Two Common but Disingenuous Phrases About Section 230
[I initially planned to write up this analysis as a short academic essay. If you’re interested in working with me to adapt this blog post into an academic essay format, email me.]
This blog post is about the following two phrases:
- “[T]he Communications Decency Act was not meant to create a lawless no-man’s-land on the Internet.” This phrase originated in Kozinski’s Roommates.com en banc opinion. Including Roommates.com, I found 22 cases (25 opinions total) using the phrase (see Appendix A).
- “Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the internet.” This phrase originated in the Doe v. Internet Brands opinion. Including the Internet Brands case, I found six cases using the phrase (see Appendix B).
Both phrases suffer from the same defect: they “refute” strawmen arguments. In fact, no one has ever advanced the propositions the phrases disagree with; and if anyone did advance those propositions, the speakers would demonstrate their ignorance about Section 230. So the rhetorical flourishes in the phrases are just that; they aren’t substantive arguments.
Why are the refuted arguments strawmen? Let me explain:
OF COURSE Section 230 did not create a “lawless no-man’s-land” zone. Section 230, from day 1, always (1) retained all legal obligations for content originators, who definitely do not operate in a lawless zone, and (2) contained statutory exclusions for IP, ECPA, and federal criminal prosecutions, which means Internet services have always faced liability pursuant to those doctrines.
[Note: The “no-man’s-land” reference is also weird. Putting aside the gender skew, this concept usually refers to territory between opposing forces’ trenches in World War I, where any person entering the zone would be machine-gunned to death by the opposing force and thus humans cannot survive there for long. How does that relate to Section 230? It doesn’t. If anything, Section 230’s immunity creates a zone that’s overpopulated with content that might not otherwise exist online–the opposite of a “no-man’s-land.” The metaphor makes no sense.]
Similarly, OF COURSE Section 230 does not provide an “all purpose get-out-of-jail-free card.” In fact, Section 230 has always excluded federal criminal prosecutions and their potential risk of jailtime, so Section 230 literally is the opposite of a “get-out-of-jail-free” card. (The First Amendment significantly limits prosecutions against publishers, so the First Amendment acts more like a get-out-of-jail-free card than Section 230). Section 230 does block state criminal prosecutions, but that’s not an “all purpose” card and it’s the entire point of a statutory immunity (i.e., to remove liability that otherwise exists to facilitate other socially beneficial activity while preserving criminal liability for the primary wrongdoer).
[Note: the phrase “get-out-of-jail-free card” is generally associated with the board game Monopoly, but the Wikipedia page lists a reference back to the 16th Century.]
I hope this post makes clear why I get so irritated whenever I see the phrases referenced in a court opinion or invoked by a grandstanding politician. By attacking a strawman argument, they confirm the weakness of their argumentation and that they don’t have more persuasive arguments to make–a good tipoff that they are embracing a dubious result and are grasping for any justification, no matter how tenuous. Indeed, many of the cases enumerated below are best remembered for their contorted reasoning to reach questionable rulings for the plaintiffs (and the fact that several opinions show up in both appendices is a strong indicator of how shaky those specific rulings were).
In my dream world, a post like this proves the folly of using these phrases and discourages their further invocation. If you’ve ever uttered one of these phrases, I hope that ends today.
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BONUS: Along the lines of the Internet as a “lawless” zone, I am similarly perplexed by characterizations of the Internet as a “Wild West.” I found 11 cases in Westlaw for the search query “internet /s ‘wild west'” (see, e.g., Ganske v. Mensch), though the usages vary, and I find this metaphor is more commonly used in popular rhetoric. The reference makes no sense because, if anything, there is too much law governing the Internet, not too little. Further, the “Wild West” metaphor more accurately suggests an underenforcement of existing laws, i.e., there were laws governing communities in the Western US, but sometimes they were practically unenforceable due to the scarcity of law enforcement officials and the difficulties of gathering evidence. This led to the development of alternative means of enforcing rules, including vigilantism. If you are using the “Wild West” metaphor, I assume you are implicitly calling for greater enforcement of existing laws. If you are invoking it to suggest that the Internet lacks governing laws, I strongly disagree.
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Appendix A: Cases Using the Phrase “Lawless No-Man’s-Land”
Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. April 3, 2008)
Milo v. Martin, 311 S.W.3d 210 (Tex. Ct. App. April 29, 2010)
Hill v. StubHub, Inc., 2011 WL 1675043 (N.C. Superior Ct. Feb. 28, 2011)
Hare v. Richie, 2012 WL 3773116 (D. Md. Aug. 29, 2012)
Ascend Health Corp. v. Wells, 2013 WL 1010589 (E.D.N.C. March 14, 2013)
Jones v. Dirty World Entertainment Recordings, LLC, 965 F.Supp.2d 818 (E.D. Ky. Aug. 12, 2013)
J.S. v. Village Voice Media Holdings, L.L.C., 184 Wash.2d 95 (Wash. Sept. 3, 2015)
Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. May 31, 2016)
Fields v. Twitter, Inc., 200 F.Supp.3d 964 (N.D. Cal. Aug. 10, 2016)
Fields v. Twitter, Inc., 217 F.Supp.3d 1116 (N.D. Cal. Nov. 18, 2016)
Gonzalez v. Google, Inc., 282 F.Supp.3d 1150 (N.D. Cal. Oct. 23, 2017)
Daniel v. Armslist, LLC, 382 Wis.2d 241 (Wis. Ct. App. April 19, 2018)
Gonzalez v. Google, Inc., 335 F.Supp.3d 1156 (N.D. Cal. Aug. 15, 2018)
HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. March 13, 2019)
Daniel v. Armslist, LLC, 386 Wis.2d 449 (Wis. April 30, 2019)
Airbnb, Inc. v. City of Boston, 386 F.Supp.3d 113 (D. Mass. May 3, 2019)
Turo Inc. v. City of Los Angeles, 2020 WL 3422262 (C.D. Cal. June 19, 2020)
Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. May 4, 2021)
In re Facebook, Inc., 625 S.W.3d 80 (Tex. June 25, 2021)
Doe v. Twitter, Inc., 555 F.Supp.3d 889 (N.D. Cal. Aug. 19, 2021)
Doe v. Mindgeek USA Inc., 574 F.Supp.3d 760 (C.D. Cal. Dec. 2, 2021)
Lee v. Amazon.com, Inc., 76 Cal.App.5th 200 (Cal. App. Ct. March 11, 2022)
Al-Ahmed v. Twitter, Inc., 603 F.Supp.3d 857 (N.D. Cal. May 20, 2022)
In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2022 WL 4009918 (N.D. Cal. Sept. 2, 2022)
Dangaard v. Instagram, LLC, 2022 WL 17342198 (N.D. Cal. Nov. 30, 2022)
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Appendix B: Cases Using the Phrase “Get-Out-of-Jail-Free Card”
Airbnb, Inc. v. City and County of San Francisco, 217 F.Supp.3d 1066 (N.D. Cal. 2016)
Daniel v. Armslist, LLC, 382 Wis.2d 241 (Wis. Ct. App. 2018)
Doe v. Mindgeek USA Inc., 574 F.Supp.3d 760 (C.D. Cal. 2021)
Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021)
In re Apple Inc. App Store Simulated Casino-Style Games, 2022 WL 4009918 (N.D. Cal. 2022)