President Donald Trump’s executive order on social media is framed around the effort to remove protections under Section 230 of the Communications Decency Act. For those of us who teach torts, Section 230 has been a long controversy in its shielding of companies from liability in defamation and other lawsuits. As I write today in my Hill column, Twitter is dangerously wrong in its action against the Trump tweets and Trump is right that this represents a serious attack on free speech. However, I was also critical of the threat to “shut down” or “strongly regulate” media companies. Putting the retaliatory language aside, this is not a change that will likely succeed without congressional action. However, there are some legitimate questions that Congress should consider while, in my view, erring on the side of protecting free speech.

President Trump is directing the Federal Communications Commission (FCC) to propose and clarify regulations under Section 230. Specifically, section 230 protects social media platforms from liability over what users post or share. 

Section 230(c) of the Communications Decency Act of 1996 provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(e)(3).

This has long been a controversial element under the FCA because it was largely the result of judicial not congressional construction. We discussed this issue in relation to the Sixth Circuit’s arguments in Jones v. Dirty World Entertainment. A gossip blog, The Dirty, appealed the decision of U.S. District Judge William Bertelsman that the site is liable of defamatory statements by third parties and cannot claim immunity under the Communications Decency Act, 47 U.S.C. § 230. The site was sued by Sarah Jones, an ex-Bengals cheerleader and a former high school teacher in northern Kentucky, who was libeled on the site by commentators.

The jury hung in the first trial of this case, which necessitated a second trial. The second jury returned a verdict for $38,000.00 compensatory damages and $300,000.00 punitive damages.

Bertelsman rejected the argument that it barred recovery in the case. The district court drew a distinction between third party postings or comments that appear without solicitation or encouragement and this type of site that actively seeks such comments. The court noted a number of decisions limiting CDA immunity including a decision by Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit, who wrote in Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008), that the CDA does not provide “a grant of comprehensive immunity from civil liability for content provided by a third party.” Easterbrook ruled that Craigslist was entitled to protection but noted that “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.” Id. at 671-72.

The district court held that

“Although Courts have stated generally that CDA immunity is broad, the weight of the authority teaches that such immunity may be lost. That is, a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a “creator” or “developer” of that content and is not entitled to immunity.”

That analysis may appeal to the Trump Administration. However, the Sixth Circuit vacated the district court’s decision with instructions to enter judgment for Dirty World. The Sixth Circuit held that the district court erroneously applied an “adoption or ratification test” on determining if immunity existed. It instead favored the material contribution test from Fair Housing Council of San Fernando Valley v. Roommates.com, LLC. Yet, that case contained language that should worry Twitter.

Then Chief Judge Alex Kozinski wrote for the en banc court that Roommates.com was not immune under Section 230(c) because the website qualified as an information content provider: “Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the ‘information content provider’ as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.” The court found that “Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of the information. And section 230 provides immunity only if the interactive computer series does not ‘creat[e] or develop[]’ the information ‘in whole or in part.’”

We have previously discussed the opinion in Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) where Chief Judge Wilkinson wrote for the Fourth Circuit:

By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, 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 — are barred.

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. 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.

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None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” Id. § 230(b)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.

Past CDA decision have been sweeping in the extent of the immunity, even from reluctant judges as in Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). In that case, the Drudge Report was sued by Sidney Blumenthal and Jacqueline Jordan Blumenthal who are citizens of the District of Columbia and have continuously lived in the District since 1985. Complaint PP 1-2, 12. Sidney Blumenthal worked in the White House as an Assistant to the President of the United States and the defamatory materials was published the day before he began work at the White House on August 11, 1997. The article was entitled “Charge: New White House Recruit Sidney Blumenthal Has Spousal Abuse Past.” It was untrue and, after receiving a letter from their counsel, Drudge retracted the story through a special edition of the Drudge Report on his web site and e-mailed to his subscribers. Drudge also e-mailed the retraction to AOL which posted it on the AOL service. He also later publicly apologized to the Blumenthals. AOL however was protected even though the site actively monitors postings and reserves the right to remove postings. Judge Freidman wrote:

If it were writing on a clean slate, this Court would agree with plaintiffs. AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility for what is said over the telephone wires. 11 Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor. 12 But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.

There are therefore long-standing and legitimate objections to Section 230 where sites like Twitter demand immunity as a passive provider but then assumed an active role in the discussion.  However, the priority should be the protection of the Internet and social media as a forum for free speech. If Twitter could refrain from such interventions, it serves an important function as a platform for free ideas and exchange.  The problem is that Democrats like former Vice President Joe Biden have called for the elimination of Section 230 in its entirety — an extreme action that could fundamentally change public discourse in this country.

That is why my column strongly encourages Twitter to admit its error and return to neutrality. Instead, Twitter’s CEO Jack Dorsey has doubled down on an indefensible and dangerous decision on the Trump tweets. The result could be an assault not just on social media but free speech.