IINN TTHEHE
Supreme Court of the United States
Supreme Court of the United States
__________ __________ J
J ANE ANE DDOEOE NNOO.. 1,1, ET AL ET AL.,.,
Petitioners Petitioners,, v.
v. B
B ACKPAG ACKPAGEE..COMCOM,, LLC,LLC, ET AL ET AL.,.,
Respondents Respondents.. __________
__________
On Petition for a Writ of Certiorari On Petition for a Writ of Certiorari to the United States Court
to the United States Court of Appealsof Appeals for the First Circuit
for the First Circuit __________
__________
MOTION FOR LEAVE TO FILE
MOTION FOR LEAVE TO FILE AMI AMICI CI CURCURIAE IAE BRIEF BRIEF
AND
AND AMI AMICI CI CURCURIAIAE E BRIEF OF LEGAL MOMENTUM, BRIEF OF LEGAL MOMENTUM,
CINDY MCCAIN,
CINDY MCCAIN, FLORIDA ABOLITIONIST, NATIONALFLORIDA ABOLITIONIST, NATIONAL CENTER ON SEXUAL EXPLOITATION, THE
CENTER ON SEXUAL EXPLOITATION, THE
ORGANIZATION FOR PROSTITUTION SURVIVORS, ORGANIZATION FOR PROSTITUTION SURVIVORS, RISING INTERNATIONAL, SOJOURNER CENTER, RISING INTERNATIONAL, SOJOURNER CENTER, STOLENY
STOLENYOUTH, STREETLIGHT USA, AND OUTH, STREETLIGHT USA, AND YWCA OFYWCA OF SILICON VALLEY IN SUPPORT OF PETITION FOR A SILICON VALLEY IN SUPPORT OF PETITION FOR A
WRI
WRIT T OF OF CERCERTITIORAORARIRI
__________ __________
K
K AREN AREN A. A. CCHESLEY HESLEY B
BENJAMINENJAMIN MM ARGULI ARGULISS J
JOANNAOANNAWWRIGHTRIGHT A
A LEXANDERLEXANDER BBOIESOIES BOIES, SCHILLER BOIES, SCHILLER & FLEXNER LLP & FLEXNER LLP 575 Lexington Avenue 575 Lexington Avenue New York, NY 10022 New York, NY 10022
Counsel for Amici Curiae Counsel for Amici Curiae
D
D AVID AVIDBBOIESOIES
Counsel of Record Counsel of Record
BOIES, SCHILLER & FLEXNER LLP BOIES, SCHILLER & FLEXNER LLP IIEVGENIIAEVGENIIA V V ATRENKO ATRENKO
A
A LEXLEX T.T. PPOTTEROTTER 333 Main Street 333 Main Street Armonk, NY 10504 Armonk, NY 10504 Phone: (914) 749-8200 Phone: (914) 749-8200 DBoies@bsfllp.com DBoies@bsfllp.com
OF PETITION FOR CERTIORARI OF PETITION FOR CERTIORARI Amici
Amici curiaecuriae Legal Momentum, Legal Momentum, Cindy McCain,Cindy McCain, Florida Abolitionist, the National Center on Sexual Florida Abolitionist, the National Center on Sexual Exploitation, the Organization for Prostitution Exploitation, the Organization for Prostitution Survivors, Rising International, Sojourner Center, Survivors, Rising International, Sojourner Center, StolenYouth, Streetlight USA, and the YWCA of StolenYouth, Streetlight USA, and the YWCA of Silicon Valley respectfully move for leave of Court Silicon Valley respectfully move for leave of Court to file the accompanying brief under Supreme to file the accompanying brief under Supreme Court
Court Rule Rule 37.3(b). 37.3(b). Counsel for Counsel for Petitioner Petitioner hashas consented to the filing of this brief; counsel for consented to the filing of this brief; counsel for Respondent has withheld consent.
Respondent has withheld consent. As
As set set forth forth more more fully fully below,below, amiciamici provideprovide legal, advocacy, social services and other support to legal, advocacy, social services and other support to trafficking survivors and educate the public on the trafficking survivors and educate the public on the widespread harm caused by sex trafficking.
widespread harm caused by sex trafficking. Amici Amici have firsthand knowledge of the nationwide harm have firsthand knowledge of the nationwide harm that has resulted from the ability of websites like that has resulted from the ability of websites like Backpage.com to facilitate the trafficking of women Backpage.com to facilitate the trafficking of women and children without fear of legal consequences. and children without fear of legal consequences. They therefore have a substantial interest in They therefore have a substantial interest in ensuring that courts enforce the Communications ensuring that courts enforce the Communications Decency Act in accordance with its purpose of Decency Act in accordance with its purpose of protecting children and encouraging good-faith protecting children and encouraging good-faith monitoring of online content.
monitoring of online content.
Respectfully submitted, Respectfully submitted,
K
K AREN AREN A. A. CCHESLEY HESLEY B
BENJAMINENJAMIN MM ARGULI ARGULISS IIEVGENIIAEVGENIIA V V ATRENKO ATRENKO J
JOANNAOANNAWWRIGHTRIGHT A
A LEXLEX T.T. PPOTTEROTTER A
A LEXANDERLEXANDER BBOIESOIES BOIES, SCHILLER BOIES, SCHILLER & FLEXNER LLP & FLEXNER LLP
Counsel for Amici Curiae Counsel for Amici Curiae
D
D AVID AVIDBBOIESOIES
Counsel of Record Counsel of Record
BOIES, SCHILLER & FLEXNER LLP BOIES, SCHILLER & FLEXNER LLP 333 Main Street 333 Main Street Armonk, NY 10504 Armonk, NY 10504 Phone: (914) 749-8200 Phone: (914) 749-8200 DBoies@bsfllp.com DBoies@bsfllp.com
TABLE
TABLE OF OF AUTHORITIES AUTHORITIES ... ... iiiiii INTEREST OF AMICI
INTEREST OF AMICI CURIAE ...CURIAE ... ... 11 SUMMARY O
SUMMARY OF F ARGUMENT ARGUMENT ... ... 66 ARGUMENT
ARGUMENT ... ... 88 I.
I. SECTION 230 WAS NOT INTENDED TOSECTION 230 WAS NOT INTENDED TO PROVIDE WEBSITE OPERATORS WITH PROVIDE WEBSITE OPERATORS WITH BLANKET “IMMUNITY” FOR THEIR BLANKET “IMMUNITY” FOR THEIR ILLEGAL
ILLEGAL ACTS. ACTS. ... ... 88 A.
A. Congress Only Intended For Section 230Congress Only Intended For Section 230 To Protect Websites From Facing To Protect Websites From Facing Liability As Publishers Of Third Party Liability As Publishers Of Third Party Content, Retaining Distributor Liability Content, Retaining Distributor Liability For Knowing
For Knowing Violations Of The LaViolations Of The Law. ... w. ... 1010 B.
B. Courts Should Interpret Section 230 InCourts Should Interpret Section 230 In Accordance
Accordance With With Its Its Purpose Purpose OfOf Protecting Children From Harmful Protecting Children From Harmful Materials And Encouraging Good Faith Materials And Encouraging Good Faith Content Monitoring. ...
Content Monitoring. ... ... 1515 II.
II. IT IS CRITICALLY IMPORTANT THATIT IS CRITICALLY IMPORTANT THAT THIS COURT GRANT REVIEW TO THIS COURT GRANT REVIEW TO ENSURE SECTION 230 IS NOT USED TO ENSURE SECTION 230 IS NOT USED TO PROTECT WEBSITES THAT FACILITATE PROTECT WEBSITES THAT FACILITATE SEX
SEX TRAFFICKING. TRAFFICKING. ... ... 2020 CONCLUSION ...
Chicago Lawyers’ Comm. for Civil Rights Chicago Lawyers’ Comm. for Civil Rights
Under Law, Inc. v. Craigslist, Inc Under Law, Inc. v. Craigslist, Inc.,., 519 F.3
519 F.3d 666 d 666 (7th Cir. 20(7th Cir. 2008) 08) ... ... 1414 Cubby
Cubby v. Compuserve Inc.v. Compuserve Inc.,, 776 F
776 F. Supp. . Supp. 135 (S.D.N.135 (S.D.N.Y. 1991) Y. 1991) ... ... 1313 Doe v. McMillan
Doe v. McMillan,, 412 U.S
412 U.S. 306 . 306 (1974) (1974) ... ... 1111 Fair Hous. Council of San Fernando Valley v.
Fair Hous. Council of San Fernando Valley v. Roomates.com Roomates.com,, 521 F.3 521 F.3d 1157 d 1157 (9th Cir. (9th Cir. 2008) 2008) ... ... 99 Gibson v. Craigslist Gibson v. Craigslist,, No. 08-cv-7735, 2009 WL 1704355 No. 08-cv-7735, 2009 WL 1704355 (S.D.N.Y.
(S.D.N.Y. June June 15, 15, 2009) 2009) ... . 99 Jane Doe No. 1 v. Backpage.com, LLC
Jane Doe No. 1 v. Backpage.com, LLC ,, 817 F.3d 12 817 F.3d 12 (1st Cir. 2016) ...(1st Cir. 2016) ... . 6, 156, 15 Johnson v. Arden Johnson v. Arden,, 614 F.3 614 F.3d 785 d 785 (8th Cir. 20(8th Cir. 2010) 10) ... ... 1414 Stratton Oakmont, Inc. v. Prodigy Services
Stratton Oakmont, Inc. v. Prodigy Services,, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995 WL 323710 (N.Y. Sup. Ct. May 24,
1995) ... 10, 11, 12, 13 1995) ... 10, 11, 12, 13 Watt v. Western Nuclear, Inc.
Watt v. Western Nuclear, Inc.,, 462 U.S 462 U.S. 36 . 36 (1983) (1983) ... ... 99 Witkoff v. Topix LLC Witkoff v. Topix LLC ,, No. B257656, 2015 WL 5297912 (Cal. Ct. No. B257656, 2015 WL 5297912 (Cal. Ct. App. Sept. 10, 2015) App. Sept. 10, 2015) ... ... 99
STATUTES STATUTES
47 U.S.C. § 230 ...
47 U.S.C. § 230 ... passim passim OTHER AUTHORITIES
OTHER AUTHORITIES 141 Cong. Rec. H8469-72 141 Cong. Rec. H8469-72
(daily ed. Aug. 4
(daily ed. Aug. 4, 1995) ... , 1995) ... 6, 10, 12, 16, 10, 12, 16, 17, 186, 17, 18 141 Cong. Rec. S1953
141 Cong. Rec. S1953 (daily ed.
(daily ed. Feb. 1, Feb. 1, 1995) 1995) ... .. 1616 141 Cong. Rec. S8087-89
141 Cong. Rec. S8087-89 (daily ed.
(daily ed. June 9, June 9, 1995) 1995) ... ... 6, 156, 15 141 Cong. Rec. S8345
141 Cong. Rec. S8345 (daily ed.
(daily ed. June 14, June 14, 1995) 1995) ... ... 12, 1912, 19 141 Cong. Rec. D993
141 Cong. Rec. D993
(daily ed. Aug. 4, 1995) ... 18 (daily ed. Aug. 4, 1995) ... 18 H.R. C
H.R. Conf. Rep. onf. Rep. 104-458 104-458 (1996) (1996) ... ... 18, 1918, 19 Restatement (Second) of Torts
Restatement (Second) of Torts §
§ 578 578 ... 11... 11 RULES
RULES Supreme
INTEREST OF AMICI CURIAE INTEREST OF AMICI CURIAE11
Legal Momentum, the Women’s Legal Defense Legal Momentum, the Women’s Legal Defense and Education Fund, is a national non-profit gender and Education Fund, is a national non-profit gender justice
justice advocacy advocacy organization. organization. For For nearly nearly 50 50 years,years, Legal Momentum has been advancing equal rights Legal Momentum has been advancing equal rights for girls and women through legislative efforts, for girls and women through legislative efforts, impact litigation, and through direct representation impact litigation, and through direct representation of clients. Its areas of focus have included of clients. Its areas of focus have included employment law, campus safety, sports, and all employment law, campus safety, sports, and all forms of gender-based violence. In connection with its forms of gender-based violence. In connection with its commitment to ending gender-based violence, Legal commitment to ending gender-based violence, Legal Momentum was instrumental in drafting and helping Momentum was instrumental in drafting and helping to pass the Violence Against Women Act (“VAWA”) in to pass the Violence Against Women Act (“VAWA”) in 1994 and its subsequent reauthorizations in 2000, 1994 and its subsequent reauthorizations in 2000, 2005, and 2013. Legal Momentum considers sex 2005, and 2013. Legal Momentum considers sex trafficking to be one of the most extreme forms of trafficking to be one of the most extreme forms of violence
violence against against women. women. In In 2013, 2013, the the TraffickingTrafficking Victims
Victims Protection Protection Reauthorization Reauthorization Act Act (“TVPRA”)(“TVPRA”) was reauthorized as part of VAWA, criminalizing the was reauthorized as part of VAWA, criminalizing the sex trafficking of minors. Legal Momentum is sex trafficking of minors. Legal Momentum is involved in efforts to end gender-based violence involved in efforts to end gender-based violence perpetrated online, including online sex trafficking perpetrated online, including online sex trafficking and other sex-based cybercrimes. Legal Momentum and other sex-based cybercrimes. Legal Momentum has partnered with non-profit organizations and has partnered with non-profit organizations and cities throughout the country to end online cities throughout the country to end online commercial sexual exploitation of women and girls, commercial sexual exploitation of women and girls, including sex trafficking on Backpage.com. including sex trafficking on Backpage.com. Additionally,
Additionally, for for four four decades, decades, through through its its award-
award-1
1 Pursuant to Rule 37.6, amici Pursuant to Rule 37.6, amici certify that no counselcertify that no counsel
for a party authored this brief in whole or in part, for a party authored this brief in whole or in part, and
and no no persons persons other other than than amiciamici curiaecuriae or theiror their counsel made a monetary contribution to its counsel made a monetary contribution to its preparation or submission.
winning National Judicial Education Project winning National Judicial Education Project (“NJEP”),
(“NJEP”), Legal Legal Momentum Momentum has has been been educatingeducating judges and
judges and court ofcourt officials on ficials on issues related issues related to gender-to gender-based violence against girls and women, including based violence against girls and women, including cyber-related violence.
cyber-related violence.
Cindy Hensley McCain serves as co-chair of the Cindy Hensley McCain serves as co-chair of the Arizona
Arizona Governor’s Governor’s Council Council on on human human traffickingtrafficking and on The McCain Institute’s Human Trafficking and on The McCain Institute’s Human Trafficking Advisory
Advisory Council. Council. She She is is dedicated dedicated to to efforts efforts toto reduce human trafficking in Arizona and throughout reduce human trafficking in Arizona and throughout the United States, and works to improve the lives of the United States, and works to improve the lives of victims of
victims of human trafhuman trafficking. ficking. Through her Through her work withwork with The McCain Institute, she has formed critical The McCain Institute, she has formed critical partnerships with anti-trafficking organizations to partnerships with anti-trafficking organizations to combat
combat online online sex sex trafficking. trafficking. Mrs. Mrs. McCain McCain is is anan outspoken advocate for victims bought and sold on outspoken advocate for victims bought and sold on Backpage.com.
Backpage.com.
Florida Abolitionist, founded in 2009, is an Florida Abolitionist, founded in 2009, is an anti-trafficking organization committed to the prevention trafficking organization committed to the prevention of sex trafficking and to crisis intervention for sex of sex trafficking and to crisis intervention for sex trafficking
trafficking victims. victims. A A leading service leading service provider provider in thin thee Greater Orlando area, it runs Orlando’s local Greater Orlando area, it runs Orlando’s local trafficking
trafficking hotline. hotline. It It also also conducts conducts widespreadwidespread outreach and awareness campaigns throughout outreach and awareness campaigns throughout Central Florida, including to juvenile justice centers. Central Florida, including to juvenile justice centers. As
As part part of of its its extensive extensive organizing organizing and and advocacyadvocacy efforts, Florida Abolitionist co-founded the Greater efforts, Florida Abolitionist co-founded the Greater Orlando Human Trafficking Task Force and has Orlando Human Trafficking Task Force and has partnered with the Orange County School Board for partnered with the Orange County School Board for prevention education.
prevention education.
The National Center on Sexual Exploitation The National Center on Sexual Exploitation (“NCOSE”) is a leading national organization (“NCOSE”) is a leading national organization exposing the links between all forms of sexual exposing the links between all forms of sexual exploitation.
human dignity and to advocate for the universal human dignity and to advocate for the universal right of sexual justice, which is freedom from sexual right of sexual justice, which is freedom from sexual exploitation,
exploitation, objectification, objectification, and and violence. violence. To To thisthis end, NCOSE operates on the cutting edge of policy end, NCOSE operates on the cutting edge of policy activism to combat corporate and government activism to combat corporate and government policies that foster exploitation, to advance public policies that foster exploitation, to advance public education and empowerment, and to foster united education and empowerment, and to foster united action through leading the international Coalition to action through leading the international Coalition to End Sexual Exploitation.
End Sexual Exploitation.
The Organization for Prostitution Survivors The Organization for Prostitution Survivors (“OPS”) is a Seattle-based non-profit organization (“OPS”) is a Seattle-based non-profit organization that provides social services to women and girls who that provides social services to women and girls who are victims of sex trafficking and commercial sexual are victims of sex trafficking and commercial sexual exploitation. OPS addresses the harm caused by sex exploitation. OPS addresses the harm caused by sex trafficking by providing survivors with supportive trafficking by providing survivors with supportive services.
services. Sex Sex trafficking trafficking is is a a significant significant problem problem inin Seattle/King County and the State of Washington, Seattle/King County and the State of Washington, affecting the most vulnerable among us. Most of affecting the most vulnerable among us. Most of OPS’s clients were recruited as minors, often OPS’s clients were recruited as minors, often between the ages of 12-14 years old, and have been between the ages of 12-14 years old, and have been trafficked
trafficked online. online. Backpage.com Backpage.com is is one one of of thethe predominant sites because exploiters have found it a predominant sites because exploiters have found it a relatively safe and protected place to advertise. As a relatively safe and protected place to advertise. As a social service agency, OPS is reminded, on a daily social service agency, OPS is reminded, on a daily basis, of the harm that online sex trafficking causes basis, of the harm that online sex trafficking causes women and children, facilitated by sites such as women and children, facilitated by sites such as Backpage.com.
Backpage.com.
Rising International is a direct service provider to Rising International is a direct service provider to sex
sex trafficking trafficking victims victims in in Northern Northern California. California. InIn addition, Rising International founded and manages addition, Rising International founded and manages Safe and Sound, a local human trafficking prevention Safe and Sound, a local human trafficking prevention program.
program. The The program program is is designed designed specifically specifically forfor foster youth and homeless adults, who are vulnerable foster youth and homeless adults, who are vulnerable to being trafficked online via sites like to being trafficked online via sites like
Backpage.com.
Backpage.com. The The program program has has been been successful successful onon many levels and is currently being offered to twenty many levels and is currently being offered to twenty high schools.
high schools.
Sojourner Center is a non-profit organization, Sojourner Center is a non-profit organization, founded in 1977, that provides emergency shelter, founded in 1977, that provides emergency shelter, transitional housing, and other services to people transitional housing, and other services to people that have been affected by domestic violence and that have been affected by domestic violence and human
human trafficking. trafficking. Serving Serving nearly nearly 10,00010,000 individuals each year, it is one of the nation’s largest individuals each year, it is one of the nation’s largest domestic violence shelters and serves numerous domestic violence shelters and serves numerous victims of human trafficking, including those sold on victims of human trafficking, including those sold on Backpage.com.
Backpage.com. Sojourner Sojourner Center Center also also hosts hosts thethe SAFE Action Project, which educates the community SAFE Action Project, which educates the community that sexual exploitation through force, fraud, and that sexual exploitation through force, fraud, and coercion are all forms of domestic violence, and that, coercion are all forms of domestic violence, and that, with a coordinated community strategy, human with a coordinated community strategy, human trafficking
trafficking can can be be stopped. stopped. Sojourner Sojourner Center Center viewsviews sexual abuse, including child trafficking, as a public sexual abuse, including child trafficking, as a public health epidemic that affects the entire nation.
health epidemic that affects the entire nation.
StolenYouth is dedicated to raising awareness to StolenYouth is dedicated to raising awareness to support the rescue and recovery of sex trafficked support the rescue and recovery of sex trafficked youth in Seattle and across Washington State. youth in Seattle and across Washington State. StolenYouth has piloted a landmark high school StolenYouth has piloted a landmark high school curriculum that
curriculum that recruits young recruits young men as men as allies. allies. It hasIt has trained 1,500 hotel and business personnel to trained 1,500 hotel and business personnel to recognize trafficking as it happens, and provided recognize trafficking as it happens, and provided vital recovery services for over 200 trafficked youth, vital recovery services for over 200 trafficked youth, many of whom were trafficked online by many of whom were trafficked online by Backpage.com or other sites. Research suggests that Backpage.com or other sites. Research suggests that there are over 500 trafficked kids on Seattle streets there are over 500 trafficked kids on Seattle streets alone and the median age of these children is just 13 alone and the median age of these children is just 13 years old. The problem is growing, and without years old. The problem is growing, and without intervention, it is estimated that 77% of trafficked intervention, it is estimated that 77% of trafficked girls will be commercially exploited as adults.
StreetLightUSA is a globally recognized StreetLightUSA is a globally recognized residential center providing holistic care to girls ages residential center providing holistic care to girls ages 11-17 across the United States who have been 11-17 across the United States who have been victimized by child sex trafficking or experienced victimized by child sex trafficking or experienced sexual
sexual trauma. trauma. Founded Founded in in 2009 and 2009 and based based in in thethe Greater Phoenix area, StreetlightUSA promotes Greater Phoenix area, StreetlightUSA promotes awareness, advocates for prevention, and provides awareness, advocates for prevention, and provides 24-hour direct care to victims on a safe and secured 24-hour direct care to victims on a safe and secured campus.
campus. StreetlightUSA StreetlightUSA played played an an instrumental instrumental rolerole in the passage of Arizona’s House Bill 2699, which in the passage of Arizona’s House Bill 2699, which penalized perpetrators selling or having sex with penalized perpetrators selling or having sex with children under
children under the age the age of of 14. 14. The The organization alsoorganization also formed a key partnership with Arizona State formed a key partnership with Arizona State University (“ASU”) to advance its public awareness University (“ASU”) to advance its public awareness efforts.
efforts. StreetlightUSA sees StreetlightUSA sees firsthand, firsthand, and and on on aa daily basis, the trauma that sex trafficking has on daily basis, the trauma that sex trafficking has on girls, and the ease with which platforms such as girls, and the ease with which platforms such as Backpage.com allow girls to be sold online for sex.
Backpage.com allow girls to be sold online for sex. YWCA
YWCA Silicon Silicon Valley Valley is is a a Santa Santa Clara Clara CountyCounty non-profit organization founded in 1905 with a non-profit organization founded in 1905 with a mission to eliminate racism and empower women. mission to eliminate racism and empower women. YWCA
YWCA Silicon Silicon Valley Valley provides provides crisis crisis response,response, intervention and support services to people of all intervention and support services to people of all genders who are survivors of human trafficking, sex genders who are survivors of human trafficking, sex trafficking, and the commercial sexual exploitation of trafficking, and the commercial sexual exploitation of children.
children. Their Their services services for for survivors survivors of of sexsex trafficking include in-person response, 24-crisis line, trafficking include in-person response, 24-crisis line, shelter, housing, counseling, therapy, case shelter, housing, counseling, therapy, case management,
management, and and advocacy. advocacy. As As a a social social serviceservice agency and provider of direct service for survivors of agency and provider of direct service for survivors of violence, the organization is aware of the severe violence, the organization is aware of the severe harms caused by online sex trafficking, particularly harms caused by online sex trafficking, particularly to
to women and women and children. children. Backpage.com is Backpage.com is one one of thof thee predominant sites that enables online sex trafficking predominant sites that enables online sex trafficking
because it is considered a relatively safe and because it is considered a relatively safe and protected platform on which to advertise.
protected platform on which to advertise. SUMMARY OF ARGUMENT SUMMARY OF ARGUMENT
Twenty years ago, Congress enacted the Twenty years ago, Congress enacted the Communications Decency Act (“CDA”) for the Communications Decency Act (“CDA”) for the primary purpose of preventing children from viewing primary purpose of preventing children from viewing indecent
indecent or or otherwise otherwise harmful harmful material material online. online. AsAs one sponsor of the legislation explained, the CDA one sponsor of the legislation explained, the CDA represented an effort to “clean up the Internet—or represented an effort to “clean up the Internet—or the information superhighway, as it is frequently the information superhighway, as it is frequently called—to make that superhighway a safe place for called—to make that superhighway a safe place for our
our children children and and our our families families to to travel travel on.” on.” 141141 Cong. Rec. S8087 (daily ed. June 9, 1995) (statement Cong. Rec. S8087 (daily ed. June 9, 1995) (statement of Sen. Exon).
of Sen. Exon).
The same interest in protecting children led The same interest in protecting children led Congress to include a provision in the CDA entitled Congress to include a provision in the CDA entitled “Protection for Private Blocking and Screening of “Protection for Private Blocking and Screening of Offensive Material,” which is codified at 47 U.S.C. Offensive Material,” which is codified at 47 U.S.C. §
§ 230 230 (“Section (“Section 230”). 230”). Section Section 230 230 prohibits prohibits liablityliablity for “Good Samaritan” website operators who publish for “Good Samaritan” website operators who publish information supplied by third parties or who take information supplied by third parties or who take good faith steps to restrict access to objectionable good faith steps to restrict access to objectionable content.
content. SeeSee 47 U.S.C. 47 U.S.C. § § 230(c). 230(c). The The legislators legislators whowho supported Section 230 emphasized that its goal was supported Section 230 emphasized that its goal was “to help encourage the private sector to protect our “to help encourage the private sector to protect our children from being exposed to obscene and indecent children from being exposed to obscene and indecent material on the Internet” by removing liability for material on the Internet” by removing liability for Internet companies that “make a good faith effort to Internet companies that “make a good faith effort to edit the smut from their systems.” 141 Cong. Rec. edit the smut from their systems.” 141 Cong. Rec. H8471-2 (daily ed. Aug. 4, 1995) (statement of Rep. H8471-2 (daily ed. Aug. 4, 1995) (statement of Rep. Goodlatte).
Goodlatte).
This Court has not yet interpreted the scope of This Court has not yet interpreted the scope of Section 230.
Section 230. Such review Such review is now is now critical, hcritical, however, toowever, to correct the overbroad interpretation of Section 230 correct the overbroad interpretation of Section 230
that
that has has proliferated proliferated among among federal federal courts. courts. In In thisthis matter, for example, the First Circuit Court of matter, for example, the First Circuit Court of Appeals—like
Appeals—like several several other other courts—interpretedcourts—interpreted Section 230 as providing complete immunity to Section 230 as providing complete immunity to websites that solicit and profit from illegal content so websites that solicit and profit from illegal content so long as the legal claims against them bear some long as the legal claims against them bear some relationship to online content provided by a third relationship to online content provided by a third party.
party. See Jane Doe No. 1 v. Backpage.com, LLC See Jane Doe No. 1 v. Backpage.com, LLC ,, 817 F.3d 12, 18-19 (1st Cir. 2016) (collecting cases 817 F.3d 12, 18-19 (1st Cir. 2016) (collecting cases evincing courts’ “preference for broad construction” of evincing courts’ “preference for broad construction” of Section
Section 230). 230). Because Because Backpage’s Backpage’s “adult” “adult” servicesservices section contains advertisements written by paid section contains advertisements written by paid users, the First Circuit held that the site was users, the First Circuit held that the site was protected from liability for aiding the Petitioners’ protected from liability for aiding the Petitioners’ sexual exploitation as minors, even though the sexual exploitation as minors, even though the Petitioners persuasively alleged that Backpage took Petitioners persuasively alleged that Backpage took an active role in shaping the content of the ads and an active role in shaping the content of the ads and deliberately tailored its website to “make sex deliberately tailored its website to “make sex trafficking easier.”
trafficking easier.” Id.Id. at at 29. 29. In In other other words, words, thethe First Circuit granted Backpage immunity under First Circuit granted Backpage immunity under Section 230 for deliberately facilitating the sex Section 230 for deliberately facilitating the sex trafficking of the Petitioners when they were trafficking of the Petitioners when they were children.
children. This
This sweeping interpretation of Section 230 issweeping interpretation of Section 230 is not what Congress intended when it enacted not what Congress intended when it enacted legislation seeking to encourage website operators to legislation seeking to encourage website operators to behave
behave responsibly. responsibly. Indeed, Indeed, the the First First Circuit’sCircuit’s interpretation is particularly nonsensical because it interpretation is particularly nonsensical because it interprets Section 230 in a manner that directly interprets Section 230 in a manner that directly undermines the statute’s goal of protecting children undermines the statute’s goal of protecting children from obscenity.
from obscenity.
Given the importance of interpreting Section 230 Given the importance of interpreting Section 230 in a manner consistent with its purpose and the in a manner consistent with its purpose and the harm that will result from the First Circuit’s harm that will result from the First Circuit’s
overbroad interpretation, amici respectually ask that overbroad interpretation, amici respectually ask that this Court grant the petition for certiorari.
this Court grant the petition for certiorari. ARGUMENT
ARGUMENT I.
I. SECTIONSECTION 230230 WAS WAS NOTNOT INTENDEDINTENDED TOTO PROVIDE
PROVIDE WEBSITE WEBSITE OPERATORSOPERATORS WITH WITH BLANKET
BLANKET “IMMUNITY”“IMMUNITY” FORFOR THEIRTHEIR ILLEGAL
ILLEGAL ACTS. ACTS.
Congress enacted Section 230 in 1996 to Congress enacted Section 230 in 1996 to encourage Internet content providers to take encourage Internet content providers to take affirmative actions to prevent obscene materials from affirmative actions to prevent obscene materials from reaching children by providing them with a limited reaching children by providing them with a limited defense
defense from from liability. liability. The The title title of of the the provision,provision, “Protection for Private Blocking and Screening of “Protection for Private Blocking and Screening of Offensive Material,” makes clear that Congress Offensive Material,” makes clear that Congress intended Section 230 to serve as a shield for intended Section 230 to serve as a shield for companies that protect children, rather than as a companies that protect children, rather than as a blanket grant of immunity to websites that facilitate blanket grant of immunity to websites that facilitate sex crimes against children.
sex crimes against children.
Section 230 contains two provisions that exempt Section 230 contains two provisions that exempt website operators (and other services responsible for website operators (and other services responsible for providing content to Internet users) from liability providing content to Internet users) from liability under
under certain certain circumstances. circumstances. The The first, first, SubsectionSubsection (c)(1), precludes claims against websites that seek to (c)(1), precludes claims against websites that seek to treat them “as a publisher or speaker” of information treat them “as a publisher or speaker” of information provided
provided by by third third parties. parties. The The second,second, Subsection
Subsection (c)(2), (c)(2), protects protects websites websites that ethat engage ngage inin good faith conduct to restrict access to objectionable good faith conduct to restrict access to objectionable material (or
material (or to help to help others restrict others restrict such access). such access). BothBoth subsections are contained under the subheading, subsections are contained under the subheading, “Protection for ‘Good Samaritan’ Blocking and “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material.”
Screening of Offensive Material.”
Most courts, including the First Circuit, have Most courts, including the First Circuit, have misconstrued Subsection (c)(1) to create “immunity” misconstrued Subsection (c)(1) to create “immunity” from all civil and state criminal liability for websites from all civil and state criminal liability for websites
that contain content authored in part by someone that contain content authored in part by someone other th
other than the an the operator of operator of the the site. site. This This misguidedmisguided interpretation has allowed criminal activity to interpretation has allowed criminal activity to flourish online, because the prevailing judicial view flourish online, because the prevailing judicial view trends towards exonerating any behavior—no matter trends towards exonerating any behavior—no matter how harmful—so long as it takes place online and how harmful—so long as it takes place online and bears some relationship to third-party content.
bears some relationship to third-party content. See,See, e.g.
e.g.,, Witkoff v. Topix LLC Witkoff v. Topix LLC , No. B257656, 2015 WL, No. B257656, 2015 WL 5297912, at *6-7 (Cal. Ct. App. Sept. 10, 2015), 5297912, at *6-7 (Cal. Ct. App. Sept. 10, 2015), asas modified
modified (Sept. 18, 2015) (affirming the trial court’s (Sept. 18, 2015) (affirming the trial court’s holding that Section 230 protected a website holding that Section 230 protected a website allegedly designed to facilitate drug trafficking from allegedly designed to facilitate drug trafficking from liability related to the overdose of a user);
liability related to the overdose of a user); Gibson v.Gibson v. Craigslist
Craigslist, No. 08-cv-7735, 2009 WL 1704355, at *3-4, No. 08-cv-7735, 2009 WL 1704355, at *3-4 (S.D.N.Y. June 15, 2009) (holding that Section 230 (S.D.N.Y. June 15, 2009) (holding that Section 230 barred a claim against Craigslist for publishing an barred a claim against Craigslist for publishing an advertisement that sold the handgun used to shoot advertisement that sold the handgun used to shoot the plaintiff).
the plaintiff).
But as the Ninth Circuit observed, Section 230 But as the Ninth Circuit observed, Section 230 was not meant to “create a lawless no-man’s-land on was not meant to “create a lawless no-man’s-land on the Internet.”
the Internet.” Fair Hous. Council of San FernandoFair Hous. Council of San Fernando Valley v. Roomates.com
Valley v. Roomates.com, 521 F.3d 1157, 1164 (9th, 521 F.3d 1157, 1164 (9th Cir. 2008).
Cir. 2008). Instead, tInstead, the section he section was only was only intended intended toto provide a defense to website operators acting in good provide a defense to website operators acting in good faith who do not have knowledge of the harmful faith who do not have knowledge of the harmful content
content on on their their sites. sites. Congress Congress never never could could havehave anticipated that courts would extend Section 230’s anticipated that courts would extend Section 230’s protection to websites like Backpage that willfully protection to websites like Backpage that willfully solicit (and profit from) the sexual exploitation of solicit (and profit from) the sexual exploitation of children.
children.
This Court has long recognized that a statute This Court has long recognized that a statute should not be interpreted “to produce a result at odds should not be interpreted “to produce a result at odds with the purposes underlying the statute” but rather with the purposes underlying the statute” but rather “in a way that will further Congress’ overriding “in a way that will further Congress’ overriding objective.”
36, 56 (
36, 56 (1983). 1983). In lighIn light of t of the First the First Circuit’s departureCircuit’s departure from this fundamental principle, it is critically from this fundamental principle, it is critically important that this Court grant review to realign the important that this Court grant review to realign the judicial
judicial interpretation interpretation of of Section Section 230 230 with with itsits legislative purpose.
legislative purpose. A.
A. Congress Only Intended For Section 230Congress Only Intended For Section 230 To Protect Websites From Facing To Protect Websites From Facing Liability As Publishers Of Third Party Liability As Publishers Of Third Party Content, Retaining Distributor Liability Content, Retaining Distributor Liability For Knowing Violations Of The Law.
For Knowing Violations Of The Law.
Congress enacted Section 230 as a direct Congress enacted Section 230 as a direct response to
response to Stratton Oakmont, Inc. v. ProdigyStratton Oakmont, Inc. v. Prodigy Services Co.
Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24,, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
1995). SeeSee H.R. Rep. No. 104-458, at 194 (1996); H.R. Rep. No. 104-458, at 194 (1996); 141141 Cong. Rec. H8470 (daily ed. Aug. 4, 1995) (statement Cong. Rec. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Cox) (stating, in introducing Section 230, that of Rep. Cox) (stating, in introducing Section 230, that it would “protect” website operators “from taking on it would “protect” website operators “from taking on liability such as occurred in the
liability such as occurred in the Prodigy Prodigy case in Newcase in New York”).
York”).
Given this origin, it is important to analyze what Given this origin, it is important to analyze what occurred in the
occurred in the StrattonStratton case. case. The The defendant,defendant, Prodigy, hosted a group of online message boards Prodigy, hosted a group of online message boards that were moderated to delete messages that that were moderated to delete messages that exhibited “offensiveness and bad taste . . . .” exhibited “offensiveness and bad taste . . . .” Stratton
Stratton, 1995 WL 323710, 1995 WL 323710 at *4 (internal citationat *4 (internal citation omitted).
omitted). On one On one such message such message board, Money board, Money Talk, aTalk, a user posted that the plaintiffs’ securities investment user posted that the plaintiffs’ securities investment firm was a “major criminal fraud” filled with brokers firm was a “major criminal fraud” filled with brokers “who either lie for a living or get fired.”
“who either lie for a living or get fired.” Id.Id. at *1at *1 (internal citation omitted). Plaintiffs sued for (internal citation omitted). Plaintiffs sued for defamation.
defamation.
The primary legal issue in the case was whether The primary legal issue in the case was whether Prodigy should be treated as a “publisher” or Prodigy should be treated as a “publisher” or “distributor” of the message.
distinction materially impacted Prodigy’s potential distinction materially impacted Prodigy’s potential liability, because under a traditional pre-Internet liability, because under a traditional pre-Internet defamation analysis, a publisher can be liable for defamation analysis, a publisher can be liable for reprinting a statement even without knowledge of its reprinting a statement even without knowledge of its defamatory nature.
defamatory nature. See Doe v. McMillanSee Doe v. McMillan, 412 U.S., 412 U.S. 306, 314 n.8 (1974) (the “republication of a libel” is 306, 314 n.8 (1974) (the “republication of a libel” is “generally unprotected”); Restatement (Second) of “generally unprotected”); Restatement (Second) of Torts § 578 (“[O]ne who repeats or otherwise Torts § 578 (“[O]ne who repeats or otherwise republishes defamatory matter is subject to liability republishes defamatory matter is subject to liability as
as if if he he had had originally originally published published it.”). it.”). DistributorsDistributors “such as book stores and libraries,” however, “may be “such as book stores and libraries,” however, “may be liable for defamatory statements of others only if liable for defamatory statements of others only if they knew or had reason to know of the defamatory they knew or had reason to know of the defamatory statement at issue.”
statement at issue.” StrattonStratton, 1995 WL 323710 at *3., 1995 WL 323710 at *3. In
In StrattonStratton, the court noted that online message, the court noted that online message boards “should generally be regarded in the same boards “should generally be regarded in the same context as bookstores, libraries and network context as bookstores, libraries and network affiliates”—
affiliates”— e.g.e.g., as mere distributors, rather than, as mere distributors, rather than publishers.
publishers. Id.Id. at at *5. *5. However, However, because because ProdigyProdigy monitored the content of its sites, the court found monitored the content of its sites, the court found that it “exercised sufficient editorial control over its that it “exercised sufficient editorial control over its computer bulletin boards to render it a publisher computer bulletin boards to render it a publisher with the same responsibilities as a newspaper.”
with the same responsibilities as a newspaper.” Id.Id. at *3.
at *3. In other In other words, Prodigy’s words, Prodigy’s laudable attempts laudable attempts toto filter and remove indecent material from its website filter and remove indecent material from its website increased its potential liability by making it increased its potential liability by making it responsible for any inappropriate content on its site. responsible for any inappropriate content on its site.
Finding this holding bad for public policy, Finding this holding bad for public policy, Congress enacted Section 230 as an amendment to Congress enacted Section 230 as an amendment to the
the CDA. CDA. The The House House Conference Conference Report Report for for thethe legislation that would become Section 230 explains: legislation that would become Section 230 explains:
One of the specific purposes of this section is One of the specific purposes of this section is to overrule
to overrule Stratton-Oakmont v. ProdigyStratton-Oakmont v. Prodigy and and any other similar decisions which have treated any other similar decisions which have treated
such providers and users as publishers or such providers and users as publishers or speakers of content that is not their own speakers of content that is not their own because they have restricted access to because they have restricted access to objectionable material. The conferees believe objectionable material. The conferees believe that such decisions create serious obstacles to that such decisions create serious obstacles to the important federal policy of empowering the important federal policy of empowering parents to determine the content of parents to determine the content of communications their children receive through communications their children receive through interactive computer services.
interactive computer services.
H.R. Conf. Rep. 104-458 at 194 (1996). H.R. Conf. Rep. 104-458 at 194 (1996). Representative Cox, a sponsor of the amendment, Representative Cox, a sponsor of the amendment, stated that that goal of the legislation was to stated that that goal of the legislation was to encourage operators to monitor online content by encourage operators to monitor online content by protecting them from the type of liability that had protecting them from the type of liability that had arisen in
arisen in Stratton.Stratton. 141 141 Cong. Cong. Rec. Rec. H8470 H8470 (daily (daily ed.ed. Aug.
Aug. 4, 4, 1995). 1995). Representative Representative Cox Cox was was clear clear thatthat websites should not face
websites should not face StrattonStratton-type liablity “for-type liablity “for helping us and for helping us solve” the problem of helping us and for helping us solve” the problem of harmful content on the Internet through increased harmful content on the Internet through increased self-monitoring.
self-monitoring. Id.Id.
Thus, when Congress said it wanted to overrule Thus, when Congress said it wanted to overrule Stratton
Stratton, it simply meant that it wanted to remove, it simply meant that it wanted to remove the higher standard of publisher liability that the higher standard of publisher liability that Stratton
Stratton applied for websites exercising editorialapplied for websites exercising editorial functions—particularly where those functions would functions—particularly where those functions would protect children from accessing obscene or protect children from accessing obscene or inappopriate materials.
inappopriate materials. SeeSee 141 Cong. Rec. S8345141 Cong. Rec. S8345 (daily ed. June 14, 1995) (statement of Sen. Coats) (daily ed. June 14, 1995) (statement of Sen. Coats) (stating
(stating that that the goal the goal of of Section 230 Section 230 was to was to ensureensure that “a company who tries to prevent obscene or that “a company who tries to prevent obscene or indecent material under this section” would not be indecent material under this section” would not be “held liable as a publisher for defamatory statements “held liable as a publisher for defamatory statements for which they would not otherwise have been for which they would not otherwise have been liable”).
liable”). Indeed, Indeed, the the plain plain language language of of Section Section 230230 states that websites may not “be treated as the states that websites may not “be treated as the
publisher or speaker” of information provided by publisher or speaker” of information provided by others, but says nothing about liability as others, but says nothing about liability as distributors
distributors of of that that information. information. 47 47 U.S.C. U.S.C. § § 230(c).230(c). In fact, distributor liability, which attaches when In fact, distributor liability, which attaches when a website operator “knew or had reason to know” of a website operator “knew or had reason to know” of the challenged content on its site, is precisely the the challenged content on its site, is precisely the type of liability that Congress intended to preserve. type of liability that Congress intended to preserve. Stratton
Stratton, , 1995 1995 WL WL 323710 323710 at at *3. *3. Notably, Notably, inin overruling
overruling Stratton, Congress did not mentionStratton, Congress did not mention another key decision,
another key decision, CubbyCubby v. Compuserve Inc.v. Compuserve Inc., 776, 776 F. Supp. 135 (S.D.N.Y. 1991), which held that F. Supp. 135 (S.D.N.Y. 1991), which held that websites are “the functional equivalent of a more websites are “the functional equivalent of a more traditional news vendor” and thus should generally traditional news vendor” and thus should generally be treated as distributors for libel claims made be treated as distributors for libel claims made against them based on third-party content.
against them based on third-party content. Id.Id. atat 140-41.
140-41. Anything Anything less, less, thethe CubbyCubby court held, “wouldcourt held, “would impose an undue burden on the free flow of impose an undue burden on the free flow of information.”
information.” Id.Id. at at 140. 140. In In that that case, case, the the courtcourt ultimately granted summary judgment in favor of ultimately granted summary judgment in favor of the defendant, the issuer of a general online the defendant, the issuer of a general online information service, because there was nothing to information service, because there was nothing to show that it “knew or had reason to know of the” show that it “knew or had reason to know of the” defamatory statements on its service.
defamatory statements on its service. Id.Id. at 141.at 141. Congress, which never referred to
Congress, which never referred to CubbyCubby oror distributor liability at all, apparently observed no distributor liability at all, apparently observed no error in
error in this decision. this decision. There is There is therefore no therefore no reason toreason to believe that Congress intended to supplant the believe that Congress intended to supplant the existence of distributor liability through Section 230. existence of distributor liability through Section 230. Thus, Congress did not enact Section 230 to Thus, Congress did not enact Section 230 to provide widespread immunity for knowing, willful provide widespread immunity for knowing, willful violations of the law that occur through the Internet. violations of the law that occur through the Internet. Instead, Congress intended only that websites not Instead, Congress intended only that websites not face the heightened standard of liability that applies face the heightened standard of liability that applies to “publishers”—as opposed to “distributors”—under to “publishers”—as opposed to “distributors”—under a traditional defamation law analysis.
The courts that have considered this issue have The courts that have considered this issue have largely disregarded the foregoing legislative history largely disregarded the foregoing legislative history and have instead interpreted Section 230 expansively and have instead interpreted Section 230 expansively to obscure the distinction between liability for to obscure the distinction between liability for publishers
publishers and and distributors. distributors. This This broadbroad interpretation originated with
interpretation originated with Zeran v. AmericaZeran v. America Online, Inc
Online, Inc., 129 F.3d 327 (4th Cir. 1997), the first., 129 F.3d 327 (4th Cir. 1997), the first case to
case to consider the consider the scope of scope of Section 230. Section 230. There, theThere, the Fourth Circuit rejected the argument that distributor Fourth Circuit rejected the argument that distributor liability remained following the enactment of Section liability remained following the enactment of Section 230, instead holding that the “plain language” of the 230, instead holding that the “plain language” of the statute “creates a federal immunity to any cause of statute “creates a federal immunity to any cause of action that would make service providers liable for action that would make service providers liable for information originating with a third-party user of the information originating with a third-party user of the service.”
service.” Id.Id. at at 330. 330. Several Several circuit circuit courts courts havehave adopted this interpretation, often with little more adopted this interpretation, often with little more than a cursory analysis.
than a cursory analysis. See, e.g.See, e.g.,, Johnson v. ArdenJohnson v. Arden,, 614 F.3d 785, 792 (8th Cir. 2010) (relying on
614 F.3d 785, 792 (8th Cir. 2010) (relying on ZeranZeran for the proposition that Section 230 immunized the for the proposition that Section 230 immunized the defendant from liability “for material originating defendant from liability “for material originating with a third party”).
with a third party”).22
The Fourth Circuit’s conflation of publisher and The Fourth Circuit’s conflation of publisher and distributor liability is unsound, particularly when distributor liability is unsound, particularly when applied to a case such as this one. Under a applied to a case such as this one. Under a distributor liability analysis, a content distributor distributor liability analysis, a content distributor may be liable only when it has knowledge of the may be liable only when it has knowledge of the
2
2 Not Not all courts all courts have agreed, have agreed, however. however. The SeventhThe Seventh
Circuit, for
Circuit, for example, example, recognized that recognized that Section 230 Section 230 “as“as a whole cannot be understood as a general
a whole cannot be understood as a general
prohibition of civil liability for web-site operators and prohibition of civil liability for web-site operators and other online content hosts.”
other online content hosts.” See Chicago Lawyers’See Chicago Lawyers’ Comm. for Civil Rights Under Law,
Comm. for Civil Rights Under Law, Inc. v. Craigslist,Inc. v. Craigslist, Inc
challenged
challenged content content but but distributes distributes it it anyway. anyway. Here,Here, Backpage has concrete knowledge about the Backpage has concrete knowledge about the underage sex trafficking that is occurring on its underage sex trafficking that is occurring on its website—indeed, it affirmatively encourages, and website—indeed, it affirmatively encourages, and profits from, this activity.
profits from, this activity. See Jane Doe No. 1See Jane Doe No. 1, 817, 817 F.3d at
F.3d at 17, 20-21. 17, 20-21. Congress Congress cannot have cannot have intended intended toto “immunize” such willful conduct—in fact, the word “immunize” such willful conduct—in fact, the word “immunity” does not appear in Section 230 at all. “immunity” does not appear in Section 230 at all. Review of the First Circuit’s decision is necessary to Review of the First Circuit’s decision is necessary to give this Court an opportunity to resolve confusion in give this Court an opportunity to resolve confusion in the Courts of Appeals by explaining that, as its the Courts of Appeals by explaining that, as its legislative history makes clear, Section 230 does not legislative history makes clear, Section 230 does not protect websites that knowingly facilitate illegal protect websites that knowingly facilitate illegal activities.
activities. B.
B. Courts Should Interpret Section 230 InCourts Should Interpret Section 230 In Accordance
Accordance With With Its Its Purpose Purpose OfOf Protecting Children From Harmful Protecting Children From Harmful Materials And Encouraging Good Faith Materials And Encouraging Good Faith Content Monitoring.
Content Monitoring.
It is beyond dispute that Congress’ primary It is beyond dispute that Congress’ primary purpose in enacting the CDA was to protect children purpose in enacting the CDA was to protect children from viewing harmful content.
from viewing harmful content. SeeSee H.R. Conf. Rep.H.R. Conf. Rep. 104-458 at 193 (1996) (through the CDA, Congress 104-458 at 193 (1996) (through the CDA, Congress sought to “take effective action to protect children sought to “take effective action to protect children and families from online harm”);
and families from online harm”); 141 Cong. Rec.141 Cong. Rec. S8088 (daily ed. June 9, 1995) (statement of Sen. S8088 (daily ed. June 9, 1995) (statement of Sen. Exon) (“The fundamental purpose of the Exon) (“The fundamental purpose of the Communications Decency Act is to provide Communications Decency Act is to provide much-needed protection for children.”); 141 Cong. Rec. needed protection for children.”); 141 Cong. Rec. S8089 (daily ed. June 9, 1995) (statement of Sen. S8089 (daily ed. June 9, 1995) (statement of Sen. Exon) (“The heart and the soul of the Exon) (“The heart and the soul of the Communications Decency Act are its protection for Communications Decency Act are its protection for families
families and chiand children.”). ldren.”). As As Senator Exon, Senator Exon, a sponsa sponsoror of the legislation, further explained:
[T]he information superhighway should not [T]he information superhighway should not become
become a a red red light light district. district. This This legislationlegislation will keep that from happening and extend the will keep that from happening and extend the standards of decency which have protected standards of decency which have protected telephone users to new telecommunications telephone users to new telecommunications devices.
devices.
Once passed, our children and families will be Once passed, our children and families will be better protected from those who would better protected from those who would electronically cruise the digital world to electronically cruise the digital world to engage children in inappropriate engage children in inappropriate communciations and introductions.
communciations and introductions.
141 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) 141 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon).
(statement of Sen. Exon). A
A similar similar desire desire to to protect protect underage underage InternetInternet users drove the enactment of the amendment that users drove the enactment of the amendment that became Section 230. Representative Cox, a became Section 230. Representative Cox, a co-sponsor of the amendment, said:
sponsor of the amendment, said: As
As the the parent parent of of two, two, I I want want to to make make sure sure thatthat my children have access to this future and that my children have access to this future and that I do not have to worry about what they might I do not have to worry about what they might be running
be running into on into on line. line. I would I would like to like to keepkeep that out of my house and off of my computer. that out of my house and off of my computer.
141 Cong. Rec. H8469 (daily ed. Aug. 4, 1995). 141 Cong. Rec. H8469 (daily ed. Aug. 4, 1995). Another
Another co-sponsor co-sponsor of of the the amendment amendment echoed echoed thisthis sentiment:
sentiment:
We are all against smut and pornography, and, We are all against smut and pornography, and, as the parents of two small computer-literate as the parents of two small computer-literate children, my wife and I have seen our kids find children, my wife and I have seen our kids find their way into these chat rooms that make their way into these chat rooms that make their
their middle-aged parents middle-aged parents cringe. cringe. So So let let us us allall stipulate right at the outset the importance of stipulate right at the outset the importance of protecting our kids and going to the issue of the protecting our kids and going to the issue of the best way to do it.
141 Cong. Rec. H8470 (daily ed. Aug. 4, 1995) 141 Cong. Rec. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Wyden).
(statement of Rep. Wyden).
In keeping with this purpose, Section 230 was In keeping with this purpose, Section 230 was introduced “to encourage the development of introduced “to encourage the development of technologies which maximize user control over what technologies which maximize user control over what information is received by individuals, families, and information is received by individuals, families, and schools who use the Internet and other interactive schools who use the Internet and other interactive computer services” and “to remove disincentives for computer services” and “to remove disincentives for the development and utilization of blocking and the development and utilization of blocking and filtering technologies that empower parents to filtering technologies that empower parents to restrict their children’s access to objectionable or restrict their children’s access to objectionable or inappropriate
inappropriate online online material.” material.” 47 47 U.S.C. U.S.C. § § 230(b).230(b). In other words, Congress’ goal in enacting Section In other words, Congress’ goal in enacting Section 230 was “to help encourage the private sector to 230 was “to help encourage the private sector to protect our children from being exposed to obscene protect our children from being exposed to obscene and indecent material on the Internet” by removing and indecent material on the Internet” by removing “the liability of providers such as Prodigy who “the liability of providers such as Prodigy who currently make a good faith effort to edit the smut currently make a good faith effort to edit the smut from their systems.” 141 Cong. Rec. H8471-72 (daily from their systems.” 141 Cong. Rec. H8471-72 (daily ed. Aug. 4, 1995) (statement of Rep. Goodlatte).
ed. Aug. 4, 1995) (statement of Rep. Goodlatte).
Congress hoped that the increased incentives for Congress hoped that the increased incentives for self-regulation would obviate the need for self-regulation would obviate the need for government regulation, which many legislators government regulation, which many legislators believed would impede the development of “[t]he believed would impede the development of “[t]he Internet and other interactive computer services.” Internet and other interactive computer services.” Id.
Id. § 230(a)(4);§ 230(a)(4); seesee 141 Cong. Rec. H8470 (daily ed.141 Cong. Rec. H8470 (daily ed. Aug.
Aug. 4, 4, 1995) 1995) (statement (statement of of Rep. Rep. Cox) Cox) (stating (stating thatthat the amendment creating Section 230 “will establish the amendment creating Section 230 “will establish as the policy of the United States that we do not wish as the policy of the United States that we do not wish to have content regulation by the Federal to have content regulation by the Federal Government of what is on the Internet, that we do Government of what is on the Internet, that we do not wish to have a Federal Computer Commission not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be because frankly the Internet has grown up to be what it is without that kind of help from the what it is without that kind of help from the
Government”).
Government”). In In fact, fact, on on the the day day that that thethe amendment passed the House of Representatives, amendment passed the House of Representatives, the Congressional Record’s Daily Digest reported the Congressional Record’s Daily Digest reported that the amendment had the twin aims of protecting that the amendment had the twin aims of protecting “from liability those providers and users seeking to “from liability those providers and users seeking to clean up the Internet and prohibiting the FCC from clean up the Internet and prohibiting the FCC from imposing content or any regulation of the Internet.” imposing content or any regulation of the Internet.” 141 Cong. Rec. D993 (daily ed. Aug. 4, 1995).
141 Cong. Rec. D993 (daily ed. Aug. 4, 1995).
Congress’ desire to avoid federal regulation of the Congress’ desire to avoid federal regulation of the Internet does not mean that Congress sought to Internet does not mean that Congress sought to create full-fledged immunity for all willful create full-fledged immunity for all willful misconduct that
misconduct that occurs online. occurs online. In fact, In fact, the lthe legislativeegislative history indicates precisely the opposite—Congress history indicates precisely the opposite—Congress wanted to retain traditional liability for entities with wanted to retain traditional liability for entities with knowledge of misconduct and others acting in bad knowledge of misconduct and others acting in bad faith.
faith. It It is is no no coindence coindence that that both both Section Section 230230 defenses are contained under a heading stating that defenses are contained under a heading stating that they are meant to apply only to a “Good Samaritan.” they are meant to apply only to a “Good Samaritan.” In introducing the amendment, Representative Cox In introducing the amendment, Representative Cox said the purpose of the language was to avoid said the purpose of the language was to avoid regulation and to “protect computer Good regulation and to “protect computer Good Samaritans, online service providers, anyone who Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive takes steps to screen indecency and offensive material
material for for their customers.” their customers.” 141 Cong. 141 Cong. Rec. H8470Rec. H8470 (daily ed. Aug. 4, 1995);
(daily ed. Aug. 4, 1995); see alsosee also H.R. Conf. Rep. No.H.R. Conf. Rep. No. 104-458, at 188 (stating that Section 230 “provides 104-458, at 188 (stating that Section 230 “provides ‘Good Samaritan’ protections from civil liability for ‘Good Samaritan’ protections from civil liability for providers or users of an interactive computer service providers or users of an interactive computer service for actions to restrict or to enable restriction of access for actions to restrict or to enable restriction of access to
to objectionable objectionable online online material”). material”). And And the the HouseHouse Conference Report, in describing proposed defenses Conference Report, in describing proposed defenses to liability similar to those incorporated in Section to liability similar to those incorporated in Section 230, stated that they would “assure that attention is 230, stated that they would “assure that attention is focused on bad actors and not those who lack focused on bad actors and not those who lack
