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March 01, 2015

Freedom of Speech: Indecent Attacks on the Communications Decency Act?

If you surf Yelp before booking a restaurant, shop eBay to find bargains, or scan the HuffPo blogs for emerging political thought, thank Congress. And enjoy the free-range Internet times we live in. They may be fleeting.

Charles D. Tobin

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If you surf Yelp before booking a restaurant, shop eBay to find bargains, or scan the HuffPo blogs for emerging political thought, thank Congress. And enjoy the free-range Internet times we live in. They may be fleeting.

In 1996, in a bold, bygone bipartisan effort, lawmakers made it possible for the web to become a noisy town square of public review and exchange, and an entirely new platform for entrepreneurial adventure. That year, encouraged by an army of lobbyists retained by the emerging digital industry, Congress enacted 47 U.S.C. § 230(c), known as the “CDA,” shorthand for the Communications Decency Act.

The CDA reversed the common law republication rule of defamation and overruled a bad summary judgment decision in a Long Island case, Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 N.Y. Misc. LEXIS 229, (N.Y. Sup. Ct. 1995). In Stratton Oakmont, the court held that a nascent Internet bulletin board was liable for someone’s post calling a brokerage firm a “fraud.”

Hollywood later made that firm famous as the center of the movie The Wolf of Wall Street—which chronicles its owners’ avaricious rise and fall through years of securities fraud. That is why, in part, I call the court’s decision bad. Rising Internet companies called it catastrophic because, by its extension, the decision would permit liability against a web host for anything wrongful someone else did using its site. How do you manage that risk if you’re a web start-up? Or even a political blog?

Following the Stratton Oakmont decision, Congress made a firm public policy choice: It decided to foster the development of an open Internet at the expense of access to deeper pockets to pay for digital wrongs. Now, under the CDA, an online host of most injurious third-party material will not be considered the “publisher” for tort liability purposes. In short, most of your clients won’t succeed if they sue blog hosts for someone else’s wrongful posts.

Nearly two decades later, under the aegis of the CDA’s protection, courts have dismissed thousands of suits against digital companies and blog hosts for libel, invasion of privacy, personal injury, fraud, and products liability. Not surprisingly, the CDA has come under attack over the years in a lot of quarters, including the courts.

Famously, the U.S. Court of Appeals for the Ninth Circuit held that by creating drop-down menus to permit people to filter whether they wanted white-only or straight-only roommates—advertising that would be illegal under federal law if it appeared in print newspapers—an online housing service had lost its CDA immunity. Sitting en banc, a divided Ninth Circuit held that the menus forced people to make unlawful choices, and that meant the selections they made were not “third-party” material under the CDA. Fair Hous. Council of San Fernando Valley v., LLC, 521 F.3d 1157 (9th Cir. 2008).

A more recent example, again from the Ninth Circuit, is perhaps more jarring to all of us because of the facts, and to web hosts because of the duties it may impose. In Jane Doe No. 14 v. Internet Brands, Inc., 2014 U.S. App. LEXIS 17940, (9th Cir. 2014), the plaintiff had posted her profile on, a networking website for models. She was then lured by cyber predators pretending to be staging auditions, drugged, and raped. She alleged that the website had been aware of predators luring models in the past and therefore had a duty to warn her when she accessed the site and posted her profile.

The Ninth Circuit reversed the dismissal of her failure-to-warn claim. The court held that because the claim centered on not posting a statement—the warning—the plaintiff did not seek to hold the site liable for something that someone else had posted, and the CDA therefore did not apply. The Jane Doe No. 14 court brushed aside the web host’s claim that the entire lawsuit centered on the model’s own posting, holding that the CDA does not expressly call for a “but-for” analysis.

For plaintiffs’ lawyers and victims, decisions like these are a welcome limitation to an excessively wide umbrella. They are precedent that will help prevent indifferent or, worse, evil actors from escaping liability, and they may furnish access to more money for compensation in lawsuits.

For defense counsel and many free-speech advocates, these decisions threaten to constrain the Internet’s promise of expanding free expression in ways humanity has not experienced since the advent of the printing press. They may chill the digital growth of expression and commerce. And they contravene the clear intent of Congress.

We can debate whether the CDA was the product of wise congressional vision or the corrupt impact of an avaricious business lobby. What is certain, however, is that without that protection, the Internet would be a lot quieter. The digital sector’s contributions to Wall Street’s exponential growth in the past two decades probably would be a lot smaller.

And you might not have avoided that yucky dim sum restaurant in your neighborhood.

Charles D. Tobin

The author, a senior editor of Litigation, is with Holland & Knight, Washington, DC.