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Abstract

Sitting and former U.S. Presidents as well as members of the general public, financial, political and educational institutions use social media. Yet, an overwhelming majority of users, content creators, parents, “conservatives,” “progressives,” Democrats and Republicans distrust social-media owners. Some critics allege that owners “digitally pollute” platforms by encouraging users to post “corrosive, dangerous, toxic and illegal content.” Other critics assert that service providers’ purportedly objective content-moderation algorithms are biased ― discriminating irrationally on the basis of users’ political association, ideology, socioeconomic status, gender and ethnicity. Republicans and Democrats have crafted roughly twenty bills. In theory, the enacted proposals would “sanitize” social media and end owners’ allegedly irrational practices―by abolishing, reforming or “limiting the scope” of the safe-harbor-preemption defense under the Communications Decency Act § 230. But, would the proposals actually increase users’ ability to survive a preemption defense and sue providers on the merits? The bills’ sponsors have not carefully weighed this question. To fill the void, the author conducted a legal and empirical study to glean probative evidence from state and federal courts’ section-230-preemption decisions. Among other findings, the analyses reveal: 1) Courts are more likely to block only certain users’ or content creators’ lawsuits when tech companies raise a section-230-preemption defense; 2) Judges are more likely to allow a section-230 defense to thwart content creators’ tort-based rather than contract-based lawsuits; and 3) Content creators are more likely to evade a preemption defense and litigate claims on the merits, if a federal statute contains a safe-harbor clause as well as an unequivocal rights-preservation exemption. Hopefully, the findings will provide some “judicial guidance”― when Congress considers whether to abolish, reform or restrict the scope of the CDA’s section-230-immunity defense.

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