As the law surrounding regulation of online intermediaries developed, the First Amendment and Section 230 emerged as two central players. Though different bodies of law, their jurisprudence intersects at several points: both display procedural interactions, implicate free speech concerns, apply to intermediaries engaged in publisher and editorial behaviors, and consider good faith and scienter. However, despite these commonalities, discussion of the First Amendment and Section 230 has largely been siloed.
This Note places First Amendment and Section 230 jurisprudence in conversation with one another to determine which specific intermediary behaviors are addressed by each law. Although many cases discuss “traditional editorial functions,” this Note articulates that the First Amendment is relevant in only a limited subset of cases.1 Further, what constitutes a “traditional editorial function” under Section 230 has expanded significantly since the statute was first enacted in 1996, creating a problematic paradox.2
In response to the close relationship between the First Amendment and Section 230, this Note proposes courts return their attention to the seminal Section 230 case of Zeran v. America Online, Inc. This Note explains how this shift in focus can prevent Section 230’s “traditional editorial” act formulation from swallowing Section 230’s intended scope (taking the First Amendment along with it). It further encourages courts to adopt the four traditional publisher functions identified by the Fourth Circuit in Zeran: publishing, editing, withdrawing from publication, and postponing publishing. Additionally, this Note suggests courts look to First Amendment law concerning editorial judgements to elucidate and characterize truly “traditional” editorial functions.
Laws in Conversation: What the First Amendment Can Teach Us About Section 230,
32 Fordham Intell. Prop. Media & Ent. L.J. 473
Available at: https://ir.lawnet.fordham.edu/iplj/vol32/iss2/5