Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)

by guest blogger Cary Glynn

[Eric’s intro: in the SESTA debates, occasionally there has been some confusion about how Section 230 interacts with state criminal laws. This issue is addressed by Section 230(e)(3), and Harvard Law 3L Cary Glynn is back to help us navigate how courts have interpreted that provision.]

Not many Section 230 opinions focus on § 230(e)(3). The subsection speaks to the relationship between Section 230 and state law. It reads as follows:

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

So what have courts said these sentences mean? A few plaintiffs have argued that Section 230 permits inconsistent state criminal law claims. Those arguments have failed. See People v. Gourlay, No. 278214, 2009 WL 529216, at *3 (Mich. Ct. App. Mar. 3, 2009) (“[T]he phrase ‘any State or local law’ includes civil and criminal laws.”); Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318, at *3 (E.D. Pa. Aug. 30, 2006) (“[S]ub-subsection (e)(3) gives interactive computer service providers immunity from state criminal laws that are inconsistent with the CDA.”); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 823 (M.D. Tenn. 2013).

Of course, subsections (c) and (e) do not limit federal criminal prosecutions. See § 230(e)(1). In fact, subsection (e)(1) demonstrates that Congress knows how to exclude criminal law: “Nothing in this section shall be construed to impair the enforcement of . . . any . . . Federal criminal statute.” (emphasis added). If Congress meant to exclude state criminal law from Section 230’s reach, it would have included a similar provision. And, when Congress said “any State or local law,” it did not mean “any State or local law that is not a criminal law.” (emphasis added).

In addition to Section 230’s applicability to state criminal law, courts have relied on subsection (e)(3) to support the following propositions, each explored below:

(1) Section 230 preempts inconsistent state law.
(2) Subsection (e)(3) is a source of the immunity provided by Section 230.
(3) Section 230 is not limited to tort claims.
(4) Section 230 provides immunity against many forms of relief.

[Note: Before Congress amended Section 230 in 1998, the text of subsection (e)(3) was subsection (d)(3).]

(1) Section 230, a federal law, preempts “inconsistent” state law.

Recently, a federal district court judge explained that the second sentence of (e)(3) is an “express preemption clause.” Airbnb, Inc. v. City & Cty. of San Francisco, 217 F. Supp. 3d 1066, 1072 (N.D. Cal. 2016). Many courts have reached this conclusion. See, e.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 22 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017); Ricci v. Teamsters Union Local 456, 781 F.3d 25, 27 (2d Cir. 2015); Zeran v. Am. Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997); Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016); Klayman v. Zuckerberg, 753 F.3d 1354, 1356 (D.C. Cir. 2014). The text is very clear: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” § 230(e)(3).

However, the first sentence of § 230(e)(3), and the limited nature of its second sentence, do not suggest field preemption, which might mean that Section 230 would preempt all state law in the “field”—perhaps no state causes of action could be brought even against the authors of defamatory content on websites. In Cisneros v. Sanchez, a federal district court judge wrote that: “the CDA is clearly not intended to completely preempt state law in any given area because § 230(e)(3) is narrowly tailored to allow state and local laws within the same field, so long as they are consistent.” 403 F. Supp. 2d 588, 592 (S.D. Tex. 2005). Therefore, a “libel cause of action asserted by Plaintiff is consistent with the CDA as Plaintiff only seeks to hold Defendant liable for statements he actually authored, not for the statements of others.” Id.

Still, Section 230(e)(3) has quite broad consequences. If a state law seeks to impose liability (criminal, civil or otherwise) on a defendant based on third party content, Section 230 preempts it.

(2) A substantial percentage of citations to (e)(3) are brief acknowledgements of the second sentence’s literal force.

Courts often cite (e)(3) after citing (c)(1), which generally prohibits treating a website as a publisher of information posted by a third party, in order to make clear that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” See, e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007). This point may be obvious, but it relates to a potential doctrinal pitfall: (e)(3) is not the sole source of immunity under Section 230 or necessary for carrying (c) into effect. For example, (c) covers claims arising from federal law, unlike the second sentence of (e)(3). The Ninth Circuit has made clear that (c)(1) independently prohibits certain types of publisher liability. Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1179 (9th Cir. 2008).

(3) Section 230 is not limited to tort claims.

One state court cited (e)(3) to show that Section 230 provided potential immunity against contract claims: “§ 230 does not limit its grant of immunity to tort claims: ‘No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.’” Schneider v. Amazon.com, Inc., 31 P.3d 37, 41–42 (Wash. Ct. App. 2001).

(4) Some courts have held that subsection (e)(3) shows that Section 230 precludes a variety of forms of relief, not just damages for tort claims.

At least two state courts have held that subsection (e)(3)’s prohibition on inconsistent causes of action and liability reaches declaratory and injunctive relief. In Kathleen R. v. City of Livermore, a California state court held that “even if for purposes of section 230 ‘liability’ means only an award of damages, the statute by its terms also precludes other causes of action for other forms of relief. . . . Taxpayer actions and claims for declaratory and injunctive relief are no less causes of action than tort claims for damages, and thus fall squarely within the section 230(e)(3) prohibition.” 104 Cal. Rptr. 2d 772, 781 (Cal. Ct. App. 2001) (citation omitted); see also Medytox Sols., Inc. v. Investorshub.com, Inc., 152 So. 3d 727, 731 (Fla. Dist. Ct. App. 2014).

However, in Hassell v. Bird, a California state court recently held that Section 230 did not immunize Yelp from a court order to remove an allegedly defamatory review. 203 Cal. Rptr. 3d 203, 208 (Cal. Ct. App. 2016). This ruling is problematic for many reasons, and it is currently on appeal to the California Supreme Court. While the court cited Kathleen R. and Medytox, it did not engage in substantial interpretation of subsection (e)(3).

Conclusion. SESTA and the Wagner bill would change Section 230(e)(3) by excluding sex trafficking-related state crimes and civil claims from its preemptive effect. The links below explain why that’s a bad idea.

More SESTA-Related Posts:

* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity