Section 230 and the Future of Content Moderation

Fenwick & West LLP

Fenwick & West LLP

The Communications Decency Act of 1996 (CDA) was a landmark law enacted to regulate content on the internet. The purpose of the legislation was to regulate indecent and obscene material online, but it is most relevant today for Section 230—a provision that protects online platforms from liability in a variety of circumstances involving third-party use of their services. While Section 230 is often credited with allowing the internet to flourish in the late 1990s and the early 21th century, it has been the subject of calls for amendment from across the political spectrum as courts and online platforms attempt to fit the law to the modern internet. In particular, a rash of bills in 2020 targeted the law, specifically in the context of immunity for content-moderation decisions—an application that has become more heavily scrutinized as service providers attempt to curb abusive content and critics raise concerns of censorship.

This article addresses the evolving landscape for online platforms seeking to moderate content while limiting litigation risk.

Background: The CDA and Section 230

Shortly after the CDA was enacted, it faced First Amendment challenges to its provisions that prohibited the transmission of “obscene or indecent” content to minors. The U.S. Supreme Court held the anti-indecency provision of the statute unconstitutional in Reno v. American Civil Liberties Union, but held that provision to be severable from the rest of the law, allowing Section 230 to stand.

Now, Section 230 is the principal legal protection afforded to online platforms from lawsuits over content posted by their users. It contains three provisions specifying when platforms will be immune from suit: first, in Subsection (c)(1) as a “publisher”; second, in Subsection (c)(2)(A) for the Good Samaritan removal or filtering of content; and third, in Subsection (c)(2)(B) as a provider of the technical means to restrict content.

Subsection (c)(1) states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It “is concerned with liability arising from information provided online,” but as stated in Barrett v. Rosenthal, “[l]iability for censoring content is not ordinarily associated with the defendant's status as ‘publisher’ or ‘speaker.’”

Subsection (c)(2) provides immunity for moderation or alleged “censorship” scenarios, stating: “No provider or user of an interactive computer service shall be held liable on account of: (a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (b) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).”

Courts have interpreted Subsection (c)(1) broadly as providing immunity to online platforms, both from suits over content posted by their users and for their removal of content from their sites. In a key early decision involving allegedly defamatory messages on a message board, Zeran v. America Online, the U.S. Court of Appeals for the Fourth Circuit held that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” “Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” This immunity is generally not limited to particular causes of action, and because Section 230 preempts state law where inconsistent, Section (c)(1) is a defense to state tort and contract claims as well as federal lawsuits.

Subsection (c)(1) is not an absolute bar to litigation for third-party content on online platforms, however. In a critical decision denying Section 230 immunity, Fair Housing Council of San Fernando Valley v., the U.S. Court of Appeals for the Ninth Circuit held that Section 230 did not preempt claims under the Fair Housing Act and state housing discrimination laws where a roommate-matching service required users to answer a questionnaire with criteria such as “sex, sexual orientation and whether they will bring children to the household.” The Ninth Circuit, noting that Section 230 “was not meant to create a lawless no-man’s-land on the Internet,” found that the questionnaire was “designed to force subscribers to divulge protected characteristics and discriminatory preferences”—in other words, the defendant was a “developer” of an allegedly discriminatory system because it elicited content from users and made use of it in conducting its business based on allegedly illegal criteria. The Ninth Circuit contrasted this with cases in which immunity was upheld—including where websites used “neutral tools” that “did absolutely nothing to enhance the defamatory sting of the message, to encourage defamation or to make defamation easier,” such as allowing users to filter dating profiles based on voluntary user inputs. Notably, the Ninth Circuit did apply Section 230 immunity to the “additional comments” section of users’ profiles, where users were merely encouraged to provide information about themselves; even though the lawsuit pointed to instances where users input race or religious requirements into this section, the Ninth Circuit noted that only passively published these comments as written, which is precisely what Section 230 protects.

Additionally, the Ninth Circuit has held that failure to warn cases are not preempted by Section 230. In Doe v. Internet Brands, the plaintiff alleged that two individuals were using a modeling website to pose as talent agents and find, contact and lure “targets for a rape scheme.” The defendant allegedly knew about these particular individuals and how they were using the website, but failed to warn users about the risk of being victimized. The Ninth Circuit determined the critical question under Subsection (c)(1) to be whether the allegations depended on construing the defendant as a publisher (i.e., whether the claims arose from the defendant’s failure to remove content from the website). The Ninth Circuit noted that, in these circumstances, the marginal chilling effect of allowing such a claim to proceed did not warrant turning Section 230 into an “all purpose get-out-of-jail-free card,” nor would it discourage “’Good Samaritan’ filtering of third party content.”

Further, in May 2021, the Ninth Circuit reversed a district court’s dismissal based on Section 230 immunity in Lemmon v. Snap. Parents of three boys ages 17–20 killed in a car accident sued the maker of Snapchat for its “Speed Filter”—an overlay users could add to photos and videos that shows their speed. The parents alleged that one of the boys opened the app shortly before the crash to “document” their speed (at one point over 123 miles per hour) and that Snap allowed this feature notwithstanding (untrue) rumors that users would receive a “reward” for reaching over 100 miles per hour in the app. The Ninth Circuit held that the negligent-design claim did “not seek to hold Snap liable for its conduct as a publisher or speaker” and “[t]he duty to design a reasonably safe product is fully independent of Snap's role in monitoring or publishing third-party content,” thus Subsection (c)(1) did not apply. Separately, the Ninth Circuit held Subsection (c)(1) inapplicable because Snap designed the Speed Filter and reward system at issue, so the claim did not rely on “information provided by another information content provider.” Though the implications of this holding are yet to be seen, the Ninth Circuit attempted to constrain it to true defective design cases; the allegations did not depend on the content of any messages actually transmitted, so this was “not a case of creative pleading designed to circumvent CDA immunity.”

The breadth of immunity provided by Section 230 has also been pared back by subsequent legislation. In 2018, largely as a response to prevailing on Section 230 immunity in litigation concerning sex trafficking, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), was signed into law, amending Section 230 to eliminate platforms’ immunity from prosecution for violating certain state sex trafficking laws. It also eliminated platforms’ immunity from civil suits brought by victims of sex trafficking for knowingly promoting and facilitating sex trafficking. Notably, the text of FOSTA states that it does not apply to Subsection (c)(2).

Section 230 and Content Moderation

While Subsection (c)(1) was a paradigm shift in terms of making the internet a unique forum in which content could be hosted and accessed without traditional publisher liability applying to service platforms, Subsection (c)(2) has also been essential in forming the legal landscape for social media and other online spaces. Because both provisions of Subsection (c)(2) concern content removal, it has been particularly relevant in recent years as more people, including politicians and other public figures, participate in online communities. Subsection (c)(2) has not been the deciding factor for many cases to date, but disputes concerning content moderation issues are likely to proliferate.

Several courts have held that Subsection (c)(2) immunizes online platforms from liability for content removal decisions, though it is case-dependent whether such claims can survive the pleading stage. For example, this year, the U.S. Court of Appeals for the Second Circuit applied Subsection (c)(2) to affirm the dismissal at the pleading stage of claims brought against a video sharing site over the site’s removal of the plaintiffs’ videos promoting “sexual orientation change efforts.” In Domen v. Vimeo, the court noted that Subsection (c)(2) is a “broad provision” that forecloses civil liability where providers restrict access to content that they consider objectionable. The Second Circuit found that the plaintiff had not pleaded that Vimeo had acted in bad faith because there were no plausible allegations that Vimeo’s actions were “anti-competitive conduct or self-serving behavior in the name of content regulation,” as opposed to “a straightforward consequence of Vimeo’s content policies.”

Similarly, a case in the U.S. District Court for the Northern District of California, Daniels v. Alphabet, held that Subsection (c)(2)(A) barred nearly all of the plaintiff’s claims regarding removal of his videos from YouTube and alleged restriction of his account, noting that the plaintiff himself acknowledged that the defendants’ reason for removal was that the videos violated “YouTube’s Community Guidelines” and “YouTube’s policy on harassment and bullying.” The plaintiff’s conclusory assertions of bad faith were insufficient to overcome the discretion afforded by Subsection (c)(2)(A). This decision and the ruling in Vimeo demonstrate that the good-faith removal defense can be successfully raised at the pleading stage, though defendants may have more trouble doing so where plaintiffs bring more specific allegations of bad faith.

Conversely, the Ninth Circuit in Enigma Software Group USA v. Malwarebytes held that a security software company was not entitled to immunity under Subsection (c)(2)(B) at the pleading stage where the plaintiff alleged that Malwarebytes’s software blocked the installation or use of its security software for anti-competitive purposes. There, the Ninth Circuit found that the complaint plausibly alleged the companies were direct competitors. It reversed the district court’s finding of immunity and remanded the case to the district court, holding that the anticompetitive allegations were sufficient to survive dismissal at the pleading stage.

Numerous other cases have dispensed with content moderation or account removal allegations against by applying Subsection (c)(2), often in the social media context and with little analysis of the good faith requirement. Additionally, several courts have applied Subsection (c)(1) to removal decisions on the theory that removing or withholding content from a platform is a typical “publisher” decision, which is protected by Subsection (c)(1). Though this approach sidesteps the good-faith analysis built into Subsection (c)(2), there does not appear to be a consistent approach among courts regarding when to apply Subsection (c)(1) to moderation or removal decisions, and it remains to be seen how reliably courts will take this more-protective route.

Potential Changes to Section 230

Outside of the courts, content moderation has been hotly contested across the political spectrum. Generally, proposed bills have divided on party lines. Democrats have sought to protect providers’ ability to remove hate speech and offensive content while leaving open liability in the anti-discrimination context, and Republicans have sought to impose more First Amendment-like restrictions on what providers can remove.

The Senate Committee on Commerce, Science, and Transportation held a hearing in October 2020 to address Section 230 with executives from Twitter, Facebook and Google present, in which senators addressed issues ranging from political censorship to the spreading of misinformation. While Subsection (c)(2) currently protects platforms’ decisions to remove, label or restrict the spread of content they deem to be damaging in some way, some senators pressed the companies’ representatives to explain the reasoning behind the removal or restriction of various specific posts. Senator Roger Wicker (R-MS), providing the majority opening statement, acknowledged the role Section 230 played in enabling the growth of the internet but also claimed it “has also given these internet platforms the ability to control, stifle, and even censor content in whatever manner meets their respective ‘standards,’” and “[t]he time has come for that free pass to end.” He also pointed to instances of removal that he characterized as inconsistent or evincing political bias. Senator Maria Cantwell (D-WA), in the minority opening statement, focused on enabling platforms to remove “hate speech or misinformation related to health and public safety.”

In March 2021, Facebook CEO Mark Zuckerberg argued before the House Committee on Energy and Commerce that Section 230 immunity should be reduced in favor of platforms being “required to demonstrate that they have systems in place for identifying unlawful content and removing it.” His proposal contemplated a third party that would set standards for what would constitute an adequate system, proportionate to the size of the provider at issue. Additionally, Mr. Zuckerberg advocated for more transparency into how platforms decide to remove “harmful but legal” content.

Since 2020, numerous bills have been introduced that would further pare back the immunity Section 230 provides to platforms, both for removing and for failing to remove certain categories of third-party content. One example is the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (SAFE TECH) Act, introduced by Senators Mark Warner (D-VA), Mazie Hirono (D-HI) and Amy Klobuchar (D-MN). This bill proposes to limit immunity in cases involving, among other things, civil rights or discrimination, antitrust, stalking, harassment, intimidation, international human rights law or wrongful death. It would also make Section 230 an affirmative defense—rather than a pleading-stage immunity—and would make it unavailable to defendants challenging a preliminary injunction). Another example is the Platform Accountability and Consumer Transparency (PACT) Act, which has received some bipartisan support. This bill seeks to set certain requirements for platforms’ takedown processes and provides state attorneys general as well as the Federal Trade Commission with certain enforcement authority. Several other bills have been introduced with similar focus on stripping immunity based on the subject matter of litigation or based on the practices of the platform. The Biden Administration has not taken an official position on Section 230.


While Section 230 remains the predominant legal protection for online platforms moderating content in good faith, courts are beginning to engage more regularly with these issues, and recent decisions signal that defendants may have difficulty relying on Subsection (c)(2) immunity to dispose of well-pled suits at the pleading stage. Further, many cases that have been dismissed above on Subsection (c)(2) grounds may have survived under new proposed legislation. Section 230 reform may introduce uncertainty to online platforms’ litigation risk, so content providers should remain aware of the shifting landscape for this critical legal protection.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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