I’m now starting to read The Twenty-Six Words That Created The Internet, by Jeff Kosseff, which refers to Section 230 of the Communciations Decency Act. Section 230 is under attack by politicians on both sides, and debates about misinformation and hate speech on social media have become more heated lately, so I became interested in the legal basis for their protections. This post discusses early rulings on freedom of speech and press, prior to the creation of the internet, that helped shape 230.

Section 230 of the Communciations Decency Act reads:

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.

It is this clause that shields social networks from liability from hateful or abusive content on their platforms—for better and for worse. The book is a “biography” of this law.

Smith vs. California

Kosseff’s book opens with an account of court cases that laid the groundwork for Section 230 decades prior. Of note is Smith vs. California.

Smith was a case about whether the owner (Eleazar Smith) of a bookstore could be held liable for selling a book that was later found to be obscene, even if he didn’t know anything about the book. The Supreme Court ultimately found that no, he couldn’t. From the syllabus:

(c) Obscene expression is not constitutionally protected; but this ordinance imposes an unconstitutional limitation on the public’s access to constitutionally protected matter. For, if the bookseller be criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected, and thus a restriction will be imposed by the States upon the distribution of constitutionally protected, as well as obscene, books.

This is interesting to me! Of course laws cannot restrict otherwise-legal speech; that’s just the First Amendment. But the ruling in Smith expands upon that idea:

  • a Los Angeles ordinance banned the sale of obscene materials
  • that ordinance would restrict the ability of authors and publishers to reach their audience (since they might excessively self-censor non-obscene, legal speech to avoid liability in cases like this one)
  • such a law raises the same First Amendment concerns as laws that directly prohibit legal speech

This idea, by itself, wouldn’t be enough to shield social networks from liability from illegal user-generated content. The chapter continues with a story about the holes in Smith.

Hustler and defamation

Andrea Dworkin was a radical feminist who was famously anti-pornography, having written the book Pornography: Men Possessing Women and viewing pornography as violence against women.

This created enemies in the porn industry. The publisher of the magazine Hustler, Larry Flynt, was one such enemy. In 1984, Flynt published “features” about Dworkin that depicted her having sex with another woman, which got him sued for defamation. Importantly, a famous Wyoming lawyer Gerry Spence represented Dworkin.

The case was not only against Flynt, but also against Park Place Market, a Wyoming shop that sold Hustler. The ruling from Smith applied here: the market could not be held responsible for defamatory statements in Hustler unless it knew of them beforehand.

Hustler wasn’t finished. A year later, the magazine published a feature naming Spence (the lawyer) “Asshole of the Month.” This time, Spence sued Park Place Market for defamation himself, making the same argument as he did when he was representing Dworkin.

The same judge made the opposite ruling. From Spence v. Flynt on Justia:

Jackson, Wyoming is a relatively small community in which news of Gerry Spence, one of its most famous citizens, travels fast. The dispute between Mr. Spence and Hustler was well-known to Mr. Lynch. This was simply not a case of an innocent magazine seller unwittingly disseminating allegedly libelous material. Rather, we have a distributor who possessed detailed knowledge of the ongoing bitter battle between Hustler and Spence, and who, after receiving a complaint about the magazine, failed to investigate and continued to sell it. These facts do not establish that Park Place Market lacked scienter [knowledge of wrongdoing] for libel. The Court finds that these constitute special circumstances and that Park Place Market has failed to show by clear and convincing evidence that it is not liable for the alleged injury to the plaintiffs.

This is so interesting; the same judge decided both cases in opposite ways. The key difference was that, in the second lawsuit, Park Place Market could not claim ignorance of the contents of Hustler.

This creates this weird situation where distributors can only be held liable for content that they knew about. Later rulings would extend this idea, and hold that a “distributor” (say, Reddit) would not be liable for the content on its “shelves” only as long as they didn’t moderate or curate its content.

Bury your head in the sand, and you’re safe; if you know something is bad, you’re hosed. That’s a weird hole in the Smith ruling and later rulings, and Section 230 would go on to address it.