Case: 21-51178
Document: 00516474571
Page: 39
Date Filed: 09/16/2022
No. 21-51178
D.
We have no doubts that Section 7 is constitutional. But even if some
were to remain, 47 U.S.C. § 230 would extinguish them. Section 230
provides that the Platforms “shall [not] be treated as the publisher or
speaker” of content developed by other users. Id. § 230(c)(1). Section 230
reflects Congress’s judgment that the Platforms do not operate like
traditional publishers and are not “speak[ing]” when they host usersubmitted content. Congress’s judgment reinforces our conclusion that the
Platforms’ censorship is not speech under the First Amendment.
Congress enacted Section 230 in 1996 to ease uncertainty regarding
online platforms’ exposure to defamation liability for the content they host.
One leading case, Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.
1991), held that an online platform could not be liable absent knowledge of
the defamatory statements, because it was a distributor that did not exercise
meaningful editorial control. See id. at 139–40. But then a different case,
Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct.
May 24, 1995), accepted an argument very similar to the Platforms’ argument
here. It noted that Prodigy’s online platform had “content guidelines”
prohibiting certain obscene and offensive content. Id. at *2. And Prodigy used
an “automatic software screening program” as well as manual review “to
delete notes from its computer bulletin boards” that violated the guidelines.
Id. at *4. The court held that this conduct “constitute[d] editorial control”
over the platform, so the platform was akin to a newspaper and Prodigy could
be held liable for defamation on that basis. Ibid.
Congress disagreed with Stratton Oakmont and abrogated it by
enacting § 230. See H.R. Rep. No. 104-458, at 194 (1996) (“One of the
specific purposes of [§ 230] is to overrule Stratton-Oakmont v. Prodigy and
any other similar decisions which have treated such providers and users as
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