Dear Internet Service Providers of 2020

Recent debates surrounding a university’s responsibility to filter potentially offensive material exemplifies the persistent tension between censorship and free speech. This tension is nothing new in the American legal landscape, and has intensified considerably since the advent of the Internet in the 1990’s. The 90's saw a surge of unfiltered content online as internet technologies transformed mere information consumers into publishers now able to post their own material. Parents and lawmakers worried about children being exposed to pornographic or otherwise explicit material online.  Whereas it was once easy to monitor media, the anonymity and ease of access enabled by the Internet posed a new challenge to concerned lawmakers. In response, Congress passed the Communications Decency Act (CDA) of 1996 in order to foster a safer online environment for children while simultaneously encouraging free expression of content that did not fall within what it deemed as immature.

Critics of the CDA claim that it is needlessly restrictive and opposed to our First Amendment liberties. However, as this article explores, the act in many ways encourages free expression and entrepreneurship online by shifting legal responsibility from content distributors to content publishers. With the CDA, the government was able to regulate harmful speech while simultaneously acting to promote innovation and creation in the digital sphere.

The act consists of two parts. The first part criminalized the transmission of “indecent material.” The second part granted information service providers (ISPs) immunity from criminal prosecution. ISPs are “system or access software providers that provide or enable computer access by multiple users to a computer server… or system that provides access to the internet.” ISPs can be as broad as internet access providers or as narrow as social media sites. ISPs do not author any original material, but rather serve as a platform on which original material is published. Verizon, Comcast, and Facebook are all examples of ISPs.

Conversely, the act identified information content providers (ICPs) as bearing the responsibility for online content. An ICP is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service.” For example, individual Facebook users are ICPs.

 

Widely recognized as one of the most restrictive acts regarding free speech, the first part of the CDA criminalizes the creation or transmission of “any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent.” Unsurprisingly, First Amendment advocates challenged the Act’s speech restrictions, particularly its vague and seemingly broad definition of “indecent” speech. Reno vs. ACLU was a landmark Supreme Court case in which the ACLU challenged the constitutionality of the CDA’s speech provisions, arguing that the first part of the CDA criminalized expression that is otherwise protected under the First Amendment. Justice John Paul Stevens wrote the majority opinion affirming the ACLU’s position: “In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”

While cases such as Reno vs. ACLU reflect how the CDA might appear to be at odds with the First Amendment, the second part of the CDA actively avoids overbearing speech restriction by identifying distinct libels, thus encouraging overly cautious service providers to build their service. To understand how the CDA in fact promotes free expression, one must first understand the liability landscape prior to the CDA. Before 1996, ISP liability was unforgiving and often challenging to discern: If an ISP was aware of existing indecent material and failed to act, the ISP was held liable for its distribution. To avoid responsibility, then, some ISPs turned a blind eye to illicit material published on their platforms: “The more an ISP tried to keep obscene or harmful material away from its users, the more it would be liable for that material. In order to avoid such liability, ISPs adopted a hands-off approach so they would appear to be mere distributors.” Other ISPs, meanwhile, were motivated to censor more material than was necessary.

The CDA provided broad immunity and protection for ISPs. In legal terms, the CDA formally protects ISPs from publisher liability: “No person shall be held to have violated [the first part of the act] solely for providing access to [the internet or software].” Courts generally interpret this clause as granting ISPs immunity to publisher and distributor liability. This interpretation reflects the courts' care for First Amendment rights: courts accepted the possibility of indecent material slipping through the cracks in the name of preserving First Amendment rights.

The CDA also includes a “Good Samaritan clause,” which protects ISPs that show any initiative to filter illicit material from their platforms. With this clause, the CDA eliminated the intimidating and unrealistic expectation that an ISP must filter all illicit material, making publishing more approachable and less restrictive. CDA proponents argue that the Good Samaritan clause encourages ISPs to self-police content online.

Zeran vs. America Online Inc. (AOL) was a landmark case that defined the standard interpretation of the “Good Samaritan” section of the CDA. In this case, Plaintiff Kenneth Zeran was the target of malicious defamation on AOL’s message boards. AOL failed to remove this material despite Zeran’s numerous requests. Zeran then sued AOL for negligence, arguing that it did not adequately police the boards. The court ruled that AOL was protected under the CDA because publishing entities are not liable for distributing malicious material. Here, the court used the CDA to protect ISPs from distributor liability. Furthermore, the CDA allows services the latitude to perform traditional editorial functions, such as screening and filtering posts. In this case, courts again demonstrated their prioritization of free speech over preventing exposure to "indecent" material.

 

However, it is important to recognize that immunity applies to a strict subsection of online content. The CDA makes it clear that ISPs are the only party immune from sanctions against indecent material. The CDA does not protect that create content and thus become an internet content provider. Of course, the distinction between an ICP and an ISP is not always clear: at what point should forums be responsible for words they have not authored? Modern examples abound: singing along to a song that uses derogatory racial slurs is uncomfortable. The CDA teaches, however, that vehicles of communication cannot be held responsible for “distributing” the words of others.