The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms--no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution.
In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope of platform immunity. Although substantively different, the Texas and Florida laws are theoretically the same; they both seek to punish Platforms that regulate forms of conservative content that the legislatures argue liberal Platform's silence, regardless of whether the posted content violates the Platform's published standards.
Shortly after each law's adoption, two tech advocacy groups filed suits in federal district courts challenging the laws as violative of the First Amendment. This essay highlights the two laws and the cases that have considered the constitutionality of these laws. The Circuit court decisions have led to a split leading to a likely Supreme Court decision on the constitutionality of 47 U.S.C. § 230, with the potential to disrupt the freedom from government intrusion that Platforms currently enjoy.
Leslie Y. Garfield Tenzer & Hayley Margulis, A 180 on Section 230: State Efforts to Erode Social Media Immunity, 2022 Pepp. L. Rev. 49, https://digitalcommons.pace.edu/lawfaculty/1243/.