I know, that’s a completely fair point to make (sort of). Some random comments —

1.) Go back to the basic issue — does the claim arise from SPEECH? If yes, then CDA (maybe); if no, then NO.

2.) I agree with your assertion that there’s a distinction to be made between merely running a website that sells advertising (i.e., Backpage, which is protected by the CDA) and doing “something more” which is not protected (i.e., Accusearch). The next questions are obvious: WHERE exactly is that line, and has AirBnB crossed it?

There’s no doubt that this stuff gets a little murky in the eBay and Amazon contexts. We know that eBay has won 230(c)(1) cases (Gentry) when all it did was essentially sell advertising (in the form of hosting an auction) to a vendor, so the the same result should apply to AirBnB, right?

I just took a few minutes to re-read Gentry, and honestly, I can see both sides, but my view remains unchanged. The issue in Gentry was whether eBay could be liable for violating a CA state law that said a person who sells autographed sports memorabilia must provide a certificate of authenticity (which eBay itself failed to do). But the court correctly noted that the actual vendor wasn’t eBay, it was the individual eBay user: “liability as a dealer under Civil Code section 1739.7 requires that the dealer be exclusively or nonexclusively ‘in the business of selling or offering for sale collectibles in or from this state.’ (Civil Code, § 1739.7, subd. (a)(4).) Here, appellants’ specific allegations reveal eBay is not in the business of selling or offering to sell the collectibles at issue; rather, it is the individual defendants who sold the items to plaintiffs, using eBay as a venue.”

So, eBay won because, inter alia, it wasn’t the party who actually sold stuff; it just ran a forum where 3rd parties sold stuff.

Here, while I admit the line seems very fine, it seems that AirBnB is not in an analogous position to eBay as a (mostly) passive provider of an auction venue; it is just a little bit more actively involved in each transaction, and that little bit of extra involvement means that it can’t rely on cases like Gentry. But again, to be fair, I can see how someone could say that there really is no meaningful distinction between eBay and AirBnB (or maybe StubHub).

David, what do you think about eBay and Amazon Marketplace qualifying for Section 230, even if the goods their vendors sell are “illegal” for whatever reason (idiosyncratic state law, recalled good, etc.)?

I normally agree 100% with the Good Professor’s legal analysis, but not this time. I think the court got this one absolutely right.

Let me explain. Let’s say I run a website that sells ads. Some of those ads happen to be for prostitutes. If a city/state/county passes a law that says it’s unlawful to publish ads for prostitutes, then clearly Section 230(c)(1) protects me because the law would necessarily require treating me as the PUBLISHER (or speaker) of someone else’s content (the ad posted by a prostitute).

That’s simple, easy, and clear.

Now change the facts a little — in addition to running my website, I decide I also want to run a brothel. To make the facts analogous, I am not actually going to “own” the brothel myself; the business and the real estate will be owned by the individual prostitutes. However, my role is not limited to just posting ads. Instead, I will receive a percentage of all sales, and, of course, I will run the only website where people can view the “ladies” and book “dates” with them.

Now, assume a city/state/county passes a law that says anyone providing prostitution services in a brothel must be registered, and that if a person is not registered, then it’s unlawful to provide them with “Booking Services” such as payment processing, appointment scheduling, etc. As it turns out, some of the ladies working in my brothel are not registered, and I am then arrested for providing services to an unregistered brothel worker.

Does Section 230(c)(1) apply to me?

Honestly, as much as I love Section 230, I don’t know how anyone could even make that argument with a straight face. NO, of course it does not apply!

First, Section 230(c)(1) does not apply because the law is NOT trying to treat me as a publisher or speaker. End of story — motion to dismiss denied — no need to even consider any other issues.

Second, Section 230(c)(1) does not apply because liability doesn’t depend on the legality of information (speech) that originated with “ANOTHER” information content provider (the key aspect of 230(c)(1)). No, in my case liability depends not on my words or someone else’s words, but rather it depends on my conduct — i.e., the fact that I am providing payment processing and appointment scheduling services to an unregistered brothel worker who is giving me a percent of the action. Remember what the law prohibits? Not speech, but rather it says you can’t provide “Booking Services” to people who aren’t registered. That’s exactly what my website does, hence I am guilty of violating the law. Same with AirBnB.

I’m sorry, but trying to argue that 230(c)(1) applies to this scenario makes no sense to me….like NONE. Section 230 is a law that primarily protects online SPEECH. If a legal theory does not rise or fall based on speech, then it’s very likely beyond the scope of Section 230.

The AirBnB case is not about speech at all. AirBnB is not being treated as a publisher or speaker of someone else’s words; it is being treated as a direct participant in the unlawful conduct of people who rent real estate without being registered. That is the beginning and the end of the Section 230 analysis.

Section 230 is a fantastic law, but it has limits.

I had tried, but apparently failed, to make clear that I understood the distinction between online marketplaces and classified ad services, such as when I wrote “At least according to this case, online classified ad services can apparently avoid these risks, so all online marketplaces need to do is completely revamp their business model and they’ll regain Section 230 immunity.” I also don’t think I said that it’s the end of Section 230, though (combined with the McDonald case) it could be the end of Section 230 for online marketplaces. The good news is that it sounds like we agree on a lot. Eric.