Does the Communications Decency Act Foster Indecency?

Abstract

A convergence of forces and judicial decisions is narrowing the broad safe harbor of immunity that Section 230 of the Communications Decency Act has provided during the Internet's growth. This immunity protected online computer services from almost all liability for content posted by third parties. But some influential federal judges argue that such broad immunity turns the Communications Decency Act into a communications indecency act. The trend of narrowing Section 230 is reinforced by instances of Internet abuse that have grabbed headlines and escaped legal consequences—cyberbullying of teens, the humiliation of women, racially discriminatory housing postings, ubiquitous pornography and Web sites that solicit unchecked gossip. The debate about the scope of Section 230 involves a clash among important values of free expression, tolerance, civility, privacy and equality. This article argues that Section 230's broad safe harbor is consistent with the constitutional architecture of free expression.