Circumventing Section 230: Product Liability Lawsuits Threaten Internet Speech

Over the past decade, social media platforms have radically expanded our ability to communicate and transact with one another. Privately owned apps and websites provide spaces for every conceivable sort of human interaction on a hitherto unimaginable scale.As a matter of law, these platforms cannot be treated as the speaker of their users’ speech; Section 230 of the Communications Act places liability for hosted content on its creator. This statute ensures that Americans are served by a wide range of digital publishing platforms. Far from a handout, it should be considered a restatement of the First Amendment’s free speech guarantee for the Internet Age.Although Section 230 enables the creation of tools integral to the exercise of free speech, this intermediary liability protection is increasingly seen as a special protection for industry. Several innovative lawsuits threaten to circumvent Section 230’s protections by alleging that platforms’ scale and ease of use constitute negligent design. These lawsuits present a novel threat to Americans’ access to digital publishing tools by offering a sweeping theory of liability that contravenes the purpose of existing intermediary liability protections. If accepted, the claims would open the door to the continual redesign of social media platforms by lawsuit, limiting and frustrating Americans’ use of the internet.