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Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act


David S. Ardia


University of North Carolina (UNC) at Chapel Hill - School of Law; Harvard University - Berkman Center for Internet & Society

June 16, 2010

Loyola of Los Angeles Law Review, Vol. 43, No. 2, 2010

Abstract:     
In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.

This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.

The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.

Number of Pages in PDF File: 134

Keywords: intermediaries, defamation, Communications Decency Act, Section 230, First Amendment, user-generated content, UGC, Web 2.0, online, Internet, freedom of expression

JEL Classification: K13, K14, K42, O33, O34, K1, K2

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Date posted: June 18, 2010 ; Last revised: September 13, 2012

Suggested Citation

Ardia, David S., Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act (June 16, 2010). Loyola of Los Angeles Law Review, Vol. 43, No. 2, 2010. Available at SSRN: http://ssrn.com/abstract=1625820

Contact Information

David S. Ardia (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Harvard University - Berkman Center for Internet & Society ( email )
Harvard Law School, Baker House
1587 Massachusetts Avenue
Cambridge, 02138
United States
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