Section 230: A Brief Overview

Section 230: A Brief Overview

February 2, 2024
Section 230: A Brief Overview
Section 230 of the Communications Act of 1934, 47 U.S.C.
standard requires courts to look at the nature of the legal
§ 230, provides limited immunity from legal liability to
claim to determine whether liability would be based on
providers and users of “interactive computer services.”
publisher or speaker activity. If it would, the claim is barred
Under Section 230(c)(1), those providers and users may not
by Section 230(c)(1). Courts applying this standard have
“be treated as the publisher or speaker of any information
dismissed a variety of claims against service providers—
provided by another information content provider.” Under
including defamation, negligence, housing discrimination,
Section 230(c)(2), they may not be held liable for restricting
and cyberstalking claims—to the extent those claims would
access to objectionable material in good faith. These
hold defendants liable for publishing content. Plaintiffs
immunities are subject to several express exceptions and do
asserting failure to warn claims, promissory estoppel
not preclude liability for content the providers or users
claims, and claims founded on economic regulations have
developed themselves. This In Focus summarizes the scope
had more success arguing that immunity should not apply
of Section 230 immunity and discusses proposals to reform
because liability would not be based on publisher activity.
the statute. For more information about Section 230, see
Claims alleging online services have flawed product
CRS Report R46751, Section 230: An Overview, by Valerie
designs have yielded mixed results.
C. Brannon and Eric N. Holmes.
Information Provided by Another
Definitions and Application
Section 230(c)(1) applies only to claims based on
The terms “interactive computer service” and “information
“information provided by another information content
content provider” are defined in Section 230. “Interactive
provider.” As interpreted by some courts, this language
computer service” means “any information service, system,
preserves immunity for some editorial changes to third-
or access software provider that provides or enables
party content but does not allow a service provider to
computer access by multiple users to a computer server.”
“materially contribute” to the unlawful information
This definition is broad. Courts have construed it to include
underlying a legal claim. Under the material contribution
well-known online service providers, like Google and Meta,
test, a provider loses immunity if it is responsible for what
as well as web hosting, internet access, and private server
makes the displayed content illegal. For instance, courts
providers. Although most Section 230 cases involve online
have analyzed whether algorithms that filter, promote, or
services, the definition can also include brick-and-mortar
sort content materially contribute to unlawful activity, such
entities such as libraries or employers that provide
as by suggesting content promoting terrorism. So far, most
computer access.
courts have held that Section 230(c)(1) bars claims arising
from the use of “neutral” algorithms that treat the
“Information content provider” means “any person or entity
challenged content similarly to other content. For more
that is responsible, in whole or in part, for the creation or
information about liability related to the use of algorithms,
development of information provided through the Internet
see CRS Report R47753, Liability for Algorithmic
or any other interactive computer service.” Providers or
Recommendations, by Eric N. Holmes.
users of interactive computer services can themselves meet
this definition. Section 230(c)(1) immunity frequently turns
Section 230(c)(2): Restricting Access to
on whether the provider or user created or developed the
Objectionable Material
content at issue in a particular lawsuit.
Section 230(c)(2) provides two additional immunities.
Section 230(c)(2)(A) immunizes service providers and
Section 230(c)(1): Publisher Activity
users against suits based on “good faith” actions “to restrict
Section 230(c)(1) bars a legal claim that (i) is brought
access to or availability of material that the provider or user
against a provider or user of an interactive computer
considers to be obscene ... filthy, excessively violent,
service, as defined above; (ii) treats the defendant as a
harassing, or otherwise objectionable.” Courts have ruled
publisher or speaker; and (iii) is based on information
that defendants do not act in “good faith” when they restrict
provided by another information content provider.
content for anticompetitive or pretextual reasons. Some
courts have interpreted Section 230(c)(2)(A) to grant
Liability as Publisher or Speaker
significant discretion to service providers and users to
In an early, widely adopted interpretation of Section
determine what material is objectionable, but a few courts
230(c)(1), a federal appeals court held that the provision
have suggested some limits on the scope of “otherwise
bars “lawsuits seeking to hold a service provider liable for
objectionable” material.
its exercise of a publisher’s traditional editorial functions—
such as deciding whether to publish, withdraw, postpone, or
Section 230(c)(2)(B) provides immunity from claims based
alter content.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330
on actions that “enable or make available to ... others the
(4th Cir. 1997). This “traditional editorial functions”
https://crsreports.congress.gov

Section 230: A Brief Overview
technical means to restrict access to” the same categories of
respond to any given Section 230 reform. Providers may
“objectionable” material.
respond by avoiding the activity that could create liability:
for instance, removing content that might fall within a new
Exceptions
exception. Alternatively, they may continue that activity if
Section 230(e) provides five exceptions to the immunity
they believe lawsuits are unlikely or if social or economic
described above. First, a defendant in a federal criminal
considerations outweigh possible legal liability. Further,
prosecution cannot claim protection under Section 230.
some have predicted, based on pre-Section-230 caselaw,
Most courts to consider this exception have held that
that providers might attempt to avoid liability by stopping
Section 230 still bars civil claims based on violations of
all content moderation.
criminal laws. Second, Section 230 immunity does not
apply to laws “pertaining to intellectual property.” The
Another general consideration with Section 230 reform is
statute does not define “intellectual property,” but courts
who might be subject to liability. Blanket reforms would
have found the term to encompass, for instance, copyright
affect all interactive computer service providers and users.
and trademark infringement claims. Third, states can
Members concerned only with a subset of interactive
“enforc[e] any State law that is consistent with” Section
computer services, such as larger services or social media
230. Fourth, Section 230 immunity does not apply to the
companies, or concerned only with service providers and
Electronic Communications Privacy Act of 1986—which
not users, could consider more targeted reforms.
governs wiretapping and electronic eavesdropping—or
similar state laws. Fifth, after passage of the Allow States
Free Speech Considerations
and Victims to Fight Online Sex Trafficking Act of 2017
Some have questioned whether, if Section 230 is repealed,
(FOSTA), Section 230 immunity does not extend to claims
the First Amendment would nonetheless prevent lawsuits
under certain sex trafficking provisions.
premised on hosting or restricting others’ content. The
Supreme Court has said that private parties sometimes
Reform Proposals: Overview and Select
engage in protected speech when they decide whether to
Legal Considerations
host others’ speech. For example, the Court ruled that
newspapers exercise protected “editorial control and
Overview of Section 230 Reform Proposals
judgment” in choosing what material to print and how to
Members of Congress have introduced dozens of proposals
present it. Miami Herald Publ’g Co. v. Tornillo, 418 U.S.
to amend Section 230 in the 116th, 117th, and 118th
241, 258 (1974). The Supreme Court has extended this right
Congresses—although no further amendments have been
of editorial discretion beyond traditional media, and some
enacted since FOSTA, and some Members have defended
lower courts have held that this doctrine can protect
Section 230 immunity in its current form. Those who seek
websites such as search engines and social media sites from
to amend Section 230 have often pursued one of two
liability for decisions about how and whether to publish
distinct goals.
others’ content.
First, bills have proposed limiting Section 230 immunity for
There is significant overlap between the traditional editorial
hosting another’s content, with the goal of incentivizing
functions courts have held are protected by Section
sites to take down harmful content. Some bills have focused
230(c)(1) and the editorial discretion that is protected by the
on specific types of content. Others have proposed
First Amendment. Scholars have claimed, though, that
exceptions for certain types of legal claims, such as lawsuits
Section 230 allows quicker and more certain dismissals of
brought under drug trafficking or nondiscrimination laws.
lawsuits. Section 230 grants complete immunity for
Still other bills have focused on general hosting practices:
publisher or speaker activities regardless of whether the
for example, allowing liability if the site promoted the
challenged speech is unlawful. In contrast, the First
challenged content through a personalized algorithm.
Amendment requires an inquiry into whether the challenged
speech is constitutionally protected and may provide
Second, bills have proposed limiting Section 230 immunity
limited or no immunity for certain activities.
for restricting content, seeking to incentivize hosting lawful
content. Some bills have proposed removing the general
Another constitutional question is whether some proposals
category of immunity in Section 230(c)(2) for restricting
to amend Section 230 violate the First Amendment. Section
“otherwise objectionable” material. Some bills have sought
230 does not directly restrict or require speech, but reform
to limit immunity to decisions that restrict content in a
proposals may create incentives to exercise editorial
viewpoint-neutral manner. Other bills have focused on
discretion in specific ways, preferencing certain speech
procedural aspects of decisions to restrict content, such as
activity. Some have argued that because Section 230 is not
by conditioning immunity on publishing terms of service or
required by the First Amendment, Congress can limit this
explaining decisions to restrict specific content.
discretionary benefit without triggering constitutional
concerns. Others have pointed to Supreme Court cases
General Legal Considerations
ruling that conditions on government benefits can
Removing Section 230 immunity will not necessarily result
sometimes violate the First Amendment when they deter
in a provider or user being liable for sharing or restricting
protected speech. Such conditions may be of particular
content. Liability depends on whether there is another law
concern if they prefer certain speech based on its content or
prohibiting the challenged activity, and whether a plaintiff
viewpoint.
brings a meritorious lawsuit under that law. Accordingly, it
may be difficult to predict how providers or users will
Peter J. Benson, Legislative Attorney
https://crsreports.congress.gov

Section 230: A Brief Overview

IF12584
Valerie C. Brannon, Legislative Attorney

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