New Essay: The Ten Most Important Section 230 Rulings

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

I’ve posted a new essay entitled “The Ten Most Important Section 230 Rulings.” It will be published in the Tulane Journal of Technology & Intellectual Property.

Everyone loves lists and rankings, but this essay is more than just fluffy clickbait. Organizing Section 230 cases by importance actually creates a helpful narrative about the development of Section 230 jurisprudence and the ongoing dialogue between different judges and courts. I’m pretty sure you can guess what’s #1 on the list (and we’ll be throwing it a proper 20th birthday party–more on that soon), and maybe you can guess #2, but can you guess #3 or #4? Would you reorder my list? Would you subtract one of my top 10 and replace with something different? Wars have broken out over lesser controversies. As always, I’d love to hear your thoughts, and feel free to thrash out the debate in the comments, too.

The abstract:

In 1996, Congress enacted the Telecommunications Act of 1996, a major statutory reform of the telecommunications industry. The act included the Communications Decency Act (CDA), Congress’ first (and unconstitutional) regulation of the Internet. The CDA principally criminalized online pornography, but it also included 47 U.S.C. § 230 (Section 230), which says that websites aren’t legally responsible for third party content.

While somewhat overshadowed at the time by the Telecommunications Act and the CDA’s criminal provisions, Section 230 has emerged as one of Congress’ most important accomplishments of the 1990s. Section 230 has been described as “the law that gave us the modern Internet,” the “most important law in tech,” and “the law that makes the Internet go.” All of the top 10 most-trafficked websites (as ranked by Alexa) republish third party content, and nine of those sites depend on Section 230 to do so. In effect, Section 230 provides the legal foundation for the Internet we know and love the most.

Since its passage, Section 230 has been litigated hundreds of times. This jurisprudence has profoundly impacted the law’s scope and reach — and has sparked intense policy discussions, including recently introduced Congressional bills seeking to reverse one of the cases discussed below (Doe v. Backpage).

A review of the most important Section 230 cases tells a story about how the case law has built such an important yet controversial immunity. This essay takes that journey by rank-ordering the top Section 230 cases of the past two decades.