in bad terms of service, but is in fact motivated by some other reason, the provider may be acting in bad
faith.faith.~~205~~234 Another Another trial court concluded that a service provider could be seen as acting in bad faith court concluded that a service provider could be seen as acting in bad faith when the provider “failed to respond to [the user’s] repeated requests for an explanation.”235 In comparison, one trial court suggested that “selective enforcement” of a policy alone would not be enough to demonstrate bad faith.236 A mere mistake may be similarly insufficient.237 One trial court rejected allegations that Google acted in bad faith by sending emails from the Republican 226 47 U.S.C. § 230(c)(2)(A). 227~~when~~

~~196 See, e.g., Enhanced Athlete Inc. v. Google LLC, No. 19-cv-08260-HSG, 2020 WL 4732209, at *4 (N.D. Cal. Aug.~~
~~14, 2020); e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3~~
~~(M.D. Fla. Feb. 8, 2017); Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2016 WL 6540452, at *8 (N.D. Cal.~~
~~Nov. 2, 2016).~~
~~197 47 U.S.C. § 230(c)(2)(A).~~
~~198~~ See Darnaa, 2016 WL 6540452, at *8–9 (involving allegation that Google removed plaintiff’s video from YouTube , 2016 WL 6540452, at *8–9 (involving allegation that Google removed plaintiff’s video from YouTube
because the plaintiff refused to allow Google to embed advertising in the video)because the plaintiff refused to allow Google to embed advertising in the video)~~; e-ventures Worldwide, LLC, 2017 WL~~
~~2210029, at *1, 3 (M.D. Fla. Feb. 8, 2017) (involving allegation that Google delisted plaintiff, “an online publisher that~~
~~specializes in” search engine optimization, because it was “cutting into Google’s revenues”)~~. . Cf. Spy Phone Labs LLC Spy Phone Labs LLC
v. Google Inc., No. 15-cv-03756-KAW, 2016 WL 6025469, at *8 (N.D. Cal. Oct. 14, 2016) (involving allegation that v. Google Inc., No. 15-cv-03756-KAW, 2016 WL 6025469, at *8 (N.D. Cal. Oct. 14, 2016) (involving allegation that
Google was retaliating against plaintiff for submitting a trademark infringement complaint against another app). Google was retaliating against plaintiff for submitting a trademark infringement complaint against another app).
~~199~~228 e-ventures Worldwide, LLC, 2017 WL 2210029, at *1–2. Specifically, the lawsuit involved claims of “unfair , 2017 WL 2210029, at *1–2. Specifically, the lawsuit involved claims of “unfair
competition under the Lanham Act, 15 U.S.C. § 1125(a); violation of Florida’s Deceptive and Unfair Trade Practices competition under the Lanham Act, 15 U.S.C. § 1125(a); violation of Florida’s Deceptive and Unfair Trade Practices
Act; and tortious interference with contractual relationships.” Act; and tortious interference with contractual relationships.” Id. at *2. at *2.
~~200~~229 Id. at *1. at *1.
~~201~~230 Id. at *3. at *3.
~~202~~231 Darnaa, 2016 WL 6540452, at *8–9., 2016 WL 6540452, at *8–9.
~~203 Spy Phone Labs LLC v. Google Inc., No. 15-cv-03756-KAW, 2016 WL 6025469, at *8 (N.D. Cal. Oct. 14, 2016)~~232 Spy Phone Labs LLC, 2016 WL 6025469, at *8; ;
accord GCM Partners, LLC v. Hipaaline Ltd., No GCM Partners, LLC v. Hipaaline Ltd., No~~. No~~. 20 C 6401, 2020 WL 6867207, at *13 (N.D. Ill. Nov. 20 C 6401, 2020 WL 6867207, at *13 (N.D. Ill. Nov~~. 23, 2020),~~
appeal docketed, No. 20-3509 (7th Cir. Dec. 23, 2020).
~~204~~. 23, 2020). 233 Darnaa, 2016 WL 6540452, at *8. , 2016 WL 6540452, at *8.
~~205~~234 Id.; ; Spy Phone Labs, 2016 WL 6025469, at *8. , 2016 WL 6025469, at *8. But see Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631 (D. Del. Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631 (D. Del.
2007) (rejecting plaintiff’s assertion that the provider 2007) (rejecting plaintiff’s assertion that the provider ~~did not act in good~~acted in bad faith because it gave false reasons for faith because it gave false reasons for
declining to run his ads, on the grounds that the provider must have permissibly concluded they were “otherwise declining to run his ads, on the grounds that the provider must have permissibly concluded they were “otherwise
~~objectionable”).~~
~~Congressional Research Service~~
20

~~Section 230: An Overview~~

~~the provider “failed to respond to [the user’s] repeated requests for an explanation.”206 In~~
~~comparison, one trial court suggested that “selective enforcement” of a policy would not be~~
~~enough, by itself, to demonstrate bad faith.207~~
~~Objectionable Material~~
~~The other~~objectionable”). 235 Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-4567, 2011 WL 900096, at *9 (D.N.J. Mar. 15, 2011). 236 Spy Phone Labs, 2016 WL 6025469, at *8. See also e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 609 (N.D. Ill. 2008) (ruling that plaintiff did not sufficiently plead an “absence of good faith” even though the plaintiff claimed the provider “singl[ed] out” the plaintiff). 237 e360Insight, LLC, 546 F. Supp. 2d at 609; Deutsch v. Microsoft Corp., No. 22-2904, 2023 WL 2966947, at *6 (D.N.J. Apr. 17, 2023). Congressional Research Service 22 Section 230: An Overview National Committee (RNC) to users’ spam folders.238 The RNC proffered a study allegedly showing that Gmail labeled Republican campaign emails as spam at a significantly higher rate than Democratic emails.239 The court held this study alone did not demonstrate bad faith.240 Among other factors, the court observed that the study did not attribute any motive to Google, that Google had worked with the RNC to reduce its spam rate, and that the RNC conducted an internal test suggesting technical features rather than content affected the spam rate.241 Objectionable Material The second important limitation on Section 230(c)(2)(A) immunity is that it applies only when important limitation on Section 230(c)(2)(A) immunity is that it applies only when
providers or users restrict the listed types of content: “material that the provider or user considers providers or users restrict the listed types of content: “material that the provider or user considers
to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable.”objectionable.”~~208~~242 Although this list includes only specific types of content, it can still be Although this list includes only specific types of content, it can still be
interpreted relatively broadly. In particular, some courts have interpreted the catch-all phrase interpreted relatively broadly. In particular, some courts have interpreted the catch-all phrase
“otherwise objectionable” broadly because Section 230(c)(2)(A) states that the provider or user is “otherwise objectionable” broadly because Section 230(c)(2)(A) states that the provider or user is
the one who determines whether the content is objectionable.the one who determines whether the content is objectionable.~~209~~243 As one court noted, the statute’s As one court noted, the statute’s
text injects “a subjective element” into this inquiry, by asking whether “the provider or user text injects “a subjective element” into this inquiry, by asking whether “the provider or user
considers” the content to be objectionable.considers” the content to be objectionable.~~210~~244 Thus, some courts have concluded Thus, some courts have concluded~~, without~~
~~significant discussion,~~ that material classified as spam or malware can be considered “harassing” that material classified as spam or malware can be considered “harassing”
or “objectionable” under Section 230(c)(2)(A).or “objectionable” under Section 230(c)(2)(A).~~211~~245 In some cases, courts have looked to providers’ In some cases, courts have looked to providers’
policies to determine whether the providers considered the restricted material objectionable.policies to determine whether the providers considered the restricted material objectionable.~~212~~246
In 2009, one Ninth Circuit judge expressed concern about interpreting “otherwise objectionable” In 2009, one Ninth Circuit judge expressed concern about interpreting “otherwise objectionable”
too broadly, cautioning that “the literal terms of” Section 230(c)(2)(A) could be read to grant too broadly, cautioning that “the literal terms of” Section 230(c)(2)(A) could be read to grant
providers “free license to providers “free license to unilaterally block the dissemination of material by content block the dissemination of material by content
providers.”providers.”~~213~~247 While the “good faith” provision discussed above limits providers’ discretion, While the “good faith” provision discussed above limits providers’ discretion,~~214~~248
some courts have concluded that “otherwise objectionable” should also be read more narrowly to some courts have concluded that “otherwise objectionable” should also be read more narrowly to
~~avoid giving providers this free license.215 For example, one trial court denied Section 230~~

~~206 Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-4567, 2011 WL 900096, at *9 (D.N.J. Mar.~~
~~15, 2011).~~
~~207 Spy Phone Labs, 2016 WL 6025469, at *8. See also e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 609~~
~~(N.D. Ill. 2008) (ruling that plaintiff did not sufficiently plead an “absence of good faith” even though the plaintiff~~
~~claimed the provider “singl[ed] out” the plaintiff).~~
~~208 47 U.S.C. § 230(c)(2)(A).~~
~~209~~ 238 Republican Nat’l Comm. v. Google, Inc., No. 2:22-cv-01904, 2023 WL 5487311, at *6 (E.D. Cal. Aug. 24, 2023). 239 Id. 240 Id. 241 Id. 242 47 U.S.C. § 230(c)(2)(A). 243 See, e.g., , e360Insight, 546 F. Supp. 2d at 607–08. , 546 F. Supp. 2d at 607–08.
~~210~~244 Id. at 608. See also, e.g., Id. at 608. See also Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 603 (S.D.N.Y. 2020) (“Section 230(c)(2) is focused
~~upon the provider’s subjective intent . . . .”);~~ Zango, Inc. v Kaspersky Lab, Inc., No. 07-0807-JCC, 2007 WL 5189857, Zango, Inc. v Kaspersky Lab, Inc., No. 07-0807-JCC, 2007 WL 5189857,
at *4 (W.D. Wash. Aug. 28, 2007) (“Section 230(c)(2)(A), which provides the definition of the relevant material at *4 (W.D. Wash. Aug. 28, 2007) (“Section 230(c)(2)(A), which provides the definition of the relevant material
described in Section 230(c)(2)(B), does not require that the material actually be objectionable; rather, it affords described in Section 230(c)(2)(B), does not require that the material actually be objectionable; rather, it affords
protection for blocking material ‘that the provider or user considers to be’ objectionable.protection for blocking material ‘that the provider or user considers to be’ objectionable.” (quoting 47 U.S.C. § 230(c)(2)(A) 47 U.S.C. § 230(c)(2)(A).”)), ),
aff’d, 568 F.3d 1169 (9th Cir. 2009)., 568 F.3d 1169 (9th Cir. 2009). Cf. Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1104 (N.D. Cal. Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1104 (N.D. Cal.
2011) (“No court has articulated specific, objective criteria to be used in assessing . . . a provider’s subjective 2011) (“No court has articulated specific, objective criteria to be used in assessing . . . a provider’s subjective
determination of what is ‘objectionable’ . . . . Here, however, it is clear . . . that Microsoft determination of what is ‘objectionable’ . . . . Here, however, it is clear . . . that Microsoft reasonably could conclude could conclude
that Holomaxx’s emails were ‘harassing’ and thus ‘otherwise objectionable.’” (emphasis added)).that Holomaxx’s emails were ‘harassing’ and thus ‘otherwise objectionable.’” (emphasis added)).
~~211~~245 E.g., e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3 (M.D. Fla. e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3 (M.D. Fla.
Feb. 8, 2017) (“[S]pam is undoubtedly ‘harassing’ or ‘objectionable’ content for purposes of the CDA.”)Feb. 8, 2017) (“[S]pam is undoubtedly ‘harassing’ or ‘objectionable’ content for purposes of the CDA.”)~~; accord Green~~
~~v. Am. Online (AOL), 318 F.3d 465, 473 (3rd Cir. 2003)~~. . See also Zango, 2007 WL 5189857, at *4 (“There is no , 2007 WL 5189857, at *4 (“There is no
question that [the provider] considers the software to be objectionable [as malware].”); Langdon v. Google, Inc., 474 F. question that [the provider] considers the software to be objectionable [as malware].”); Langdon v. Google, Inc., 474 F.
Supp. 2d 622, 631 (D. Del. 2007) (concluding implicitly, without discussion, that Section 230 barred plaintiff’s lawsuit Supp. 2d 622, 631 (D. Del. 2007) (concluding implicitly, without discussion, that Section 230 barred plaintiff’s lawsuit
because Google considered his ads “otherwise objectionable”). because Google considered his ads “otherwise objectionable”).
~~212~~246 E.g., E.g., Domen, 433 F. Supp. 3d at 604; e360Insight, 546 F. Supp. 2d at 608. , 546 F. Supp. 2d at 608.
~~213~~247 Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1178 (9th Cir. 2009) (Fisher, J., concurring). Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1178 (9th Cir. 2009) (Fisher, J., concurring).
~~214~~248 Cf. id. at 1179 (expressing concern that Section 230(c)(2)(B) does not contain a good faith limitation). at 1179 (expressing concern that Section 230(c)(2)(B) does not contain a good faith limitation).
~~215 See, e.g., Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1050 (9th Cir. 2019); Song Fi~~
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link to page link to page 2628 link to page link to page 2729 Section 230: An Overview

avoid giving providers this free license.249 For example, one trial court denied Section 230 immunity to YouTube in a case challenging YouTube’s decision to remove a video because its immunity to YouTube in a case challenging YouTube’s decision to remove a video because its
view count had allegedly been artificially inflated.view count had allegedly been artificially inflated.~~216~~250 The court noted that the ordinary meaning The court noted that the ordinary meaning
of “objectionable” could include anything a provider finds undesirable, but ultimately concluded of “objectionable” could include anything a provider finds undesirable, but ultimately concluded
that such a broad definition was inconsistent with “the context, history, and purpose” of Section that such a broad definition was inconsistent with “the context, history, and purpose” of Section
230.230.~~217~~251 Looking to the list of adjectives preceding “otherwise objectionable,” the court believed Looking to the list of adjectives preceding “otherwise objectionable,” the court believed
that Congress was focused on “potentially offensive materials, not simply any materials that Congress was focused on “potentially offensive materials, not simply any materials
undesirable to a content provider or user.”undesirable to a content provider or user.”~~218~~252 Consequently, the court said that “it is hard to Consequently, the court said that “it is hard to
imagine that the phrase includes . . . the allegedly artificially inflated view count.”imagine that the phrase includes . . . the allegedly artificially inflated view count.”~~219~~ 253 Similarly Similarly
looking to congressional intent, the Ninth Circuit held in a 2019 case that the term “otherwise looking to congressional intent, the Ninth Circuit held in a 2019 case that the term “otherwise
objectionable” should be interpreted to exclude anticompetitive conduct.objectionable” should be interpreted to exclude anticompetitive conduct.~~220~~254 At the same time, however, the court emphasized the “breadth of the term” and concluded it should be read more broadly than the specific categories preceding the “catchall phrase.”255 This Ninth Circuit This Ninth Circuit
ruling interpreted Section 230(c)(2)(B) and is discussed in more detail below.ruling interpreted Section 230(c)(2)(B) and is discussed in more detail below.~~221~~256
Section 230(c)(2)(B): Enabling Access Restriction
Section 230(c)(2)(B) provides that service providers and users may not “be held liable” for Section 230(c)(2)(B) provides that service providers and users may not “be held liable” for
actions “taken to enable or make available to . . . others the technical means to restrict access to actions “taken to enable or make available to . . . others the technical means to restrict access to
material” that falls within the specific categories listed in Section 230(c)(2)(A).material” that falls within the specific categories listed in Section 230(c)(2)(A).~~222~~257 Accordingly, Accordingly,
Section 230(c)(2)(B) focuses on enabling Section 230(c)(2)(B) focuses on enabling others to restrict access to objectionable material, and to restrict access to objectionable material, and
offers immunity to, for example, “providers of programs that filter adware and malware,”offers immunity to, for example, “providers of programs that filter adware and malware,”~~223~~258 as as
well as services that enable the filtering of spam email.well as services that enable the filtering of spam email.~~224~~259 Courts have concluded that companies Courts have concluded that companies
~~like Facebook are also eligible for Section 230(c)(2)(B) immunity, to the extent they provide~~
~~users with tools to hide or otherwise restrict their own access to content.225~~

249 See, e.g., Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1050 (9th Cir. 2019); Song Fi Inc. v. Google, Inc., 108 F. Supp. 3d 876, 884 (N.D. Cal. 2015); Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, Inc. v. Google, Inc., 108 F. Supp. 3d 876, 884 (N.D. Cal. 2015); Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW,
2016 WL 6540452, at *8 (N.D. Cal. Nov. 2, 2016). 2016 WL 6540452, at *8 (N.D. Cal. Nov. 2, 2016).
~~216~~250 Song Fi, 108 F. Supp. 3d at 882. , 108 F. Supp. 3d at 882.
~~217~~251 Id. at 882, 884. at 882, 884.
~~218~~252 Id. See also Darnaa, 2016 WL 6540452, at *8 (“The context of § 230(c)(2) appears to limit the term , 2016 WL 6540452, at *8 (“The context of § 230(c)(2) appears to limit the term
~~[“objectionable”]~~ [objectionable] to that which the provider or user considers sexually offensive, violent, or harassing in content.”)to that which the provider or user considers sexually offensive, violent, or harassing in content.”); ~~but~~
~~see~~ Enigma Software Grp. USA, 946 F.3d at 1051 (rejecting the argument that “the term ‘objectionable’ . . . cover[s]
~~only material that is sexual or violent in nature”).~~
~~219~~. 253 Song Fi, 108 F. Supp. 3d at 883. , 108 F. Supp. 3d at 883.
~~220~~254 Enigma Software Grp. USA, 946 F.3d at 1045 (“, 946 F.3d at 1045 (“~~We hold that the~~[T]he phrase ‘otherwise objectionable’ does not include phrase ‘otherwise objectionable’ does not include
software that the provider finds objectionable for anticompetitive reasons.”); software that the provider finds objectionable for anticompetitive reasons.”); id. at 1051 (“Congress wanted to at 1051 (“Congress wanted to
encourage the development of filtration technologies, not to enable software developers to drive each other out of encourage the development of filtration technologies, not to enable software developers to drive each other out of
business.”). business.”).
~~221 Infra notes 236 to 242 and accompanying text.~~
~~222~~255 Id. at 1051; see also id. at 1052 (“We think that the catchall was more likely intended to encapsulate forms of unwanted online content that Congress could not identify in the 1990s.”). See also, e.g., Word of God Fellowship, Inc. v. Vimeo, Inc., 166 N.Y.S.3d 3, 7–8 (N.Y. App. Div. 2022) (rejecting a narrow reading of “objectionable” given the differences in the categories and concluding “vaccine misinformation may be ‘otherwise objectionable’ content that providers are entitled to remove”). 256 Infra notes 271 to 277 and accompanying text. 257 47 U.S.C. § 230(c)(2)(B). Although Section 230(c)(2)(B) refers to “material described in paragraph (1),” a note in 47 U.S.C. § 230(c)(2)(B). Although Section 230(c)(2)(B) refers to “material described in paragraph (1),” a note in
the United States Code indicates that this is likely meant to reference “subparagraph (A)” instead. the United States Code indicates that this is likely meant to reference “subparagraph (A)” instead. Id. n.1. n.1.
~~223~~258 Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1174 (9th Cir. 2009). Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1174 (9th Cir. 2009). See generally, e.g., Russell A. Miller, , Russell A. Miller, The
Legal Fate of Internet Ad-Blocking, 24 B.U. J. SCI. & TECH. L. 301, 358–60 (2018) (discussing how Section , 24 B.U. J. SCI. & TECH. L. 301, 358–60 (2018) (discussing how Section
230(c)(2)(B) might protect ad-blocking firms from liability). 230(c)(2)(B) might protect ad-blocking firms from liability).
~~224~~259 Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-4567, 2011 WL 900096, at *6 (D.N.J. Mar. Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-4567, 2011 WL 900096, at *6 (D.N.J. Mar.
15, 2011) (granting Section 230(c)(2)(B) immunity to service that investigated and provided information about IP 15, 2011) (granting Section 230(c)(2)(B) immunity to service that investigated and provided information about IP
addresses, “help[ing] information content providers restrict access to spam email”); addresses, “help[ing] information content providers restrict access to spam email”); id. at *8 (granting Section at *8 (granting Section
230(c)(2)(B) immunity to software that “provide[d] Comcast with a means to restrict access to harassing spam email”). 230(c)(2)(B) immunity to software that “provide[d] Comcast with a means to restrict access to harassing spam email”).
~~225 Fehrenbach v. Zeldin, No. 17-CV-5282, 2018 WL 4242452, at *5 (E.D.N.Y. Aug. 6, 2018) (holding that~~ Congressional Research Service 24 link to page 26 Section 230: An Overview like Facebook are also eligible for Section Section
~~230(c)(2)(B) immunized Facebook from a complaint premised on the fact that Facebook allows users to hide~~
~~comments).~~
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230(c)(2)(B) immunity, to the extent they provide users with tools to hide or otherwise restrict their own access to content.260 The fact that a company provides users with the choice to opt out of receiving certain content, The fact that a company provides users with the choice to opt out of receiving certain content,
however, may not always be sufficient to gain Section 230(c)(2)(B) immunity.however, may not always be sufficient to gain Section 230(c)(2)(B) immunity.~~226~~261 In one case, a In one case, a
plaintiff sued Yahoo! for sending automated text message notifications about messages the plaintiff sued Yahoo! for sending automated text message notifications about messages the
plaintiff had received on Yahoo! Messenger.plaintiff had received on Yahoo! Messenger.~~227~~262 Yahoo! claimed that the suit was barred by Section Yahoo! claimed that the suit was barred by Section
230(c)(2)(B) because the text message “include[d] a link to a help page which . . . contain[ed] 230(c)(2)(B) because the text message “include[d] a link to a help page which . . . contain[ed]
instructions on how to block further messages,” and accordingly, made “available the ‘technical instructions on how to block further messages,” and accordingly, made “available the ‘technical
means to restrict access’ to messages which plaintiff might deem ‘objectionable.’”means to restrict access’ to messages which plaintiff might deem ‘objectionable.’”~~228~~263 The trial The trial
court rejected this claim, noting that because the text message notifications were sent court rejected this claim, noting that because the text message notifications were sent
automatically, “neither Yahoo! nor the mobile phone user ha[d] the opportunity to determine automatically, “neither Yahoo! nor the mobile phone user ha[d] the opportunity to determine
whether the third party message” was objectionable.whether the third party message” was objectionable.~~229~~264 Accordingly, the court held that Yahoo! Accordingly, the court held that Yahoo!
could not claim Section 230(c)(2)(B) immunity where it “did not engage in any form of content could not claim Section 230(c)(2)(B) immunity where it “did not engage in any form of content
analysis of the subject text to identify material that was offensive or harmful prior to the analysis of the subject text to identify material that was offensive or harmful prior to the
automatic sending of a notification message.”automatic sending of a notification message.”~~230~~265
Because Section 230(c)(2)(B) applies only to actions restricting the types of content listed in Because Section 230(c)(2)(B) applies only to actions restricting the types of content listed in
Section 230(c)(2)(A),Section 230(c)(2)(A),~~231~~266 it implicates the same interpretive questions discussed above regarding it implicates the same interpretive questions discussed above regarding
whether the provider or user considered the restricted material “to be obscene, lewd, lascivious, whether the provider or user considered the restricted material “to be obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise objectionable.”filthy, excessively violent, harassing, or otherwise objectionable.”~~232~~267 However, unlike Section However, unlike Section
230(c)(2)(A), Section 230(c)(2)(B) does not contain an explicit requirement for the provider or 230(c)(2)(A), Section 230(c)(2)(B) does not contain an explicit requirement for the provider or
user to act in good faith.user to act in good faith.~~233~~268 Thus, one Ninth Circuit judge expressed concern that Section Thus, one Ninth Circuit judge expressed concern that Section
230(c)(2)(B) could be read to grant immunity to bad faith conduct, including “covert, 230(c)(2)(B) could be read to grant immunity to bad faith conduct, including “covert,
anticompetitive blocking” of competitors.anticompetitive blocking” of competitors.~~234~~269 The judge believed it was “very likely” that The judge believed it was “very likely” that
Congress “did not intend to immunize” such conduct.Congress “did not intend to immunize” such conduct.~~235~~270
In a 2019 decision, In a 2019 decision, Enigma Software Group USA, LLC v. Malwarebytes, Inc., the Ninth Circuit , the Ninth Circuit
held that Section 230(c)(2)(B) did not block a suit alleging anticompetitive conduct.held that Section 230(c)(2)(B) did not block a suit alleging anticompetitive conduct.~~236~~271 A A
company that sold computer security software sued a competitor after the competitor began company that sold computer security software sued a competitor after the competitor began
flagging some of the plaintiff’s programs as “potentially unwanted programs.”flagging some of the plaintiff’s programs as “potentially unwanted programs.”~~237 The plaintiff~~
~~argued that this characterization served “as a ‘guise’ for anticompetitive conduct.”238 In evaluating~~

~~226~~272 The plaintiff 260 Fehrenbach v. Zeldin, No. 17-CV-5282, 2018 WL 4242452, at *5 (E.D.N.Y. Aug. 6, 2018) (holding that Section 230(c)(2)(B) immunized Facebook from a complaint premised on the fact that Facebook allows users to hide comments). 261 Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129, 1138 (S.D. Cal. 2014). Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129, 1138 (S.D. Cal. 2014).
~~227~~262 Id. at 1130. at 1130.
~~228~~263 Id. at 1137 (quoting 47 U.S.C. § 230(c)(2)). at 1137 (quoting 47 U.S.C. § 230(c)(2)).
~~229~~264 Id. at 1138. at 1138.
~~230~~265 Id.
~~231~~266 47 U.S.C. § 230(c)(2)(B). 47 U.S.C. § 230(c)(2)(B).
~~232~~267 Id. § 230(c)(2)(A); § 230(c)(2)(A); supra “Objectionable Material.”
~~233~~268 47 U.S.C. § 230(c)(2). 47 U.S.C. § 230(c)(2). See also, e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 (9th Cir. 2009) , Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 (9th Cir. 2009)
(holding that allegations that provider acted in bad faith did not preclude dismissal of suit under Section 230(c)(2)(B) (holding that allegations that provider acted in bad faith did not preclude dismissal of suit under Section 230(c)(2)(B)
because this subparagraph “has no good faith language,” and noting that the plaintiff waived any argument that the because this subparagraph “has no good faith language,” and noting that the plaintiff waived any argument that the
provision “should be construed implicitly to have a good faith component”). provision “should be construed implicitly to have a good faith component”).
~~234~~269 Zango, 568 F.3d at 1179 (Fisher, J., concurring). , 568 F.3d at 1179 (Fisher, J., concurring).
~~235~~270 Id.; ; see also id. at 1179 n.3 (“[T]he legislative history the parties cite is not helpful in determining the exact at 1179 n.3 (“[T]he legislative history the parties cite is not helpful in determining the exact
boundaries of what Congress intended to immunize. Whatever those exact boundaries, I doubt Congress intended to boundaries of what Congress intended to immunize. Whatever those exact boundaries, I doubt Congress intended to
leave victims of malicious or anticompetitive blocking without a cause of action . . . .”). leave victims of malicious or anticompetitive blocking without a cause of action . . . .”).
~~236~~271 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1045 (9th Cir. 2019). Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1045 (9th Cir. 2019).
~~237~~272 Id. at 1047–48. Congressional Research Service 25 link to page 7 link to page 8 Section 230: An Overview argued that this characterization served “as a ‘guise’ for anticompetitive conduct.”273 In evaluating Id. at 1047–48.
~~238 Id. at 1048. Specifically, the complaint alleged both state law causes of action—deceptive business practices and~~
~~tortious interference with business and contractual relations—and a federal claim under the Lanham Act. Id. The Ninth~~
~~Circuit also considered whether the Lanham Act claim fell within the Section 230 exception for intellectual property~~
~~claims, holding that it did not. Id. at 1045.~~
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the competitor’s attempt to claim immunity under Section 230(c)(2)(B), the Ninth Circuit looked the competitor’s attempt to claim immunity under Section 230(c)(2)(B), the Ninth Circuit looked
to to ~~Congress’s purpose in enacting Section 230~~Section 230’s purpose, concluding that “Congress wanted to encourage , concluding that “Congress wanted to encourage
the development of filtration technologies, not to enable software developers to drive each other the development of filtration technologies, not to enable software developers to drive each other
out of business.”out of business.”~~239~~ 274 Accordingly, the court rejected the idea that the competitor could claim Accordingly, the court rejected the idea that the competitor could claim
immunity “regardless of anticompetitive purpose.”immunity “regardless of anticompetitive purpose.”~~240~~275 The court believed that the term The court believed that the term
“objectionable” is not limited only to “material that is sexual or violent in nature,” and can “objectionable” is not limited only to “material that is sexual or violent in nature,” and can
encompass other “forms of unwanted online content that Congress could not identify in the encompass other “forms of unwanted online content that Congress could not identify in the
1990s.”1990s.”~~241~~276 But “if a provider’s basis for objecting to and seeking to block materials is because But “if a provider’s basis for objecting to and seeking to block materials is because
those materials benefit a competitor,” the court held that the provider could not claim Section 230 those materials benefit a competitor,” the court held that the provider could not claim Section 230
immunity.immunity.~~242~~277
This decision was appealed to the Supreme Court, and although the Court declined the appeal, the This decision was appealed to the Supreme Court, and although the Court declined the appeal, the
case garnered a number of amicus briefs from parties interested in the case, as well as a separate case garnered a number of amicus briefs from parties interested in the case, as well as a separate
statement from Justice Thomas respecting the denial of certiorari.statement from Justice Thomas respecting the denial of certiorari.~~243~~278 Interest groups argued that Interest groups argued that
the Ninth Circuit’s decision improperly imported a “good faith” requirement into Section the Ninth Circuit’s decision improperly imported a “good faith” requirement into Section
230(c)(2)(B), even though the text did not contain such a limitation.230(c)(2)(B), even though the text did not contain such a limitation.~~244~~279 In an opinion concurring In an opinion concurring
in the Court’s decision to deny certiorari, Justice Thomas argued that the Ninth Circuit decision—in the Court’s decision to deny certiorari, Justice Thomas argued that the Ninth Circuit decision—
and other decisions interpreting Section 230—improperly “relied on purpose and policy” rather and other decisions interpreting Section 230—improperly “relied on purpose and policy” rather
than textual arguments, creating “questionable precedent.”than textual arguments, creating “questionable precedent.”~~245~~280 It remains to be seen whether courts It remains to be seen whether courts
outside the Ninth Circuit will agree with its ruling. outside the Ninth Circuit will agree with its ruling.
Section 230(e): Exceptions
As detailed above, Section 230(e) outlines five exceptions to the immunity created by Section As detailed above, Section 230(e) outlines five exceptions to the immunity created by Section
230.230.~~246~~281 A defendant cannot claim Section 230 immunity as a basis to dismiss a federal criminal A defendant cannot claim Section 230 immunity as a basis to dismiss a federal criminal
prosecution or any lawsuit brought under intellectual property laws, state laws that are consistent prosecution or any lawsuit brought under intellectual property laws, state laws that are consistent
with Section 230, certain electronic communications privacy laws, or certain sex trafficking with Section 230, certain electronic communications privacy laws, or certain sex trafficking
laws.laws.~~247~~
~~Federal Criminal Law~~
~~The first exception to Section 230 immunity is for “any . . . Federal criminal statute,” meaning~~
~~that any defendant in a federal criminal prosecution cannot claim Section 230 immunity.248 For~~
~~example, Section 230 does not bar prosecution under federal statutes that prohibit the knowing~~

~~239 Id. at 1051.~~
240 Id.
~~241 Id. at 1051–52.~~
~~242~~282 Outside of these exceptions, courts have generally held that Section 230 will bar inconsistent liability even under later-enacted federal civil laws.283 273 Id. at 1048. Specifically, the complaint alleged both state law causes of action—deceptive business practices and tortious interference with business and contractual relations—and a federal claim under the Lanham Act. Id. The Ninth Circuit also considered whether the Lanham Act claim fell within the Section 230 exception for intellectual property claims, holding that it did not. Id. at 1045. 274 Id. at 1051. 275 Id. 276 Id. at 1051–52. 277 Id. at 1052. However, the court noted that the defendant provider disputed whether it did engage in “anticompetitive at 1052. However, the court noted that the defendant provider disputed whether it did engage in “anticompetitive
blocking” and claimed instead that it found the plaintiff’s “programs ‘objectionable’ for legitimate reasons based on the blocking” and claimed instead that it found the plaintiff’s “programs ‘objectionable’ for legitimate reasons based on the
programs’ content.” programs’ content.” Id. The court suggested this factual dispute could be resolved on remand to the lower court. The court suggested this factual dispute could be resolved on remand to the lower court. Id.
~~243~~278 See Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13 (2020). Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13 (2020).
~~244~~279 See, e.g., Brief of Electronic Frontier Foundation as , Brief of Electronic Frontier Foundation as Amicus Curiae in Support of Petitioner at 4, in Support of Petitioner at 4, Malwarebytes, Inc., ,
208 L. Ed. 2d 197 (No. 19-1284); Brief of TechFreedom as 208 L. Ed. 2d 197 (No. 19-1284); Brief of TechFreedom as Amicus Curiae in Support of Petitioner at 5, in Support of Petitioner at 5, Malwarebytes,
Inc., 208 L. Ed. 2d 197 (No. 19-1284). , 208 L. Ed. 2d 197 (No. 19-1284).
~~245~~280 Malwarebytes, Inc., 141 S. Ct. at 13–14 (Thomas, J., statement respecting the denial of certiorari). , 141 S. Ct. at 13–14 (Thomas, J., statement respecting the denial of certiorari).
~~246~~281 Supra no notes 3540 to 4449 and accompanying text. nd accompanying text.
~~247~~282 See 47 U.S.C. § 230(e). 47 U.S.C. § 230(e).
~~248 Id. § 230(e)(1).~~
~~Congressional Research Service~~
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~~link to page 31~~283 For example, two federal courts of appeals concluded that the Justice Against Sponsors of Terrorism Act, adopted in 2016, did not implicitly repeal Section 230, and Section 230 would therefore bar any inconsistent liability. Gonzalez v. Google LLC, 2 F.4th 871, 889 (9th Cir. 2021), vacated, 598 U.S. 617 (2023) (ruling on the merits of the claims and declining to address the application of Section 230); Force v. Facebook, Inc., 934 F.3d 53, 72 (2d Cir. 2019). Congressional Research Service 26 link to page 33 Section 230: An Overview Federal Criminal Law The first exception to Section 230 immunity is for “any . . . Federal criminal statute,” meaning that any defendant in a federal criminal prosecution cannot claim Section 230 immunity.284 For example, Section 230 does not bar prosecution under federal statutes that prohibit the knowing ~~Section 230: An Overview~~

distribution of obscene materialsdistribution of obscene materials~~.249~~ online.285 Neither did Section 230 bar the federal prosecution of Neither did Section 230 bar the federal prosecution of
Backpage.com corporate entities for conspiracy to engage in money laundering.Backpage.com corporate entities for conspiracy to engage in money laundering.~~250~~286 This exception This exception
does not include state criminal laws, and courts have read Section 230 to preempt inconsistent does not include state criminal laws, and courts have read Section 230 to preempt inconsistent
state criminal prosecutions.state criminal prosecutions.~~251~~
~~Courts~~287 Most courts to consider the issue have interpreted Section 230(e)(1) to allow only criminal prosecutions, not civil lawsuits have interpreted Section 230(e)(1) to allow only criminal prosecutions, not civil lawsuits
based on violations of federal criminal laws.based on violations of federal criminal laws.~~252~~288 A number of plaintiffs have argued that, A number of plaintiffs have argued that,
particularly where federal law creates criminal and civil liability for the same conduct, applying particularly where federal law creates criminal and civil liability for the same conduct, applying
Section 230 to bar suits under a civil enforcement provision would “impair the enforcement” of Section 230 to bar suits under a civil enforcement provision would “impair the enforcement” of
the criminal law.the criminal law.~~253 Courts~~289 Several courts have rejected those arguments, have rejected those arguments,~~254~~ 290 noting the traditional distinction noting the traditional distinction
between criminal and civil liability and concluding that, by referring only to “criminal” statutes in between criminal and civil liability and concluding that, by referring only to “criminal” statutes in
Section 230(e)(1), Congress intended to exclude civil suits.Section 230(e)(1), Congress intended to exclude civil suits.~~255~~291
Intellectual Property Law
The second exception to Section 230 immunity is for “any law pertaining to intellectual The second exception to Section 230 immunity is for “any law pertaining to intellectual
property.”property.”~~256~~292 This phrase is somewhat ambiguous, This phrase is somewhat ambiguous,~~257~~293 but courts have concluded that this exception 284 47 U.S.C. § 230(e)(1). 285 ~~but courts have concluded that this exception~~
~~for laws “pertaining to intellectual property” allows, for example, suits for copyright and~~
~~trademark infringement.258 In evaluating whether Section 230(e)(2) applies, courts have~~
~~sometimes looked not only to whether the plaintiff is suing under a law that generally involves~~

~~249~~ See, e.g., 18 U.S.C. § 1462 (making it a crime to “knowingly use[] any . . . interactive computer service . . . for , 18 U.S.C. § 1462 (making it a crime to “knowingly use[] any . . . interactive computer service . . . for
carriage in interstate or foreign commerce—(a) any obscene, lewd, lascivious, or filthy . . . picture, motion-picture film, carriage in interstate or foreign commerce—(a) any obscene, lewd, lascivious, or filthy . . . picture, motion-picture film,
. . . writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy . . . electrical . . . writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy . . . electrical
transcription, or other article or thing capable of producing sound”). transcription, or other article or thing capable of producing sound”).
~~250~~286 See Press Release, U.S. Dep’t of Justice, Backpage’s Co-founder and CEO, As Well As Several Backpage-Related Press Release, U.S. Dep’t of Justice, Backpage’s Co-founder and CEO, As Well As Several Backpage-Related
Corporate Entities, Enter Guilty Pleas (Apr. 12, 2018), https://www.justice.gov/opa/pr/backpage-s-co-founder-and-ceo-Corporate Entities, Enter Guilty Pleas (Apr. 12, 2018), https://www.justice.gov/opa/pr/backpage-s-co-founder-and-ceo-
well-several-backpage-related-corporate-entities-enter-guilty. well-several-backpage-related-corporate-entities-enter-guilty.
~~251~~287 See generally, e.g., Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318, at *3 (E.D. Pa. Aug. 30, , Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318, at *3 (E.D. Pa. Aug. 30,
2006) (interpreting Section 230(e)(1) not to include state criminal laws); 2006) (interpreting Section 230(e)(1) not to include state criminal laws); see also, e.g., Universal Commc’n Sys., Inc. v. , Universal Commc’n Sys., Inc. v.
Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) (dismissing suit under state cyberstalking law because defendant’s Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) (dismissing suit under state cyberstalking law because defendant’s
“liability would depend on treating it as the publisher of those postings”); Backpage.com, LLC v. McKenna, 881 F. “liability would depend on treating it as the publisher of those postings”); Backpage.com, LLC v. McKenna, 881 F.
Supp. 2d 1262, 1273 (W.D. Wash. 2012) (concluding proposed state legislation “is likely inconsistent with and Supp. 2d 1262, 1273 (W.D. Wash. 2012) (concluding proposed state legislation “is likely inconsistent with and
therefore expressly preempted by [47 U.S.C. § 230]” because it imposes “liability on Backpage.com and [Internet therefore expressly preempted by [47 U.S.C. § 230]” because it imposes “liability on Backpage.com and [Internet
Archive] for information created by third parties—namely ads for commercial sex acts depicting minors—so long as it Archive] for information created by third parties—namely ads for commercial sex acts depicting minors—so long as it
‘knows’ that it is publishing, disseminating, displaying . . . such information”). ‘knows’ that it is publishing, disseminating, displaying . . . such information”).
~~252~~288 See, e.g., , ~~Gonzalez v. Google, Inc., 335 F. Supp. 3d 1156, 1169 (N.D. Cal. 2018).~~ Yuksel v. Twitter, Inc., No. 22-cv-05415-TSH, 2022 WL 16748612, at *5 (N.D. Cal. Nov. 7, 2022); but see Doe #1 v. MG Freesites, Ltd., No. 7:21-cv-00220-LSC, 2022 WL 407147, at *22 (N.D. Ala. Feb. 9, 2022) (indicating Section 230 did not bar claims under certain civil provisions contained in Title 18); Nieman v. Versuslaw, Inc., No. 12-3104, 2012 WL 3201931, at *9 (C.D. Ill. Aug. 3, 2012) (saying in dicta that “arguably, § 230 of the CDA may not be used to bar a civil RICO claim because that would impair the enforcement of a Federal criminal statute”). Other exceptions do allow Other exceptions do allow
specific federal civil claims; for example, civil suits based on certain federal sex trafficking offenses may be permitted specific federal civil claims; for example, civil suits based on certain federal sex trafficking offenses may be permitted
under a different exception. under a different exception. See infra “Sex Trafficking Law (FOSTA).” ”
~~253~~289 E.g., Force v. Facebook, Inc., 934 F.3d 53, 71 (2d Cir. 2019); Doe v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. , Force v. Facebook, Inc., 934 F.3d 53, 71 (2d Cir. 2019); Doe v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir.
2016); Doe v. Bates, No. 5:05CV91, 2006 WL 8440858, at *13 (E.D. Tex. Jan. 18, 2006). 2016); Doe v. Bates, No. 5:05CV91, 2006 WL 8440858, at *13 (E.D. Tex. Jan. 18, 2006).
~~254~~290 E.g., , Force, 934 F.3d at 72; , 934 F.3d at 72; Backpage.com, 817 F.3d at 23; , 817 F.3d at 23; Bates, 2006 WL 8440858, at *14. , 2006 WL 8440858, at *14. But see Nieman v.
~~Versuslaw, Inc., No. 12-3104, 2012 WL 3201931, at *9 (C.D. Ill. Aug. 3, 2012) (saying in dicta that “arguably, § 230~~
~~of the CDA may not be used to bar a civil RICO claim because that would impair the enforcement of a Federal criminal~~
~~statute”).~~
~~255~~291 See, e.g., , Force, 934 F.3d at 71; , 934 F.3d at 71; Backpage.com, 817 F.3d at 23. , 817 F.3d at 23.
~~256~~292 47 U.S.C. § 230(e)(2). 47 U.S.C. § 230(e)(2).
~~257~~293 See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007) (“The CDA does not contain an express Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007) (“The CDA does not contain an express
~~definition of ‘intellectual property,’ and there are many types of claims in both state and federal law which may—or~~
~~may not—be characterized as ‘intellectual property’ claims.”).~~
~~258 E.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 503 n.8 (E.D. Penn. 2006); Gucci Am., Inc. v. Hall & Assocs.,~~
~~135 F. Supp. 2d 409, 414 (S.D.N.Y. 2001); Malibu Media, LLC v. Weaver, No. 8:14-cv-1580-T-33TBM, 2016 WL~~
~~1394331, at *8 (M.D. Fla. Apr. 8, 2016).~~
~~Congressional Research Service~~
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~~Section 230: An Overview~~

(continued...) Congressional Research Service 27 link to page 27 Section 230: An Overview for laws “pertaining to intellectual property” allows, for example, suits for copyright and trademark infringement.294 In evaluating whether Section 230(e)(2) applies, courts have sometimes looked not only to whether the plaintiff is suing under a law that generally involves intellectual property issues, but more specifically, whether the plaintiff’s claim itself involves an intellectual property issues, but more specifically, whether the plaintiff’s claim itself involves an
intellectual property right.intellectual property right.~~259~~295
For example, the Ninth Circuit ruled in 2019 that a false advertising claim brought under the For example, the Ninth Circuit ruled in 2019 that a false advertising claim brought under the
Lanham Act did not fall within the Section 230(e)(2) exception.Lanham Act did not fall within the Section 230(e)(2) exception.~~260~~296 The court noted that the The court noted that the
Lanham Act, a federal law, “contains two parts, one governing trademark infringement and Lanham Act, a federal law, “contains two parts, one governing trademark infringement and
another governing false designations of origin, false descriptions, and dilution.”another governing false designations of origin, false descriptions, and dilution.”~~261~~297 Noting that Noting that
Congress intended to provide broad immunity in Section 230, the Ninth Circuit construed the Congress intended to provide broad immunity in Section 230, the Ninth Circuit construed the
intellectual property exception narrowly, to include only “claims pertaining to an established intellectual property exception narrowly, to include only “claims pertaining to an established
intellectual property right . . . like those inherent in a patent, copyright, or trademark.”intellectual property right . . . like those inherent in a patent, copyright, or trademark.”~~262~~298 Because Because
the false advertising claim did not “relate to or involve trademark rights or any other intellectual the false advertising claim did not “relate to or involve trademark rights or any other intellectual
property rights,” the court held that the intellectual property exception did not apply.property rights,” the court held that the intellectual property exception did not apply.~~263~~299 Somewhat Somewhat
similarly, a New Hampshire trial court held in one case that three “right of privacy” torts—similarly, a New Hampshire trial court held in one case that three “right of privacy” torts—
intrusion upon seclusion, publication of private facts, and casting in intrusion upon seclusion, publication of private facts, and casting in a false light—involved rights false light—involved rights
that could not be considered property rights.that could not be considered property rights.~~264~~300 Accordingly, the court concluded that the claims Accordingly, the court concluded that the claims
did “not sound in ‘law pertaining to intellectual property’” and Section 230 barred the claims.did “not sound in ‘law pertaining to intellectual property’” and Section 230 barred the claims.~~265~~301
Courts have disagreed about whether Section 230(e)(2) includes state law claims such as the right Courts have disagreed about whether Section 230(e)(2) includes state law claims such as the right
to publicity,to publicity,~~266~~302 a cause of action that essentially allows plaintiffs to sue for the improper a cause of action that essentially allows plaintiffs to sue for the improper
commercial use of their identity.commercial use of their identity.~~267~~303 Some courts Some courts, including the Third Circuit, have held that the exception does include state have held that the exception does include state
intellectual property claims, allowing, for example, state law claims for copyright infringement, intellectual property claims, allowing, for example, state law claims for copyright infringement,
misappropriation and unfair competition, and right of publicity to misappropriation and unfair competition, and right of publicity to ~~proceed.268 These courts have~~
~~noted that the exception refers broadly to “any law,”269 and that other provisions of Section 230~~

~~259~~ definition of ‘intellectual property,’ and there are many types of claims in both state and federal law which may—or may not—be characterized as ‘intellectual property’ claims.”). 294 E.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 503 n.8 (E.D. Penn. 2006); Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 414 (S.D.N.Y. 2001); Malibu Media, LLC v. Weaver, No. 8:14-cv-1580-T-33TBM, 2016 WL 1394331, at *8 (M.D. Fla. Apr. 8, 2016). 295 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1052–53 (9th Cir. 2019). Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1052–53 (9th Cir. 2019). See also, e.g., ,
Corker v. Costco Wholesale Corp., No. C19-0290RSL, 2019 WL 5895430, at *6 (W.D. Wash. Nov. 12, 2019) Corker v. Costco Wholesale Corp., No. C19-0290RSL, 2019 WL 5895430, at *6 (W.D. Wash. Nov. 12, 2019)
(concluding Section 230(e)(2) did not apply to a false association claim because the claim did “not involve an (concluding Section 230(e)(2) did not apply to a false association claim because the claim did “not involve an
intellectual property right or trademark”); Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302–03 (D.N.H. intellectual property right or trademark”); Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302–03 (D.N.H.
2008) (holding that Section 230(e)(2) did not apply to state right of privacy claims that involved personal rights). 2008) (holding that Section 230(e)(2) did not apply to state right of privacy claims that involved personal rights).
~~260~~296 Enigma Software Grp. USA, 946 F.3d at 1053. However, the court nonetheless concluded that because the claim , 946 F.3d at 1053. However, the court nonetheless concluded that because the claim
was “based on allegations of [anticompetitive] conduct,” it would not apply Section 230was “based on allegations of [anticompetitive] conduct,” it would not apply Section 230(c)(2) to dismiss the claim. to dismiss the claim. Id. at at
~~1054.~~
~~261 Id. at 1053.~~
262 Id.
~~263 Id. at 1053–54.~~
~~264~~1054. This portion of the opinion is discussed supra “Section 230(c)(2)(B): Enabling Access Restriction.” 297 Enigma Software Grp. USA, 946 F.3d at 1053. 298 Id. 299 Id. at 1053–54. 300 Friendfinder Network, Inc., 540 F. Supp. 2d at 302–03. , 540 F. Supp. 2d at 302–03.
~~265~~301 Id. at 303. at 303.
~~266~~See also Ratermann v. Pierre Fabre USA, Inc., No. 22-CV-325, 2023 WL 199533, at *5 (S.D.N.Y. Jan. 17, 2023) (concluding Section 230(e)(2) did not apply to a state law construed as creating “a statutory right to privacy, not property”). 302 See, e.g., Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873, 888–89 (W.D. Wis. 2009) (noting that a right to publicity , Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873, 888–89 (W.D. Wis. 2009) (noting that a right to publicity
claim “is generally considered an intellectual property claim,” implicating this exception, but further noting the claim “is generally considered an intellectual property claim,” implicating this exception, but further noting the
“disagreement among various federal courts regarding the scope of the intellectual property exception,” and ultimately “disagreement among various federal courts regarding the scope of the intellectual property exception,” and ultimately
dismissing the claim on jurisdictional grounds); dismissing the claim on jurisdictional grounds); see also Friendfinder Network, Inc., 540 F. Supp. 2d at 302 (holding , 540 F. Supp. 2d at 302 (holding
that a state right of publicity claim “arises out of a ‘law pertaining to intellectual property’ within the meaning of” 47 that a state right of publicity claim “arises out of a ‘law pertaining to intellectual property’ within the meaning of” 47
U.S.C. § 230(e)(2)). U.S.C. § 230(e)(2)).
~~267~~303 See, e.g., ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 928–37 (6th Cir. 2003) (discussing the right of publicity). , ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 928–37 (6th Cir. 2003) (discussing the right of publicity).
~~268 Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d. 690, 694, 704 (S.D.N.Y. 2009);~~ ~~Friendfinder~~
~~Network, Inc., 540 F. Supp. 2d at 302. The First Circuit suggested in one decision that a state trademark claim was “not~~
~~subject to Section 230 immunity.” Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422–23 (1st Cir. 2007).~~
~~However, this conclusion was arguably dicta, given that the First Circuit ultimately concluded that the claim “would~~
~~not survive” even if Section 230 did not apply. Id. at 423; see also Friendfinder Network, Inc., 540 F. Supp. 2d at 299~~
~~(describing this statement as dicta).~~
~~269 47 U.S.C. § 230(e)(2) (emphasis added).~~
~~Congressional Research Service~~
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~~Section 230: An Overview~~

Congressional Research Service 28 Section 230: An Overview proceed.304 These courts have noted that the exception refers broadly to “any law,”305 and that other provisions of Section 230 distinguish between state and federal law, suggesting that “any law” includes both state and distinguish between state and federal law, suggesting that “any law” includes both state and
federal laws.federal laws.~~270~~
~~Other courts, including~~306 In contrast, the Ninth Circuit the Ninth Circuit~~, have~~ has held that Section 230(e)(2) encompasses only held that Section 230(e)(2) encompasses only
federal laws and that Section 230 bars state intellectual property claims. laws and that Section 230 bars state intellectual property claims.~~271~~307 In In Perfect 10, Inc. v.
CCBill LLC, the Ninth Circuit looked to Congress’s policy goals and “construe[d] the term , the Ninth Circuit looked to Congress’s policy goals and “construe[d] the term
‘intellectual property’ to mean ‘federal intellectual property.’”‘intellectual property’ to mean ‘federal intellectual property.’”~~272~~308 The court The court ~~noted~~observed that state that state
intellectual property laws “are by no means uniform,” and could subject websites to varied intellectual property laws “are by no means uniform,” and could subject websites to varied
liability schemes.liability schemes.~~273~~309 In the view of the court, this outcome “would be contrary to Congress’s In the view of the court, this outcome “would be contrary to Congress’s
expressed goal of insulating the development of the Internet from the various state-law expressed goal of insulating the development of the Internet from the various state-law
regimes.”regimes.”~~274~~310 The Ninth Circuit did not discuss the fact that the text of Section 230(e)(2) refers to The Ninth Circuit did not discuss the fact that the text of Section 230(e)(2) refers to
“any law,” noting only that the term “intellectual property” was undefined.“any law,” noting only that the term “intellectual property” was undefined.~~275~~311
State Law
The third exception provides that Section 230 will not “prevent any State from enforcing any The third exception provides that Section 230 will not “prevent any State from enforcing any
State law that is consistent with this section,” allowing states to continue enforcing any laws that State law that is consistent with this section,” allowing states to continue enforcing any laws that
are “consistent” with Section 230.are “consistent” with Section 230.~~276~~312 As one trial court described this provision, “Section As one trial court described this provision, “Section
230(e)(3) does not attempt to define what state law is consistent and inconsistent with the CDA;” 230(e)(3) does not attempt to define what state law is consistent and inconsistent with the CDA;”
in effect, this subsection “provides no substantive content.”in effect, this subsection “provides no substantive content.”~~277~~313 In evaluating whether a state law, In evaluating whether a state law,
or a particular application of a state law, is consistent with Section 230 or whether it is instead or a particular application of a state law, is consistent with Section 230 or whether it is instead
inconsistent and preempted, courts have looked to whether the law would violate Section inconsistent and preempted, courts have looked to whether the law would violate Section
230(c)(1) by treating service providers or users as the publisher of another person’s content.230(c)(1) by treating service providers or users as the publisher of another person’s content.~~278~~314
Accordingly, for example, one court concluded that a libel claim that would hold a website Accordingly, for example, one court concluded that a libel claim that would hold a website
~~operator “liable for statements he actually authored” was “consistent with” Section 230 and could~~
~~proceed.279~~

~~270 Atl. Recording Corp., 603 F. Supp. 2d. at 703–04; Friendfinder Network, Inc., 540 F. Supp. 2d at 299–300.~~
~~271 See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007); Hepp v. Facebook, Inc., 465 F. Supp.~~
~~3d 491, 500 (E.D. Penn. 2020).~~
~~272 Perfect 10, Inc., 488 F.3d at 1118–19.~~
~~273 Id. at 1118.~~
~~274 Id. See also Hepp, 465 F. Supp. 3d at 500 (“This Court is persuaded by the reasoning in Perfect 10. . . . Conditioning~~
~~CDA immunity on the diverse potentially applicable state laws . . . would run contrary to the purpose and intent of the~~
~~CDA.”).~~
275 See Perfect 10, Inc.~~, 488 F.3d~~ 304 Hepp v. Facebook, 14 F.4th 204, 210 (3d Cir. 2021); Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d. 690, 694, 704 (S.D.N.Y. 2009); Friendfinder Network, Inc., 540 F. Supp. 2d at 302; Albert v. Tinder, Inc., No. 22-60496-CIV, 2022 WL 18776124, at *11 (S.D. Fla. Aug. 5, 2022). The First Circuit suggested in one decision that a state trademark claim was “not subject to Section 230 immunity.” Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422–23 (1st Cir. 2007). Courts have debated whether this conclusion was dicta, given that the First Circuit ultimately concluded that the claim “would not survive” even if Section 230 did not apply. Id. at 423; compare Friendfinder Network, Inc., 540 F. Supp. 2d at 299 (describing this statement as dicta), with Hepp, 14 F.4th at 210 (saying the merits discussion “was necessary only because” of the court’s Section 230(e)(2) ruling). 305 47 U.S.C. § 230(e)(2) (emphasis added). 306 Hepp, 14 F.4th at 210–11; Atl. Recording Corp., 603 F. Supp. 2d. at 703–04; Friendfinder Network, Inc., 540 F. Supp. 2d at 299–300. 307 See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007). 308 Perfect 10, Inc., 488 F.3d at 1118–19. 309 Id. at 1118. 310 Id. 311 See id. at 1119; at 1119; see also, e.g., , Friendfinder Network, Inc., 540 F. Supp. 2d at 299 (“The Ninth , 540 F. Supp. 2d at 299 (“The Ninth
Circuit made no attempt to reckon with the presence of the term ‘any’—or for that matter, the absence of term Circuit made no attempt to reckon with the presence of the term ‘any’—or for that matter, the absence of term
‘federal’—in § 230(e)(2) when limiting it to federal intellectual property laws.”). ‘federal’—in § 230(e)(2) when limiting it to federal intellectual property laws.”).
~~276~~ 312 47 U.S.C. § 230(e)(3). 47 U.S.C. § 230(e)(3).
~~277~~313 Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d. 690, 694, 702 (S.D.N.Y. 2009). Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d. 690, 694, 702 (S.D.N.Y. 2009).
~~278~~314 Compare, e.g., HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 683 (, HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 683 (9th Cir. 2019) (holding that an ordinance 2019) (holding that an ordinance
regulating home rentals “is not ‘inconsistent’ with the CDA” because it would not impose a duty on websites to regulating home rentals “is not ‘inconsistent’ with the CDA” because it would not impose a duty on websites to
monitor third-party content), monitor third-party content), with, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1273 (W.D. Wash. , Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1273 (W.D. Wash.
2012) (holding that a state criminal law “is likely inconsistent with and therefore expressly preempted by Section 230” 2012) (holding that a state criminal law “is likely inconsistent with and therefore expressly preempted by Section 230”
because it would impose liability on websites for third-party content). because it would impose liability on websites for third-party content).
~~279 Cisneros v. Sanchez, 403 F. Supp. 2d 588, 592 (S.D. Tex. 2005) (emphasis added).~~
~~Congressional Research Service~~
27

~~Section 230: An Overview~~
Cf. Dangaard v. Instagram, LLC, No. C 22-01101 WHA, 2022 WL 17342198, at *5 (N.D. Cal. Nov. 30, 2022) (citing Section 230(e)(3) and the “policy” provisions in Section 230(b) as additional support for a ruling that Section 230(c)(1) did not bar certain claims). Congressional Research Service 29 Section 230: An Overview operator “liable for statements he actually authored” was “consistent with” Section 230 and could proceed.315
Electronic Communications Privacy Act of 1986
The fourth exception to Section 230 immunity is for claims brought under the Electronic The fourth exception to Section 230 immunity is for claims brought under the Electronic
Communications Privacy Act of 1986 (ECPA) “or any similar State law.”Communications Privacy Act of 1986 (ECPA) “or any similar State law.”~~280~~316 ECPA is a federal law ECPA is a federal law
that governs wiretapping and electronic eavesdropping.that governs wiretapping and electronic eavesdropping.~~281~~317 ECPA creates a number of criminal ECPA creates a number of criminal
offenses, which would fall within the first exception for federal crimes,offenses, which would fall within the first exception for federal crimes,~~282~~318 but also contains civil but also contains civil
liability provisions, which fall within this fourth exception.liability provisions, which fall within this fourth exception.~~283~~319 Perhaps most relevant to service Perhaps most relevant to service
providers that host user-generated content, ECPA makes it unlawful not only to intercept covered providers that host user-generated content, ECPA makes it unlawful not only to intercept covered
communications intentionally, but also to disclose information intentionally if the person “ha[s] communications intentionally, but also to disclose information intentionally if the person “ha[s]
reason to know that the information was obtained through” an unlawful interception.reason to know that the information was obtained through” an unlawful interception.~~284~~320 However, However,
the Seventh Circuit ruled in one case that this exception did not allow a lawsuit against companies the Seventh Circuit ruled in one case that this exception did not allow a lawsuit against companies
that provided web hosting services to people who sold illegally obtained videos.that provided web hosting services to people who sold illegally obtained videos.~~285~~321 The court said The court said
the plaintiffs had not shown that the web service companies had “disclose[d] any the plaintiffs had not shown that the web service companies had “disclose[d] any
communication,” declining to impose secondary liability on the web service providers absent communication,” declining to impose secondary liability on the web service providers absent
evidence that the companies provided “culpable assistance” to the “wrongdoer.”evidence that the companies provided “culpable assistance” to the “wrongdoer.”~~286~~322
Sex Trafficking Law (FOSTA)
The fifth exception to Section 230 immunity was added in 2018 by the Allow States and Victims The fifth exception to Section 230 immunity was added in 2018 by the Allow States and Victims
to Fight Online Sex Trafficking Act of 2017 (FOSTA)to Fight Online Sex Trafficking Act of 2017 (FOSTA)~~, and creates exceptions for~~ and relates to certain sex certain sex
trafficking offenses.trafficking offenses.~~287~~323 Specifically, Section 230(e)(5) provides that Section 230 will not bar Specifically, Section 230(e)(5) provides that Section 230 will not bar:
~~(1) federal civil actions288~~ (1) federal324 civil actions “brought under” 18 U.S.C. § 1595 “if the conduct underlying the charge would constitute a violation of” “if the conduct underlying the charge would constitute a violation of”
18 U.S.C. § 1591, which prohibits knowingly engaging in sex trafficking of minors18 U.S.C. § 1591, which prohibits knowingly engaging in sex trafficking of minors, or in sex or in sex
trafficking that involves force, fraud, or coerciontrafficking that involves force, fraud, or coercion~~; (2) state criminal prosecutions where the~~
~~underlying conduct would violate 18 U.S.C. § 1591; and (3) state criminal prosecutions where the~~
~~underlying conduct would violate 18 U.S.C. § 2421A, which prohibits “operat[ing] an interactive~~
~~computer service . . . with the intent to promote or facilitate the prostitution of another person” in~~
~~jurisdictions where such conduct is illegal.289~~
~~The FOSTA exceptions will apply only if a private plaintiff or state prosecutor can demonstrate~~
~~that the service provider or user violated the specified federal laws.290 Accordingly, one federal~~
~~trial court interpreting the first FOSTA exception, for federal civil lawsuits, concluded that the~~

~~280~~, or knowingly benefiting from participation in a venture that engaged in such an act;325 (2) state criminal 315 Cisneros v. Sanchez, 403 F. Supp. 2d 588, 592 (S.D. Tex. 2005) (emphasis added). 316 47 U.S.C. § 230(e)(4). 47 U.S.C. § 230(e)(4). See also, e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 421 (1st Cir. 2007) , Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 421 (1st Cir. 2007)
(“We note that liability under the ECPA is specifically exempted from Section 230 immunity.”). (“We note that liability under the ECPA is specifically exempted from Section 230 immunity.”).
~~281~~317 See generally CRS Report R41733, CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act, by , by
Charles Doyle. Charles Doyle.
~~282~~318 See 47 U.S.C. § 230(e)(1). 47 U.S.C. § 230(e)(1).
~~283~~319 See id. § 230(e)(4). § 230(e)(4).
~~284~~320 18 U.S.C. §§ 2511 (outlining the prohibitions), 2520 (authorizing civil suits). 18 U.S.C. §§ 2511 (outlining the prohibitions), 2520 (authorizing civil suits).
~~285~~321 Doe v. GTE Corp., 347 F.3d 655, 662 (7th Cir. 2003). Doe v. GTE Corp., 347 F.3d 655, 662 (7th Cir. 2003).
~~286~~322 Id. at 658–59. at 658–59.
~~287~~323 Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, § 4, 132 Stat. 1253, Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, § 4, 132 Stat. 1253,
1254 (2018). 1254 (2018).
~~288 The statute refers to civil actions “brought under” 18 U.S.C. § 1595. 47 U.S.C. § 230(e)(5)(A). See also J.B. v. G6~~
~~Hosp., LLC, No. 19-cv-07848-HSG, 2020 WL 4901196, at *7 (N.D. Cal. Aug. 20, 2020) (concluding that this~~
~~exception does not include “state law civil sex trafficking claims”). At least one federal court has concluded that~~
~~Section 230 should also allow civil actions brought under 18 U.S.C. § 2421A(c), which was passed as part of FOSTA.~~
Id. at *6.
~~289 47 U.S.C. § 230(e)(5).~~
290 See id.
~~Congressional Research Service~~
28

~~Section 230: An Overview~~

~~plaintiff had to prove a violation of the criminal law, 18 U.S.C. § 1591, in order to avoid Section~~
~~230 immunity.291 The plaintiff was a minor who had been “convinced” by adults to send and~~
~~receive sexually explicit pictures over an online messaging service.292 She sued the messaging~~
~~service, arguing that the company knew or should have known that its services had been used this~~
~~way and should have implemented policies to prevent this use.293 The court noted first that the~~
~~lawsuit would be barred by Section 230 if an exception did not apply, because it would treat an~~
~~interactive computer service provider (the messaging service) “as though [it] published and~~
~~solicited the photographs” provided by others.294 Consequently, in the court’s view, the suit could~~
~~proceed only if the underlying conduct violated 18 U.S.C. § 1591.295~~
~~In that case, however, the parties disputed the precise elements of the claim; specifically, they~~
~~disputed the mens rea, or mental state, the plaintiff had to show to qualify for the FOSTA~~
~~exception to Section 230.296 The plaintiff argued that because she was bringing a civil suit, she~~
~~had to show only that the service “‘knew or should have known’ that it was participating in a~~
~~venture that was engaged in sex trafficking.”297 She claimed that the federal law authorizing civil~~
~~lawsuits did not incorporate any heightened mental state beyond this constructive knowledge~~
~~standard.298 The trial court disagreed, ruling instead that the plaintiff had to meet the mental state~~
~~standard of the criminal statute, which required “knowing and active participation in sex~~
~~trafficking.”299 The court pointed to the language of the FOSTA exception, which applies to a~~
~~claim only “if the conduct underlying the claim constitutes a violation of [18 U.S.C. §] 1591,” the~~
~~criminal statute.300 The court then concluded that the plaintiff had not met this bar, because she~~
~~had “not alleged facts that would plausibly establish that [the service] knowingly participated in~~
~~the sex trafficking venture involving her,” and dismissed the claim.301~~
~~Reform Proposals and Considerations for Congress~~
~~This section of the report discusses various proposals to reform Section 230, as well as some of~~
~~the legal considerations implicated by those proposals, including looking to the FCC’s authority~~
~~to regulate in this area and relevant First Amendment issues.~~

~~291 Doe v. Kik Interactive, Inc., No. 20-60702, 2020 WL 5156641, at *7 (S.D. Fla. Aug. 31, 2020). See also M. L. v.~~
~~Craigslist Inc., No. C19-6153, 2020 WL 5494903, at *4 (W.D. Wash. Sept. 11, 2020) (concluding that FOSTA did “not~~
~~create an exemption for all § 1595 claims,” but only for violations “of § 1591”).~~
~~292 Kik Interactive, 2020 WL 5156641, at *1.~~
293 Id.
~~294 Id. at *5.~~
295 Id.
~~296 Id. at *6.~~
~~297 Id. (quoting 18 U.S.C. § 1595) (emphasis added).~~
298 Id.One state court described Section 230(e)(5) as a “rule of construction” going beyond a mere exception applicable to the specified claims. In re Facebook, Inc., 625 S.W.3d 80, 100 (Tex. 2021). A number of federal courts have described it as an “exception.” E.g., Does v. Reddit, Inc., 51 F.4th 1137, 1140 (9th Cir. 2022); Doe #1 v. MG Freesites, Ltd., No. 7:21-cv-00220-LSC, 2022 WL 407147, at *10 (N.D. Ala. Feb. 9, 2022). 324 While one state court concluded Section 230(e)(5) also allows state civil suits that are “materially indistinguishable” from liability under 18 U.S.C. § 1595, a number of federal courts have disagreed with this view, concluding Section 230(e)(5) does not allow state civil lawsuits. Compare In re Facebook, Inc., 625 S.W.3d at 100, with, e.g., Doe v. Reddit, Inc., No. SACV 21-768 JVS(KESx), 2021 WL 4348731, at *5 (C.D. Cal. July 12, 2021), and J.B. v. G6 Hosp., LLC, No. 19-cv-07848-HSG, 2020 WL 4901196, at *7 (N.D. Cal. Aug. 20, 2020). 325 “Participation in a venture” is in turn defined as “knowingly assisting, supporting, or facilitating a violation” of these provisions. 18 U.S.C. § 1591(e)(4). The D.C. Circuit concluded that this provision prohibits “aiding and abetting sex trafficking.” Woodhull Freedom Found. v. United States, 72 F.4th 1286, 1298–99 (D.C. Cir. 2023). Congressional Research Service 30 Section 230: An Overview prosecutions where the underlying conduct would violate 18 U.S.C. § 1591; and (3) state criminal prosecutions where the underlying conduct would violate 18 U.S.C. § 2421A, which prohibits “operat[ing] an interactive computer service . . . with the intent to promote or facilitate the prostitution of another person” in jurisdictions where such conduct is illegal.326 There has been significant litigation over the scope of this exception. The FOSTA exception will apply only if a private plaintiff or state prosecutor can demonstrate that the service provider or user violated the specified federal laws.327 A number of early cases considering the scope of this exception faced disagreements over whether the plaintiff had to prove a violation of the criminal law, 18 U.S.C. § 1591, or merely a violation of 18 U.S.C. § 1595, the provision allowing civil actions.328 This distinction was significant because the two provisions have slightly distinct elements: most significantly, different mens rea, or mental state, requirements. As stated by one trial court, while both statutes authorize liability against “beneficiaries” of a sex trafficking venture, “the criminal statute requires that the defendant have actual knowledge of sex trafficking at issue while the civil statute allows a plaintiff to plead that the defendant merely had constructive knowledge.”329 The Ninth Circuit and a number of trial courts have adopted the former reading, requiring plaintiffs to prove the defendant violated the criminal law in order to avoid Section 230 immunity.330 In Does 1–6 v. Reddit, Inc., for example, the Ninth Circuit considered claims alleging that the social media platform Reddit had “done little to remove” or prevent sexually explicit images and videos of minors because such images and videos “drive[] user traffic” and contribute to “substantial advertising revenue.”331 The plaintiffs alleged the FOSTA exception applied and Reddit was liable “as a beneficiary of child sex trafficking.”332 To qualify for the exception, the Ninth Circuit held that the “defendant-website’s own conduct must ‘underl[ie]’ the claim” and violate the criminal provisions in 18 U.S.C. § 1591.333 Thus, the plaintiff had to prove the website violated that law “by directly sex trafficking or, with actual knowledge, ‘assisting, supporting, or facilitating’ trafficking.”334 In addition to requiring beneficiaries to possess actual knowledge, the Ninth Circuit held that “mere association with sex traffickers” was insufficient to violate the criminal law “absent some knowing ‘participation’ in the form of assistance, support, or facilitation.”335 In the case before it, the Ninth Circuit concluded that the plaintiffs had alleged 326 47 U.S.C. § 230(e)(5). 327 See id. 328 See, e.g., Doe #1 v. MG Freesites, Ltd., No. 7:21-cv-00220-LSC, 2022 WL 407147, at *11–15 (N.D. Ala. Feb. 9, 2022) (acknowledging the disagreement and differing judicial resolutions but avoiding the question). 329 Id. at *11. 18 U.S.C. § 1595 provides: “An individual who is a victim of a violation of this chapter may bring a civil action 18 U.S.C. § 1595 provides: “An individual who is a victim of a violation of this chapter may bring a civil action
against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation
in a venture which that person knew or should have known has engaged in an act in violation of this in a venture which that person knew or should have known has engaged in an act in violation of this chapter) . . . .” (emphasis added). 330 Does 1–6 v. Reddit, Inc., 51 F.4th 1137, 1141 (9th Cir. 2022); see also, e.g., M.H. & J. v. Omegle.com, LLC, No. 8:21-cv-814-VMC-TGW, 2022 WL 93575, at *6 (M.D. Fla. Jan. 10, 2022), appeal filed, No. 22-10338 (11th Cir. Jan. 31, 2022); Doe v. Kik Interactive, Inc., 482 F. Supp. 3d 1242, 1251 (S.D. Fla. 2020). 331 Does 1–6, 51 F.4th at 1139–40. 332 Id. at 1140. 333 Id. at 1143 (quoting 47 U.S.C. § 230(e)(5)(A)). 334 Id. at 1145 (quoting 18 U.S.C. § 1591(e)(4)). 335 Id. In another case, the D.C. Circuit concluded that 18 U.S.C. § 1591(e)(4) prohibits “aiding and abetting sex trafficking,” or more precisely, “prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture.” Woodhull Freedom Found. v. United States, 72 F.4th 1286, 1298–99 (D.C. Cir. 2023). Congressional Research Service 31 link to page 16 Section 230: An Overview “only that Reddit ‘turned a blind eye’ to the unlawful content posted on its platform, not that it actively participated in sex trafficking.”336 In contrast, the Seventh Circuit allowed broader liability in G.G. v. Salesforce.com, Inc.—although its ruling did not weigh in on Section 230(e)(5).337 The minor plaintiff in that case was trafficked on Backpage.com, and she alleged that Salesforce, which generally provides customer relationship management software, “knowingly benefited from its participation in what it knew or should have known was Backpage’s sex-trafficking venture.”338 The plaintiff alleged Salesforce provided Backpage.com with specialized software and support that created a “close business relationship.”339 The Seventh Circuit held that the allegations involving constructive knowledge stated a claim under 18 U.S.C. § 1595 and avoided dismissal under Section 230.340 However, the Seventh Circuit did not consider the scope of the FOSTA exception, instead concluding that Section 230(c) did not apply on its own terms.341 Reform Proposals and Considerations for Congress This section of the report discusses various proposals to reform Section 230, as well as some of the legal considerations implicated by those proposals, including relevant First Amendment issues. The report focuses primarily on examples of bills introduced in the 116th and 117th Congresses that would have amended Section 230.342 The report does not discuss bills that would have directly regulated content moderation practices such as by restricting the use of certain algorithms or other design features, or imposing disclosure or transparency requirements outside the Section 230 framework. Overview of Reform Proposals and Select Legal Considerations Following the enactment of FOSTA in 2018, Members of Congress introduced a variety of proposals to further reform Section 230. There have also been a number of reform proposals from outside commentators and the executive branch.343 While over 25 bills to amend Section 230 were introduced in each of the 116th and 117th Congresses, and Members of the 118th Congress continued to introduce such proposals, no further amendments have been enacted.344 Although there have been many proposals to reform Section 230’s immunity shield, some argue either that 336 Does 1–6, 51 F.4th at 1145. See also J.B. v. Craigslist, Inc., No. 22-15290, 2023 WL 3220913, at *1 (9th Cir. May 3, 2023) (mem.) (affirming trial court’s conclusion that Section 230(e)(5) did not allow lawsuit under 18 U.S.C. § 1595 where defendant lacked actual knowledge). 337 G.G. v. Salesforce.com, Inc., 76 F.4th 544, 548 (7th Cir. 2023). 338 Id. The suit was brought by the minor and her mother, but this report refers to a singular plaintiff for convenience. 339 Id. 340 Id. at 548, 555. 341 Id. at 567–68. This aspect of the case is discussed supra note 134 and accompanying text. 342 Some of the bills referenced in this discussion have been introduced in multiple Congresses, but for brevity, the report generally only discusses one version. 343 See, e.g., CRS Legal Sidebar LSB10484, UPDATE: Section 230 and the Executive Order on Preventing Online Censorship, by Valerie C. Brannon et al.; Joe Biden, Republicans and Democrats, Unite Against Big Tech Abuses, WALL ST. J. (Jan. 11, 2023), https://www.wsj.com/articles/unite-against-big-tech-abuses-social-media-privacy-competition-antitrust-children-algorithm-11673439411. 344 See, e.g., The Telecommunication Act’s “Good Samaritan” Protection: Section 230, DISRUPTIVE COMPETITION PROJECT, https://www.project-disco.org/featured/section-230/ (last visited Jan. 4, 2024); see also CRS Report R46662, Social Media: Misinformation and Content Moderation Issues for Congress, by Jason A. Gallo and Clare Y. Cho, Appendix B (listing bills from the 116th Congress). Congressional Research Service 32 Section 230: An Overview Section 230 should not be changed or that reforms should be modest and carefully considered.345 As commentators have observed, some of the reform proposals may conflict with others and pursue divergent goals, making it more difficult to predict which of these reform efforts, if any, may garner sufficient support to be enacted.346 While some Members of Congress have proposed to repeal Section 230 entirely,347 others suggest more incremental rollbacks, removing immunity only for certain types of claims or certain providers. Broadly, many proposals to reform Section 230 have pursued one of two distinct goals: encouraging sites to take down more harmful content, and encouraging sites to take down less lawful content.348 Some proposals include provisions aimed at both goals, although the goals can sometimes be in tension depending on what type of content is being targeted. Content seen as harmful by some may be seen as beneficial by others. The bills that have been introduced have sought to achieve these goals in a variety of different ways, including by creating new exceptions to Section 230 or conditioning Section 230 immunity on certain prerequisite actions. Other bills have focused on procedural aspects of Section 230, such as clarifying that the provision operates as an “affirmative defense” or does not bar injunctive relief.349 One initial consideration is that proposals to remove Section 230 immunity for either hosting or taking down certain types of content will not necessarily result in a provider or user being held liable for that activity. Instead, the result of these proposals is that if a provider would be liable under some other law, such liability would not be barred by Section 230. Nonetheless, because of this threat of liability, a service provider may respond to the removal of Section 230 immunity for specific types of actions by ceasing that action: removing content or no longer engaging in certain content moderation practices. For example, Craigslist took down its personal ads section in response to FOSTA, reportedly out of concern that it might face lawsuits based on some of the activity in that section of its site.350 However, the way any given provider responds to an amendment of Section 230 would depend on a variety of factors. For instance, if Congress added an exception removing immunity for hosting certain content, providers might continue to host that content if they believe the benefits of 345 See, e.g., Sen. Ron Wyden, Wyden Remarks at Section 230 Briefing Hosted by EFF (Mar. 8, 2023), https://www.wyden.senate.gov/news/press-releases/wyden-remarks-at-section-230-briefing-hosted-by-eff; Clyde Wayne Crews, The Case Against Social Media Content Regulation, COMPETITIVE ENTER. INST. (June 1, 2020), https://cei.org/issue_analysis/the-case-against-social-media-content-regulation; Eric Goldman, Want to Learn More About Section 230? A Guide to My Work, TECH. & MKTG. L. BLOG (July 1, 2020), https://blog.ericgoldman.org/archives/2020/07/want-to-learn-more-about-section-230-a-guide-to-my-work.htm; Jennifer Huddleston, Does Content Moderation Need Changes to Section 230?, AM. ACTION FORUM (June 18, 2020), https://www.americanactionforum.org/insight/does-content-moderation-need-changes-to-section-230/. 346 See, e.g., Rebecca Kern, White House Renews Call to ‘Remove’ Section 230 Liability Shield, POLITICO (Sept. 9, 2022), https://www.politico.com/news/2022/09/08/white-house-renews-call-to-remove-section-230-liability-shield-00055771; Dean DeChiaro, OK to Change Section 230, Tech CEOs Say, But How Remains Elusive, CONG. Q (Nov. 17, 2020), https://plus.cq.com/doc/news-6052674. 347 E.g., S. 2972, 117th Cong. (2021); H.R. 8896, 116th Cong. (2020). Cf. 21st Century FREE Speech Act, S. 1384, 117th Cong. (2021) (proposing to repeal Section 230 and replace with an altered intermediary liability scheme). 348 Cf. Shaun B. Spencer, The First Amendment and the Regulation of Speech Intermediaries, 106 MAR. L. REV. 1, 8 (2022) (distinguishing “proxy-censor regulations” from “must-carry regulations”). 349 E.g., SAFE TECH Act, S. 299, 117th Cong. § 2(1) (2021). 350 See Brian Feldman, Craigslist’s Legendary Personals Section Shuts Down, N.Y. MAG. (Mar. 23, 2018), https://nymag.com/intelligencer/2018/03/craigslist-shuts-down-personals-section-because-of-fosta.html. Craigslist expressly cited FOSTA as the motive for its decision; others ~~chapter) . . . .” The~~
~~trial court noted that other courts have concluded that 18 U.S.C. § 1595 requires only a constructive knowledge~~
~~standard. Kik Interactive, 2020 WL 5156641, at *6.~~
~~299 Kik Interactive, 2020 WL 5156641, at *7. Specifically, 18 U.S.C. § 1591(e)(5) defines “participation in a venture”~~
~~to mean “knowingly assisting, supporting, or facilitating a violation.”~~
~~300 Kik Interactive, 2020 WL 5156641, at *7 (quoting 47 U.S.C. § 230(e)(5)(A)) (emphasis omitted).~~
301 Id.
~~Congressional Research Service~~
29

~~link to page 33~~ ~~Section 230: An Overview~~

~~Overview of Reform Proposals~~
~~Following the enactment of FOSTA in 2018, the push to reform Section 230 gained further~~
~~momentum in Congress. Twenty-six bills in the 116th Congress would have amended Section~~
~~230.302 There were also a number of reform proposals from outside commentators and the~~
~~executive branch. On May 28, 2020, President Trump issued the Executive Order on Preventing~~
~~Online Censorship outlining the executive branch’s position on Section 230, weighing in on~~
~~several interpretive disputes, and directing a few different agencies to take certain actions to~~
~~implement those understandings.303 In response to this order, in July 2020, the National~~
~~Telecommunications and Information Administration (NTIA) filed a petition for rulemaking with~~
~~the FCC, the agency generally responsible for administering the Communications Act of 1934.304~~
~~The petition asked the FCC “to clarify ambiguities in [S]ection 230.”305 In October 2020, the~~
~~Chairman of the FCC announced that he “intend[ed] to move forward with a rulemaking,”306~~
~~although the FCC did not act on the petition prior to the Chairman’s departure in January 2021.307~~
~~The Department of Justice also announced its own views on Section 230 in June 2020, sending~~
~~proposed amendments to Congress in September 2020.308~~
~~While some Members of Congress have proposed to repeal Section 230 entirely,309 others suggest~~
~~more incremental rollbacks, removing immunity only for certain types of claims or for certain~~
~~providers. For instance, a number of bills would have created new exceptions to Section 230~~
~~carving out certain categories of claims, similar to FOSTA.310 A few bills focused on child sexual~~
~~exploitation, allowing claims premised on conduct that violates new or existing laws related to~~

~~302 See, e.g., The Telecommunication Act’s “Good Samaritan” Protection: Section 230, DISRUPTIVE COMPETITION~~
~~PROJECT, https://www.project-disco.org/section-230/#230proposals (last updated Mar. 24, 2021); see also CRS Report~~
~~R46662, Social Media: Misinformation and Content Moderation Issues for Congress, by Jason A. Gallo and Clare Y.~~
~~Cho, Appendix B. Although this report focuses largely on bills introduced in the 116th Congress, Section 230 repeal~~
~~and reform bills have been introduced in the 117th Congress. See, e.g., H.R. 874, 117th Cong. (2021); SAFE TECH~~
~~Act, S. 299, 117th Cong. (2021).~~
~~303 Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (June 2, 2020). For a more in-depth discussion of this order, see CRS~~
~~Legal Sidebar LSB10484, UPDATE: Section 230 and the Executive Order on Preventing Online Censorship, by~~
~~Valerie C. Brannon et al.~~
~~304 NTIA, Petition for Rulemaking (July 27, 2020), https://ecfsapi.fcc.gov/file/10803289876764/ntia_petition_for_~~
~~rulemaking_7.27.20.pdf [hereinafter NTIA Petition].~~
~~305 Id. at 5.~~
~~306 Statement of Chairman Pai on Section 230 (Oct. 15, 2020), https://docs.fcc.gov/public/attachments/DOC-~~
~~367567A1.pdf.~~
~~307 Chairman Pai Statement upon Departing the FCC (Jan. 20, 2021), https://docs.fcc.gov/public/attachments/DOC-~~
~~369408A1.pdf.~~
~~308 See Department of Justice’s Review of Section 230 of the Communications Decency Act of 1996, U.S. DEP’T OF~~
~~JUSTICE, https://www.justice.gov/ag/department-justice-s-review-section-230-communications-decency-act-1996 (last~~
~~visited Apr. 7, 2020); U.S. DEP’T OF JUSTICE, SECTION 230—NURTURING INNOVATION OR FOSTERING~~
~~UNACCOUNTABILITY?: KEY TAKEAWAYS AND RECOMMENDATIONS 18 (2020), https://www.justice.gov/file/1286331/~~
~~download [hereinafter DOJ Recommendations].~~
~~309 E.g., S. 5085, 116th Cong. (2020) (proposing to repeal Section 230); S. 5020, 116th Cong. (2020) (proposing to~~
~~sunset Section 230 on January 2, 2023); H.R. 8896, 116th Cong. (2020) (proposing to repeal Section 230).~~
~~310 Holding Sexual Predators and Online Enablers Accountable Act, S. 5012, 116th Cong. § 5 (2020); Protecting~~
~~Americans from Dangerous Algorithms Act, H.R. 8636, 116th Cong. § 2 (2020); PACT Act, S. 4066, 116th Cong. § 7~~
~~(2020); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020); Limiting Section 230 Immunity to~~
~~Good Samaritans Act, S. 3983, 116th Cong. § 2 (2020); COOL Online Act, S. 3707, 116th Cong. § 3 (2020); EARN IT~~
~~Act of 2020, S. 3398, 116th Cong. § 5 (2020); Protecting Local Authority and Neighborhoods Act, H.R. 4232, 116th~~
~~Cong. § 2 (2019); DOJ Recommendations, supra note 308, at 18 (2020) (supporting exceptions for “facilitating~~
~~terrorism” or “cyberstalking”).~~
~~Congressional Research Service~~
30

~~Section 230: An Overview~~

~~distributing child sexual abuse material.311 Others would have expanded the existing exemption~~
~~for federal criminal prosecutions to include the enforcement of federal civil laws, whether all~~
~~federal laws312 or only specific federal civil actions.313 Still other proposals would have created~~
~~exemptions for certain lawsuits brought under state law, including breach of contract claims314 or~~
~~claims relating to property rentals.315~~
~~At least some service providers may respond to the removal of Section 230 immunity for specific~~
~~types of content by removing or restricting access to the content rather than facing the threat of a~~
~~lawsuit.316 For example, Craigslist took down its personal ads section in response to FOSTA.317~~
~~Accordingly, creating new exceptions could cause service providers and users to remove or~~
~~restrict content that could possibly be subject to those exceptions more frequently, either~~
~~preemptively or in response to litigation. However, removing Section 230 immunity for certain~~
~~types of content does not necessarily mean that a provider or user will be liable for hosting that~~
~~content; it merely means that such liability will not be barred by Section 230. It is possible~~
~~providers could continue to host that content if they believe the benefits of hosting such content~~
~~outweigh potential litigation costs, particularly if providers believe they are likely to prevail in~~
~~any lawsuits or that lawsuits are unlikely.~~
~~Other proposals would have more broadly exposed providers to liability for hosting unlawful~~
~~content, if the provider is aware of that content.318 For example, the Platform Accountability and~~

~~311 E.g., Holding Sexual Predators and Online Enablers Accountable Act, S. 5012, 116th Cong. § 5 (2020) (creating a~~
~~new exception for civil actions and state criminal prosecutions that would violate new criminal offense, 18 U.S.C.~~
~~§ 2260B, relating to child sexual exploitation materials); EARN IT Act of 2020, S. 3398, 116th Cong. § 5 (2020)~~
~~(creating new exceptions for certain civil actions and state criminal prosecutions related to specified child sexual~~
~~exploitation offenses).~~
~~312 E.g., PACT Act, S. 4066, 116th Cong. § 7 (2020) (providing that Section 230 does not apply to the enforcement of~~
~~federal civil statutes or regulations); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (creating a~~
~~new exception for civil enforcement actions brought by the federal government arising out of violations of federal law).~~
~~313 E.g., Protecting Americans from Dangerous Algorithms Act, H.R. 8636, 116th Cong. (2020) (providing that “an~~
~~interactive computer service shall be considered to be an information content provider” and will not receive immunity~~
~~under Section 230(c)(1) in civil actions brought under 42 U.S.C. §§ 1985, 1986, or 18 U.S.C. § 2333, if the claim~~
~~involves the use of an algorithm to deliver the relevant content, with certain exceptions); COOL Online Act, S. 3707,~~
~~116th Cong. § 3 (2020) (making it unlawful, “[n]otwithstanding . . . section 230(c)(1) of the Communications Act of~~
~~1934,” to make “any false or deceptive representation” that a product is of United States origin).~~
~~314 Limiting Section 230 Immunity to Good Samaritans Act, S. 3983, 116th Cong. § 2 (2020) (creating a new exception~~
~~for claims “for breach of contract, promissory estoppel, or breach of a duty of good faith”).~~
~~315 Protecting Local Authority and Neighborhoods Act, H.R. 4232, 116th Cong. § 2 (2019) (creating a new exception~~
~~for state law civil claims if “(A) the claimant alleges such provider facilitated the lease or rental of real property in a~~
~~circumstance in which a law or contractual agreement restricts such lease or rental; (B) the claimant provides written~~
~~notice of the alleged violation to such provider; and (C) such provider fails to cure the alleged violation within 30 days~~
~~after the date on which such provider receives such notice”).~~
~~316 See, e.g., Corynne McSherry, Ph.D., Legal Director, Electronic Frontier Foundation, Statement for the Department~~
~~of Justice Public Workshop: Section 230—Nurturing Innovation or Fostering Unaccountability? 4 (Feb. 19, 2020),~~
~~https://www.justice.gov/file/1286206/download#page=82 (stating that in response to FOSTA, online companies~~
~~“increased restrictions on speech discussing sex,” citing Craigslist and Tumblr as two examples).~~
~~317 See Brian Feldman, Craigslist’s Legendary Personals Section Shuts Down, N.Y. MAG. (Mar. 23, 2018),~~
~~https://nymag.com/intelligencer/2018/03/craigslist-shuts-down-personals-section-because-of-fosta.html. Craigslist~~
~~expressly cited FOSTA as the motive for its decision; others have~~ speculated that Reddit and Tumblr, among other speculated that Reddit and Tumblr, among other
sites, made changes to their content policies in response to FOSTA. sites, made changes to their content policies in response to FOSTA. See, e.g., Paris Martineau, , Paris Martineau, Tumblr’s Porn Ban
Reveals Who Controls What We See Online, WIRED (Dec. 4, 2018), https://www.wired.com/story/tumblrs-porn-ban-, WIRED (Dec. 4, 2018), https://www.wired.com/story/tumblrs-porn-ban-
reveals-reveals-controls-we-see-online. Congressional Research Service 33 link to page 9 link to page 4 link to page 42 Section 230: An Overview hosting the content outweigh potential litigation costs, particularly if providers believe they are likely to prevail in any lawsuits or that lawsuits are unlikely. Some have pointed to the outcome in Stratton Oakmont, Inc., discussed above, to suggest that absent Section 230, sites might stop all content moderation to attempt to avoid liability.351 Economic and social considerations may also factor into a provider’s decision about how to respond to Section 230 amendments.352 For instance, if Congress limited immunity for restricting certain types of content, providers might continue to restrict it if they believe advertisers or users disfavor that content. Another general consideration is what type of defendants would be subject to liability under any given proposal to amend Section 230. As previously discussed, Section 230 is currently available to any provider or user of an interactive computer service, a broad term referring to any service that enables multiple users to access a computer server.353 A wholesale exception to Section 230 would remove that federal immunity for all interactive computer service providers and users. Some proposals to amend Section 230 would instead only limit Section 230 immunity for certain providers, such as larger providers or providers of certain types of services such as social media.354 For a discussion of policy considerations in defining “online platforms,” see CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho. Finally, as discussed in more detail in a later section, proposals to reform Section 230 may also raise First Amendment considerations.355 Liability for Hosting Content A number of proposals would have exposed service providers or users to greater liability for hosting another’s content, with the apparent goal of incentivizing content removal or restriction. Several bills would have created new exceptions to Section 230 by amending subsection (e) to carve out certain categories of claims, similar to FOSTA.356 Other bills would have created exceptions from only Section 230(c)(1) for certain types of claims,357 content,358 or defendants.359 The type of claim or content carved out from Section 230 protections varied. For instance, multiple bills focused on child sexual exploitation, allowing claims premised on conduct that violates new or existing laws related to distributing child sexual abuse material.360 Other bills 351 Supra “Stratton Oakmont, Inc. v. Prodigy Services Co.” In Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995), a state court held that a message board host could be subject to liability as the publisher of allegedly defamatory statements in part because it removed other messages. 352 For a discussion of the content recommendation and moderation policies of social media sites, see CRS Report R46662, Social Media: Misinformation and Content Moderation Issues for Congress, by Jason A. Gallo and Clare Y. Cho; and CRS In Focus IF12462, Social Media Algorithms: Content Recommendation, Moderation, and Congressional Considerations, by Kristen E. Busch. 353 47 U.S.C. § 230(f)(2); supra “Text and Legislative History.” 354 E.g., Justice Against Malicious Algorithms Act of 2021, H.R. 5596, 117th Cong. § 2 (2021); Limiting Section 230 Immunity to Good Samaritans Act, H.R. 277, 117th Cong. § 2 (2021). See generally, e.g., Eric Goldman & Jess Miers, Regulating Internet Services by Size, 2 COMPETITION POL’Y INT’L ANTITRUST CHRON. 24 (2021) (discussing considerations related to distinguishing internet services based on size). 355 Infra “Free Speech Considerations.” 356 E.g., Civil Rights Modernization Act of 2021, H.R. 3184, 117th Cong. § 2(a) (2021); SAFE TECH Act, S. 299, 117th Cong. § 2(2) (2021); PLAN Act, H.R. 4232, 116th Cong. § 2(b) (2019). 357 E.g., Protecting Americans from Dangerous Algorithms Act, H.R. 8636, 116th Cong. (2020). 358 E.g., Health Misinformation Act of 2021, S. 2448, 117th Cong. (2021). 359 E.g., Accountability for Online Firearms Marketplaces Act, S. 2725, 117th Cong. (2021). 360 E.g., Holding Sexual Predators and Online Enablers Accountable Act, S. 5012, 116th Cong. § 5 (2020); EARN IT Act of 2020, S. 3398, 116th Cong. § 5 (2020). See also, e.g., STOP CSAM Act of 2023, S. 1199, 118th Cong. § 5(e) (2023); END CSAM Act, S. 823, 118th Cong. § 5(g) (2023). Congressional Research Service 34 Section 230: An Overview would have created exceptions for certain lawsuits brought under state law, including breach of contract claims361 or claims relating to property rentals.362 Still other bills would have exempted claims under federal and state civil rights laws that prohibit discrimination on the basis of a protected class.363 Some of these bills would have authorized liability only if a service provider used certain types of algorithms to deliver the specified type of content.364 In addition to proposals that created exceptions for harmful or illegal content, some proposals would have effectively conditioned immunity on a service provider’s ability to remove harmful or illegal content. For example, the CASE-IT Act, as introduced in the 116th Congress, stated that a service provider or user would lose Section 230(c)(1) immunity for a year if they engaged in activities such as permitting harmful content to be distributed to minors, if the harmful content was “made readily accessible to minors by the failure of such provider or user to implement a system designed to effectively screen users who are minors from accessing such content.”365 Apart from these bills focusing on specific claims or content, some bills would have more broadly limited Section 230(c)(1) immunity.366 For example, some bills would have created new exceptions for the enforcement of all federal civil laws.367 Other proposals would have exposed providers to liability for hosting unlawful content if the provider was aware of that content.368 For example, the Platform Accountability and Consumer Transparency Act (PACT Act), as introduced in the 117th Congress, would have amended Section 230 so that some providers would lose immunity under subsection (c)(1) if they were notified about certain illegal content or activity occurring on their service and did not “remove the illegal content or stop the illegal activity” within certain time periods.369 The PACT Act would have required written notice that contained, among other elements, a copy of a court order finding the content or activity illegal.370 361 Limiting Section 230 Immunity to Good Samaritans Act, S. 3983, 116th Cong. § 2 (2020). 362 PLAN Act, H.R. 1107, 117th Cong. § 2(a) (2021). 363 E.g., Civil Rights Modernization Act of 2021, H.R. 3184, 117th Cong. § 2(a) (2021); SAFE TECH Act, S. 299, 117th Cong. § 2(2) (2021). 364 E.g., Health Misinformation Act of 2021, S. 2448, 117th Cong. § 3(a) (2021) (providing that a service provider “shall be treated as the publisher or speaker of health misinformation” if it uses certain algorithms to promote that content); Protecting Americans from Dangerous Algorithms Act, H.R. 8636, 116th Cong. § 2 (2020) (providing that “an interactive computer service shall be considered to be an information content provider” and will not receive Section 230(c)(1) immunity in civil actions brought under 42 U.S.C. §§ 1985, 1986, or 18 U.S.C. § 2333, if the claim involves the use of certain types of algorithms to deliver the relevant content, with exemptions for certain services). 365 CASE-IT Act, H.R. 8719, 116th Cong. § 2 (2020). 366 See, e.g., Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (providing that both service providers and users may only claim immunity under Section 230(c)(1) if a service “takes reasonable steps to prevent or address the unlawful use” of the service “or the unlawful publication of information on” the service). 367 E.g., PACT Act, S. 4066, 116th Cong. § 7 (2020) (providing that Section 230 does not apply to the enforcement of federal civil statutes or regulations); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (creating a new exception for civil enforcement actions brought by the federal government arising out of violations of federal law). 368 E.g., See Something, Say Something Online Act of 2020, S. 4758, 116th Cong. § 5 (2020) (providing that a provider “that fails to report a known suspicious transmission may be held liable as a publisher for the . . . transmission”). Cf. Stop Shielding Culpable Platforms Act, H.R. 2000, 117th Cong. (2021) (stating that Section 230(c)(1) does not prevent a provider or user “from being treated as the distributor of information”). The bill’s sponsor explained in a press release that this was intended to allow liability if an entity “knowingly shares” information. Press Release, Rep. Jim Banks, Chairman, Republican Study Committee, Banks Statement on the Stop Shielding Culpable Platforms Act (Mar. 22, 2021), https://banks.house.gov/uploadedfiles/stop_shielding_culpable_platforms_act_-_one-pager.pdf. 369 PACT Act, S. 797, 117th Cong. § 6(a) (2021). The bill defines “illegal activity” as content provider activity “that has been determined by a” court “to violate Federal criminal or civil law.” Id. § 6(b). It defines “illegal content” as information that a court has determined violates “(A) Federal criminal or civil law; or (B) State defamation law.” Id. 370 Id. § 6(a). Congressional Research Service 35 link to page 10 link to page 10 Section 230: An Overview The notice-and-takedown liability regime of the PACT Act may be compared to the notice-and-takedown procedures of the Digital Millennium Copyright Act (DMCA), enacted in 1998.371 The DMCA provides a safe harbor to covered providers who remove content after being notified that it may violate federal copyright law.372 The law protects them from lawsuits premised on hosting potentially infringing content. While the PACT Act would have required the specified notice to contain a court order adjudicating the challenged content as illegal, the DMCA essentially leaves the initial determination of whether content is illegal to private parties. Under the DMCA, the person notifying a service provider of copyright infringement must provide a good-faith assertion under penalty of perjury that the use of the allegedly infringing material is unlawful.373 The notifier thus has the initial burden of determining whether the material violates copyright laws.374 The provider hosting the allegedly infringing content then must decide whether to accept the notice and expeditiously take down the material, or instead to ignore the notice and risk liability. The DMCA can therefore incentivize removals by granting immunity to providers that remove allegedly infringing material, creating the potential that providers will take down lawful material rather than risk litigation.375 The PACT Act, in contrast, would have incentivized removal after a court already determined the material violated the law.376 If a proposal to convert Section 230 into a notice-and-takedown liability scheme instead left it to providers to determine in the first instance whether activity on their site violated the law, then such a hypothetical proposal could, like the DMCA, incentivize the removal of at least some lawful content. Other bills would have effectively conditioned Section 230 immunity on the provider’s content recommendation and moderation practices. For instance, some bills would have caused providers to lose Section 230 immunity if they used certain algorithms to distribute content to users or display behavioral advertising, regardless of whether the algorithmically distributed content or behavioral advertising formed the basis of the suit.377 One bill would have required certain 371 17 U.S.C. § 512(c). It could also be compared to the notice-based liability imposed on distributors of defamatory content. See supra notes 64 to 66 and accompanying text; cf., e.g., Barrett v. Rosenthal, 146 P.3d 510, 520 (Cal. 2006) (comparing the DMCA’s “limited liability” scheme to Section 230, and concluding “that Congress did not intend to permit notice liability under the CDA”). 372 See generally CRS In Focus IF11478, Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for Online Service Providers: A Legal Overview, by Kevin J. Hickey; U.S. COPYRIGHT OFFICE, SECTION 512 OF TITLE 17 (2020), https://www.copyright.gov/policy/section512/section-512-full-report.pdf. 373 17 U.S.C. § 512(c)(3). 374 See, e.g., Lenz v. Univ. Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016) (acknowledging the copyright holder’s obligation to state that the use is unauthorized and holding that this provision requires the holder to consider whether the potentially infringing material is authorized as “fair use” of a copyright). 375 17 U.S.C. § 512(g)(1); see also, e.g., Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, 24 HARV. J. LAW & TECH. 171, 175 (2010) (discussing the incentive structure and arguing that the DMCA results in removal of constitutionally protected speech). The DMCA also provides a process for the user who posted the allegedly infringing material to challenge the initial notice. 17 U.S.C. § 512(g)(2)–(3). If there is such a “counter notification,” the provider may be able to replace the initial post and retain immunity. Id. § 512(g)(2), (4). 376 See PACT Act, S. 797, 117th Cong. § 6 (2021). 377 E.g., Break Up Big Tech Act of 2020, H.R. 8922, 116th Cong. § 2 (2020) (providing that Section 230 will not apply if a provider sells targeted advertising and displays the advertising to users who have not opted in, among other provisions); Don’t Push My Buttons Act, S. 4756, 116th Cong. § 2 (2020) (providing that a provider generally may not claim Section 230 immunity if the provider uses automated functions to deliver content to users based on information it has collected about the user’s habits, preferences, or beliefs, with certain exceptions); BAD ADS Act, S. 4337, 116th Cong. § 2 (2020) (preventing certain providers from claiming Section 230 immunity for 30 days after displaying “behavioral advertising” to a user or providing user information to a person knowing the information will be used to “create or display behavioral advertising”). Congressional Research Service 36 link to page 19 link to page 11 link to page 11 Section 230: An Overview providers to “publicly disclose accurate information” about their “content moderation activity” before they could claim Section 230(c)(1) immunity.378 Still other bills would have allowed liability if a provider or user promoted the content at issue in a particular lawsuit,379 sometimes focusing specifically on providers’ use of algorithms.380 For instance, the Justice Against Malicious Algorithms Act of 2021 would have provided that Section 230(c)(1) would not apply to certain providers that knew, should have known, or recklessly made a personalized recommendation that materially contributed to a physical or severe emotional injury.381 Taking a different approach, the DISCOURSE Act would have provided that certain service providers would be deemed the “information content provider” for information targeted to a user through an algorithm.382 This approach seemingly drew on cases ruling that if a provider creates or develops the challenged information—is the content provider—Section 230 immunity does not apply.383 Both of these bills contained exceptions if the recommendations responded to a user search. Viewed on a general level, these proposals accordingly would have attempted to discourage the use of recommendation algorithms. For more information on algorithms, see CRS In Focus IF12462, Social Media Algorithms: Content Recommendation, Moderation, and Congressional Considerations, by Kristen E. Busch; and CRS Report R47753, Liability for Algorithmic Recommendations, by Eric N. Holmes. Some bills would have targeted similar concerns by further amending the term “information content provider” to encompass other types of activity. Multiple proposals would have treated a person as an information content provider if the person “affirmatively and substantively” modified another’s content,384 or solicited or funded information.385 Liability for Restricting Content Some proposals would have limited providers’ and users’ immunity for restricting access to another’s content, with the apparent goal of incentivizing the hosting of content. One preliminary consideration in proposals seeking to limit immunity for restricting access to content is the respective scope of Section 230(c)(1) and (c)(2), an issue discussed above.386 Because courts have held that both provisions may immunize decisions to take down or otherwise restrict content, a bill that seeks to limit such immunity may need to amend both provisions. Otherwise, if a proposal amends only Section 230(c)(2) and does not address the scope of Section 230(c)(1), 378 DISCOURSE Act, S. 2228, 117th Cong. § 2(d)(2) (2021). 379 E.g., Platform Integrity Act, H.R. 9695, 117th Cong. § 2 (2022) (providing that Section 230(c)(1) will not apply if the “provider or user has promoted, suggested, amplified, or otherwise recommended such information”). 380 E.g., Biased Algorithm Deterrence Act of 2019, H.R. 492, 116th Cong. § 2 (2019) (stating that if “an owner or operator of a social media service . . . displays user-generated content in an order other than chronological order, delays the display of such content relative to other content, or otherwise hinders the display of such content relative to other content, if for a reason other than to restrict access to or availability of material described in [Section 230(c)(2)(A)] or to carry out the direction of the user that generated such content,” that social media service “shall be treated as a publisher or speaker of such content”). 381 Justice Against Malicious Algorithms Act of 2021, H.R. 5596, 117th Cong. § 2(a) (2021). 382 E.g., DISCOURSE Act, S. 2228, 117th Cong. § 2(a)(2)(A) (2021). 383 See supra “Information Provided by Another Information Content Provider.” 384 E.g., 21st Century FREE Speech Act, S. 1384, 117th Cong. § 2(a) (2021); Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020); Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020). 385 E.g., DISCOURSE Act, S. 2228, 117th Cong. § 2(a)(2)(A) (2021); Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020). Cf., e.g., SAFE TECH Act, S. 299, 117th Cong. § 2(1) (2021) (creating an exception to Section 230(c)(1) if the provider or user accepted payment to make the speech available or funded the creation of speech). 386 Supra text accompanying notes 81 to 83. Congressional Research Service 37 link to page 41 link to page 41 link to page 38 link to page 39 link to page 26 link to page 26 Section 230: An Overview courts might continue to apply (c)(1) to some takedown decisions regardless of whether the more limited immunity in (c)(2) no longer protected those decisions. In response to this issue, some bills would have provided that Section 230(c)(1) does not apply to decisions to restrict content, so that Section 230(c)(2) is the sole provision that immunizes takedown decisions.387 Some proposals would have amended the specific categories of material mentioned in Section 230(c)(2), changing the types of content covered by this provision.388 For example, a few proposals would have deleted the catch-all term granting providers and users immunity for restricting “otherwise objectionable material” and added new, more limited categories of material such as material promoting “terrorism,” “violence,” or “self-harm.”389 One bill would have added definitions for some of the existing categories of material: for example, defining “harassing” material in part as material provided “with the intent to abuse, threaten, or harass any specific person” and “lacking in any serious literary, artistic, political, or scientific value.”390 A bill without such definitions may face interpretive questions about whether, for instance, specific material promotes terrorism or self-harm. A number of these types of proposals would also have granted immunity for removing “unlawful” material.391 Using the phrase “unlawful” makes these proposals subject to the same questions discussed above regarding who determines whether the content is unlawful and how.392 If a proposal retains the language in Section 230(c)(2) providing immunity for restricting material “that the provider or user considers to” fall within the listed categories,393 it is likely courts would continue interpreting this provision as embodying a subjective standard.394 Some proposals, though, would have amended Section 230(c)(2) to state that it applies only if the provider or user has an “objectively reasonable” belief that the content falls within one of the listed categories,395 seemingly inviting courts to engage in a more rigorous review of this belief.396 Other proposals would have limited immunity for takedown decisions in ways that depart more substantially from the current Section 230 framework. Some proposals sought to condition Section 230(c)(2) immunity on certain procedural requirements, such as requiring providers and users to explain their decisions to restrict access to content.397 Other bills would have required 387 E.g., Protect Speech Act, H.R. 3827, 117th Cong. § 2 (2021); Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020). 388 See, e.g., Stop the Censorship Act, H.R. 4027, 116th Cong. § 2 (2019) (replacing entire list of adjectives in Section 230(c)(2) with “unlawful”). 389 E.g., Preserving Political Speech Online Act, S. 2338, 117th Cong. § 4(2) (2021) (deleting “filthy” and “otherwise objectionable” and adding “threatening, or promoting illegal activity”); Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020) (replacing “harassing, or otherwise objectionable” with “promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful”); Stop the Censorship Act of 2020, H.R. 7808, 116th Cong. § 2 (2020) (replacing “otherwise objectionable” with “unlawful, or that promotes violence or terrorism”). 390 21st Century FREE Speech Act, S. 1384, 117th Cong. § 2(a)(2) (2021). 391 Supra notes 388 and 389. 392 See supra text accompanying notes 368 to 376. 393 47 U.S.C. § 230(c)(2)(A). 394 See supra text accompanying notes 243 to 246. 395 E.g., DISCOURSE Act, S. 2228, 117th Cong. § 2(b)(1)(A) (2021); Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020); Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020). 396 Cf. Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1104 (N.D. Cal. 2011) (“No court has articulated specific, objective criteria to be used in assessing . . . a provider’s subjective determination of what is ‘objectionable’ . . . . Here, however, it is clear . . . that Microsoft reasonably could conclude that Holomaxx’s emails were ‘harassing’ and thus ‘otherwise objectionable.’” (emphasis added)). 397 E.g., Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020). Congressional Research Service 38 Section 230: An Overview providers (and sometimes users) to adopt public terms of service for restricting access to content and then consistently apply those terms in order to benefit from Section 230 immunity.398 Some proposals would have made broader changes to limit the types of content restriction decisions receiving immunity, focusing on the substance of those decisions. A number of bills would have granted immunity for takedown decisions only if the provider or user acted in a viewpoint-neutral manner.399 Another proposal would have stated that providers do not act in “good faith” for purposes of Section 230(c)(2)(A) if they restrict material on the basis of certain protected classes, including race, religion, sex, or “political affiliation or speech.”400 Perhaps departing most significantly from the current Section 230 framework, one bill would have added a new provision to Section 230 making it unlawful for “any internet platform” to restrict access to legally protected material and creating a private right of action to enforce this provision.401 This bill would have raised similar questions as the proposals using the phrase “unlawful” discussed above, regarding who determines whether material is legally protected. Under this bill, another question might have been when material is “protected” under the Constitution or other laws—when a law is explicit enough to create protections, for instance, and whether any protections have to be absolute rather than qualified. Free Speech Considerations The Free Speech Clause of the First Amendment to the U.S. Constitution limits the government’s ability to regulate speech.402 There are at least two distinct types of First Amendment issues that 398 E.g., 21st Century FREE Speech Act, S. 1384, 117th Cong. § 2(a)(2) (2021) (defining “in good faith” to mean, among other requirements, that a provider or user (1) restricts access to material consistent with publicly available terms of service; (2) does not restrict access to material on deceptive grounds; (3) does not restrict material that is similarly situated to material the provider or user intentionally declines to restrict; and (4) gives the content provider notice of the restriction and an opportunity to respond); Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020) (providing that Section 230(c)(1) and Section 230(c)(2)(A) apply only if the provider or user (1) makes publicly available terms of service for content moderation; (2) restricts content consistently with those terms of service; (3) does not restrict content “on deceptive grounds or apply terms of service or use to restrict access to or availability of material that is similarly situated to material that the service intentionally declines to restrict”; and (4) gives the content provider “timely notice” of the basis for restricting access to the content and “a meaningful opportunity to respond”); Limiting Section 230 Immunity to Good Samaritans Act, S. 3983, 116th Cong. § 2(1) (2020) (amending Section 230(c)(1) so that it applies to a covered “edge provider” only if it adopts written terms of service for restricting material that “promise” that the provider will (1) “design and operate” the service in “good faith,” a term defined as excluding “intentionally selective enforcement” of the service’s terms of service, among other provisions, and (2) pay certain damages and costs if the provider is found to have breached that promise). 399 E.g., DISCOURSE Act, S. 2228, 117th Cong. § 2(a)(2) (2021) (stating that dominant service providers will be deemed information content providers if they “suppress a discernible viewpoint” of the information); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2(1)(B)(iii) (2020) (providing that Section 230(c)(2)(A) will apply only if a provider or user, among other requirements, acts “in a viewpoint-neutral manner”); Ending Support for Internet Censorship Act, S. 1914, 116th Cong. § 2(a)(1) (2019) (providing that Section 230(c) will apply to larger providers only if the FTC has certified that “the company does not moderate information . . . in a manner that is biased against a political party, political candidate, or political viewpoint”). 400 Preserving Political Speech Online Act, S. 2338, 117th Cong. § 4(5) (2021). 401 Protecting Constitutional Rights from Online Platform Censorship Act, H.R. 83, 117th Cong. § 2(a)(2) (2021). 402 U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”). Although the text of the First Amendment refers to “Congress,” it has long been understood to restrict action by the executive branch as well. See, e.g., Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 160 (1973) (Douglas, J., concurring) (describing First Amendment as restricting Congress, whether “acting directly or through any of its agencies such as the FCC”); see generally, e.g., Daniel J. Hemel, Executive Action and the First Amendment’s First Word, 40 PEPP. L. REV. 601 (2013). The First Amendment applies to the states through the Fourteenth Amendment. 44 Liquormart v. Rhode Island, 517 U.S. 484, 489 n.1 (1996); U.S. CONST. amend. XIV. Congressional Research Service 39 Section 230: An Overview may be raised by proposals to amend Section 230. The first issue is whether any given proposal unconstitutionally infringes the constitutionally protected speech of either providers or users. The second is whether, if Section 230 is repealed in whole or in part, the First Amendment may nonetheless prevent private parties or the government from holding providers liable for hosting content. This section of the report first explains background principles on legal protections for online speech, and then provides some initial considerations for evaluating these two issues. Background Principles First Amendment Protections for Online Speech The Supreme Court has recognized that the First Amendment protects speech transmitted over the internet, saying in one case that “cyberspace,” and in particular, “social media,” is today the most important place for “the exchange of views” and other core speech activities.403 Accordingly, the Court has invalidated a number of~~controls-we-see-online.~~
~~318 E.g., See Something, Say Something Online Act of 2020, S. 4758, 116th Cong. § 5 (2020) (providing that a provider~~
~~“that fails to report a known suspicious transmission may be held liable as a publisher for the . . . transmission”); PACT~~
~~Congressional Research Service~~
31

~~link to page 9 link to page 9~~ ~~Section 230: An Overview~~

~~Consumer Transparency Act (PACT Act) would have amended Section 230 so that certain~~
~~providers lose immunity under subsection (c)(1) if the provider is notified about illegal content or~~
~~activity occurring on its service and “does not remove the illegal content or stop the illegal~~
~~activity within 24 hours.”319 The PACT Act also would have created a procedure for notifying~~
~~providers about illegal content.320 Like some other proposals, the PACT Act would have~~
~~differentiated between different types of providers: small business providers would be exempt~~
~~from the 24-hour deadline, and the new provisions would not apply at all to “internet~~
~~infrastructure services” such as web-hosting services.321~~
~~The PACT Act would have stood in contrast to the notice-and-takedown procedures of the Digital~~
~~Millennium Copyright Act (DMCA).322 The DMCA provides a “safe harbor” to covered providers~~
~~who remove content after being notified that the content may violate federal copyright law,~~
~~protecting them from lawsuits premised on hosting potentially infringing content.323 The~~
~~European Union’s e-Commerce Directive operates somewhat similarly, providing that for certain~~
~~service providers to receive immunity, the provider must “act expeditiously to remove or to~~
~~disable access to the information concerned” once the service “obtain[s] actual knowledge or~~
~~awareness of illegal activities.”324 However, the scope of the intermediary liability provisions in~~
~~both the DMCA and the e-Commerce Directive have also been subject to debate and proposals~~
~~for reform.325~~
~~One issue in proposals that would have conditioned immunity on removing unlawful content is~~
~~who determines whether the content is unlawful, and how. Both the DMCA and the e-Commerce~~
~~Directive essentially leave the initial determination of whether content is illegal to private parties.~~
~~Under the DMCA, the person notifying a service provider of copyright infringement must submit~~
~~a statement under penalty of perjury identifying the allegedly infringing material and providing a~~
~~good-faith assertion that the use of the material is unlawful.326 The notifier thus has the initial~~
~~burden of discovering the material and determining whether it violates copyright laws.327 The~~
~~provider hosting the allegedly infringing content then must decide whether to accept the notice~~

~~Act, S. 4066, 116th Cong. § 6 (2020) (providing that Section 230(c)(1) will not apply to illegal content or activity if~~
~~covered providers know about the illegal content and do not remove it within 24 hours).~~
~~319 PACT Act, S. 4066, 116th Cong. § 6 (2020).~~
~~320 Id. The bill defines “illegal activity” as content provider activity “that has been determined by a Federal or State~~
~~court to violate Federal criminal or civil law.” Id. It defines “illegal content” as information that a Federal or State court~~
has determined violates “(A) Federal criminal or civil law; or (B) State defamation law.” Id.
~~321 Id. A provider counts as a small business provider if, during the prior two years, it “(A) received fewer than~~
~~1,000,000 monthly active users or monthly visitors; and (B) accrued revenue of less than $25,000,000.” Id. § 2(9).~~
~~322 17 U.S.C. § 512(c); see also, e.g., CRS Report R43436,~~ ~~Safe Harbor for Online Service Providers Under Section~~
~~512(c) of the Digital Millennium Copyright Act, by Brian T. Yeh. It could also be compared to the notice-based liability~~
~~imposed on distributors of defamatory content. See supra notes 59 to 61 and accompanying text.~~
~~323 See generally CRS In Focus IF11478,~~ ~~Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for~~
~~Online Service Providers: A Legal Overview, by Kevin J. Hickey; U.S. COPYRIGHT OFFICE, SECTION 512 OF TITLE 17~~
~~(2020), https://www.copyright.gov/policy/section512/section-512-full-report.pdf.~~
~~324 Parliament and Council Directive 2000/31/EC, 2000 O.J. (L 178) 6.~~
~~325 See, e.g., Britain Eakin, Draft Bill That Would Revamp DMCA Sparks Divided Reaction, Law360 (Dec. 22, 2020),~~
~~https://www.law360.com/publicpolicy/articles/1340196/draft-bill-that-would-revamp-dmca-sparks-divided-~~
~~reaction?nl_pk=77a8fbcd-0ce9-4d0f-a0ac-3a4c7fd100a8; Illegal Content on Online Platforms, EUROPEAN COMM’N,~~
~~https://ec.europa.eu/digital-single-market/en/digital-services-act-package (last updated Mar. 3, 2021).~~
~~326 17 U.S.C. § 512(c)(3).~~
~~327 See, e.g., Lenz v. Univ. Music Corp., 815 F.3d 1145, 1151 (9th Cir 2016) (noting the copyright holder’s obligation~~
~~to state that the use is unauthorized and holding that this provision requires the holder to consider whether the~~
~~potentially infringing material is authorized as “fair use” of a copyright).~~
~~Congressional Research Service~~
32

~~link to page 27 link to page 33~~ ~~Section 230: An Overview~~

~~and expeditiously take down the material, or instead to ignore the notice and risk liability. In~~
~~some ways, the DMCA incentivizes removals by granting immunity to providers that remove the~~
~~allegedly infringing material, creating the risk that providers will take down lawful material rather~~
~~than risk litigation.328 However, the DMCA also provides a process for the user who posted the~~
~~allegedly infringing material to challenge the initial notice.329 If there is such a “counter~~
~~notification,” the provider may be able to replace the initial post and retain immunity.330~~
~~Congress took a different approach in Section 230,331 insulating providers from liability for~~
~~hosting both lawful and unlawful third-party content even if the provider has notice of allegedly~~
~~unlawful user-generated content.332 If Congress were to decide that this approach is no longer~~
~~appropriate, it might consider whether to leave the analysis of lawfulness largely to private~~
~~parties, retaining some immunity for providers, as in the DMCA, or whether instead to leave the~~
~~analysis to courts. In comparison, some proposals, including the PACT Act, would have imposed~~
~~notice liability on providers only if a court has already adjudicated the content to be unlawful.333~~
~~Proposals like the PACT Act would state that if a provider is aware of an unlawful post, it will~~
~~lose immunity for a lawsuit premised on that specific post.334 By contrast, a number of other~~
~~proposals would have stipulated that service providers or users cannot claim Section 230~~
~~immunity if they engage in certain conduct, seemingly regardless of whether a subsequent lawsuit~~
~~is premised on that conduct. For example, the Stopping Big Tech’s Censorship Act would have~~
~~provided that both service providers and users may only claim immunity under Section 230(c)(1)~~
~~if a service “takes reasonable steps to prevent or address the unlawful use” of the service “or the~~
~~unlawful publication of information on” the service.335 It appears that this proposal would have~~
~~prevented both providers and users from claiming Section 230 immunity in a lawsuit regardless~~
~~of whether the service acted reasonably with respect to content that is the basis of a specific~~
~~lawsuit.336 The CASE-IT Act would have taken a similar approach, providing that service~~
~~providers and users lose Section 230(c)(1) immunity for a year if they engage in certain activities,~~
~~including permitting harmful content to be distributed to minors, if the harmful content “is made~~
~~readily accessible to minors by the failure of such provider or user to implement a system~~

~~328 17 U.S.C. § 512(g)(1); see also, e.g., Wendy Seltzer,~~ ~~Free Speech Unmoored in Copyright’s Safe Harbor: Chilling~~
~~Effects of the DMCA on the First Amendment, 24 HARV. J. LAW & TECH. 171, 175 (2010) (discussing the incentive~~
~~structure and arguing that the DMCA results in removal of constitutionally protected speech).~~
~~329 17 U.S.C. § 512(g)(2)–(3).~~
~~330 Id. § 512(g)(2), (4).~~
~~331 Both provisions, however, adopt a policy of immunity for intermediaries hosting others’ content, and grant~~
~~significant power to private parties to determine what content should be online. See, e.g., Markham C. Erickson &~~
~~Sarah K. Leggin,~~ ~~Exporting Internet Law Through International Trade Agreements: Recalibrating U.S. Trade Policy in~~
~~the Digital Age, 24 CATH. U. J. L. & TECH. 317, 340 (2016).~~
~~332 Cf., e.g., Barrett v. Rosenthal, 146 P.3d 510, 520 (Cal. 2006) (comparing the DMCA’s “limited liability” scheme to~~
~~Section 230, and concluding “that Congress did not intend to permit notice liability under the CDA”). However, as~~
~~noted above, Section 230 immunity contains exceptions allowing liability for hosting certain types of unlawful content,~~
~~including if a site violates federal criminal law. Supra “Section 230(e): Exceptions.”~~
~~333 PACT Act, S. 4066, 116th Cong. § 6 (2020). See also DOJ Recommendations, supra note 308, at 18 (“Section 230~~
~~should be narrowed so as not to apply in actions where a platform has failed to take down content or activity, within a~~
~~reasonable time, after receiving notice that a court in the United States has adjudicated the content or activity to be~~
~~unlawful.”).~~
~~334 See PACT Act, S. 4066, 116th Cong. § 6 (2020).~~
~~335 Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020).~~
336 See id.
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~~designed to effectively screen users who are minors from accessing such content.”337 In the same~~
~~vein, other bills would have caused providers to lose Section 230 immunity if they use algorithms~~
~~to distribute content to users or display behavioral advertising.338~~
~~Some efforts focus more fundamentally on what activities qualify someone as an information~~
~~content provider, seeking to clarify or roll back court decisions that sponsors believe misinterpret~~
~~the term “information content provider” and misapply Section 230(c)(1).339 Two proposals~~
~~introduced in the 116th Congress would have treated a person as an information content provider~~
~~if the person “affirmatively and substantively” modifies another’s content.340 One of the bills~~
~~would have also included people who solicit or fund information.341~~
~~In contrast to proposals that would expose service providers or users to greater liability for~~
hosting or distributing another’s content, a number of other proposals would have limited
~~providers’ and users’ immunity for restricting access to content. Some have suggested clarifying~~
~~that Section 230(c)(1) applies only when a suit is premised on hosting content, and Section~~
~~230(c)(2) is the sole provision that immunizes takedown decisions.342 This would resolve the~~
~~interpretive dispute mentioned above regarding the scope of Section 230(c)(1) and its relationship~~
~~to (c)(2).343 Significantly, because of this interpretive dispute, if a proposal amends only Section~~
~~230(c)(2) and does not address the scope of Section 230(c)(1), it is possible that courts would~~
~~continue to apply (c)(1) to takedown decisions regardless of whether the more limited immunity~~
~~in (c)(2) protects those decisions. Accordingly, to limit immunity for decisions to restrict access to~~
~~content, the scope of Section 230(c)(1) may have to be narrowed.~~

~~337 CASE-IT Act, H.R. 8719, 116th Cong. § 2 (2020).~~
~~338 Break Up Big Tech Act of 2020, H.R. 8922, 116th Cong. § 2 (2020) (providing that Sections 230(c)(1) and (2) will~~
~~not apply if a provider (1) sells targeted advertising and displays the advertising to users who have not opted in; (2)~~
~~“places items, or facilitates the placement of items, into the stream of commerce”; (3) collects data for commercial~~
~~purposes; or (4) “uses a design or product that addicts . . . users”); Don’t Push My Buttons Act, S. 4756, 116th Cong.~~
~~§ 2 (2020) (providing that a provider generally may not claim immunity under Section 230(c)(1) or (2) if the provider~~
~~uses automated functions to deliver content to users based on information it has collected about the user’s habits,~~
~~preferences, or beliefs, with certain exceptions); BAD ADS Act, S. 4337, 116th Cong. § 2 (2020) (preventing certain~~
~~providers from claiming immunity under Section 230 for 30 days after displaying “behavioral advertising” to a user or~~
~~providing user information to another person knowing that such information will be used to “create or display~~
~~behavioral advertising”). Cf. Biased Algorithm Deterrence Act of 2019, H.R. 492, 116th Cong. § 2 (2019) (stating that~~
~~if “an owner or operator of a social media service . . . displays user-generated content in an order other than~~
~~chronological order, delays the display of such content relative to other content, or otherwise hinders the display of~~
~~such content relative to other content, if for a reason other than to restrict access to or availability of material described~~
~~in [Section 230(c)(2)(A)] or to carry out the direction of the user that generated such content,” that social media service~~
~~“shall be treated as a publisher or speaker of such content”).~~
~~339 Cf., e.g., NTIA Petition, supra note 304, at 42–46 (discussing cases and outlining circumstances under which a~~
~~service provider should be deemed to have published content).~~
~~340 Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020) (providing that a person qualifies as an “information content~~
~~provider” if the person “solicits, comments upon, funds, or affirmatively and substantively contributes to, modifies, or~~
~~alters information”); Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020) (amending the~~
~~definition of “information content provider” to include “any instance in which a person or entity editorializes or~~
~~affirmatively and substantively modifies the content of another person or entity”). See also NTIA Petition, supra note~~
~~304, at 42 (clarifying that the statutory definition of “information content provider” includes “substantively~~
~~contributing to, modifying, altering, presenting or prioritizing with a reasonably discernible viewpoint, commenting~~
~~upon, or editorializing about content provided by another information content provider”).~~
~~341 Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020).~~
~~342 Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020); Online Freedom and Viewpoint Diversity Act, S. 4534,~~
~~116th Cong. § 2 (2020); NTIA Petition, supra note 304, at 31.~~
~~343 Supra notes 75 to 76 and accompanying text.~~
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~~Some proposals would have amended the categories of material mentioned in Section 230(c)(2),~~
~~changing the types of content that providers and users may restrict with immunity.344 For~~
~~example, a few proposals would delete the catch-all term granting immunity for “otherwise~~
~~objectionable material” and replace this with new, more limited categories of material such as~~
~~material “promoting terrorism” or “promoting self-harm,” or “unlawful” material.345 In terms of~~
~~subject matter, the category of “unlawful” material is broader than material that promotes~~
~~terrorism or fits within one of the other specific categories of material mentioned in Section~~
~~230(c)(2)—but the category is also narrower in the sense that, for example, not all material~~
~~“promoting terrorism” may be unlawful.346 Using the phrase “unlawful” makes these proposals~~
~~subject to the same questions discussed above regarding who determines whether the content is~~
~~unlawful and how.347 Other new categories would likely also raise interpretive questions, such as~~
~~whether specific material promotes terrorism or self-harm.~~
~~If a proposal retains the language in Section 230(c)(2) providing immunity for restricting material~~
~~“that the provider or user considers to” fall within the listed categories,348 it is likely that courts~~
~~would continue interpreting this provision as embodying a largely subjective standard.349 Some~~
~~proposals, though, would have amended Section 230(c)(2) to state that this provision applies only~~
~~if the provider or user has an “objectively reasonable” belief that the content falls within one of~~
~~the listed categories,350 seemingly inviting courts to engage in a more rigorous review of this~~
~~belief.351~~
~~A number of other proposals would have limited immunity for takedown decisions in ways that~~
~~depart more substantially from the current Section 230(c)(2) framework. For example, a few~~
~~proposals would have granted immunity for takedown decisions only if the provider or user has~~
~~acted in a viewpoint-neutral manner, meaning in a way that is not biased against any particular~~
~~viewpoint.352 Other proposals would require service providers or users to adopt certain procedural~~

~~344 See, e.g., Stop the Censorship Act, H.R. 4027, 116th Cong. § 2 (2019) (replacing entire list of adjectives in Section~~
~~230(c)(2) with “unlawful”).~~
~~345 Stop Suppressing Speech Act of 2020, S. 4828, 116th Cong. § 2 (2020) (replacing “harassing, or otherwise~~
~~objectionable” with “or harassing, that the provider or user determines to be unlawful, or that promotes violence or~~
~~terrorism”); Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020) (replacing “harassing, or otherwise objectionable”~~
~~with “promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful”); Online Freedom and~~
~~Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020) (replacing “otherwise objectionable” with “promoting self-~~
~~harm, promoting terrorism, or unlawful”); Stop the Censorship Act of 2020, H.R. 7808, 116th Cong. § 2 (2020)~~
~~(replacing “otherwise objectionable” with “unlawful, or that promotes violence or terrorism”).~~
~~346 Cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 25–26, 39 (2010) (ruling that some speech related to terrorism~~
~~may be protected by the First Amendment, including political advocacy, but upholding the constitutionality of a law~~
~~criminalizing “material support” to terrorists under a strict scrutiny analysis).~~
~~347 See supra notes 318 to 333 and accompanying text.~~
~~348 47 U.S.C. § 230(c)(2)(A).~~
~~349 See supra notes 209 to 212 and accompanying text.~~
~~350 See Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020); Online Freedom and Viewpoint Diversity Act, S. 4534,~~
~~116th Cong. § 2 (2020).~~
~~351 Cf. Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1104 (N.D. Cal. 2011) (“No court has articulated~~
~~specific, objective criteria to be used in assessing . . . a provider’s subjective determination of what is ‘objectionable’ . .~~
~~. . Here, however, it is clear . . . that Microsoft reasonably could conclude that Holomaxx’s emails were ‘harassing’ and~~
~~thus ‘otherwise objectionable.’” (emphasis added)).~~
~~352 See, e.g., CASE-IT Act, H.R. 8719, 116th Cong. § 2 (2020) (providing that Sections 230(c)(1) and (c)(2)(A) will not~~
~~apply to certain providers if the provider “makes content moderation decisions pursuant to policies or practices that are~~
~~not reasonably consistent with the First Amendment to the Constitution,” treating these providers as equivalent to state~~
~~actors); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (providing that Section 230(c)(2)(A)~~
~~will apply only if a provider or user, among other requirements, acts “in a viewpoint-neutral manner”); Ending Support~~
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~~safeguards or notice requirements related to takedowns in order to benefit from Section 230~~
~~immunity: for instance, by stating that providers must adhere to their terms of service in~~
~~restricting access to user content.353 Some of these proposals would have tied these requirements~~
~~to the “good faith” standard in Section 230(c)(2)(A), stating that before a provider may be~~
~~considered to be acting in good faith, it must clearly state its criteria for restricting access to~~
~~content and then adhere to that criteria in individual decisions.354 At least two bills would have~~
~~also required users to provide explanations of their decisions to restrict access to content.355~~
~~Although there have been many proposals to reform Section 230’s immunity shield, some argue~~
~~either that Section 230 should not be changed or that reforms should be modest and carefully~~
~~considered.356 And as commentators have noted, some of the reform proposals may conflict with~~
~~others and pursue divergent goals, making it more difficult to predict which of these reform~~
~~efforts, if any, may garner sufficient support.357~~
~~FCC~~
~~Congress passed the CDA as part of the Telecommunications Act of 1996. The~~
~~Telecommunications Act, in turn, amended the Communications Act of 1934, a statute~~
~~administered by the FCC. Accordingly, the FCC may have a role in enforcing or implementing~~
~~Section 230, although Section 230 does not explicitly mention the FCC, and the FCC has not~~
~~interpreted Section 230 since its passage.358 The FCC has, on occasion, referred to Section 230 in~~

~~for Internet Censorship Act, S. 1914, 116th Cong. § 2 (2019) (providing that Section 230(c) will not apply to larger~~
~~providers unless the FTC has certified that “the company does not moderate information . . . in a manner that is biased~~
~~against a political party, political candidate, or political viewpoint”).~~
~~353 E.g., Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020) (providing that Section 230(c)(1) and Section~~
~~230(c)(2)(A) apply only if the provider or user (1) makes publicly available terms of service for content moderation;~~
~~(2) restricts content consistently with those terms of service; (3) does not restrict content “on deceptive grounds or~~
~~apply terms of service or use to restrict access to or availability of material that is similarly situated to material that the~~
~~service intentionally declines to restrict”; and (4) gives the content provider “timely notice” of the basis for restricting~~
~~access to the content and “a meaningful opportunity to respond”); Stopping Big Tech’s Censorship Act, S. 4062, 116th~~
~~Cong. § 2 (2020) (providing that to claim Section 230(c) immunity, (1) a provider must “clearly explain” its “practices~~
~~and procedures” for restricting access to material; and (2) a provider or user who restricts access to material must~~
~~“provide a clear explanation of that decision” to the content provider); Limiting Section 230 Immunity to Good~~
~~Samaritans Act, S. 3983, 116th Cong. § 2 (2020) (amending Section 230(c)(1) so that it applies to a covered “edge~~
~~provider” only if it adopts written terms of service for restricting material that “promise” that the provider will~~
~~(1) “design and operate” the service in “good faith,” a defined term, and (2) pay certain damages and costs if the~~
~~provider is found to have breached that promise).~~
~~354 See, e.g., NTIA Petition, supra note 304, at 39; DOJ Recommendations, supra note 308, at 22.~~
~~355 Protect Speech Act, H.R. 8517, 116th Cong. § 2 (2020); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong.~~
~~§ 2 (2020).~~
~~356 See, e.g., Clyde Wayne Crews, The Case Against Social Media Content Regulation, COMPETITIVE ENTER. INST.~~
~~(June 1, 2020), https://cei.org/issue_analysis/the-case-against-social-media-content-regulation;~~ ~~Section 230 of the~~
~~Communications Decency Act, ELEC. FRONTIER FOUND., https://www.eff.org/issues/cda230 (last visited Apr. 7, 2021)~~
~~Eric Goldman, Want to Learn More About Section 230? A Guide to My Work, TECH. & MKTG. L. BLOG (July 1, 2020),~~
~~https://blog.ericgoldman.org/archives/2020/07/want-to-learn-more-about-section-230-a-guide-to-my-work.htm;~~
~~Jennifer Huddleston, Does Content Moderation Need Changes to Section 230?, AM. ACTION FORUM (June 18, 2020),~~
~~https://www.americanactionforum.org/insight/does-content-moderation-need-changes-to-section-230/.~~
~~357 See, e.g., Dean DeChiaro, OK to Change Section 230, Tech CEOs Say, But How Remains Elusive, CONG. Q (Nov.~~
~~17, 2020), https://plus.cq.com/doc/news-6052674; Jonathan Grieg,~~ ~~Section 230 Hangs in the Balance After Attacks~~
~~from Biden and Trump, TECHREPUBLIC (Nov. 4, 2020), https://www.techrepublic.com/article/section-230-hangs-in-the-~~
~~balance-after-attacks-from-biden-and-trump.~~
~~358 In past regulatory actions involving broadband internet access service, the FCC has explicitly declined to regulate~~
~~internet services other than those relating to transmission. E.g., Protecting and Promoting the Open Internet, 30 FCC~~
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~~rulemaking proceedings, though only in a narrow context: specifically, the FCC has repeatedly~~
~~cited the policy statement in Section 230(b)—not Section 230(c)—of “preserv[ing] the vibrant~~
~~and competitive free market that presently exists for the Internet and other interactive computer~~
~~services, unfettered by Federal or State regulation.”359 The D.C. Circuit has held, however, that~~
~~the FCC may not rely on Section 230(b) as a source of regulatory authority.360 Because the FCC~~
~~has not issued regulations interpreting the scope of Section 230 immunity, the FCC’s rulemaking~~
~~authority over Section 230 remains unclear.~~
~~As discussed above,361 the NTIA Petition (and comments submitted in response) provided the~~
~~FCC with an opportunity to consider its rulemaking authority, and some FCC communications~~
~~support the notion that the agency has authority to issue regulations interpreting Section 230.362~~
~~Although the FCC may decline to act on the NTIA Petition, which would leave the issue of the~~
~~FCC’s legal authority over Section 230 unresolved, this section will nonetheless explore the~~
~~possible legal issues an FCC decision to regulate may raise. If the FCC does not have jurisdiction~~
~~to regulate, Congress could vest the FCC with regulatory authority over Section 230 through~~
~~legislation.~~
~~Existing Legal Authority~~
~~The NTIA Petition is the first rulemaking petition involving Section 230(c) to appear on the~~
~~FCC’s docket. Because the FCC may not regulate absent congressional authorization to do so, 363~~
~~the NTIA Petition and comments responding to the petition extensively explore the agency’s~~
~~authority to issue rules.~~
~~The FCC exercises regulatory authority in two instances. First, the agency may exercise~~
~~regulatory authority to advance specific statutory objectives: for example, Section 201 of the~~
~~Communications Act prohibits certain telecommunications service providers from engaging in~~
~~“unjust or unreasonable” practices,364 and the FCC has relied on this provision to introduce~~
~~numerous regulations classifying particular practices as unjust or unreasonable.365 Second, the~~

~~Rcd. 5601, 5775, para. 382 (2015) (noting that the FCC does not intend to regulate “any internet applications or~~
~~content.”).~~
~~359 E.g., Implementation of Section 621(a) of the Cable Communications Policy Act, 34 FCC Rcd. 6844, 6899, para.~~
~~102 (2019); Restoring Internet Freedom, 33 FCC Rcd. 311, 432, para. 203 (2018).~~
~~360 Mozilla Corp. v. FCC, 940 F.3d 1, 78 (D.C. Cir. 2019). The Mozilla court did not address whether the FCC could~~
otherwise issue regulations interpreting Section 230 while relying on a different source of authority. See ~~“Existing~~
~~Legal Authority,” infra, for more discussion of this issue.~~
~~361 See supra “Overview of Reform Proposals.”~~
~~362 Statement of Chairman Pai on Section 230 (Oct. 15, 2020), https://docs.fcc.gov/public/attachments/DOC-~~
~~367567A1.pdf; see Thomas M. Johnson Jr., The FCC’s Authority to Interpret Section 230 of the Communications Act,~~
~~FCC.GOV (Oct. 21, 2020), https://www.fcc.gov/news-events/blog/2020/10/21/fccs-authority-interpret-section-230-~~
~~communications-act. But cf. Thomas M. Johnson Jr. and Michael Carson,~~ ~~Caveat Lector: A Blog Post About Reliance~~
~~on Agency Blog Posts, FCC.GOV (Apr. 4, 2019), https://www.fcc.gov/news-events/blog/2019/04/04/caveat-lector-blog-~~
~~post-about-reliance-agency-blog-posts (explaining that blog posts are not authoritative statements of law or the~~
~~agency’s position). In spite of former Chairman Pai’s statement, the FCC has not acted on the NTIA Petition, and it~~
~~appears unlikely to do so. See Emily Birnbaum, Ajit Pai Is Distancing Himself from President Trump, PROTOCOL (Jan.~~
~~7, 2021), https://www.protocol.com/ajit-pai-distancing-trump.~~
~~363 See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless~~
~~and until Congress confers power upon it.”).~~
~~364 47 U.S.C. § 201.~~
~~365 E.g., 47 C.F.R. §§ 64.6000 et seq. (regulating practices relating to telecommunications services used by incarcerated~~
~~people); id. §§ 64.2400 et seq. (setting standards for telecommunications service billing).~~
~~Congressional Research Service~~
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~~link to page 33~~ ~~Section 230: An Overview~~

~~FCC may regulate absent a specific statutory objective when its regulations are “reasonably~~
~~ancillary to [its] responsibilities.”366 For the FCC to exercise this ancillary authority, it must be~~
~~acting pursuant to the general grant of jurisdiction included in Title I of the Communications Act,~~
~~which gives the FCC jurisdiction over “all interstate and foreign communication by wire or~~
~~radio.”367 The FCC generally exercises ancillary authority to regulate services and entities not~~
~~explicitly subject to regulation in the Communications Act.368 Examples of such FCC regulation~~
~~include the early regulation of cable television369 and the regulation of Voice over Internet~~
~~Protocol (VoIP) providers.370~~
~~With respect to the FCC’s authority to promulgate rules interpreting Section 230, the NTIA~~
~~Petition and its comments largely ignore ancillary authority and instead focus on whether the~~
~~agency may regulate based on its express statutory authority. The NTIA Petition argues that this~~
~~authority comes not from Section 230, but from Section 201(b) of the Communications Act,~~
~~which gives the FCC power to “prescribe such rules and regulations as may be necessary in the~~
~~public interest to carry out” the Communications Act.371 Because Section 230 is part of the~~
~~Communications Act, the NTIA petition argues, the power granted in Section 201(b) should~~
~~permit the FCC to issue regulations interpreting Section 230.372 To support this position, the~~
~~NTIA Petition relies on the Supreme Court’s decision in AT&T Corp. v. Iowa Utilities Board, a~~
~~case that involved the FCC’s authority to regulate under certain provisions added to the~~
~~Communications Act by the Telecommunications Act of 1996.373 In relevant part, the Supreme~~
~~Court held that “the grant in § 201(b) means what it says: The FCC has rulemaking authority to~~
~~carry out the ‘provisions of this Act,’ which include [sections] added by the Telecommunications~~
~~Act of 1996.”374~~
~~The provisions at issue in Iowa Utilities Board were Sections 251 and 252 of the~~
~~Communications Act, which relate to competition for local telephone service.375 Like Section~~
~~230, Sections 251 and 252 appear under Title II of the Communications Act, which generally sets~~
~~forth requirements for telecommunications service providers (or “common carriers”).376 After the~~

~~366 United States v. S.W. Cable Co., 392 U.S. 157, 178 (1968); see 47 U.S.C. § 154(i) (granting the FCC power to~~
~~“perform any and all acts . . . as may be necessary in the execution of its functions.”).~~
~~367 S.W. Cable Co., 392 U.S. at 178 (citing 47 U.S.C. § 152(a)).~~
~~368 Services expressly regulated by the Communications Act include telecommunications services (under Title II),~~ ~~radio~~
~~transmission services~~ ~~(under Title III), and cable television services (under Title VI). See generally Comcast Corp. v.~~
~~FCC, 600 F.3d 642, 645 (D.C. Cir. 2010) (setting forth the contours of the FCC’s express authority).~~
~~369 See S.W. Cable Co., 392 U.S. at 178. Although the Communications Act as originally enacted did not specifically~~
~~provide for regulation of cable television, which did not exist at the time of the Act’s passage, subsequent amendments~~
~~addressed cable television. E.g., Cable Communications Policy Act, Pub. L. No. 98-549, 98 Stat. 2779 (1984); Cable~~
~~Television Consumer Protection and Competition Act, Pub. L. No. 102-385, 106 Stat. 1460 (1992).~~
~~370 E.g., IP-Enabled Services, E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245 (2005)~~
~~(requiring VoIP providers to supply 911 emergency calling capabilities); Universal Service Contribution Methodology,~~
~~21 FCC Rcd. 7518 (establishing universal service contribution obligations for VoIP providers); Implementation of the~~
~~Telecommunications Act of 1996, 22 FCC Rcd. 6927 (2007) (extending consumer privacy requirements to VoIP~~
~~providers); IP-Enabled Services, 22 FCC Rcd. 11275 (2007) (extending Telecommunications Relay Service~~
~~requirements to VoIP providers).~~
~~371 47 U.S.C. § 201(b).~~
~~372 NTIA Petition, supra note 304, at 16.~~
~~373 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999).~~
~~374 Id. at 378.~~
~~375 47 U.S.C. §§ 251, 252.~~
~~376 “Common carriers” under the Communications Act are generally entities that provide “telecommunications~~
~~service,” which the Act defines as “the offering of telecommunications for a fee directly to the public, or to such classes~~
~~Congressional Research Service~~
38

~~Section 230: An Overview~~

~~FCC issued rules under Sections 251 and 252, several telephone carriers and state utility~~
~~commissions challenged the FCC’s authority to issue rules, which the challengers averred~~
~~belonged solely to the states.377 The Supreme Court held that Section 201(b) gives the FCC broad~~
~~power to make rules implementing provisions of the Communications Act, independent of~~
~~whether the provisions in question grant any rulemaking authority.378~~
~~Commenters disputing that Section 201(b) gives the FCC authority to regulate under Section 230~~
~~rely on several differences between Sections 251 and 252 on the one hand and Section 230 on the~~
~~other. First, the provisions of Title II of the Communications Act—including Sections 251 and~~
~~252—generally apply to common carrier providers of telecommunications service. Section 230,~~
~~by contrast, applies to users and providers of interactive computer services.379 While these two~~
~~categories are not, by their definitions, mutually exclusive, the definition of “interactive computer~~
~~service” is broader than the definition of common carrier.380 Some commenters have argued that~~
~~Section 201(b) should be interpreted to give the FCC broad rulemaking power only over common~~
~~carriers otherwise subject to Title II’s provisions.381 All of Section 201(b) but its last sentence~~
~~refers explicitly to common carrier service, and the cases on which NTIA relies for support~~
~~interpret Section 201(b)’s rulemaking authority as applied to common carriers.382 While the~~
~~holding in Iowa Utilities Board did not articulate such a limit, a dissent by Justice Breyer~~
~~contended (and the majority opinion appeared to agree) that the scope of Section 201(b)’s power~~
~~“to make rules implementing the more specific terms of a later enacted statute depends upon what~~
~~the later statute contemplates.”383 Should a court determine that Section 230, by failing to address~~
~~common carrier regulation, does not “contemplate” rulemaking under Section 201(b), the~~
~~section’s general grant of authority may be unavailable. Thus, the FCC’s rulemaking authority~~
~~under Section 201(b) may have limits.~~
~~The NTIA Petition’s opponents also point to the lack of any language in Section 230 evincing an~~
~~intent to vest the FCC with regulatory power. Section 230 as a whole does not refer to the FCC,~~

~~of users as to be effectively available directly to the public, regardless of the facilities used.” 47 U.S.C. § 153( 53).~~
~~377 Iowa Utils. Bd., 525 U.S. at 374.~~
~~378 Id. at 377–85.~~
~~379 Compare 47 U.S.C. § 153(11) with id. § 230(f)(2). Although the FCC has not spoken on whether an interactive~~
~~computer service provider may be a common carrier, the agency does not treat broadband internet access service~~
~~providers—a subset of interactive computer service providers—as common carriers. See Restoring Internet Freedom,~~
~~33 FCC Rcd. 311 (2018).~~
~~380 For example, the definition of interactive computer service explicitly refers to “information services,” which are~~
~~distinct from common carriers. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 976~~
~~(2005) (holding that “[i]nformation-service providers . . . are not subject to mandatory common-carrier regulation under~~
~~Title II”).~~
~~381 E.g., Pub. Knowledge, Comments of Pub. Knowledge In re Nat’l Telecoms. & Info. Admin. Petition to “Clarify”~~
~~Provisions of Section 230 of the Commc’ns Act of 1934, as Amended, at 4 (Sept. 2, 2020), https://ecfsapi.fcc.gov/file/~~
~~109020607125130/PK_Comments_NTIA_FCC_230_Petition.pdf; Ctr. for Democracy & Tech., Comments of the Ctr.~~
~~for Democracy & Tech. Opposing the Nat’l Telecoms. & Info. Admin.’s Petition for Rulemaking, at 6 (Aug. 31, 2020),~~
~~https://ecfsapi.fcc.gov/file/10831957605823/CDT%20Opposition%20to%20NTIA%20Petition%20on%20Section%20~~
~~230.pdf; TechFreedom, Reply Comments of TechFreedom, at 5 (Sept. 17, 2020), https://ecfsapi.fcc.gov/file/~~
~~10917114884764/NTIA%20230%20Petition%20Reply%20Comments%20-%209.17.2020.pdf.~~
~~382 47 U.S.C. § 201(b); Iowa Utils. Bd., 525 U.S. at 377–79; see also City of Arlington v. FCC, 569 U.S. 290, 293~~
~~(2013) (recognizing Section 201(b) rulemaking authority to promulgate an order regulating common carrier wireless~~
~~services).~~
~~383 Iowa Utils. Bd., 525 U.S. at 420 (Breyer, J., dissenting); id. at 378 n.5 (majority opinion) (citing this conclusion~~
~~from Justice Breyer’s dissent favorably, but noting that Congress would have been aware of Section 201(b)’s broad~~
~~authority at the time of the Telecommunications Act’s passage).~~
~~Congressional Research Service~~
39

~~link to page 33~~ ~~Section 230: An Overview~~

~~and subsection(b)(2) states Congress’s policy to keep interactive computer services “unfettered~~
~~by Federal or State regulation.”384 Likewise, Section 230’s legislative history includes statements~~
~~by the law’s authors expressing a desire to avoid “a Federal Computer Commission with an army~~
~~of bureaucrats regulating the internet.”385 Sections 251 and 252, by comparison, provide an~~
~~extensive regulatory scheme that explicitly directs the FCC to act.386 The NTIA Petition does not~~
~~identify any cases in which a federal court upheld the FCC’s rulemaking authority as applied to a~~
~~statutory provision that does not explicitly mention the FCC.387~~
~~Despite these distinguishing features, Section 230 is nonetheless part of Title II of the~~
~~Communications Act. Though subsequent court of appeals decisions have sought specific~~
~~authority justifying FCC rulemakings,388 the Supreme Court’s holding in Iowa Utilities Board is~~
~~broad and includes only passing mentions of limitations on the FCC’s power to implement the~~
~~provisions of the Communications Act.389 Ultimately, an FCC decision that it has authority to~~
~~issue rules interpreting Section 230 would be constrained by general administrative law principles~~
~~and could be given some degree of deference by a reviewing court.390~~
~~Deference to FCC Regulation~~
~~An issue related to the FCC’s authority to regulate on Section 230 is the weight afforded to its~~
~~regulations: when a federal agency interprets a statute, courts accord the agency’s interpretation~~
~~varying levels of “deference” depending on, among other things, whether the statute evinces a~~
~~congressional intent to provide the agency with regulatory authority and whether the statutory~~
~~language is ambiguous.391 In determining the weight to accord an agency’s interpretation of a~~
~~statute, reviewing courts engage in a multistep analysis first articulated by the Supreme Court in~~
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.392
~~A court first inquires whether the Chevron analysis is appropriate. In United States v. Mead Corp.,~~
~~the Supreme Court held that agency interpretations of statutes “qualify for Chevron deference~~
~~when it appears that Congress delegated authority to the agency to make rules carrying the force~~
~~of law, and that the agency interpretation claiming deference was promulgated in the exercise of~~

~~384 47 U.S.C. § 230(b)(2).~~
~~385 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Cox); see also id. at H8471 (statement of Rep.~~
~~Wyden) (arguing that “the Federal Communications Commission . . . cranking out rules and proposed rulemaking~~
~~programs” would be unable to keep pace with the advancement of technology).~~
~~386 E.g., 47 U.S.C. § 251(d)(1) (directing the FCC to “establish regulations to implement the requirements of this~~
~~section”).~~
~~387 See NTIA Petition, supra note 304, at 15–17 (citing only Iowa Utilities Board and City of Arlington in support).~~
~~388 See, e.g., Motion Picture Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 799 (D.C. Cir. 2002) (holding that FCC could~~
~~not rely on general authority over television broadcasts to promulgate rules relating to television programming content).~~
~~The FCC rulemaking at issue in Motion Picture Ass’n relied on statutory provisions that, like Section 230, were added~~
~~as part of the Telecommunications Act of 1996 and did not direct the FCC to issue rules. See id. at 798.~~
~~389 E.g., Iowa Utils. Bd., 525 U.S. at 378 n.5.~~
~~390 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (setting forth “deference”~~
~~framework for administrative interpretations of statutes); City of Arlington v. FCC, 569 U.S. 290, 297 (2013) (holding~~
~~that an agency’s determination of its authority to regulate is reviewed under the Chevron framework); see also FDA v.~~
~~Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000) (analyzing agency exercise of regulatory authority~~
~~in light of the “overall statutory scheme” when agency regulates in previously unregulated area); City of Arlington, 569~~
~~U.S. at 297 (holding that an agency’s determination of its own jurisdiction is subject to Chevron deference).~~
~~391 United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Chevron, 467 U.S. at 842–43.~~
~~392 For a more detailed review of the Chevron framework, see CRS Report R44954, Chevron Deference: A Primer, by~~
~~Valerie C. Brannon and Jared P. Cole.~~
~~Congressional Research Service~~
40

~~link to page 40~~ ~~Section 230: An Overview~~

~~that authority.”393 If the court determines Chevron analysis is not appropriate, the court may~~
~~accord the agency’s interpretation “respect proportional to its ‘power to persuade’”394—i.e., the~~
~~court will conduct its own interpretation and rely on the agency’s interpretation as it sees fit. If a~~
~~court proceeds with the Chevron framework, it first looks at the statute at issue and determines~~
~~whether the statute has left any ambiguities for the agency to address.395 Should the court~~
~~determine the statute is ambiguous, it then asks whether the agency’s interpretation was~~
~~reasonable, deferring to the agency interpretation if so.396~~
~~If the FCC issued rules interpreting Section 230 and those rules were challenged in court, the~~
~~reviewing court may follow the Chevron analysis to determine the validity of the rules. As~~
~~discussed above, a number of commenters on the NTIA petition dispute that the FCC has~~
~~authority to promulgate rules interpreting Section 230.397 In light of the concerns raised by these~~
~~commenters, a court reviewing an FCC rule may reason that the FCC does not have authority to~~
~~“make rules carrying the force of law.”398 Even if a reviewing court chooses to apply the~~ ~~Chevron~~
~~framework to an FCC rule, it may determine that Section 230 contains no ambiguities to be~~
~~resolved—as several commenters have argued—or that the FCC’s interpretations of its own~~
~~authority or of Section 230 are unreasonable.399 In short, any potential FCC rule faces several~~
~~judicial hurdles.~~
~~An additional wrinkle relating to judicial review of an FCC rule is that the Chevron framework~~
~~generally comes into play when a party brings suit against an agency, such as the FCC, seeking~~
~~judicial review of a specific agency action under the Administrative Procedure Act (APA) or an~~
~~agency-specific statute providing for judicial review.400 However, Section 230 generally comes~~
~~into play in litigation between private parties regarding content-related claims. While an FCC rule~~
~~could be challenged in APA litigation, courts reviewing such a rule in subsequent private~~
~~litigation could face questions of whether a private party may attack the validity of an FCC rule~~
~~outside of the APA’s review process. In a recent case, the Supreme Court was asked whether a~~
~~district court hearing a private dispute must follow an FCC order interpreting terms relevant to~~
~~the dispute.401 However, the Court declined to answer this question, instead suggesting that the~~
~~answer may depend on two other unraised issues: (1) whether the order set forth a “legislative~~
~~rule” with the force of law,402 and (2) whether the parties had a “prior” and “adequate”~~

~~393 United States v. Mead Corp., 533 U.S. 218, 226–27 (2001).~~
~~394 Id. at 235 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).~~
~~395 Chevron, 467 U.S. at 842–43.~~
~~396 Id. at 843.~~
~~397 See supra “Existing Legal Authority.”~~
~~398 See Mead, 533 U.S. at 226–27.~~
~~399 See, e.g., Comput. & Commc’ns Indus. Ass’n, Comments of the Comput. & Commc’ns Indus. Ass’n, In re Section~~
~~230 of the Commc’ns Act of 1934, at 3 (Sept. 2, 2020), https://ecfsapi.fcc.gov/file/10902499105067/Corrected%20-~~
~~%20CCIA%20Comments%20to%20FCC%20on%20RM-11862.pdf (“Courts have consistently held that Section 230 is~~
~~clear and unambiguous . . . .”); Pub. Knowledge, Comments of Pub. Knowledge In re Nat’l Telecoms. & Info. Admin.~~
~~Petition to “Clarify” Provisions of Section 230 of the Commc’ns Act of 1934, as Amended, at 2–4 (Sept. 2, 2020),~~
~~https://ecfsapi.fcc.gov/file/109020607125130/PK_Comments_NTIA_FCC_230_Petition.pdf (averring that Section 230~~
~~does not delegate rulemaking authority to the FCC and “even if the agency were to pronounce upon its meaning, courts~~
~~would owe it no deference”).~~
~~400 See 5 U.S.C. § 702; 47 U.S.C. § 402.~~
~~401 PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019).~~
~~402 A “legislative rule” is a rule “issued by an agency pursuant to statutory authority” with the “force and effect of law.”~~
Id. at 2055 (citing Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 (1979)). An agency action that is not a “legislative
~~rule” may instead be an “interpretive rule,” which “advis[es] the public of the agency’s construction of the statutes and~~
~~Congressional Research Service~~
41

~~Section 230: An Overview~~

~~opportunity to seek judicial review of the order, as required by the APA.403 In the wake of the~~
~~Supreme Court’s decision, federal courts have accorded FCC orders varying levels of judicial~~
~~deference.404 Because Section 230 may be raised as a defense against a broad array of claims,~~
~~both state and federal, an FCC order interpreting terms in Section 230 may come before a~~
~~multitude of different courts, and these courts in turn may not all approach the question of FCC~~
~~authority in the same way.~~
~~Considerations for Congress~~
~~Congress has several legislative options at its disposal to clarify the FCC’s role in administering~~
~~Section 230. First, an express delegation of authority to regulate could provide the FCC with a~~
~~statutory basis for promulgating regulations. Conversely, an express disavowal of authority could~~
~~prohibit the FCC from attempting to regulate under Section 230. Both of these approaches could~~
~~resolve the questions relating to the FCC’s statutory authority to regulate. A delegation of~~
~~authority to make rules with “the force of law” would also clarify the deference courts should~~
~~give any FCC rule, although reviewing courts could nonetheless reject the FCC’s interpretations~~
~~based on a lack of statutory ambiguities or the unreasonableness of the FCC’s rule.405~~
~~Free Speech Considerations~~
~~The Free Speech Clause of the First Amendment to the U.S. Constitution limits the government’s~~
~~ability to regulate speech.406 There are at least two distinct types of First Amendment issues that~~
~~may be raised by proposals to amend Section 230. The first issue is whether any given proposal~~
~~unconstitutionally infringes the constitutionally protected speech of either providers or users. The~~
~~second is whether, if Section 230 is repealed in whole or in part, the First Amendment may~~
~~nonetheless prevent private parties or the government from holding providers liable for hosting~~
~~content. This section of the report first explains background principles on legal protections for~~
~~online speech, then provides some initial considerations for evaluating these two issues.~~

~~rules which it administers” and has no binding legal effect. Id. (citing Perez v. Mortgage Bankers Ass’n, 575 U.S. 92,~~
~~97 (2015) (alteration in original)).~~
~~403 Id. (citing 5 U.S.C. § 703).~~
~~404 See Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d 258, 263 (4th Cir. 2020) (holding, on~~
~~remand from the Supreme Court, that the FCC’s order was interpretive and interpretive rules are nonbinding on district~~
~~courts); True Health Chiropractic Inc. v. McKesson Corp., No. 13-02219, 2020 WL 7664484, at *5–6 (N.D. Cal. Dec.~~
~~24, 2020) (noting that because the Supreme Court’s decision had not definitively resolved the issue, Ninth Circuit~~
~~precedent that bars district courts from reviewing FCC orders controlled); Matthew N. Fulton, D.D.S., P.C. v.~~
~~Enclarity, Inc., 962 F.3d 882 (6th Cir. 2020) (treating an FCC order as “persuasive,” nonbinding authority).~~
~~405 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984); United States v. Mead~~
~~Corp., 533 U.S. 218, 226–27 (2001).~~
~~406 U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”). Although the text of the~~
~~First Amendment refers to “Congress,” it has long been understood to restrict action by the executive branch as well.~~
See, e.g., Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 160 (1973) (Douglas, J., concurring)
~~(describing First Amendment as restricting Congress, whether “acting directly or through any of its agencies such as~~
~~the FCC”); see generally, e.g., Daniel J. Hemel, Executive Action and the First Amendment’s First Word, 40 PEPP. L.~~
~~REV. 601 (2013). The First Amendment applies to the states through the Fourteenth Amendment. 44 Liquormart v.~~
~~Rhode Island, 517 U.S. 484, 489 n.1 (1996); U.S. CONST. amend. XIV.~~
~~Congressional Research Service~~
42

~~Section 230: An Overview~~

~~Background Principles~~
~~First Amendment Protections for Online Speech~~
~~The Supreme Court has recognized that the First Amendment protects speech transmitted over the~~
~~internet, saying in one case that “cyberspace,” and in particular, “social media,” is today the most~~
~~important place for “the exchange of views” and other core speech activities.407 Accordingly, the~~
~~Court has applied heightened scrutiny to~~ laws that regulate online speech, particularly if they laws that regulate online speech, particularly if they
~~target certain types of~~ target speech based on its content.speech based on its content.~~408~~404 For example, in 1997, the Supreme Court For example, in 1997, the Supreme Court
~~evaluated two other~~ struck down two provisions of the Communications Decency Act of 1996 provisions of the Communications Decency Act of 1996 ~~under a strict~~
~~scrutiny analysis.409 The provisions~~that prohibited sending or displaying certain “indecent” or prohibited sending or displaying certain “indecent” or
~~“patently offensive” material to minors.410 The Court said that because the law regulated “the~~
~~content of speech,” the government would have to prove that the law was narrowly tailored to its~~
~~goal, and ultimately ruled the provision unconstitutional.411 In the Court’s view, the broad~~
~~language prohibiting “indecent” or “patently offensive” material swept in too much protected~~
~~speech, encompassing “a large amount of speech that adults have a constitutional right to receive~~
~~and to address to one another.”412~~
~~In addition to protecting website users when they post or read speech online, the First~~
~~Amendment protects website operators when they engage in speech activities.413 Outside the~~
~~context of the internet, the Supreme Court has recognized that businesses may engage in speech~~
~~that receives heightened constitutional protection, for example, if they create political films414 or~~
~~engage in political advocacy in the course of soliciting charitable contributions.415 Businesses will~~
~~likely receive the same protections if they engage in speech online.416~~
“patently offensive” material to minors.405 In addition to protecting website users when they post or read speech online, the First Amendment protects website operators when they engage in speech activities.406 The Supreme Court has concluded that a website designer engages in protected speech when designing a website, even when the website incorporates third-party material.407 The Court has also recognized that businesses engaged in speech activities generally have the The Court has also recognized that businesses engaged in speech activities generally have the
right to refuse to host customers’ speech, saying that the government may violate the First right to refuse to host customers’ speech, saying that the government may violate the First
Amendment if it compels “a private corporation to provide a forum for views other than its Amendment if it compels “a private corporation to provide a forum for views other than its

407 Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017); see also id. ~~at 1737~~own.”408 This concern is heightened if the business is providing a forum for speech409 and if there is a risk the user’s speech will be attributed to the business hosting it, such that the business’s decision to host the 403 Packingham v. North Carolina, 582 U.S. 98, 104 (2017); see also id. at 107 (ruling unconstitutional a state law (ruling unconstitutional a state law
that prohibited convicted sex offenders from using social media, barring “access to what for many are the principal that prohibited convicted sex offenders from using social media, barring “access to what for many are the principal
sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, sources for knowing current events, checking ads for employment, speaking and listening in the modern public square,
and otherwise exploring the vast realms of human thought and knowledge”). and otherwise exploring the vast realms of human thought and knowledge”).
~~408~~404 See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First , Reno v. ACLU, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to this medium.”). Amendment scrutiny that should be applied to this medium.”).
~~409 See id. at 874.~~
~~410 Id. at 859–60.~~
~~411 Id. at 874, 879.~~
~~412 Id. at 874, 879.~~
~~413~~See generally Cong. Rsch. Serv., Overview of Content-Based and Content-Neutral Regulation of Speech, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/ (last visited Jan. 4, 2024). 405 Reno, 521 U.S. at 859–60. For more discussion of the constitutional tiers of scrutiny used to evaluate speech regulations, see CRS In Focus IF12308, Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional, by Victoria L. Killion. 406 See generally CRS Report R45650, CRS Report R45650, Free Speech and the Regulation of Social Media Content, by Valerie C. , by Valerie C.
Brannon. Brannon.
~~414 Citizens United v. FEC, 558 U.S. 310, 341 (2010).~~
~~415 Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796 (1988).~~
~~416 See Reno, 521 U.S. at 870 (confirming that ordinary “First Amendment scrutiny” applies online).~~
~~Congressional Research Service~~
43

~~Section 230: An Overview~~

~~own.”417 This concern is heightened if the business is providing a forum for speech418 and there is~~
~~a risk the user’s speech will be attributed to the business hosting it, such that the business’s~~
~~decision to host the~~ 407 303 Creative LLC v. Elenis, 600 U.S. 570, 587 (2023). 408 Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 9 (1986) (plurality opinion); see also id. at 19–20 (holding that a state regulatory commission could not require a utility company to publish content in its monthly newsletter from entities who disagreed with the utility’s views); id. at 24 (Marshall, J., concurring) (“While the interference with appellant’s speech is, concededly, very slight, the State’s justification—the subsidization of another speaker chosen by the State—is insufficient to sustain even that minor burden.”); see also, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 576 (1995) (“[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.”). 409 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). Congressional Research Service 40 Section 230: An Overview speech can be seen as an expressive choice to be associated with that speech can be seen as an expressive choice to be associated with that
speech.speech.~~419~~410 For instance, the Court has said that newspapers are engaged in constitutionally For instance, the Court has said that newspapers are engaged in constitutionally
protected speech when they “exercise . . . editorial control and judgment” in protected speech when they “exercise . . . editorial control and judgment” in ~~decisions such as~~
choosing what “material [will] go into a newspaper,” and has further held that the government choosing what “material [will] go into a newspaper,” and has further held that the government
generally may not interfere with those editorial judgments.generally may not interfere with those editorial judgments.~~420~~
~~A number of~~411 Some lower courts have extended this line of Supreme Court cases to lower courts have extended this line of Supreme Court cases to ~~search engines and~~
~~other~~ websites that host or present third-party content, dismissing lawsuits premised on the sites’ websites that host or present third-party content, dismissing lawsuits premised on the sites’
editorial decisions about editorial decisions about what content to publish.412 The Supreme Court agreed to consider this issue in its October 2023 term, in two cases involving conflicting appeals court rulings.413 Both cases involve state laws restricting online platforms’ ability to moderate user content.414 The Eleventh Circuit held that social media companies making content moderation decisions are likely engaged in “protected exercises of editorial judgment,”415 while the Fifth Circuit said the covered online platforms “exercise virtually no editorial control or judgment.”416 Contrary to the conclusion of the Eleventh Circuit, the Fifth Circuit said that the platforms screen out obscenity and spam but allow the posting of “virtually everything else.”417 A 2016 decision by the D.C. Circuit somewhat similarly looked at~~what content to publish.421 These courts generally have not considered~~
~~whether users would be likely to attribute this third-party speech to the company, but some~~
~~commentators have evaluated this factor. Looking specifically at social media companies, which~~
~~“are in the speech business,” one commentator has asserted that users are likely to assume that~~
~~such sites choose to carry user-generated content, creating an expressive association with that~~
~~speech.422 Others have questioned whether this is true, noting, for example, that social media sites~~
~~have the ability to add disclaimers or otherwise disavow user speech.423~~
~~A 2016 decision by the D.C. Circuit indicates that First Amendment protection for online service~~
~~providers turns on~~ the degree of editorial judgment that the degree of editorial judgment that ~~those providers exercise~~online service providers actually exercised. In U.S. Telecom Association v. FCC, the D.C. Circuit rejected a First Amendment challenge to the FCC’s 2015 net neutrality order.418 The 2015 order classified broadband internet access service providers as common carriers, subjecting them to heightened regulation, including prohibiting these providers from blocking lawful content.419 A broadband service provider argued that the rules violated its First Amendment rights by forcing providers “to transmit speech with which they might disagree.”420 The D.C. Circuit rejected this argument, concluding that there was no First Amendment issue because the 410. In U.S. Telecom

~~417 Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 9 (1986) (plurality opinion); see also id. at 19–20 (holding~~
~~that a state regulatory commission could not require a utility company to publish content in its monthly newsletter from~~
~~entities who disagreed with the utility’s views); id. at 24 (Marshall, J., concurring) (“While the interference with~~
~~appellant’s speech is, concededly, very slight, the State’s justification—the subsidization of another speaker chosen by~~
~~the State—is insufficient to sustain even that minor burden.”). See also, e.g., Hurley v. Irish-Am. Gay, Lesbian &~~
~~Bisexual Grp. of Boston, 515 U.S. 557, 576 (1995) (“[W]hen dissemination of a view contrary to one’s own is forced~~
~~upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the~~
~~message is compromised.”).~~
~~418 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2020) (“[W]hen a private entity provides a forum~~
~~for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a~~
~~state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum.”).~~
~~419~~ Compare Hurley, 515 U.S. at 575 (ruling that a state could not force a parade organizer to host a specific group , 515 U.S. at 575 (ruling that a state could not force a parade organizer to host a specific group
where the group’s “participation would likely be perceived as having resulted from the [organizer’s] . . . determination where the group’s “participation would likely be perceived as having resulted from the [organizer’s] . . . determination
. . . that its message was worthy of presentation and quite possibly of support as well”), . . . that its message was worthy of presentation and quite possibly of support as well”), with Rumsfeld v. Forum for Rumsfeld v. Forum for
Acad. & Institutional Rights, Inc., 547 U.S. 47, 64–65 (2006) (rejecting challenge to federal funding condition Acad. & Institutional Rights, Inc., 547 U.S. 47, 64–65 (2006) (rejecting challenge to federal funding condition
requiring law schools to host military recruiters, saying the hosting decision was not “inherently expressive” and requiring law schools to host military recruiters, saying the hosting decision was not “inherently expressive” and
“[n]othing about recruiting suggests that law schools agree with any speech by recruiters”)“[n]othing about recruiting suggests that law schools agree with any speech by recruiters”).
~~420~~, and PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) (concluding a shopping center did not have a First Amendment right to eject students distributing pamphlets, acknowledging the pamphleteers’ views would “not likely be identified with . . . the owner”). At least one scholar has argued this Supreme Court precedent suggests First Amendment protections apply if an online platform is creating a “coherent speech product.” Eugene Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. FREE SPEECH L. 377, 427 (2021). 411 Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (ruling unconstitutional a state law requiring Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (ruling unconstitutional a state law requiring
newspapers, in certain circumstances, to publish replies to criticisms of political candidates). newspapers, in certain circumstances, to publish replies to criticisms of political candidates).
421 See, e.g.,412 See, e.g., Isaac v. Twitter, Inc., 557 F. Supp. 3d 1251, 1261 (S.D. Fla. 2021); La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 992 (S.D. Tex. 2017); Publius v. Boyer-Vine, 237 F. La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 992 (S.D. Tex. 2017); Publius v. Boyer-Vine, 237 F.
Supp. 3d 997, 1008 (E.D. Cal. 2017); Zhang v. Supp. 3d 997, 1008 (E.D. Cal. 2017); Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 443 (S.D.N.Y. 2014). 413 NetChoice, LLC v. Att’y Gen., 34 F.4th 1196 (11th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023); NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023). 414 The cases, including the state laws, are discussed in more detail in CRS Legal Sidebar LSB10748, Free Speech Challenges to Florida and Texas Social Media Laws, by Valerie C. Brannon. 415 NetChoice, LLC, 34 F.4th at 1203. 416 NetChoice, L.L.C., 49 F.4th at 459. 417 Id. 418 U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 740 (D.C. Cir. 2016). 419 Id. at 696; see also CRS Report R40616, The Federal Net Neutrality Debate: Access to Broadband Networks, by Patricia Moloney Figliola; CRS Report R46973, Net Neutrality Law: An Overview, by Chris D. Linebaugh. 420 U.S. Telecom Ass’n, 825 F.3d at 740. Congressional Research Service 41 link to page 11 Section 230: An Overview ~~Baidu.com, Inc., 10 F. Supp. 3d 433, 443 (S.D.N.Y. 2014).~~
~~422 Berin Szóka, The First Amendment Bars Regulating Political Neutrality, Even Via Section 230, TECHDIRT (July 24,~~
~~2020), https://www.techdirt.com/articles/20200724/11372744970/first-amendment-bars-regulating-political-neutrality-~~
~~even-via-section-230.shtml; accord TechFreedom, Comments on NTIA Petition for Rulemaking to Clarify Provisions~~
~~of Section 230 of the Communications Act of 1934, at 43 (Sept. 2, 2020), https://techfreedom.org/wp-content/uploads/~~
~~2020/09/NTIA-230-Petition-Comments-%E2%80%93-9.2.2020.pdf [hereinafter TechFreedom Comments on NTIA~~
~~Petition].~~
~~423 See, e.g., Daphne Keller, Who Do You Sue?, HOOVER INST., Aegis Series Paper No. 1902, at 20 (2019) (discussing~~
~~whether the public does consider platforms responsible for user speech, and noting that platforms’ ability to add~~
disclaimers or otherwise disavow user speech “arguably weaken[s] platforms’ First Amendment arguments”). Cf.
Forum for Acad. & Institutional Rights, 547 U.S. at 65 (rejecting First Amendment challenge to statute requiring law
~~schools to host military recruiters, noting “[n]othing about recruiting suggests that law schools agree with any speech~~
~~by recruiters, and nothing in the [law] restricts what the law schools may say about the military’s policies”).~~
~~Congressional Research Service~~
44

~~link to page 11~~ ~~Section 230: An Overview~~

Association v. FCC, the D.C. Circuit rejected a First Amendment challenge to the FCC’s 2015 net
~~neutrality order.424 The 2015 order classified broadband internet access service providers as~~
~~common carriers, subjecting them to heightened regulation, including prohibiting these providers~~
~~from blocking lawful content.425 A broadband service provider argued that the rules violated its~~
~~First Amendment rights by forcing providers “to transmit speech with which they might~~
~~disagree.”426 The D.C. Circuit rejected this argument, concluding that there was no First~~
~~Amendment issue because the~~ FCC’s rules “affect[ed] a common carrier’s neutral transmission of FCC’s rules “affect[ed] a common carrier’s neutral transmission of
others’ speech, not a carrier’s communication of its own message.”others’ speech, not a carrier’s communication of its own message.”~~427~~
421 One critical basis for the D.C. Circuit’s conclusion was the FCC’s finding that broadband One critical basis for the D.C. Circuit’s conclusion was the FCC’s finding that broadband
providers did not, in fact, exercise control over the content they transmitted, and instead acted “as providers did not, in fact, exercise control over the content they transmitted, and instead acted “as
‘mere conduits for the messages of others, not as agents exercising editorial discretion subject to ‘mere conduits for the messages of others, not as agents exercising editorial discretion subject to
First Amendment protections.’”First Amendment protections.’”~~428 The court noted that other “entities that serve as conduits for~~
~~speech produced by others” may “receive First Amendment protection,” if those entities engage~~
~~in communicative activities and do not neutrally transmit “any and all users’ speech.”429~~
~~Accordingly, the court said that if a broadband provider “were to choose to exercise editorial~~
~~discretion—for instance, by picking a limited set of websites to carry and offering that service as~~
~~a curated internet experience—it might then qualify as a First Amendment speaker.”430~~
~~Significantly, the FCC’s 2015 order applied only to broadband providers and did not encompass,~~
~~for example, so-called “edge providers” such as Google, Amazon, or Facebook, that provide~~
~~content or services over the internet.431 The D.C. Circuit’s decision thus considered the First~~
~~Amendment rights of only a subset of the universe of companies that could be considered~~
~~providers of interactive computer services under Section 230.432~~
~~This area of the law is still developing, and as these cases demonstrate,~~422 The Eleventh Circuit, in contrast, said “social-media platforms aren’t ‘dumb pipes’” that “reflexively transmit[] data from point A to point B.”423 Justice Kavanaugh, then a judge on the D.C. Circuit, wrote an opinion disagreeing with the D.C. Circuit’s approach to the First Amendment analysis.424 He argued internet service providers “enjoy First Amendment protection of their rights to speak and exercise editorial discretion” regardless of whether the providers actually choose to exercise much editorial discretion.425 In his view, First Amendment protections should attach because internet service providers deliver content to consumers, performing the same kinds of functions as more traditional media.426 It remains to be seen whether Justice Kavanaugh will adhere to these views when considering the cases appealed to the Supreme Court in the October 2023 term, or what approach the rest of the Court will take to this issue. As discussed, lower court caselaw suggests that whether any given lawsuit whether any given lawsuit
or regulation implicates the First Amendment by interfering with a provider’s editorial discretion or regulation implicates the First Amendment by interfering with a provider’s editorial discretion
will likely depend will likely depend in part on the factual circumstances and the nuances of the lawsuit or regulation. on the factual circumstances and the nuances of the lawsuit or regulation.
Section 230 Protections for Online Speech
There is more precedent clarifying Section 230’s protections for There is more precedent clarifying Section 230’s protections for promotion and moderation activities, and courts moderation activities, and courts
have described the law as protecting the speech of both users and providers. Section 230 arguably have described the law as protecting the speech of both users and providers. Section 230 arguably
protects user speech by allowing providers to host user-generated content without fear of protects user speech by allowing providers to host user-generated content without fear of
incurring liability.incurring liability.~~433 The Second~~427 The Fourth Circuit said in Circuit said in Zeran that in enacting Section 230, Congress that in enacting Section 230, Congress
was, in part, responding to concerns that online providers facing potential tort was, in part, responding to concerns that online providers facing potential tort liability would simply prohibit or remove user content rather than litigate its legality.428 By shielding providers from that liability, Congress removed that incentive for providers to restrict user speech.429 Further, in immunizing decisions both to host and not to host user content, Section 230 can also be seen as protecting possible First Amendment rights of editorial discretion.430 Significantly, the way courts have interpreted Section 230(c)(1) to grant immunity for “publisher” 421 Id. 422~~liability would~~

~~424 U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 740 (D.C. Cir. 2016).~~
~~425 Id. at 696. See also CRS Report R40616, The Federal Net Neutrality Debate: Access to Broadband Networks, by~~
~~Patricia Moloney Figliola.~~
~~426 U.S. Telecom Ass’n, 825 F.3d at 740.~~
427 Id.
~~428~~ Id. at 741 (quoting at 741 (quoting In re Protecting and Promoting the Open Internet, Protecting and Promoting the Open Internet, ~~No. 15-24,~~ 30 FCC Rcd. 5601, 5870 (2015))30 FCC Rcd. 5601, 5870 (2015)). 423 NetChoice, LLC, 34 F.4th at 1204. The court said a social media platform likely exercised editorial judgment in two ways: by removing posts that violate its terms of service and by arranging available content in certain ways. Id. 424 U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc). 425 Id. at 428–29. 426 Id. at 428. 427
~~429 Id. at 742.~~
~~430 Id. at 743.~~
~~431 See id. at 690, 695–96; see also, e.g., CRS Report R46207, Competition on the Edge of the Internet, by Clare Y.~~
~~Cho (discussing edge providers).~~
~~432 See 47 U.S.C. § 230(f)(2) (defining “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”).~~
~~433~~ See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997); Ardia, , Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997); Ardia, supra nonote 7278, at 386–87. 428 Zeran, 129 F.3d at 330–31. 429 Id. at 331. 430 Cf., e.g., Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629–31 (D. Del. 2007) (concluding plaintiff’s claims are barred by both the First Amendment and 47 U.S.C. § 230(c)(2)(A)). Congressional Research Service 42 link to page 52 Section 230: An Overview , ~~at 386–87.~~
~~Congressional Research Service~~
45

~~Section 230: An Overview~~

~~simply prohibit or remove user content rather than litigate its legality.434 By shielding providers~~
~~from that liability, Congress removed that incentive for providers to restrict user speech.435~~
~~Further, in immunizing providers’ decisions both to host and not to host user content, Section 230~~
~~can also be seen as protecting providers’ possible First Amendment rights to decide what speech~~
~~to publish.436 Significantly, the way courts have interpreted Section 230(c)(1) to grant immunity~~
~~for “publisher”~~ activities seems consistent with the Supreme Court’s description of activities seems consistent with the Supreme Court’s description of
constitutionally protected “editorial” functions.constitutionally protected “editorial” functions.~~437~~431
According to the According to the Zeran court, Congress also intended to “encourage service providers to self- court, Congress also intended to “encourage service providers to self-
regulate the dissemination of offensive material”—that is, to remove some user content.regulate the dissemination of offensive material”—that is, to remove some user content.~~438~~432
Granting providers immunity for their decisions to remove or restrict access to user content could Granting providers immunity for their decisions to remove or restrict access to user content could
operate in some tension with the goal of encouraging providers to host user speech.operate in some tension with the goal of encouraging providers to host user speech.~~439~~433 But both But both
aspects of Section 230—providing providers with immunity for hosting user content and for aspects of Section 230—providing providers with immunity for hosting user content and for
restricting content—were arguably intended to ensure that the restricting content—were arguably intended to ensure that the government generally would not be generally would not be
the entity striking the proper balance between these two goals,the entity striking the proper balance between these two goals,~~440~~434 and that private parties would and that private parties would
instead be the ones deciding whether content belonged online.instead be the ones deciding whether content belonged online.~~441~~435 In this sense, then, both aspects In this sense, then, both aspects
of Section 230 serve the First Amendment by shielding speech from government intervention. of Section 230 serve the First Amendment by shielding speech from government intervention.

~~434 Zeran, 129 F.3d at 330–31.~~
~~435 Id. at 331.~~
~~436 Cf., e.g., Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629–31 (D. Del. 2007) (concluding plaintiff’s claims are~~
~~barred by both the First Amendment and 47 U.S.C. § 230(c)(2)(A)).~~
~~437~~ Section 230 accordingly overlaps somewhat with the First Amendment. However, while Section 230 may protect some speech activities, Section 230 is not coextensive with the First Amendment’s protections,436 as discussed in more detail below.437 First Amendment Issues with Reform Proposals Any legislative proposal that regulates online content may implicate the First Amendment to the extent that it burdens protected speech activity. As currently written, Section 230 does not itself make any speech unlawful. Instead, it governs whether interactive computer service providers and users may be subject to liability under other laws for their interactions with others’ content.438 Further, although Section 230 can be seen as speech-protective, the removal of Section 230’s statutory speech protections would not affect the scope of any constitutional speech protections. 431 Compare, e.g., , Zeran, 129 F.3d at 330 (“[L]awsuits seeking to hold a service provider liable for its exercise of a , 129 F.3d at 330 (“[L]awsuits seeking to hold a service provider liable for its exercise of a
publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—
are barred [by Section 230].”), are barred [by Section 230].”), with, e.g., Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The choice , Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The choice
of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and
treatment of public issues and public officials . . . constitute the exercise of editorial control and judgment.”). treatment of public issues and public officials . . . constitute the exercise of editorial control and judgment.”).
~~438~~432 Zeran, 129 F.3d at 331. , 129 F.3d at 331.
~~439~~433 See, e.g., Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003) (“We recognize that there is an apparent tension , Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003) (“We recognize that 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 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. . . . [L]aws often have more than one goal in mind, and . . . it is not their children can access over the Internet. . . . [L]aws often have more than one goal in mind, and . . . it is not
uncommon for these purposes to look in opposite directions. . . . Tension within statutes is often not a defect but an uncommon for these purposes to look in opposite directions. . . . Tension within statutes is often not a defect but an
indication that the legislature was doing its job.”). indication that the legislature was doing its job.”).
~~440~~434 See 47 U.S.C. § 230(a)(4) (finding that the internet has “flourished, to the benefit of all Americans, with a minimum 47 U.S.C. § 230(a)(4) (finding that the internet has “flourished, to the benefit of all Americans, with a minimum
of government regulation”); of government regulation”); id. § 230(b)(2) (stating that it is the policy of the United States “to preserve the vibrant and § 230(b)(2) (stating that it is the policy of the United States “to preserve the vibrant and
competitive free market that presently exists for the Internet and other interactive computer services, unfettered by competitive free market that presently exists for the Internet and other interactive computer services, unfettered by
Federal or State regulation”). Federal or State regulation”).
~~441~~435 See, e.g., 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox) (“[W]e do not wish , 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox) (“[W]e do not wish
to have a Federal Computer Commission with an army of bureaucrats regulating the Internet . . . .”); to have a Federal Computer Commission with an army of bureaucrats regulating the Internet . . . .”); id. at H8470 at H8470
(statement of Rep. Joe Barton) (arguing Section 230 provides “a reasonable way to . . . help [service providers] self-(statement of Rep. Joe Barton) (arguing Section 230 provides “a reasonable way to . . . help [service providers] self-
regulate . . . without penalty of law”); regulate . . . without penalty of law”); id. at H8471 (statement of Rep. Rick White) (arguing the responsibility for at H8471 (statement of Rep. Rick White) (arguing the responsibility for
“protect[ing children] from the wrong influences on the Internet” should lie with parents instead of federal “protect[ing children] from the wrong influences on the Internet” should lie with parents instead of federal
government); government); id. at H8471 (statement of Rep. Bob Goodlatte) (“The Cox-Wyden amendment is a thoughtful approach at H8471 (statement of Rep. Bob Goodlatte) (“The Cox-Wyden amendment is a thoughtful approach
to keep smut off the net without government censorship.”). to keep smut off the net without government censorship.”).
~~Congressional Research Service~~
46

~~link to page 55 link to page 47~~ ~~Section 230: An Overview~~

~~Section 230 accordingly overlaps somewhat with the First Amendment. However, while Section~~
~~230 may protect some speech activities, Section 230 is not constitutionally required,442 or even~~
~~coextensive with~~436 See, e.g., Eric Goldman, Why Section 230 Is Better than the First Amendment, 95 NOTRE DAME L. REV. ONLINE 33, 34 (2019) (“Section 230 provides significant and irreplaceable substantive and procedural benefits beyond the First the First Amendment’s free speech protections.”). 437 Infra “Comparing the Operation of First Amendment and Section 230 Protections .” 438 See 47 U.S.C. § 230. Congressional Research Service 43 link to page 43 Section 230: An Overview ~~Amendment’s protections,443 as discussed in more detail below.444~~
~~First Amendment Issues with Reform Proposals~~
~~Any legislative proposal that regulates online content may implicate the First Amendment, to the~~
~~extent that it burdens protected speech activity. As currently drafted, Section 230 does not itself~~
~~make any content unlawful. Instead, it governs whether interactive computer service providers~~
~~and users may be subject to liability under other laws for their interactions with others’ content.445~~
~~Further, although Section 230 can be seen as speech-protective, the removal of Section 230’s~~
~~statutory speech protections would not affect the scope of any constitutional speech protections.~~
Section 230 is not constitutionally required, and Congress could repeal it without violating the Section 230 is not constitutionally required, and Congress could repeal it without violating the
First Amendment.First Amendment.~~446~~439
Section 230 nonetheless affects constitutionally protected speech by creating government Section 230 nonetheless affects constitutionally protected speech by creating government
incentives for certain speech activities, and accordingly, incentives for certain speech activities, and accordingly, amendments to Section 230 could to Section 230 could
implicate constitutional free speech concerns.implicate constitutional free speech concerns.~~447 However, a~~440 A law is not necessarily law is not necessarily
unconstitutional merely because it affects protected speechunconstitutional merely because it affects protected speech, however. Courts apply a variety of different . Courts apply a variety of different
tests to determine whether government regulations implicating First Amendment interests are tests to determine whether government regulations implicating First Amendment interests are
constitutional.constitutional.~~448~~ 441 Which analysis a court adopts depends on a variety of factors, including whether Which analysis a court adopts depends on a variety of factors, including whether
the regulation is focused primarily on speech or on conduct,the regulation is focused primarily on speech or on conduct,~~449~~442 and whether the regulation targets and whether the regulation targets
only certain types of speech.only certain types of speech.~~450 In particular, if a regulation targets~~443 In general, laws that regulate speech based on its content or speech based on its content or
~~viewpoint, it will generally be~~ viewpoint will be considered “presumptively unconstitutional and may be justified only if the “presumptively unconstitutional and may be justified only if the
government proves that government proves that ~~[it is]~~ they are narrowly tailored to serve compelling state interests.”444 Content-neutral speech regulations, in contrast, are generally evaluated under a more lenient standard and are more likely (but not guaranteed) to be upheld against a First Amendment challenge.445 Specifically, content-neutral laws that regulate speech are subject to intermediate scrutiny, which asks whether the restriction is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication of the information.”446 Further, Congress may be able to target certain limited categories of speech that the Supreme Court has historically recognized can be regulated more freely, such as obscenity or fraud, without triggering heightened scrutiny.447 As previously discussed, jurisprudence regarding First Amendment protections for editorial discretion is still developing.448 Some Supreme Court cases suggest the protection for editorial discretion may be absolute, while others suggest First Amendment protections in this realm may track ordinary constitutional standards.449 Both the Fifth and Eleventh Circuits have taken the 439~~narrowly tailored to serve compelling state interests.”451~~

~~442 See, e.g., Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 422 (S.D.N.Y. 2001) (“Section 230 reflects a~~
~~‘policy choice,’ not a First Amendment imperative, to immunize ISPs from defamation and other ‘tort-based lawsuits,’~~
~~driven, in part, by free speech concerns.” (quoting Zeran, 129 F.3d at 330–31)).~~
~~443 See, e.g., Eric Goldman, Why Section 230 Is Better than the First Amendment, 95 NOTRE DAME L. REV. ONLINE 33,~~
~~34 (2019) (“Section 230 provides significant and irreplaceable substantive and procedural benefits beyond the First~~
~~Amendment’s free speech protections.”).~~
~~444 Infra “Comparing the Operation of First Amendment and Section 230 Protections .”~~
~~445 See 47 U.S.C. § 230.~~
~~446~~ See, e.g., , Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 422 (S.D.N.Y. 2001) (“Section 230 reflects a ‘policy choice,’ not a First Amendment imperative, to immunize ISPs from defamation and other ‘tort-based lawsuits,’ driven, in part, by free speech concerns.” (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997))). 440 See, e.g., Ashutosh Bhagwat, Do Platforms Have Editorial Rights, 1 J. FREE SPEECH L. 1, 135 (2021); Daphne Keller, Who Do You Sue?, HOOVER INST., Aegis Series Paper No. 1902, at 3 (2019). 441~~, 135 F. Supp. 2d at 422.~~
~~447 See, e.g., Derek E. Bambauer, How Section 230 Reform Endangers Internet Free Speech, BROOKINGS (July 1,~~
2020), https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech; Keller, supra
~~note 422, at 3; Adam Thierer & Neil Alan Chilson, FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers,~~
~~FEDERALIST SOC’Y (Aug. 6, 2020), https://fedsoc.org/commentary/fedsoc-blog/fcc-s-o-rielly-on-first-amendment-~~
~~fairness-doctrine-dangers.~~
~~448~~ See generally, e.g., CRS Report R45650, , CRS Report R45650, Free Speech and the Regulation of Social Media Content, by Valerie C. , by Valerie C.
Brannon. Brannon.
~~449~~442 See, e.g., Ashcroft v. Free Speech Coal., 535 U.S, Ashcroft v. Free Speech Coal., 535 U.S,. 234, 253 (2002) (“[T]he Court’s First Amendment cases draw 234, 253 (2002) (“[T]he Court’s First Amendment cases draw
vital distinctions between words and deeds, between ideas and conduct.”); Rumsfeld v. Forum for Acad. & Institutional vital distinctions between words and deeds, between ideas and conduct.”); Rumsfeld v. Forum for Acad. & Institutional
Rights, Inc., 547 U.S. 47, 62 (2006) (upholding law where “the compelled speech . . . is plainly incidental to the [law’s] Rights, Inc., 547 U.S. 47, 62 (2006) (upholding law where “the compelled speech . . . is plainly incidental to the [law’s]
regulation of conduct”). regulation of conduct”).
~~450 While certain categories of speech may be more easily regulated or even prohibited, in general, a law that targets~~
~~speech because of its content will be subject to strict scrutiny, and more likely to be held unconstitutional.~~ ~~See~~
~~generally~~ ~~CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion.~~
~~451 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). A law will be considered content-based if it “applies to~~
~~particular speech because of the topic discussed or the idea or message expressed.” Id. at 2227.~~
~~Congressional Research Service~~
47

~~Section 230: An Overview~~

~~Section 230 already contains content-based distinctions: Section 230(c)(2) extends immunity only~~
~~to those providers and users restricting access to certain types of “objectionable” content,452~~
~~arguably regulating speech on the basis of its content and viewpoint.453 Any reform proposals that~~
~~add to the current list of types of content in Section 230(c)(2) could create additional content- or~~
~~viewpoint-based distinctions,454 potentially triggering heightened scrutiny under prevailing~~
~~Supreme Court precedent.455 Other bills from the 116th Congress would have limited providers’~~
~~editorial discretion by extending immunity only to providers that moderate content in specific~~
~~types of ways.456 For example, some proposals would have required providers to moderate in a~~
~~viewpoint-neutral manner to qualify for Section 230 protections457—and at least one bill would~~
~~have extended the same requirement to users.458 To the extent that these proposals “draw[]~~
~~distinctions based on the message a speaker conveys,” or based on the “communicative content”~~
~~of the speech, they might also be subject to heightened scrutiny if enacted and challenged in~~
~~court.459~~
~~No court has given significant consideration to the constitutionality of Section 230 in its current~~
~~form, making it difficult to say definitively how a court would view reform proposals that build~~
~~on the law’s current structure.460 Some have argued that because Congress was not required to~~

~~452 47 U.S.C. § 230(c)(2) (providing immunity to providers and users for certain decisions to restrict access to “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”).~~
~~453 E.g., Eric Goldman,~~ ~~Sen. Graham Cares More About Trolls than Section 230 (Comments on Online Content Policy~~
~~Modernization Act), TECH. & MKTG. L. BLOG (Sept. 30, 2020), https://blog.ericgoldman.org/archives/2020/09/sen-~~
graham-cares-more-about-trolls-than-section-230-comments-on-online-content-policy-modernization-act.htm. See also
~~Matal v. Tam, 137 S. Ct. 1744, 1763 (2020) (plurality opinion) (“Giving offense is a viewpoint.”).~~
~~454 See, e.g., Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020) (replacing “otherwise~~
~~objectionable” in Section 230(c)(2) with “promoting self-harm, promoting terrorism, or unlawful”); Stop the~~
~~Censorship Act of 2020, H.R. 7808, 116th Cong. § 2 (2020) (replacing “otherwise objectionable” in Section 230(c)(2)~~
~~with “unlawful, or that promotes violence or terrorism”). But cf. Stop the Censorship Act, H.R. 4027, 116th Cong. § 2~~
~~(2019) (replacing entire list of adjectives in Section 230(c)(2) with “unlawful”).~~
~~455 See Reed, 135 S. Ct. at 2226.~~
~~456 See, e.g., BAD ADS Act, S. 4337, 116th Cong. § 2 (2020) (limiting application of Section 230(c) if a covered~~
~~provider displays “behavioral advertising”); Biased Algorithm Deterrence Act of 2019, H.R. 492~~443 See generally CRS In Focus IF12308, Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional, by Victoria L. Killion. 444 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). 445 See, e.g., Univ. City Studios, Inc. v. Corley, 273 F.3d 429, 451, 454 (2d Cir. 2001) (rejecting a First Amendment challenge to a court order enforcing the Digital Millennium Copyright Act because the restriction targeted the “functional,” “nonspeech” aspects of computer code, and was accordingly content neutral). In contrast, for example, the Eleventh Circuit struck down certain aspects of a state law regulating online content moderation that it believed did not survive intermediate scrutiny. NetChoice, LLC v. Att’y Gen., 34 F.4th 1196, 1227 (11th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023). 446 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). 447 See generally CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion. 448 Supra “First Amendment Protections for Online Speech.” 449 Compare Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“It has yet to be demonstrated how (continued...) Congressional Research Service 44 link to page 47 Section 230: An Overview latter approach, and in particular, suggested content-based laws regulating editorial discretion are more likely to be ruled unconstitutional than content-neutral laws.450 If a Section 230 reform proposal imposes direct requirements for providers or users to distribute or restrict content,451 it may raise these First Amendment concerns. The fact that Section 230 currently does not directly require or prohibit certain types of speech, but merely creates incentives for moderating speech, is potentially another complicating factor in determining the appropriate First Amendment analysis for reform proposals. Some have argued that because Congress was not required to grant this immunity, it can restrict or condition Section 230 immunity without raising any constitutional concerns.452 Other commentators have argued that speech-based limits on Section 230 immunity would run afoul of Supreme Court precedent prohibiting unconstitutional conditions on government benefits.453 In other contexts, the Supreme Court has recognized that denying a benefit “to claimants who engage in certain forms of speech is in effect to penalize them for such speech” and can have the same “deterrent effect” as a more direct speech restriction.454 Under the unconstitutional conditions doctrine, which has largely—but not solely455—been developed in the context of grant programs, the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”456 Thus, the government might violate the First Amendment if it uses a grant program to impose restrictions on private speech.457 At the same time, the governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press . . . .”), with Turner Broad. Sys. v. FCC, 512 U.S. 622, 643–44 (1994) (applying an intermediate level of scrutiny to regulations that “interfere with cable operators’ editorial discretion,” but where “the extent of the interference does not depend upon the content of the cable operators’ programming”). 450 NetChoice, LLC, 34 F.4th at 1226; NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 448, 457 (5th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023). 451 See, e.g., See Something, Say Something Online Act of 2020, S. 4758, 116th Cong. § 5 (2020) (amending Section 230 to include an affirmative requirement for providers to “take reasonable steps to prevent or address unlawful users of the service through the reporting of suspicious transmissions”); CASE-IT Act, H.R. 8719, 116th Cong. § 2 (2020) (creating a new private right of action allowing content providers to sue service providers that fail “to make content moderation decisions pursuant to policies or practices that are reasonably consistent with the First Amendment”). 452 See, e.g., Craig Parshall, Big Tech and the Whole First Amendment, FEDERALIST SOC’Y (Aug. 14, 2020), https://fedsoc.org/commentary/fedsoc-blog/big-tech-and-the-whole-first-amendment. 453 See, e.g., Bhagwat, supra note 440, at 135; Edwin Lee, Conditioning Section 230 Immunity on Unbiased Content Moderation Practices as an Unconstitutional Condition, 2020 U. ILL. J.L. TECH. & POL’Y 457, 467 (2020). For a discussion of the unconstitutional conditions doctrine, see Overview of Unconstitutional Conditions Doctrine, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-13-1/ALDE_00000771/ (last visited Jan. 4, 2024). 454 Speiser v. Randall, 357 U.S. 513, 518 (1958); see also id. at 529 (concluding that a California provision requiring veterans seeking a property tax exemption to swear a loyalty oath was unconstitutional because it placed the burden of proof on the claimants). 455 See, e.g., Frost & Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593–94 (1926) (holding that a state could not place conditions on permits that would “require the relinquishment of constitutional rights”). Cf. FCC v. League of Women Voters, 468 U.S. 364, 381 (1984) (ruling unconstitutional regulations that unduly interfered with broadcast licensees’ ability to express their own “editorial opinion”). League of Women Voters involved a condition on a grant program administered by the Corporation for Public Broadcasting, but the condition was analyzed under the constitutional rubric that applies to broadcast licenses. See id. at 377–78. 456 Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding that a public university could not place a condition on employment that violated a person’s free speech rights). See generally CRS Report R46827, Funding Conditions: Constitutional Limits on Congress’s Spending Power, by Victoria L. Killion. 457 See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 208, 218 (2013) (holding that a federal condition requiring funding recipients to have “a policy explicitly opposing prostitution and sex trafficking” was unconstitutional because it limited the recipients’ speech outside the bounds of the federal program); Legal Servs. Corp. (continued...) Congressional Research Service 45 link to page 48 Section 230: An Overview government can impose conditions that ensure funds “will be used only to further the purposes of a grant.”458 Additionally, when the government uses a grant program to recruit “private entities to convey a governmental message,” it may impose content- and viewpoint-based restrictions on funded speech.459 Section 230 grants a legal benefit, in the form of immunity. To the extent that reform proposals would impose conditions on that benefit related to editorial choices about distributing or restricting others’ content, the unconstitutional conditions doctrine may be seen as an appropriate framework to analyze the law’s constitutionality.460 This would mean conditions on Section 230 trigger First Amendment analysis—but if a court followed the cases analyzing grant programs, the doctrine might allow certain content- and viewpoint-based restrictions on immunity. It is unclear, however, how some aspects of this doctrine might apply outside the context of grant programs and other forms of monetary benefits. In 2017’s Matal v. Tam, four members of the Supreme Court concluded that unconstitutional conditions cases involving “cash subsidies or their equivalent” were not relevant in analyzing speech restrictions in the context of trademark registration, a nonmonetary government benefit.461 It may be difficult, for instance, to apply cases asking whether a speech restriction serves “the purposes of a grant”462 to review conditions on nonmonetary benefits that do not seem to exist to convey a clear “governmental message.”463 The Court’s ruling in Tam further suggested, though, that viewpoint-based conditions on nonmonetary government benefits sometimes violate the Constitution.464 Tam held that a federal law prohibiting the registration of disparaging trademarks was unconstitutional under the First Amendment, saying that “[s]peech may not be banned on the ground that it expresses ideas that offend.”465 Like Section 230, the federal trademark law did not directly prohibit disparaging speech; it merely limited the benefits of trademark registration.466 Section 230 also provides legal protections for private speech, and Tam could thus suggest that any viewpoint-based conditions on Section 230 immunity are unconstitutional.467 Tam did not consider content-based conditions or other types of speech restrictions on nonmonetary benefits.468 v. Velazquez, 531 U.S. 533, 542, 548–49 (2001) (holding that a federal condition prohibiting funds from being used for legal representation involving an effort to amend welfare law was unconstitutional, where the program “was designed to facilitate private speech, not to promote a governmental message”). 458 Rust v. Sullivan, 500 U.S. 173, 198 (1991) (upholding a federal grant condition prohibiting health programs receiving federal funding from encouraging the use of abortion). 459 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833–34 (1995). 460 E.g., Lee, supra note 453, at 466. Cf. Cathy Gellis, Section 230 Isn’t a Subsidy; It’s a Rule of Civil Procedure, TECHDIRT (Dec. 29, 2020), https://www.techdirt.com/articles/20201229/12003745970/section-230-isnt-subsidy-rule-civil-procedure.shtml (arguing that Section 230 is more similar to a rule of civil procedure than “some sort of tangible prize the government hands out selectively”). 461 Matal v. Tam, 582 U.S. 218, 240 (2017) (plurality opinion). 462 Rust, 500 U.S. at 198. 463 Rosenberger, 515 U.S. at 833. 464 See Tam, 582 U.S. at 243–44; id. at 247 (Kennedy, J., concurring). 465 Id. at 223 (majority opinion). 466 See id. at 226–27 (discussing the legal rights and benefits conferred by registration). 467 See also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548–49 (2001) (“Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest.”). 468 In its October 2023 term, the Supreme Court is considering another First Amendment challenge in which the federal government has argued a restriction on trademark registration is constitutional because it is a condition on a benefit rather than a direct restriction on speech. E.g., Transcript of Oral Argument at 7–9, Vidal v. Elster, No. 22-704 (U.S. Nov. 1, 2023). Congressional Research Service 46 link to page 41 link to page 39 link to page 40 link to page 41 link to page 42 Section 230: An Overview If a court did not apply Supreme Court precedent on grant programs to conditions on Section 230 immunity, content- and viewpoint-based conditions on Section 230 could trigger heightened First Amendment scrutiny under prevailing Supreme Court precedent.469 Section 230 already contains content-based distinctions: Section 230(c)(2) extends immunity only to those providers and users restricting access to specific types of “objectionable” content,470 arguably regulating speech on the basis of its content and viewpoint.471 Courts have not weighed in on the constitutionality of Section 230’s current content-based distinctions.472 Reform proposals that would add to the current list of types of content in Section 230(c)(2) could create additional content- or viewpoint-based distinctions.473 Other proposals would have created content-based exceptions to Section 230, allowing liability for hosting certain types of content.474 Some bills that would have created new content-based exceptions seemed to target historically “unprotected”475 categories of speech such as child sexual abuse material,476 and therefore might not trigger heightened constitutional scrutiny on that basis.477 Other bills from prior Congresses would have limited providers’ editorial discretion by extending immunity only to providers that moderate content in specific ways.478 It might be argued that some of these proposals are content- or viewpoint-based, while others might be considered content-neutral. Open doctrinal questions may complicate this analysis. The Eleventh Circuit held that a state law prohibiting a platform from making content moderation decisions based on the content of certain users’ posts was content-based because it applied based on the message conveyed by the platform’s decision.479 Under this reasoning, proposals that extend Section 230 immunity only to providers or users who moderate content in a viewpoint-neutral manner could 469 See Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015). 470 47 U.S.C. § 230(c)(2) (providing immunity to providers and users for certain decisions to restrict access to “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”). 471 See, e.g,, Tam, 582 U.S. at 243 (plurality opinion) (“Giving offense is a viewpoint.”); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 794 (2000) (holding that a law restricting the sale of “violent” works to children was content-based). 472 Cf., e.g., Woodhull Freedom Found. v. United States, 72 F.4th 1286, 1306 (D.C. Cir. 2023) (rejecting an argument that FOSTA’s “Section 230(e)(5) selectively withdraws immunity on the basis of speech’s content or viewpoint,” because that exception denies immunity only for unprotected speech integral to criminal conduct); Lewis v. Google, 851 Fed. Appx. 723, 724 n.2 (9th Cir. 2021) (rejecting a First Amendment overbreadth challenge to Section 230 in part because the law “does not prohibit any speech”); Green v. Am. Online (AOL), 318 F.3d 465, 470 (3rd Cir. 2003) (rejecting plaintiff’s claim that Section 230(c)(2) violates the First Amendment by allowing providers to restrict constitutionally protected material, noting that the provision did “not require” the provider to “restrict speech”). 473 E.g., Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong. § 2 (2020) (replacing “otherwise objectionable” in Section 230(c)(2) with “promoting self-harm, promoting terrorism, or unlawful”); supra note 389. 474 E.g., Public Servant Anti-Intimidation Act of 2022, H.R. 8962, 117th Cong. (2022) (providing that Section 230 will not bar liability for the publication of the personal information of a public servant); Health Misinformation Act of 2021, S. 2448, 117th Cong. (2021) (providing that a service provider “shall be treated as the publisher or speaker of health misinformation” if it uses certain algorithms to promote that content); Ending Support for Internet Censorship Act, S. 1914, 116th Cong. (2019) (providing that Section 230(c) will not apply to larger providers unless the FTC has certified that “the company does not moderate information . . . in a manner that is biased against a political party, political candidate, or political viewpoint”). 475 For a discussion of the so-called unprotected categories, see CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion. 476 E.g., EARN IT Act of 2022, S. 3538, 117th Cong. § 5 (2022). 477 See Woodhull Freedom Found., 72 F.4th at 1306. 478 See supra notes 377 to 385 and accompanying text, and notes 397 to 401 and accompanying text. 479 NetChoice, LLC v. Att’y Gen., 34 F.4th 1196, 1226 (11th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023). In Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), the Supreme Court said a law is content-based if it “draws distinctions based on the message a speaker conveys.” Congressional Research Service 47 link to page 36 Section 230: An Overview be considered content-based if they are also viewed as applying based on the message conveyed.480 The Fifth Circuit and others have claimed, however, that these types of proposals should be considered content-neutral because requiring viewpoint-neutrality does not itself single out any particular viewpoint or subject matter.481 This debate implicates open questions in the Supreme Court’s definition of what qualifies as a content-based law.482 Similar questions could be raised by bills that would have restricted the availability of Section 230 immunity when content is recommended or restricted by an algorithm, to the extent these decisions about what content to transmit could be seen as conveying a message.483 Proposals that condition Section 230 immunity on adopting certain types of procedures to promote or restrict content, across all types of content, may be more likely to be considered content-neutral.484 This might include, for example, bills that would have conditioned immunity for takedown decisions on providing notice of the restriction and an opportunity for the content provider to respond.485 The Eleventh Circuit characterized state law provisions requiring the disclosure of content moderation standards as content-neutral.486 The federal bills that would have conditioned Section 230 immunity on providing publicly available content moderation practices could be viewed in the same light.487 At the same time, the Supreme Court has said disclosure requirements are a type of compelled speech and has applied a variety of First Amendment tests to disclosure requirements depending on the type of speech being compelled.488 Ultimately, given the open questions surrounding conditions on nonmonetary benefits, it is ~~, 116th Cong. § 2~~
~~(2019) (providing that “a social media service that displays user-generated content in an order other than chronological~~
~~order . . . , if for a reason other than to restrict access to . . . material described in paragraph (2)(A) or to carry out the~~
~~direction of the user that generated such content, shall be treated as a publisher . . . of such content”).~~
~~457 See, e.g., CASE-IT Act, H.R. 8719, 116th Cong. § 2 (2020) (providing that Sections 230(c)(1) and (c)(2)(A) will not~~
~~apply to certain providers if the provider “makes content moderation decisions pursuant to policies or practices that are~~
~~not reasonably consistent with the First Amendment to the Constitution,” treating these providers as equivalent to state~~
~~actors); Ending Support for Internet Censorship Act, S. 1914, 116th Cong. § 2 (2019) (providing that Section 230(c)~~
~~will not apply to larger providers unless the FTC has certified that “the company does not moderate information . . . in~~
~~a manner that is biased against a political party, political candidate, or political viewpoint”).~~
~~458 Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (providing that Section 230(c)(2)(A) will~~
~~apply only if a provider or user, among other requirements, acts “in a viewpoint-neutral manner”).~~
~~459 Reed, 135 S. Ct. at 2226.~~
~~460 Cf. Green v. Am. Online (AOL), 318 F.3d 465, 470 (3rd Cir. 2003) (rejecting plaintiff’s claim that Section 230(c)(2)~~
~~violates the First Amendment because it allows providers to restrict constitutionally protected material by noting that~~
~~the provision did “not require” the provider to “restrict speech”). In a document defending its petition for rulemaking,~~
~~NTIA argued that the Supreme Court has previously “upheld federal compelled speech in exchange for liability~~
~~protections,” citing Farmers Educational & Cooperative Union of America v. WDAY, Inc., 360 U.S. 525 (1959). NTIA,~~
~~Reply Comments on NTIA Petition for Rulemaking to Clarify Provisions of Section 230 of the Communications Act of~~
~~1934, at 37 (Sept. 17, 2020), https://ecfsapi.fcc.gov/file/1091762203541/NTIA%20Reply%20Comments%20in%~~
~~20RM%20No.%2011862.pdf. In that case, the Court held that a federal provision prohibiting licensed broadcasters~~
~~from “censor[ing]” certain statements of political candidates should be read to implicitly grant stations immunity from~~
~~Congressional Research Service~~
48

~~link to page 52~~ ~~Section 230: An Overview~~

~~grant this immunity, it can restrict or condition Section 230 immunity without raising any~~
~~constitutional concerns.461 Even if the government places conditions on Section 230, they argue,~~
~~the government has not compelled providers or users to moderate speech in any particular way,~~
~~but has merely incentivized it to do so.462~~
~~Other commentators have argued such speech-based limits on Section 230 immunity would run~~
~~afoul of Supreme Court precedent prohibiting unconstitutional conditions on benefits.463 In other~~
~~contexts, the Supreme Court has recognized that denying a benefit “to claimants who engage in~~
~~certain forms of speech is in effect to penalize them for such speech,” and can have the same~~
~~“deterrent effect” as a more direct regulation.464 Under the unconstitutional conditions doctrine,~~
~~which has largely—but not solely465—been developed in the context of grant programs,466 the~~
~~government “may not deny a benefit to a person on a basis that infringes his constitutionally~~
~~protected interests.”467 While the government may impose conditions that ensure funds “will be~~
~~used only to further the purposes of a grant,”468 it may violate the First Amendment if it uses a~~
~~grant program to impose restrictions on private speech.469 By contrast, the Supreme Court has~~
~~held that when the government is using a grant program to recruit “private entities to convey a~~
~~governmental message,” it may impose content- and viewpoint-based restrictions on funded~~
~~speech.470~~

~~liability for defamatory statements made in those broadcasts. Farmers Educ. & Coop. Union of Am., 360 U.S. at 526,~~
~~535 (discussing 47 U.S.C. § 315). The opinion did not involve a First Amendment analysis.~~
~~461 See, e.g., Craig Parshall, Big Tech and the Whole First Amendment, FEDERALIST SOC’Y (Aug. 14, 2020),~~
~~https://fedsoc.org/commentary/fedsoc-blog/big-tech-and-the-whole-first-amendment.~~
~~462 See, e.g., Free State Foundation, Comments on NTIA Petition for Rulemaking to Clarify Provisions of Section 230~~
~~of the Communications Act of 1934, at 7 (Sept. 17, 2020), https://ecfsapi.fcc.gov/file/10917275329599/Section%~~
~~20230%20Petition%20FSF%20Reply%20Comments%20-%20Final.pdf [hereinafter Free State Foundation Comments~~
~~on NTIA Petition].~~
~~463 See, e.g., Elliot Harmon, The Online Content Policy Modernization Act Is an Unconstitutional Mess, ELECTRONIC~~
~~FRONTIER FOUNDATION (Oct. 1, 2020), https://www.eff.org/deeplinks/2020/10/online-content-policy-modernization-~~
~~act-unconstitutional-mess; Mark Joseph Stern,~~ ~~Josh Hawley Wants to Stop Internet Censorship by Censoring the~~
~~Internet, SLATE (June 19, 2019), https://slate.com/technology/2019/06/josh-hawley-section-230-cda-internet-speech-~~
~~conservatives.html.~~
~~464 Speiser v. Randall, 357 U.S. 513, 518 (1958); see also id. at 529 (concluding that a California provision requiring~~
~~veterans seeking a property tax exemption to swear a loyalty oath was unconstitutional because it placed the burden of~~
~~proof on the claimants). Cf., e.g., Free State Foundation Comments on NTIA Petition, supra note 462, at 8~~
~~(acknowledging that conditions on Section 230 immunity burdening a platform’s ability to host or moderate could be~~
~~relevant factors in a First Amendment challenge).~~
~~465 See, e.g., Frost & Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593–94 (1926) (holding that a state could not~~
~~place conditions on permits that would “require the relinquishment of constitutional rights”).~~
~~466 Cf. Matal v. Tam, 137 S. Ct. 1744, 1760–61 (2020) (plurality opinion) (describing unconstitutional condition cases~~
~~as involving “cash subsidies or their equivalent”).~~
~~467 Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding that a public university could not place a condition on~~
~~employment that violated a person’s free speech rights).~~
~~468 Rust v. Sullivan, 500 U.S. 173, 198 (1991) (upholding a federal grant condition prohibiting health programs~~
~~receiving federal funding from encouraging the use of abortion).~~
~~469 See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 208, 218 (2013) (holding that a federal~~
~~condition requiring funding recipients to have “a policy explicitly opposing prostitution and sex trafficking” was~~
~~unconstitutional because it limited the recipients’ speech outside the bounds of the federal program); Legal Servs. Corp.~~
~~v. Velazquez, 531 U.S. 533, 542, 548–49 (2001) (holding that a federal condition prohibiting funds from being used for~~
~~legal representation involving an effort to amend welfare law was unconstitutional, where the program “was designed~~
~~to facilitate private speech, not to promote a governmental message”).~~
~~470 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833–34 (1995); see also Matal v. Tam, 137 S.~~
~~Ct. 1744, 1768 (2020) (Kennedy, J., concurring) (“[T]he Court’s precedents have recognized just one narrow situation~~
~~Congressional Research Service~~
49

~~link to page 47~~ ~~Section 230: An Overview~~

~~Section 230 grants a legal benefit, in the form of immunity. As discussed above, when providers~~
~~and users choose to distribute or restrict others’ content, they can be seen as engaged in~~
~~constitutionally protected speech.471 Accordingly, because Section 230 immunity contains certain~~
~~conditions related to these speech decisions, the unconstitutional conditions doctrine may be seen~~
~~as an appropriate framework to analyze the law’s constitutionality, or the constitutionality of any~~
~~reform proposals that would similarly condition immunity.472 Accordingly, some commentators~~
~~have suggested that proposals that would “forc[e]” private actors to change their decisions about~~
~~what speech to host or distribute would create an unconstitutional condition by causing them to~~
~~“surrender [their] First Amendment rights” to qualify for the benefit of legal immunity.473~~
~~As four members of the Supreme Court recognized in 2017’s Matal v. Tam, though, the Court’s~~
~~precedent applying the unconstitutional conditions doctrine is not easily extended outside the~~
~~context of programs that provide “cash subsidies or their equivalent.”474 For example, it is~~
~~difficult to apply cases asking whether a speech restriction serves “the purposes of a grant”475 to~~
~~review conditions on Section 230 immunity. However, the Court has recognized constitutional~~
~~limitations on the government’s ability to condition legal privileges outside the context of grant~~
~~programs—for example, in the context of permits.476 Accordingly, even in the context of~~
~~broadcast media, although the Supreme Court has recognized that the government has greater~~
~~leeway to regulate this particular medium by placing conditions on broadcast licenses,477 the~~
~~Court has still struck down regulations that unduly interfere with licensees’ ability to express their~~
~~own “editorial opinion.”478~~

~~in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to~~
~~communicate a message on its behalf.”). But cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580–87 (1998)~~
~~(rejecting a variety of arguments claiming that a program requiring the federal grantor to take into account “general~~
~~standards of decency” discriminated on the basis of viewpoint).~~
~~471 See, e.g., Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1008 (E.D. Cal. 2017) (concluding that a website owner had~~
~~“a First Amendment right to distribute and facilitate protected speech on the site”).~~
472 See, e.g., Edwin Lee, Conditioning ~~Section 230 Immunity on Unbiased Content Moderation Practices as an~~
~~Unconstitutional Condition, 2020 U. ILL. J.L. TECH. & POL’Y 457, 466 (2020); Mark MacCarthy,~~ ~~Some Reservations~~
~~About a Consistency Requirement for Social Media Content Moderation Decisions, FORBES (July 29, 2020)~~
~~https://www.forbes.com/sites/washingtonbytes/2020/07/29/some-reservations-about-a-consistency-requirement-for-~~
~~social-media-content-moderation-decisions/?sh=524e846276d7. Cf., e.g., Cathy Gellis,~~ ~~Section 230 Isn’t a Subsidy; It’s~~
~~a Rule of Civil Procedure, TECHDIRT (Dec. 29, 2020), https://www.techdirt.com/articles/20201229/12003745970/~~
~~section-230-isnt-subsidy-rule-civil-procedure.shtml (arguing that Section 230 is more similar to a rule of civil~~
~~procedure than “some sort of tangible prize the government hands out selectively”).~~
~~473 TechFreedom Comments on NTIA Petition, supra note 422, at 37; accord Internet Association, Comments~~
~~Opposing the NTIA’s Petition for Rulemaking, at 50–51 (Sept. 2, 2020), https://ecfsapi.fcc.gov/file/10902184309650/~~
~~IA%20Comments%20to%20FCC%20on%20NTIA%20Petition%20re%20Section%20230_v2.pdf [hereinafter Internet~~
~~Association Comments on NTIA Petition].~~
~~474 Matal v. Tam, 137 S. Ct. 1744, 1761 (2020) (plurality opinion).~~
~~475 See Rust v. Sullivan, 500 U.S. 173, 198 (1991).~~
~~476 See, e.g., Frost & Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593–94 (1926).~~
~~477 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 400–01 (1969) (rejecting a constitutional challenge to a regulation~~
~~requiring broadcasters to carry certain content “[i]n view of the scarcity of broadcast frequencies, the Government’s~~
~~role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain~~
~~access to those frequencies for expression of their views”). See also Reno v. ACLU, 521 U.S. 844, 868 (1997) (noting~~
~~that these “special justifications for regulation of the broadcast media . . . are not applicable to other speakers” and~~
~~specifically rejecting the idea that the internet should receive similar special First Amendment treatment).~~
~~478 FCC v. League of Women Voters, 468 U.S. 364, 381 (1984). This particular case involved a condition on a grant~~
~~program administered by the Corporation for Public Broadcasting, but the condition was analyzed under the~~
~~constitutional rubric that applies to broadcast licensees. See id. at 377–78.~~
~~Congressional Research Service~~
50

~~link to page 52~~ ~~Section 230: An Overview~~

~~Further, although the plurality opinion in Tam declined to apply the unconstitutional conditions~~
~~doctrine outside the context of a cash subsidy,479 the decision nonetheless suggests that viewpoint-~~
~~based conditions to Section 230 may pose constitutional problems.480 In Tam, the Court held that~~
~~a federal law prohibiting the registration of disparaging trademarks was unconstitutional under~~
~~the First Amendment, saying that “[s]peech may not be banned on the ground that it expresses~~
~~ideas that offend.”481 Like Section 230, the federal trademark law did not directly prohibit~~
~~disparaging speech, but merely limited the benefits of federal trademark registration.482~~
~~Ultimately, the Court ruled the law unconstitutional, saying that determining whether a mark was~~
~~so “offensive” that it could not be registered entailed impermissible viewpoint discrimination.483~~
~~The Court rejected arguments claiming that the viewpoint discrimination was acceptable because~~
~~trademarks can be seen as government speech, saying instead that trademarks are private~~
~~speech.484 Because Section 230 provides immunity for private speech activities and similarly~~
~~cannot be framed as advancing a government message, Tam could suggest that viewpoint-based~~
~~conditions on Section 230 immunity are unconstitutional.485~~
~~Ultimately, it is~~ difficult to say definitively how a court would analyze a First Amendment difficult to say definitively how a court would analyze a First Amendment
challenge to a limit or condition on Section 230 immunitychallenge to a limit or condition on Section 230 immunity. As discussed, some~~, although~~ Supreme Court precedent Supreme Court precedent
suggests that laws that draw distinctions based on the content or viewpoint of speech may be suggests that laws that draw distinctions based on the content or viewpoint of speech may be
subject to heightened scrutiny, even in the context of a law that merely disfavors, rather than subject to heightened scrutiny, even in the context of a law that merely disfavors, rather than
prohibits, certain speech.prohibits, certain speech.~~486~~489 However, the fact that any given Section 230 reform proposal does However, the fact that any given Section 230 reform proposal does
not directly prohibit or compel speech would not directly prohibit or compel speech would ~~certainly~~likely be a relevant factor in the First be a relevant factor in the First
~~Amendment analysis.487 On the other hand, if a Section 230 reform proposal more directly~~
~~requires providers or users to distribute or restrict content,488 it may raise heightened First~~
~~Amendment concerns.~~
~~Content-neutral proposals would likely be evaluated under a more lenient standard and would be~~
~~more likely to be upheld against a First Amendment challenge.489 Specifically, content-neutral~~

~~479 Matal v. Tam, 137 S. Ct. 1744, 1761 (2020) (plurality opinion).~~
~~480 See id. at 1763; id. at 1765 (Kennedy, J., concurring).~~
~~481 Id. at 1751 (majority opinion).~~
~~482 See id. at 1753 (discussing the legal rights and benefits conferred by registration).~~
~~483 Id. at 1763 (plurality opinion); see also id. at 1765 (Kennedy, J., concurring) (“The law . . . reflects the~~
~~Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.”).~~
~~484 Id. at 1760 (majority opinion).~~
~~485 See id.; see also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548–49 (2001) (“Where private speech is involved,~~
~~even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the~~
~~Government’s own interest.”).~~
~~486 See, e.g., Matal, 137 S. Ct. at 1751 (majority opinion); United States v. Playboy Entm’t Group, 529 U.S. 803, 809,~~
~~827 (2000) (holding that federal statute restricting the availability of “sexually explicit [cable] channel[s]”~~
~~discriminated on the basis of content and was unconstitutional under a strict scrutiny analysis). Cf., e.g., Backpage.com,~~
~~LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015) (granting an injunction against a sheriff who “embarked on a campaign~~
~~intended to crush Backpage’s adult section” by sending letters to credit card companies “demanding” that they~~
~~“prohibit the use of their credit cards to purchase any ads on Backpage”).~~
~~487 See, e.g., Free State Foundation Comments on NTIA Petition, supra note 462, at 7–8.~~
~~488 See, e.g., See Something, Say Something Online Act of 2020, S. 4758, 116th Cong. § 5 (2020) (amending Section~~
~~230 to include an affirmative requirement for providers to “take reasonable steps to prevent or address unlawful users~~
~~[sic] of the service through the reporting of suspicious transmissions”); CASE-IT Act, H.R. 8719, 116th Cong. § 2~~
~~(2020) (creating a new private right of action allowing content providers to sue service providers that fail “to make~~
~~content moderation decisions pursuant to policies or practices that are reasonably consistent with the First Amendment~~
~~to the Constitution”).~~
~~489 See, e.g., Univ. City Studios, Inc. v. Corley, 273 F.3d 429, 451, 454 (2d Cir. 2001) (rejecting a First Amendment~~
~~Congressional Research Service~~
51

~~Section 230: An Overview~~

~~laws that regulate speech are subject to intermediate scrutiny, which asks whether the restriction~~
~~is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample~~
~~alternative channels for communication of the information.”490 Further, Congress may be able to~~
~~target certain limited categories of speech that the Supreme Court has historically recognized can~~
~~be regulated more freely, such as obscenity or fraud, without triggering heightened scrutiny.491~~
Amendment analysis. 480 See, e.g., Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020). 481 See, e.g., NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 480 (5th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023); Spencer, supra note 348, at 59–60. 482 See CRS Legal Sidebar LSB10739, Refining Reed: City of Austin Updates Test for Content-Based Speech Restrictions, by Victoria L. Killion. 483 See, e.g., Platform Integrity Act, H.R. 9695, 117th Cong. § 2 (2022); Biased Algorithm Deterrence Act of 2019, H.R. 492, 116th Cong. § 2 (2019). Cf., e.g., United States v. Rundo, 990 F.3d 709, 717 (9th Cir. 2021) (per curiam) (holding a federal law prohibiting speech tending to “promote” a riot swept in constitutionally protected speech). 484 See Turner Broad. Sys. v. FCC, 512 U.S. 622, 643–44 (1994) (characterizing as content-neutral regulations that “interfere with cable operators’ editorial discretion,” where “the extent of the interference does not depend upon the content of the cable operators’ programming”). 485 E.g., Protect Speech Act, H.R. 3827, 117th Cong. § 2 (2021). 486 NetChoice, LLC v. Att’y Gen., 34 F.4th 1196, 1227 (11th Cir. 2022), cert. granted, 216 L. Ed. 2d 1313 (2023). 487 E.g., 21st Century FREE Speech Act, S. 1384, 117th Cong. (2021); Limiting Section 230 Immunity to Good Samaritans Act, H.R. 277, 117th Cong. (2021). 488 See generally CRS In Focus IF12388, First Amendment Limitations on Disclosure Requirements, by Valerie C. Brannon et al. Both the Fifth and Eleventh Circuits, for example, applied a relatively lenient standard known as Zauderer review to evaluate state law provisions requiring notice and appeal of content moderation decisions—although they disagreed on the outcome of that constitutional analysis. See NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 485, 487 (5th Cir. 2022) (ruling the provision “easily passes muster under Zauderer”), cert. granted, 216 L. Ed. 2d 1313 (2023); NetChoice, LLC, 34 F.4th at 1230–31 (ruling the provision was likely unduly burdensome on speech). 489 See, e.g., Matal v. Tam, 582 U.S. 218, 224 (2017) (majority opinion). Congressional Research Service 48 Section 230: An Overview Comparing the Operation of First Amendment and Section 230 Protections
Besides the constitutionality of Section 230’s immunity provisions and proposed reforms, another Besides the constitutionality of Section 230’s immunity provisions and proposed reforms, another
relevant issue is the extent to which the First Amendment might prevent liability for hosting relevant issue is the extent to which the First Amendment might prevent liability for hosting
content. The scope of First Amendment protections is important to understand the potential content. The scope of First Amendment protections is important to understand the potential
consequences of Section 230 reforms. For example, FOSTA both created a new federal criminal consequences of Section 230 reforms. For example, FOSTA both created a new federal criminal
offense and created new exceptions to Section 230 immunity.offense and created new exceptions to Section 230 immunity.~~492~~490 The new criminal offense, which The new criminal offense, which
prohibits operating an interactive computer service “with the intent to promote or facilitate the prohibits operating an interactive computer service “with the intent to promote or facilitate the
prostitution of another person,”prostitution of another person,”~~493 has been~~491 was challenged on constitutional grounds.492 Courts ultimately rejected those challenges, reading the criminal law narrowly to avoid sweeping in protected advocacy.493 Nonetheless, those cases could have affected ~~challenged on constitutional grounds.494 The D.C.~~
~~Circuit ruled in January 2020 that one such challenge should be allowed to proceed, concluding~~
~~that the statute could apply to plaintiffs engaging in advocacy or educational activities that might~~
~~be protected by the First Amendment.495 By contrast, in January 2021, a Texas federal district~~
~~court rejected a criminal defendant’s First Amendment challenge to the provision.496 These cases~~
~~will likely affect~~ not only the government’s ability to enforce this federal criminal law, but not only the government’s ability to enforce this federal criminal law, but ~~will~~
~~also be~~could also have been relevant for courts determining whether providers and users can relevant for courts determining whether providers and users can ~~be held liable~~face liability under the under the
FOSTA exceptions to Section 230 immunity. Namely, even though Section 230 no longer FOSTA exceptions to Section 230 immunity. Namely, even though Section 230 no longer ~~bars~~
barred state criminal prosecutions that track this new criminal offense,state criminal prosecutions that track this new criminal offense,~~497~~494 courts might courts might ~~nonetheless~~
~~conclude~~have concluded that the First Amendment that the First Amendment ~~prevents~~prevented prosecution. prosecution.~~498~~495
In a variety of legal contexts, courts have suggested that the First Amendment imposes a In a variety of legal contexts, courts have suggested that the First Amendment imposes a
heightened standard of liability, such as requiring proof of a higher level of intent, before speech heightened standard of liability, such as requiring proof of a higher level of intent, before speech
“distributors” such as bookstores and newsstands can be punished for circulating unlawful “distributors” such as bookstores and newsstands can be punished for circulating unlawful
content.content.~~499~~496 And even in the context of lawsuits against publishers such as newspapers or magazines, courts have sometimes imposed heightened standards where the liability is premised on speech.497 Consequently, some commentators have argued that even if Section 230 were repealed, the First Amendment would continue to prevent liability premised on hosting or distributing speech.498 Although the Constitution likely would preclude civil or criminal liability 490 ~~And even in the context of lawsuits against publishers such as newspapers or~~

~~challenge to a court order enforcing the Digital Millennium Copyright Act because the restriction targeted the~~
~~“functional,” “nonspeech” aspects of computer code, and was accordingly content neutral).~~
~~490 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468~~
~~U.S. 288, 293 (1984)).~~
~~491 See United States v. Stevens, 559 U.S. 460, 468–69 (2010) (listing these categories as including obscenity,~~
~~defamation, fraud, incitement, and speech integral to criminal conduct); R.A.V. v. City of St. Paul, 505 U.S. 377, 383–~~
~~84 (1992) (discussing the government’s ability to regulate these categories).~~
~~492~~ Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, §§ 3–4, 132 Stat. 1253, Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, §§ 3–4, 132 Stat. 1253,
1253–54 (2018). 1253–54 (2018).
~~493~~491 18 U.S.C. § 2421A. 18 U.S.C. § 2421A.
494 See492 Woodhull Freedom Found. v. United States, Woodhull Freedom Found. v. United States, ~~948 F.3d 363, 367~~72 F.4th 1286, 1296 (D.C. Cir. (D.C. Cir. ~~2020~~2023); United States v. Martono, No. ); United States v. Martono, No.
3:20-CR-00274-N-1, 2021 WL 39584, at *1 (N.D. Tex. Jan. 5, 2021). 3:20-CR-00274-N-1, 2021 WL 39584, at *1 (N.D. Tex. Jan. 5, 2021).
~~495~~493 Woodhull Freedom Found., , ~~948 F.3d at 372–73.~~
~~496~~72 F.4th at 1299; Martono, 2021 WL 39584, at *1, 2021 WL 39584, at *1 ~~(concluding the law was not unconstitutionally overbroad or vague).~~
~~497~~. 494 47 U.S.C. § 230(e)(5)(C) (providing that Section 230 will not “impair or limit . . . any charge in a criminal 47 U.S.C. § 230(e)(5)(C) (providing that Section 230 will not “impair or limit . . . any charge in a criminal
prosecution brought under State law if the conduct underlying the charge would constitute a violation of [18 U.S.C. prosecution brought under State law if the conduct underlying the charge would constitute a violation of [18 U.S.C.
§ 2421A] and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or § 2421A] and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or
facilitation of prostitution was targeted”).facilitation of prostitution was targeted”).
~~498~~495 Cf., e.g., , ~~State v. Melchert-Dinkel, 844 N.W.2d 13, 23–24 (Minn. 2014) (concluding that a state criminal law~~
~~prohibiting advising or encouraging another to commit suicide violates the First Amendment).~~
~~499~~United States v. Rundo, 990 F.3d 709, 717 (9th Cir. 2021) (per curiam) (holding a federal law prohibiting speech tending to “promote” a riot impermissibly swept in constitutionally protected speech). 496 See, e.g., Smith v. California, 361 U.S. 147, 155 (1959) (holding that a law imposing criminal penalties on See, e.g., Smith v. California, 361 U.S. 147, 155 (1959) (holding that a law imposing criminal penalties on
~~Congressional Research Service~~
52

~~link to page 50~~ ~~Section 230: An Overview~~

~~magazines, courts have sometimes imposed heightened standards where the liability is premised~~
~~on speech.500 Consequently, some commentators have argued that even if Section 230 were~~
~~repealed, the First Amendment would nonetheless continue to prevent liability premised on~~
~~hosting or distributing speech.501 Although the Constitution likely would preclude civil or~~
~~criminal liability in some circumstances, the protections of the First Amendment are likely not~~
~~coextensive with Section 230 immunity.502~~
~~First, while Section 230 provides a complete bar to liability for covered activities, the First~~
~~Amendment may merely impose a heightened standard of liability if a lawsuit implicates~~
~~protected speech.503 One illustration comes from the New York rulings described above that~~
~~considered whether early online platforms hosting message boards could be held liable for~~
~~defamatory statements posted by users.504 In Cubby, the federal trial court concluded that~~
~~CompuServe should be treated as a distributor for purposes of analyzing the defamation claim.505~~
~~Accordingly, the court ruled that the plaintiff had to meet a heightened standard and prove that~~
~~CompuServe “knew or had reason to know of the allegedly defamatory . . . statements.”506 While~~
~~the trial court ultimately concluded that the plaintiff had not met this standard and dismissed the~~
~~defamation claim,507 it was theoretically possible for the plaintiff to prove the claim by submitting~~
~~sufficient evidence of CompuServe’s knowledge. By contrast, courts have ruled that Section 230~~
~~will bar a claim against a provider that merely publishes a defamatory statement regardless of~~
~~whether the provider actually knew about the statement.508 Accordingly, while the types of~~
~~heightened standards required by the First Amendment likely would lead courts to dismiss some~~
~~lawsuits premised on speech, plaintiffs with sufficient proof may be able to overcome those~~
~~standards in circumstances where Section 230 would have barred the suit. However, a few trial~~

bookstores that possess obscene material was unconstitutional under the First Amendment because it did not include bookstores that possess obscene material was unconstitutional under the First Amendment because it did not include
any element of scienter, or knowledge); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991) any element of scienter, or knowledge); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991)
(requiring proof of knowledge before a distributor may be held liable for defamation). (requiring proof of knowledge before a distributor may be held liable for defamation). See also, e.g., Bantam Books, , Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (holding that a state commission violated the First Amendment by sending Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (holding that a state commission violated the First Amendment by sending
book publishers notices threatening punishment under state obscenity laws, characterizing the scheme as a system of book publishers notices threatening punishment under state obscenity laws, characterizing the scheme as a system of
prior administrative restraints that was impermissible because it lacked sufficient procedural safeguards). prior administrative restraints that was impermissible because it lacked sufficient procedural safeguards).
~~500~~497 See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (requiring a showing of “actual malice” before a , N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (requiring a showing of “actual malice” before a
“public official” may recover damages from a newspaper for a defamatory statement “relating to his official conduct”); “public official” may recover damages from a newspaper for a defamatory statement “relating to his official conduct”);
Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1114 (11th Cir. 1992) (ruling that a magazine could be held Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1114 (11th Cir. 1992) (ruling that a magazine could be held
liable for negligently publishing an advertisement “only if the advertisement on its face would have alerted a liable for negligently publishing an advertisement “only if the advertisement on its face would have alerted a
reasonably prudent publisher to the clearly identifiable unreasonable risk of harm”). reasonably prudent publisher to the clearly identifiable unreasonable risk of harm”).
~~501~~498 See, e.g., Note, , Note, Section 230 as First Amendment Rule, 131 HARV. L. REV. 2027, 2028 (2018); , 131 HARV. L. REV. 2027, 2028 (2018); cf. Brent Skorup & Brent Skorup &
Jennifer Huddleston, Jennifer Huddleston, The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online
Curation, 72 OKLA. L. REV. 635, 637 (2020) (arguing that in the area of defamation law, “First Amendment , 72 OKLA. L. REV. 635, 637 (2020) (arguing that in the area of defamation law, “First Amendment
considerations would likely lead courts to a § 230-like liability protection,” but noting differences in the two regimes). considerations would likely lead courts to a § 230-like liability protection,” but noting differences in the two regimes).
~~502 See generally, e.g., Goldman, Why Section 230 Is Better than the First Amendment, supra note 443 (discussing ways~~
~~Section 230 offers more protection, both substantive and procedural, than the First Amendment).~~
~~503 See, e.g., id. at 38–39 (noting that “sufficient scienter can override” First Amendment protections in defamation~~
~~cases, but Section 230 “moot[s] inquiries into defendants’ scienter”).~~
~~504 Compare Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May~~
~~24, 1995) (concluding Prodigy should be treated as a publisher for purposes of defamation liability), with Cubby, Inc.~~
~~v. CompuServe, Inc., 776 F. Supp. 135, 140–41 (S.D.N.Y. 1991) (concluding~~ Congressional Research Service 49 link to page 46 link to page 9 link to page 46 link to page 46 Section 230: An Overview in some circumstances, the protections of the First Amendment are likely not coextensive with Section 230 immunity.499 Generally, this stems from the fact that Section 230 provides complete immunity for covered activities absent an inquiry into whether the underlying content is constitutionally protected, meaning that Section 230 likely protects at least some speech that the First Amendment does not protect. First, while Section 230 provides a complete bar to liability for covered activities, the First Amendment may merely impose a heightened standard of liability if a lawsuit implicates protected speech.500 One illustration comes from the pre-Section 230 rulings described above that considered whether early online platforms hosting message boards could be held liable for defamatory statements posted by users.501 In Cubby, the federal trial court concluded that CompuServe should be treated as a CompuServe should be treated as a
distributor for purposes of distributor for purposes of ~~defamation liability).~~
~~505 Cubby, Inc., 776 F. Supp. at 140.~~
~~506 Id. at 140–41.~~
~~507 Id. at 141.~~
~~508 See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997) (concluding Section 230 barred claim that~~
~~provider could be held liable for defamation as a distributor with knowledge of the statement).~~
~~Congressional Research Service~~
53

~~link to page 49 link to page 50 link to page 53 link to page 23~~ ~~Section 230: An Overview~~

analyzing the defamation claim.502 Accordingly, the court ruled that the plaintiff had to meet a heightened standard and prove that CompuServe “knew or had reason to know of the allegedly defamatory . . . statements.”503 While the trial court ultimately concluded that the plaintiff had not met this standard and dismissed the defamation claim,504 it was theoretically possible for the plaintiff to prove the claim by submitting sufficient evidence of CompuServe’s knowledge. By contrast, courts have ruled that Section 230 will bar a claim against a provider that merely publishes a defamatory statement regardless of whether the provider actually knew about the statement.505 Accordingly, while heightened First Amendment standards likely would lead courts to dismiss some lawsuits premised on speech, plaintiffs with sufficient proof may be able to overcome those standards in circumstances where Section 230 would have barred the suit. However, a few trial courts have concluded that the First Amendment completely immunizes websites from certain courts have concluded that the First Amendment completely immunizes websites from certain
civil claims without suggesting that some heightened standard applies—similar to the current civil claims without suggesting that some heightened standard applies—similar to the current
regime under Section 230.regime under Section 230.~~509~~
~~Section 230 also provides~~506 More generally, Section 230’s complete immunity for “publisher” activities complete immunity for “publisher” activities ~~absent an inquiry into~~
~~whether the underlying content is constitutionally protected, meaning that Section 230 likely~~
~~protects hosting at least some speech that the First Amendment does not protect.510~~has procedural advantages for providers and users engaged in protected activity.507 As discussed As discussed
above, the inquiry into whether a service provider or user has engaged in “publisher” activities above, the inquiry into whether a service provider or user has engaged in “publisher” activities
may overlap with constitutional protections for “editorial” activity,may overlap with constitutional protections for “editorial” activity,~~511~~508 but Section 230 nonetheless but Section 230 nonetheless
does not require a court to investigate whether First Amendment activity has occurred. does not require a court to investigate whether First Amendment activity has occurred.
Accordingly, Section 230 provides greater certainty for service providers and users that Accordingly, Section 230 provides greater certainty for service providers and users that
distributing or restricting others’ speech will be protected from liability, without having to distributing or restricting others’ speech will be protected from liability, without having to
consider whether a court would conclude the speech is constitutionally protected.consider whether a court would conclude the speech is constitutionally protected.~~512~~509 In at least In at least
~~some cases, courts may dismiss a lawsuit against a provider on Section 230 grounds at an early~~
~~stage in the litigation based on the allegations alone.513 Whether early dismissal is warranted,~~
~~however, will depend on the elements of the claim, the factual circumstances, and the particulars~~
~~of any Section 230 or First Amendment defense. For example, as discussed above, allegations~~
~~that a provider acted in bad faith have prevented providers from obtaining early dismissal under~~
~~Section 230(c)(2)(A).514~~
~~Accordingly, while the First Amendment might prevent some claims premised on decisions to~~
~~host or restrict others’ speech, its protections are likely less extensive than the current scope of~~
~~Section 230 immunity.~~

~~Author Information~~

~~Valerie C. Brannon~~
~~Eric N. Holmes~~
~~Legislative Attorney~~
~~Legislative Attorney~~

~~509~~some cases, courts 499 See generally, e.g., Goldman, Why Section 230 Is Better than the First Amendment, supra note 436 (discussing ways Section 230 offers more protection, both substantive and procedural, than the First Amendment). 500 See, e.g., id. at 38–39 (noting that “sufficient scienter can override” First Amendment protections in defamation cases, but Section 230 “moot[s] inquiries into defendants’ scienter”). 501 See supra “Stratton Oakmont, Inc. v. Prodigy Services Co.” 502 Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991). 503 Id. at 140–41. 504 Id. at 141. 505 See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997) (concluding Section 230 barred claim that provider could be held liable for defamation as a distributor with knowledge of the statement). 506 E.g., Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 443 (S.D.N.Y. 2014); Langdon v. Google, Inc., 474 F. Supp. 2d , Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 443 (S.D.N.Y. 2014); Langdon v. Google, Inc., 474 F. Supp. 2d
622, 629–30 (D. Del. 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at *3–622, 629–30 (D. Del. 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at *3–
4 (W.D. Okla. May 27, 2003). 4 (W.D. Okla. May 27, 2003).
~~510~~507 See, e.g., 47 U.S.C. § 230(c)(1) (providing that a service provider or user may not be treated as a “publisher” of , 47 U.S.C. § 230(c)(1) (providing that a service provider or user may not be treated as a “publisher” of
another’s content); another’s content); id. § 230(c)(2) (extending immunity for decisions to restrict certain material § 230(c)(2) (extending immunity for decisions to restrict certain material, “whether or not such “whether or not such
material is constitutionally protected”). material is constitutionally protected”).
~~511~~508 See supra no note ~~437.~~
~~512~~431. 509 See, e.g., Goldman, , Goldman, Why Section 230 Is Better than the First Amendment, , supra no note ~~443~~436, at 42–43. at 42–43.
~~513 See id. at 39–40; accord Gellis, supra note 472.~~
~~514 See supra note 198.~~
~~Congressional Research Service~~
54 Congressional Research Service 50 link to page 25 link to page 49 Section 230: An Overview may dismiss a lawsuit against a provider on Section 230 grounds at an early stage in the litigation based on the allegations alone.510 Whether early dismissal is warranted, however, will depend on the elements of the claim, the factual circumstances, and the particulars of any Section 230 or First Amendment defense. For example, as discussed above, allegations that a provider acted in bad faith have prevented providers from obtaining early dismissal under Section 230(c)(2)(A).511 Nonetheless, some commentators believe that in most cases, Section 230 will allow a quicker dismissal than the First Amendment.512 Accordingly, while the First Amendment might prevent some claims premised on decisions to host or restrict others’ speech, its protections are likely less extensive than the current scope of Section 230 immunity. Author Information Valerie C. Brannon Eric N. Holmes Legislative Attorney Attorney-Adviser (Constitution Annotated) 510 See id. at 39–40. 511 See supra note 227. 512 E.g., Gellis, supra note 460. Congressional Research Service 51

Section 230: An Overview

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