How the Supreme Court Saved the Internet from Itself: 'Gonzalez v. Google' and 'Twitter v. Taamneh'

Section 230

Section 230 of the Communications Decency Act of 1996 states in relevant part that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. §230(c)(1). This language draws from the common law distinction between content "publishers" and "distributors." Newsstands, magazine racks, and mail carriers all distribute content, but they are not "publishers." They are likely to at some point inadvertently disseminate libelous materials, but "the imposition of liability without adequate proof of fault would unquestionably chill the exercise of distributors' First Amendment rights." Lerman v. Flynt Distrib. Co. 745 F.2d 123, 139 (2d Cir. 1984). To avoid such a chilling effect, "courts have long held that vendors and distributors of defamatory publications are not liable if they neither know nor have reason to know of the defamation." Lerman v. Chuckleberry Publ'g, Inc., 521 F. Supp. 228, 235 (S.D.N.Y. 1981).

Courts struggled to apply traditional common law norms to the pre-Web "walled gardens" of the 1990s. CompuServe and Prodigy were Internet Service Providers (ISPs) that created forums for subscribers to interact with one another. The question in two cases involving these companies was whether they were liable for content users posted on their forums. In Cubby, Inc. v. CompuServe, Inc., CompuServe was not liable as a distributor for an allegedly defamatory "Rumorville" publication posted on its forums because "CompuServe ha[d] no more editorial control over such a publication than does a public library, book store, or newsstand" and "neither knew nor had reason to know of the allegedly defamatory statements." 776 F. Supp. 135, 140-41 (S.D.N.Y. 1991). In Stratton Oakmont, Inc. v. Prodigy Services Co., however, Prodigy was a publisher of such statements because it "exercised sufficient editorial control over its computer bulletin board," giving it "the same responsibilities as a newspaper." No. 031063/94, 1995 WL 323710, at *3 (N.Y. Sup. Ct. May 24, 1995). In particular, Prodigy used "automatic software screening" to filter out certain obscenities and had "Guidelines which Board Leaders [were] required to enforce." Id. at *4. This "conscious choice, to gain the benefits of editorial control, … opened [Prodigy] up to a greater liability than CompuServe and other computer networks that make no such choice." Id. at *5.