Reading Section 230

Authors

Shlomo Klapper

First Page

1237

Document Type

Article

Abstract

In Gonzalez v. Google, the Supreme Court, for the first time, agreed to hear a case concerning the interpretation of Section 230 of the Communications Decency Act, the most important law governing the internet. As Justice Thomas and others have noted, judges have overlooked Section 230’s text in interpreting the statute, relying instead on purpose. Yet scholars and critics, too, have eschewed the statutory text, relying on intent or consequences to favor alternate interpretations, but depriving the Court and litigants of the richness the statutory text offers.

This Article offers the first comprehensive analysis of Section 230’s text and structure. Section 230 means what it says: it excludes from its protection entities that act as publishers rather than intermediaries; treats, by default, all intermediaries as distributors; and offers extra protection to certain intermediaries—“Computer Good Samaritans”—who actively clean up certain categories of objectionable content on the internet.

This Article has significant implications. It finds that judges have consistently misinterpreted Section 230; therefore, judges should alter the main doctrinal inquiries for whether Section 230 immunity attaches, the entities to which it attaches, and the nature of that immunity. This Article also informs current political debates because Section 230 already incorporates the substance of many proposed reforms: Section 230 does not need to be reformed or re-written, only re-read. And this Article contributes to the current scholarly reconceptualization of textualism and suggests a new avenue of research: the intersection between inequality and interpretation.

Recommended Citation

Shlomo Klapper, Reading Section 230, 70 Buff. L. Rev. 1237 (2022).
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol70/iss4/1