• Section 230 of the Communications Decency Act was designed to protect online platforms from liability for user-generated content, promoting free speech. However, courts have misinterpreted the law, turning it into a shield for Big Tech to silence dissent and control information flow.
• Courts have expanded the scope of Section 230(c)(1) to grant absolute immunity to platforms, which was not the original intent. This distortion has allowed tech giants to act as gatekeepers, silencing dissenting voices and eliminating competition.
• The misapplication of Section 230 raises serious concerns about due process and civil liberties, as it grants unchecked power to platforms to censor speech without legal accountability. Courts have also misused procedural rules to dismiss cases improperly.
• The concentration of power in tech giants has led to the erosion of free speech and competition, threatening democratic processes and the free market. This distortion has given a few large companies control over information and public discourse.
• The Supreme Court has the opportunity to correct the misuse of Section 230 by clarifying its scope and intent. This would require platforms to prove their Section 230 defense, protect due process, enforce procedural safeguards, and ensure legal accountability, ultimately restoring the law’s intended purpose.

Section 230 of the Communications Decency Act (CDA) of 1996, often hailed as the “Magna Carta of the internet,” was intended to protect free speech by shielding online platforms from liability for user-generated content. However, courts have misinterpreted this law, turning it into a tool that Big Tech uses to silence dissent, eliminate competition and control the flow of information. This article explores how the courts’ misapplication of Section 230 has broken the internet and proposes a path to restoration.

Original intent of Section 230

Section 230 was designed to promote a free and open internet by allowing platforms to host user-generated content without being legally responsible for what users posted. It was meant to be a liability shield, not an absolute immunity from suit. The statute’s key provision, 230(c)(1), states that no provider or user of an interactive computer service shall be treated as the “publisher or speaker” of any information provided by another content provider. This was intended to protect platforms from being held liable for third-party content while encouraging them to remove harmful material in good faith under 230(c)(2).

However, courts have expanded 230(c)(1) to cover all publishing decisions, including content moderation and algorithmic recommendations. This distortion has allowed Big Tech to act as gatekeepers of the digital public square, silencing voices they deem undesirable and controlling the narrative.

Judicial misinterpretation of Section 230

There have been some misinterpretations of Section 230 that contributed to it’s misuse.

“The” vs. “A” Publisher

A small but crucial mistake in legal citations has significantly altered the application of Section 230. Courts have misquoted the statute, changing the definite article “the” to the indefinite article “a” in the phrase “the publisher or speaker.” This seemingly minor change has profound implications. The original text means that platforms cannot be treated as the original author of third-party content. However, courts have interpreted it to mean that platforms cannot be treated as “a” publisher at all, thereby granting them absolute immunity for their own editorial decisions.

For example, in the case of Fyk v. Facebook, Judge White wrote in his dismissal order: “Because the CDA bars all claims that seek to hold an interactive computer service liable as a publisher of third-party content, the Court finds that the CDA precludes Plaintiff’s claims.”

This misquotation transforms a narrow protection into sweeping immunity. The correct reading should be: “Because the CDA bars all claims that seek to [treat] an interactive computer service as [the] publisher of third-party content, the Court finds that the CDA precludes Plaintiff’s claims.”

“Surplusage” Problem

The principle of statutory interpretation known as the surplusage canon dictates that courts should avoid interpretations that render any part of a statute superfluous. This principle is crucial in understanding the relationship between 230(c)(1) and 230(c)(2).

230(c)(2) explicitly grants liability protection for specific, “good faith” content restrictions. If 230(c)(1) already covered all publishing decisions, as courts have interpreted, then 230(c)(2) would be redundant. This misinterpretation violates the surplusage canon and renders the “good faith” requirement meaningless.

Constitutional and Procedural Violations

The issues and errors of interpretation have raises concerns about a lack of due process and other civil rights.

Constitutional Issues

The misapplication of Section 230 as an absolute immunity from suit raises serious constitutional concerns. It deprives individuals of due process by allowing private entities to restrain civil liberties without legal accountability. In Fyk v. Facebook, the court’s improper dismissal of the case at the motion-to-dismiss stage denied Fyk the opportunity to challenge Facebook’s conduct through discovery and a jury trial.

This denial of due process is particularly egregious in light of the First Amendment. By granting platforms unchecked power to censor speech, courts have enabled corporate censorship that bypasses constitutional protections.

Procedural Errors

Courts have also misused Rule 12(b)(6) of the Federal Rules of Civil Procedure, which allows for dismissal of a case if the complaint fails to state a claim. However, this should not be used to grant immunity from suit. In Fyk v. Facebook, Judge White improperly resolved factual disputes in Facebook’s favor, ignored Fyk’s verified allegations, and failed to convert the motion to summary judgment, as required by Energy Automation Systems v. Xcentric Ventures.

Impact on Free Speech and Competition

The misinterpretation of Section 230 has profound implications for free speech and competition. Platforms have become powerful gatekeepers, able to silence dissent and eliminate competition with impunity. This has led to the concentration of power in a few tech giants, who control the flow of information and influence public discourse. The erosion of free speech and competition not only undermines the constitutional republic but also threatens the free market and democratic processes.

How to Fix Section 230

At this point, it’s going to take major effort to correct the misuse of Section 230.

Judicial Course Correction

The Supreme Court has the opportunity to restore the proper application of Section 230 by affirming that 230(c)(1) is a liability shield, not an absolute immunity from suit. A ruling in Fyk v. Facebook could:

1. End Improper Early Dismissals: Require platforms to prove their Section 230 defense, rather than merely asserting it.
2. Protect Due Process: Prevent courts from resolving factual disputes in favor of tech companies at the motion-to-dismiss stage.
3. Reinforce Procedural Safeguards: Require courts to convert motions to summary judgment when defendants rely on extrinsic evidence, restoring plaintiffs’ right to discovery.
4. Ensure Legal Accountability: Prevent platforms from engaging in anticompetitive, fraudulent, or bad-faith actions under the guise of immunity.

Congressional Intent and Constitutional Analysis

Congress did not intend Section 230 to grant unchecked power to private entities. The “Good Samaritan” principle in 230(c)(2) requires platforms to act in good faith and as a “Good Samaritan” when restricting content. Courts must recognize this congressional intent and adhere to the nondelegation doctrine, which prohibits Congress from delegating lawmaking authority without clear guidelines.

Conclusion

The misinterpretation of Section 230 by the courts has broken the internet, undermining free speech, competition and the rule of law. The Supreme Court must step in to correct this judicial failure and restore the law to its intended purpose. No new laws are needed—only the correct application of the existing statute. The future of the internet and the freedoms it embodies depend on the judiciary’s commitment to the rule of law and the protection of civil liberties.

Sources include:

SocialMediaFreedom.org

Brookings.edu

TheEpochTimes.com