The Twenty-Six Words That Created the Internet

Jeff Kosseff

• Publisher: Cornell University Press
• Year: 2019
• ISBN:
  9781501735790
• Topic: Derecho
• Subtopic: Derecho científico y tecnológico

As seen on CBS 60 Minutes

"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."

Did you know that these twenty-six words are responsible for much of America's multibillion-dollar online industry? What we can and cannot write, say, and do online is based on just one law—a law that protects online services from lawsuits based on user content. Jeff Kosseff exposes the workings of Section 230 of the Communications Decency Act, which has lived mostly in the shadows since its enshrinement in 1996. Because many segments of American society now exist largely online, Kosseff argues that we need to understand and pay attention to what Section 230 really means and how it affects what we like, share, and comment upon every day.

The Twenty-Six Words That Created the Internet tells the story of the institutions that flourished as a result of this powerful statute. It introduces us to those who created the law, those who advocated for it, and those involved in some of the most prominent cases decided under the law. Kosseff assesses the law that has facilitated freedom of online speech, trolling, and much more. His keen eye for the law, combined with his background as an award-winning journalist, demystifies a statute that affects all our lives –for good and for ill. While Section 230 may be imperfect and in need of refinement, Kosseff maintains that it is necessary to foster free speech and innovation.

For filings from many of the cases discussed in the book and updates about Section 230, visit jeffkosseff.com

Part I

The Creation of Section 230

The discussion about Section 230 often begins in 1996, when President Bill Clinton signed the law as part of a broad overhaul of U.S. communications law. But that tells only part of the story. The United States’ journey to Section 230 started decades earlier.

As Jack Balkin observed in 2008, Section 230’s protections for online platforms are not a constitutional mandate, but a policy choice of Congress. Nonetheless, he wrote, Section 230 “has been one of the most important guarantors of free expression on the Internet, at least in the United States.” Section 230 “has had enormous consequences for securing the vibrant culture of freedom of expression we have on the Internet today. The reason is that section 230 has protected the conduits and online service providers from being sued for the speech of strangers that they carry. Because online service providers are insulated from liability, they have built a wide range of different applications and services that allow people to speak to each other and make things together.”¹

Congress passed Section 230 because the First Amendment did not adequately protect large online platforms that processed vast amounts of third-party content. In fact, the First Amendment rules that the courts developed throughout the twentieth century created a disincentive for service providers to set content policies and moderate user posts. To fully understand why Congress passed Section 230—and its impacts—it first is necessary to understand the limits of First Amendment protections for distributors of speech.

For more than a half century, the United States Supreme Court has recognized that, under the First Amendment, bookstores, newsstands, and other intermediaries have a limited amount of immunity for legal claims arising out of the words and images created by others. Courts had good reason to create this protection: if businesses could face multimillion-dollar fines—or even jail time—merely because the pictures and articles that they distribute are illegal, those companies might err on the side of not selling books, magazines, and videos. Recognizing that such prudence could create a chilling effect on speech, the courts restricted liability to only the companies that actually know or should know that the material is illegal.

This rule has a major blind spot: the First Amendment immunity does not apply to all distributors. Distributors generally are not protected if they knew or should have known of the illegal content and failed to take action. And, at least under one court’s interpretation of the First Amendment, some companies may not even qualify as distributors if they were able to edit the third-party content. These limits on the First Amendment protection for neutral distributors rattled the earliest Internet service providers such as Prodigy and America Online. If the online services took even the slightest steps to moderate their third-party content—such as deleting posts that contained pornographic images—then they take the risk of being held legally responsible for the millions of posts that proliferated their bulletin boards.

Section 230’s authors and advocates hoped that the twenty-six words would repair this glitch. What they didn’t know is that the law would shape the Internet as we know it.

1

Eleazar Smith’s Bookstore

In the fall of 1956, a North Dakota broadcaster aired a fringe Senate candidate’s unhinged speech. Exactly three weeks later, a Los Angeles bookstore clerk sold a tawdry erotic book to an undercover cop. Legal disputes stemming from these two unrelated events would reach the United States Supreme Court and set precedent that would lay the groundwork for passing Section 230 forty years later. The two cases differed from typical free speech battles because their outcomes did not depend on the rights of the speaker or author. Instead, the cases turned on the rights of the intermediaries: the broadcaster and the bookseller. In both cases, the Supreme Court provided limited legal protections to the distributors. The court ruled that companies receive some protection from liability for distributing books, videos, and other material if the companies are unaware that the content is illegal. However, the protection is not absolute and depends on the state of mind of the distributor, the court would rule in the second case. The disputes eventually would establish the fundamental constitutional protections for distributors of information, including not only bookstores and broadcasters but also websites and ISPs. The weaknesses of these protections eventually led to the passage of Section 230.

Knowing when the Constitution protects radio stations, bookstores, and other content distributors is essential to understanding why Congress provided websites and other online intermediaries with Section 230’s extraordinary benefits.

The 1956 U.S. Senate campaign in North Dakota was not supposed to be dirty. The incumbent Republican, Milton Young, and the mainstream Democratic challenger, Quentin Burdick, ran campaigns focused on issues that mattered to North Dakotans, such as farm policy. That comity ended when WDAY, a television and radio broadcaster in North Dakota, aired a fiery speech by independent candidate Arthur C. Townley on the evening of October 29, 1956, about a week before the election. Townley was notorious throughout the state for his rhetoric. A former socialist organizer, Townley had founded the Nonpartisan League, which pushed for the government to take over agricultural businesses. After many political and business failures, he used his bully pulpit to speak against communism.¹ This advocacy included unfounded charges that his opponents were communists.

In the WDAY speech, Townley attacked his Democratic and Republican opponents for being puppets of the state farmers union, a powerful force in North Dakota politics. Consider a snippet of the speech:

For ten years, Senator Young has used the power and prestige of the high office that he holds to serve this Farmers Union. He has not raised his voice or hand to stay the communist viper gnawing at your private ownership and liberty… . Young and Burdick both support the Democrat Farmer program. Both men take orders from Communist controlled Democrat Farmers Union and now this amazing fact—Communist infiltration and power has gone so far in North Dakota that the Democratic Party supports 100% the Democratic Farmers Union candidate and the Republican Party supports 90% the Democratic Farmers Union candidate. The Communists can’t lose unless the Americans wake up and wake up fast.²

WDAY’s station managers recognized that Townley’s speech would be controversial, and they warned Townley’s campaign that the speech might be defamatory if false. But WDAY believed that a federal communications law prohibited the station from requiring Townley to change or redact the speech. During the 1956 campaign, WDAY had broadcast speeches by Young and Burdick. Townley demanded that WDAY provide him with an opportunity to broadcast his message. He was legally entitled to such an opportunity. Section 315 of the federal Communications Act of 1934 mandated that any broadcaster who allowed a candidate to broadcast a message “shall afford equal opportunities to all other such candidates” for the office. The law stated that the broadcaster “shall have no power of censorship” over material that the broadcaster must air under the equal time requirement.³

A week after the broadcast of the Townley speech, Young won reelection with more than 60 percent of the vote. Townley received a mere .38 percent, or 937 votes.⁴ Despite Townley’s failure to make a blip in the election, his fiery speech attracted attention. Perhaps the angriest were not his opponents but the North Dakota division of the Farmers Educational and Cooperative Union of America. The union filed a defamation lawsuit in the state trial court in Cass County, North Dakota.⁵ Instead of suing only Townley, the union also sued WDAY for broadcasting the speech, seeking $150,000 from both the candidate and the broadcaster. The union argued that, by broadcasting the speech and allowing Townley to use its facilities, WDAY was equally liable for harm to the union’s reputation.⁶

WDAY asked Judge John C. Pollock to dismiss the claims against it, and Pollock granted the broadcaster’s request on May 23, 1957. Because federal communications law required WDAY to broadcast Townley’s speech—and prohibited the station from censoring it in any way—WDAY’s participation was limited to “the mechanical preparation, taping, and re-cording of the script and film,” Pollock wrote.⁷ The union appealed to the Supreme Court of North Dakota, which on April 3, 1958, affirmed the trial court’s dismissal in a 4–1 decision. Writing for the majority, Judge P. O. Sathre concluded that because the federal statute required WDAY to air the full, uncensored speech, the statute effectively immunized the station from any lawsuits against the station that arose from the broadcast. WDAY, he wrote, “was under compulsion to publish the speech by direct mandate of a federal statute. It had no choice other than to broadcast the speech.”⁸ Judge James Morris dissented; he did not believe that Congress intended to prohibit broadcasters from any censorship of political content. For instance, he reasoned, broadcasters could censor obscene or blasphemous content. If WDAY could censor the speech, Morris wrote, it should not receive absolute immunity from a defamation lawsuit.⁹

The union filed a petition to the U.S. Supreme Court, requesting that it review the North Dakota court’s ruling. The Supreme Court agrees to hear only a small fraction of requested appeals, so the odds were not in the union’s favor that the court would even agree to review the case. U.S. solicitor general J. Lee Rankin, who represented the federal government in the Supreme Court, urged the court to hear the case. Rankin wanted the court to adopt the government’s position that the federal communications law “precludes any deletion by a station licensee of material in a broadcast by a legally qualified candidate for public office because of its possible or even probable defamatory nature.” The Supreme Court agreed to review the North Dakota court’s ruling. On March 23, 1959, the high court held oral arguments.¹⁰

The union focused on the need to verify the accuracy of claims made in advertisements intended to influence voters. Edward S. Greenbaum, a prominent New York lawyer representing the union, told the justices that if the court read the statute as requiring the stations to air any political content provided to them and immunizing the stations from lawsuits from those broadcasts, politicians would fill the airwaves with lies and libel. “We think this statute, if affirmed, would open up the doors for a field day for the future Hitlers and Stalins that will arise in this country,” Greenbaum said. “They will get free from any liability, except on their own part and they have none, stations such as this one.”¹¹ WDAY urged the justices to focus on the unfair consequences that would arise from denying immunity to broadcasters. WDAY lawyer Harold W. Bangert argued that even though the federal communications law does not explicitly immunize stations for broadcasting equal time political speeches, the Supreme Court should read the statute as implicitly providing immunity. “We are in a position of being required to subject ourselves to an action for libel and the—and unable to protect ourselves,” Bangert told the justices.¹²

Throughout the argument, the justices and lawyers debated whether broadcasters had the same editorial discretion as other media, such as newspapers. Douglas A. Anello, representing the National Association of Broadcasters, argued that broadcasters were unlike print media, with full discretion to reject content provided by third parties. “Newspapers may print what they please,” Anello told the justices. “They may excise. They may edit. They have no regulatory body to whom they must account every three years, nor any Section 315 telling them what they may or may not do.”¹³ The justices and lawyers seemed to agree on one point: the station could be immune from the union’s lawsuit only if the federal statute prohibited WDAY from refusing to air libelous political speeches. If WDAY could edit the speeches, then there was no way it could be immune.

Three months after the oral argument, a divided Supreme Court issued its opinion. Writing for the five-justice majority was Justice Hugo Black, who was among the most adamant defenders of the First Amendment to ever sit on the United States Supreme Court. A former U.S. senator from Alabama appointed to the court by Franklin Roosevelt in 1937,¹⁴ Black believed that the First Amendment’s text—“Congress shall make no law … abridging the freedom of speech”—meant just that. Unlike most other jurists, who recognized exceptions to the First Amendment for emergencies or compelling government interests, Black believed that the First Amendment prohibited any government regulation of speech. No exceptions.¹⁵ Not surprisingly, Black ruled for WDAY. He could have done so in a narrow, technical manner, interpreting the plain text of Sec...