The Communications Decency Act of 1996 (CDA) was enacted to regulate online speech, and in particular, to protect minors from “patently offensive,” “obscene,” and “indecent” content on the Internet. In the 1997 case Reno v. ACLU, however, the Supreme Court struck down many of the CDA’s content-related proscriptions, concluding that they violated the First Amendment by “suppress[ing] a large amount of speech that adults have a constitutional right to receive and to address to one another.”
Among the CDA provisions spared by the Court’s ruling was Section 230, a provision designed to “promote the continued development of the Internet” and “to preserve the vibrant and competitive free market… for the Internet and other interactive computer services, unfettered by Federal or State regulation.” To these ends, Section 230 provides, among other things, that “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.” Section 230 also contains a broad preemption clause, providing, with certain exceptions discussed below, that “no liability may be imposed under any State or local law that is inconsistent with this section.”
Similarly, in 2008, the 9th Circuit withheld Section 230 immunity when Roommates.com required users to express their preferences regarding potential roommates’ gender, sexual orientation and family status with a drop-down menu, allegedly in violation of the Fair Housing Act. The court ruled that, “by requiring subscribers to provide the [unlawful preference] as a condition of accessing its service, and by providing a limited set of pre-populated answers, [Roommates.com] becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.”
Notwithstanding cases such as Roommates.com, defendants do not sacrifice their Section 230 immunity by performing so-called traditional editorial functions. As a New Jersey state court explained in 2005, “deleting profanity, selectively deleting or allowing to remain certain postings, and commenting favorably or unfavorably on some postings, without changing the substance of the message authored by another, does not constitute ‘development’ within the meaning of § 230(f)(3).” But because the line between immune editorial activity and non-immune content “creation or development” may not always be obvious, online companies should tread carefully.