Today I will be chairing the 2016 IP and the Internet Conference in San Francisco on behalf of the California Bar Intellectual Property Section; and will be moderating the first panel which will be a discussion of CDA Section 230 in the Age of Cyber Civil Rights and Terrorism.
Section 230 of the Communications Decency Act is often viewed as the Magna Carta of free speech on the internet for it provides that websites that create online forums for discussion or comment are immune from liability for the content posted by third parties. CDA 230 reflects a decision by Congress that forums for lively and robust debate on the internet should be encouraged.
The reference to the Age of Cyber Civil Rights and Terrorism refers to questions raised by some whether CDA 230 immunity should extend to forums that promote illegal conduct such as prostitution, revenge porn or even terrorist activity. Courts have refused to hold social media companies responsible for posts by ISIS; have split over whether Backpage.com can be held liable for prostitution ads and whether smear sites like RipOffReport.com are neutral publishers of its often defamatory content; and have found that a modeling website could be liable for failing to warn its users of known sexual predators posing as photographers on the site.
With each exception, CDA 230 defenders warn of a slippery slope that could ultimately impair free speech on the internet. This comes at a time, however, when there is a growing backlash over the toxicity of online debate. It is important to understand how the vitality of CDA 230 depends on recognizing this phenomenon.
In a recent Time cover story, Joel Klein warns that internet trolls are “turning the web into a cesspool of aggression and violence.” This is actually discouraging speech, as NPR recently joined a number of news organizations to phase out comments on their articles rather than have them be driven by what Salon called “the loudest drunk in the bar.”
The First Amendment also protects a citizen’s right to petition the government via the legislature or courts, but I have seen trolls target complainants and witnesses in civil and criminal matters to bully them away from such proceedings (some of whom I am certain will comment on this post). Sac County, Iowa Prosecutor Ben Smith, warns that “[n]o greater threat to our criminal justice system exists than allowing convicted, incarcerated murderers (criminals), and their friends and family, to destroy the livelihoods and personal reputations of the people brave enough to testify against them in open court.”
Forum providers need to be cognizant of the dangers presented by continuing to allow trolls to “pee in the pool” without consequence. Not only do they risk driving users away from their forums, as we saw with recent celebrity departures from several social media sites, but this may be contributing or could contribute to court’s increased willingness to finding exceptions to CDA 230.
As we have seen in some of the CDA 230 cases reversed on appeal, there is a reason for the maxim that “bad cases make bad law.” Thus, judicial restraint and greater diligence by forum providers in addressing abusive trolls may well be two sides of the same coin in ensuring free and robust speech online.