Adam Candeub, Professor of Law & Director of the Intellectual Property, Information, & Communications Law Program, Michigan State University College of Law
Executive Summary: Following common law, section 230(c)(1) exempts internet platforms from legal liability created by statements their users post. But, thanks to unwarranted statutory interpretation, courts have expanded section 230(c)(1) beyond its common law and textual moorings in two ways: (i) reading the provision to give the platforms absolute immunity–including from knowingly distributing unlawful content and (ii) ruling that section 230 protects against the platforms’ own editorial decisions—as opposed to the editorial decision of their users. Courts have criticized this expansion as without basis in statutory text, legislative history, or congressional intent or purpose—let alone any conceivable policy justification. This judicial expansion of section 230 allows the platforms to turn a blind eye to sex trafficking, obscenity, terrorism, and other sorts of unlawful content. The judicial expansion also allows the platforms to remove users and their content in violation of civil rights, consumer fraud, and contract law. The Trump Executive Order 13925 (E.O. 13925) directed the National Telecommunications & Information Authority (NTIA) to petition the Federal Communications Commission (FCC) to implement regulations to correct judicial misinterpretations of section 230. Successful in demonstrating to the FCC that it had authority to issue these regulations, the NTIA Petition sets forth the roadmap for section 230 reform that can protect users and promote free speech online.