Correcting the Record on Section 230’s Legislative History (Guest Blog Post)

by guest blogger Jeff Kosseff, author of The Twenty-Six Words That Created the Internet

[Eric’s introduction: yesterday, I blogged the Second Circuit’s decision in Force v. Facebook. In dissent, Judge Katzmann wrote a lengthy examination of Section 230’s legislative history. Unfortunately, he skewed the backstory to fit his normative view. Prof. Jeff Kosseff sets the record straight]


[disclaimer: The views expressed in this post are only the author’s and do not reflect the views of the Naval Academy, Department of Navy, or Defense Department.]

I’m glad that Judge Katzmann decided to examine the congressional purpose and intent of Section 230, as it is too often overlooked in current debates.  Unfortunately, his analysis focuses on only some of the reasons that led to Section 230’s passage.

Then-U.S. Reps. Chris Cox and Ron Wyden drafted what would become Section 230 in 1995, after Cox read a newspaper article about a New York state trial court’s ruling in Stratton Oakmont v. Prodigy.  The defamation lawsuit sought $200 million from Prodigy, arising from anonymous user comments on a Prodigy bulletin board.  The judge held that because Prodigy had adopted user content guidelines and contracted with bulletin board leaders to enforce those guidelines, the company would be strictly liable for any user-posted defamatory content.

Cox, who had had used both Prodigy and CompuServe, realized that the decision provided an incentive for online services to take a hands-off approach to moderation.  He spoke with his colleague, Wyden, who also believed that the decision made little sense.  The congressmen also wanted to promote the growth of the nascent Internet industry, and to encourage responsible content moderation.

“We really were interested in protecting the platforms from being held liable for the content posted on their sites and being sued out of existence,” Wyden told me in 2017 for my recent book, The Twenty-Six Words That Created the Internet, a history of Section 230.  “And we were interested in allowing the platforms to take down some content that they believe shouldn’t be on their site without being held liable for all the content on the site, so that you could really encourage responsible user behavior.”

Also framing the discussion: media reports had documented the widespread availability of pornography online, and many politicians wanted to protect children from this content.  The Senate was debating the Communications Decency Act, which would impose criminal penalties for the transmission of indecent materials online.  The Senate added the CDA to its version of a massive overhaul of telecommunications laws.  Cox and Wyden succeeded in convincing their colleagues to add their proposal to the House version of the telecommunications laws.  As a compromise, modified versions of both the CDA and the Cox-Wyden bill were included in the final telecommunications law, which President Clinton signed in 1996.  The Supreme Court struck down most of the Senate’s CDA as unconstitutional, leaving Section 230 on the books.

This brings me to Katzmann’s discussion of Congress’s purpose for passing Section 230.  Katzmann asserts that “the House was principally concerned with two things: (1) overruling Stratton‐Oakmont, and (2) preventing ‘a Federal Computer Commission with an army of bureaucrats regulating the Internet.’” (the second reason is a quote from Cox during the House floor debate on Section 230.)

Katzmann argues that Congress “was focused squarely on protecting minors from offensive online material, and that it sought to do so by ‘empowering parents to determine the content of communications their children receive through interactive computer services’” (quoting Section 230 conference report). Indeed, Congress recognized that providing the breathing room for platforms to moderate content would empower users, enabling them to choose among platforms.  Section 230 allowed companies such as Prodigy to determine what moderation practices and policies best serve their users, without being exposed to massive potential liability.

This is all true, but it doesn’t tell the full story of Section 230. And Katzmann’s description of Stratton Oakmont exemplifies why his telling of Section 230’s purpose is incomplete.  He writes: “[a] New York State trial court had recently ruled that the online service Prodigy, by deciding to remove certain indecent material from its site, had become a ‘publisher’ and thus was liable for defamation when it failed to remove other objectionable content.”  Prodigy’s policies and moderation practices reached far beyond removing “certain indecent material.”  For instance, as the New York court partly described Prodigy’s content guidelines: “users are requested to refrain from posting notes that are ‘insulting’ and are advised that ‘notes that harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community, will be removed when brought to Prodigy’s attention.’”

By overruling Stratton Oakmont, Congress did, in fact, provide online services with the flexibility to moderate indecency, but this flexibility also allowed providers to remove harassment, hate speech, defamation, and other materials they deemed harmful or inappropriate. To be sure, the floor debate about Section 230 focused on moderating online pornography, as that was the concern being debated in the Senate and the media.  But as Katzmann acknowledges, the House did not limit Section 230’s coverage to online pornography or indecency.

Katzmann is correct that the House also wanted to prevent FCC regulation of the Internet.  The initial version of the Cox-Wyden bill stated that communications laws shall not “be construed to grant any jurisdiction or authority to the [FCC] with respect to  economic or content regulation of the Internet or other interactive computer services.” (This was not in the final bill that Clinton signed, likely in an effort to deconflict it from the Senate’s decency provisions, though the final version of the Senate provisions stated that “[n]othing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.”).  Even with that change, the version of Section 230 that passed Congress contained a finding that “[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.”

The House’s deregulatory focus points at legislative purposes that Katzmann minimizes: promoting the growth of Internet-based companies and protecting online speech.  Indeed, another finding that Katzmann fails to mention is that the “Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”

Katzmann similarly fails to concede that Section 230 contains a policy statement “to promote the continued development of the Internet and other interactive computer services and other interactive media.”  He does acknowledge another stated policy goal: “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” though he relegates this to a footnote, and minimizes this stated purpose by stating that “one cannot fully understand the purpose of § 230 without considering that it was one chamber’s proposal in a disagreement between the two houses of Congress over how best to shield children from indecent material[.]”

Cox and Wyden worked with civil liberties groups, such as the Center for Democracy and Technology, and companies such as AOL and Prodigy.  The broad language of Section 230’s protection reflects the intent to protect the industry and its users’ ability to communicate freely.

In short, Katzmann is correct that Section 230 reflects a desire to encourage moderation of indecent user content, and to prevent government regulation of the Internet.  But those are not the exclusive reasons behind Congress’s passage of Section 230.

Another federal appellate judge, Marsha Berzon of the Ninth Circuit, provided a different take on Section 230 in 2003: “First, Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce . . . The second reason for enacting § 230(c) was to encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material, so as to aid parents in limiting their children’s access to such material.” Berzon’s take on Section 230 is a more complete reflection of the complex goals that Congress weighed at the time that it passed Section 230.

Judge Katzmann clearly recognizes the value of contributing to the ongoing debate about Section 230, writing: “Perhaps Congress will engage in a broader rethinking of the scope of CDA immunity. Or perhaps Congress will decide that the current regime best balances the interests involved.”  If Congress engages in this rethinking, it should keep in mind all of the reasons that drove Section 230’s passage in the first place.