Toward Textual Internet Immunity

12 Pages Posted: 7 Apr 2021

Date Written: March 22, 2021

Abstract

Internet immunity doctrine is broken. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And Congress, President Biden, the Department of Justice, and the Federal Communications Commission all have their own plans for reform. Absent from the fray, however—until now—has been the Supreme Court, which has never issued a decision interpreting Section 230. That appears poised to change, however, following Justice Thomas’s statement in Malwarebytes v. Enigma in which he urges the Court to prune back decades of lower-court precedent to craft a more limited immunity doctrine. This Essay discusses how courts’ zealous enforcement of the early internet’s free-information ethos gave birth to an expansive immunity doctrine, warns of potential pitfalls to reform, and explores what a narrower, text-focused doctrine might mean for the tech industry.

Keywords: internet law, cyberlaw, Section 230

JEL Classification: K13, K2, K42, O3

Suggested Citation

Dickinson, Gregory M., Toward Textual Internet Immunity (March 22, 2021). Stanford Law & Policy Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3810076

Gregory M. Dickinson (Contact Author)

St. Thomas University - School of Law ( email )

16401 N.W. 37th Ave.
Miami, FL 33054
United States

Stanford Law School ( email )

559 Nathan Abbott Way
CA 94305
United States

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