Cancel Culture and Communications Decency

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** Does the Communications Decency Act protect websites from cancelling users – and will it survive being cancelled itself? **

By: Brent E. Johnson 

The Communications Decency Act of 1996, (47 U.S.C. § 230 et seq.) (“CDA”) (twenty six words in total) provides immunity to the operators of interactive websites from liability for content posted by third parties.  See 47 U.S.C. § 230(c)(1).  Under the CDA, an “interactive computer service” is not treated as the “publisher” of information on its website and thus is not liable for such content.  Id.  There is little controversy that without this liability shield the internet as we know it could barely function – as the Circuit Court in Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) noted: “Interactive computer services have millions of users. The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems …. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.” 

The scope of this immunity has extended to benign internet commerce, i.e., protecting online selling platforms from liability from third parties using the platforms to sell counterfeit sport memorabilia, for example.  Gentry v. eBay Inc., 99 Cal. App. 4th 828 – 835 (2002)).  But the CDA immunity has also been applied in less benign circumstances — deplorable as they may be — where third parties have used interactive websites to mistreat others and cause deliberate harm and trauma.  See Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (CDA immunity applied to adult classified website as against victims of sex trafficking); see Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.2008) (affirming dismissal of negligence and gross negligence claims against myspace.com arising from assault occurred after meeting on the site); Saponaro v. Grindr, LLC, 93 F. Supp. 3d 319, 321 (D.N.J. 2015) (same).  This wide scope of immunity is possible given the “near-universal agreement that section 230 should not be construed grudgingly.”  Backpage.com, LLC, 817 F.3d 12.

In this established line of case law, website owners have successfully defended themselves against parties impacted, offended or damaged by the content posted by others.  Recently, courts have examined the other side of the coin – website owners attempting to use the CDA to protect themselves from parties posting material – particularly where this has resulted in the parties (and or their content) being removed or restricted from or by the website.  In other words, courts are analyzing whether the CDA protects a website owner when it “cancels” or “de-platforms” one of its users.  Courts have so far sided with website owners, holding that the CDA provides a complete defense.

An oft targeted company has been Twitter given its central role in political discourse.  Courts have “rejected . . . claims . . . that seek to hold interactive computer service[s] liable for removing or blocking content or suspending or deleting accounts (or failing to do so) on the grounds they are barred by the CDA.”  Murphy v. Twitter, Inc., 60 Cal. App. 5th 12, 274 Cal. Rptr. 3d 360, 370 (2021); Wilson v. Twitter., No. 3:20-cv-00054, 2020 WL 3410349 (S.D.W.Va. May 1, 2020) (same); Cox v. Twitter, Inc., No. CV 2:18-2573-DCN-BM, 2019 WL 2513963, at *3 (D.S.C. Feb. 8, 2019) (same).  Other social media companies have also been subject to suit and have similarly been found to be immune.  Domen v. Vimeo, Inc., No. 20-616, 2021 WL 922749 (2d Cir. Mar. 11, 2021) (affirming that Vimeo was entitled to immunity under § 230(c)(1) in a case where plaintiffs sought to hold Vimeo liable for deleting plaintiffs’ content on its website); Fyk v. Facebook, Inc., 808 F. App’x 597, 598 (9th Cir. 2020) (decision to “de-publish” posts on Facebook immunized under CDA); Ebeid v. Facebook, Inc., No. 18-cv-07030-PJH, 2019 WL 2059662 (N.D.Cal. May 9, 2019) (same).

The reasoning courts use is straight forward – CDA’s immunity applies to “publishing,” which courts have interpreted as extending to a “publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.”  Barrett v. Rosenthal, 146 P.3d 510, 516 (Cal. 2006); see discussion Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009) (“[S]ection 230 protects from liability any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online”).

Website owners can take comfort from this clear line of case law that provides that they can exercise their editorial function on their website as the CDA intended – safe from the specter of tort liability.  However, this is not to say that the CDA itself is entirely safe.  Indeed, for different, perhaps overlapping reasons (which are political and thankfully beyond the scope of this legal blog), neither side of the aisle appears happy with the CDA status quo. 

For one, former President Trump’s May 28, 2020, Executive Order No. 13925 (Preventing Online Censorship) (85 Fed. Reg. 34,079 (June 2, 2020)) attempted to rewrite the CDA and nullify it in certain circumstances.  Without Congress, though, the Executive Order had little practical effect. 

But pending or proposed before Congress are a large number of bills seeking to “cancel” parts of the CDA, these include:

The CDA has been described as the digital magna carta – without it, social media and e-commerce would not have been possible.  It may however be on the endangered list.  Check back here for updates.