Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 21, Issue 2

Indecency, Incitement, and Censorship
A Series Exploring the Controversial “Section 230” – Part 2

By Zachary P. Grant

In the previous mini article, we discussed the origins of the Communications Decency Act, and its passage into law in 1996. Today we’ll explore why some portions of the Act were found to be unconstitutional by the Supreme Court of the United States (SCOTUS) while other portions remain in force today.

Just one year after the Act became law, SCOTUS held that portions of the Act violated free speech rights of the First Amendment of the United States’ Constitution. In the case Reno v. American Civil Liberties Union, SCOTUS found that some government regulations of the Act – namely, those criminalizing the internet transmission of obscene or indecent content to minors – was overbroad and placed unacceptably heavy burdens on protected speech. Hence, why this content remains on the internet today.

Importantly, however, the presently debated section of the Act, Section 230, was unaffected by this ruling and remains law to this day despite its perceived impact on free speech. Section 230 was not considered government encroachment on free speech rights. Section 230 is distinct from the unconstitutional criminal sanctions of the Act in that it is merely a safe-harbor provision that provides liability protection to private internet businesses who moderate material such as obscene, violent, or unprotected speech.

In the next edition of the FishBits newsletter, we will explore the legal battles over the early internet and the reason why Section 230 was included in the Act.

Zachary Grant is an attorney at Fishman Stewart specializing in intellectual property and technology law.