Section 230 of the 1996 Communications Decency Act is the part where it says “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.”

This is a goodness when used correctly.  This means that if one of our readers posts something that is actionable as a comment, defamation or such, we as the owners of the blog are not responsible.

This is what allowed Facebook and every forum, BBS, Usenet, and blog to exist in this age of the Internet.

It is what protects our cloud provider and CDNs from being held responsible for every bit of traffic that passes through their servers or is hosted on a piece of their hardware.  In addition, it means that your service provider, Comcast, Verizon, RoadRunner, and all the other ISPs are not responsible for what passes across their networks.

A HUGE goodness.

Unfortunately it is also being misused.

The gist is that as long as you, as a provider, do no editorial actions then you are not responsible. If you are controlling the content then you are now a publisher and not a common carrier.

Consider the NYT. Every single word that the publish is vetted and approved as a publisher, legally speaking. They have the final word on any opinion published, on any advertisement that runs, any news article that they publish they are responsible for.

When a company or group takes on the role of editor/publisher they also accept that legal responsibility in a legal sense.

So what happens if a company decides that they will not publish an article?

When Twitter decided to suppress all references to the Hunter Biden story in 2020 did they become a publisher?

When Facebook or YouTube shadow bans a user or group, are the acting as editors?

At what point do they loose their Section 230 protections as a “provider”?

If the owner of a blog allows open commenting but deletes any post where the commenter refuses to identify themselves, have they become a publisher?

On Dec 19th, 2022 the Supreme court scheduled arguments for Reynaldo Gonzalez, et al., Petitioners v. Google LLC for Feb 21, 2023.

The question the petitioners ask is:

Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?

The question the defendants ask is:

Whether a claim seeks to treat an interactive computer service provider as a “publisher,” and is thus barred by section 230, when the claim targets the provider’s display of third-party content of potential interest to individual users.

This may get very interesting for Facebook, Google, YouTube and a few other players that have been using shadow bans and the ban hammer to push their point of view or to suppress the speech of those they disagree with.