The Internet has emerged over the last two decades as the dominant medium of electronic communication, commerce, and speech in the world.
In the United States and other western democracies, this decentralized, no-gatekeeper network of networks allows billions to connect and communicate with each other and the world both individually and through intermediaries like AOL in the early days and Facebook and Twitter today. It is a medium of communication like no other. It allows anyone and everyone with a computer and Internet connection to publish and speak.
When we celebrate the Internet, we most often focus on the genius of the technology and the innovative technologists, the “Wizards who Stayed Up Late,” the creators of the World Wide Web, devices like the IPhone and incredible social applications like Google and Facebook. And we should!
However, what the Zeran case reminds us is that the Internet could not become what it is today without a “policy architecture” that facilitates a no-gatekeeper technology. Zeran, upholding §230 of the Communications Decency Act (CDA), embeds in law that Internet ISPs can connect millions of users without the burden of liability for the speech engaged in by those speakers.
ISPs may publish and post but only the speaker is liable for his or her speech, such as the arguably defamatory speech posted on AOL and directed at Zeran. And no liability meant no gatekeepers. And the shield of Zeran has stood up to protect ISPs from legal liability for a variety of objectionable speech published on the Internet.
Without §230 of the CDA, or some legal regime akin to it, the potential of the Internet would have been stifled. AOL and other intermediaries would have been forced to do the impossible: review and edit postings in advance, hire a squad of lawyers to limit postings, and defend a myriad of lawsuits. Large and well-financed operators could operate, but speech would be limited and new applications might never have emerged if required to finance costly legal overhead to do business on the Internet. It is almost impossible to imagine the rise of Facebook or Twitter without the “breathing room” afforded by §230.
It is important in this context to emphasize that §230 was not a foregone outcome of the legislative and legal battle from which it emerged. I was one of the leaders of the Interactive Working Group (IWG), an ad-hoc non-partisan coalition of industry and advocacy organizations formed to oppose the CDA. The IWG included companies, industry associations, and advocacy organizations that included a diversity of the communications and emerging Internet industry and advocacy organizations, both liberal and conservative.
I believe it is instructive to consider how IWG worked to bring about §230. The lessons learned are particularly important today in the face of mounting calls by legislators and states attorney generals to revisit and revise §230 to limit the liability shield of intermediaries to counter a growing list of harms including sex trafficking, cyber bullying, hate speech, fake news, and incitement to terrorism and violence.
In 1995 the CDA was proposed to address pornography on the Internet. The solution was simple: extend the indecency rules governing mass media radio and television to the Internet.
As the CDA, sponsored by Senator James Exon (D-Neb.) moved through the Senate (hereinafter EXON CDA), the IWG faced an uphill battle. We decided to educate lawmakers that the Internet was fundamentally different in architecture and operation. The IWG worked to educate policy makers about the nature of the new technology and focused their attention on user empowerment blocking tools to empower users to control what was available on their computers to meet their own choices and protect children. We made the case that this was the only effective, and least restrictive, constitutional way to address objectionable speech in this new medium.
The IWG also sought persuade Congress to support a Sen. Patrick Leahy’s (D-VT) proposal (S. 714, the Child Protection, User Empowerment, and Free Expression in Interactive Media Study Bill, April 1995) to “study” the new medium.
However, Congress has never met a pornography proposal it did not embrace. Indeed, regulating pornography was a particular promise in the Republican “Contract with America” that Republicans used to frame the 1994 election, and it resulted in Republicans getting control of the House and Newt Gingrich the speakership. Thus, despite our efforts, the Exon CDA passed the Senate in June 1995. (For more background on the CDA, see Robert Cannon, The Legislative History of Senator Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway).
In the House, the IWG moved in a different direction. We persuaded the House Speaker to declare Exxon unconstitutional. On June 20, 1995, Newt Gingrich put out the following statement
I think that the Amendment you referred to by Senator Exon in the Senate will have no real meaning and have no real impact and in fact I don’t think will survive. It is clearly a violation of free speech and it’s a violation of the right of adults to communicate with each other. I don’t agree with it and I don’t think it is a serious way to discuss a serious issue, which is, how do you maintain the right of free speech for adults while also protecting children in a medium that is available to both? That’s also frankly a problem with television and radio, and it’s something that we have to wrestle with in a calm and mature way as a society. I think by offering a very badly thought out and not very productive amendment, if anything, that put the debate back a step.
Under that cover, IWG worked with Reps. Chris Cox (R-CA) and Ron Wyden (D-Ore.) to propose alternative legislation, H.R. 1978, the Internet Freedom and Family Empowerment Act, June 30, 1995 (hereinafter Cox-Wyden). IWG put together a study published by the Center for Democracy and Technology called Parental Empowerment, Child Protection and Free Speech in Interactive Media. Jerry Berman and Danny Weitzner of CDT, Jill Lesser of People for the American Way, and the late Ron Plesser of Piper and Marbury, wrote the study. The study recommended a non-regulatory approach along the lines of §230. As Sen. Leahy acknowledged, the IWG study became the policy framework for Cox-Wyden and §230.
Cox-Wyden passed the House as a freestanding amendment to the main Telecommunications Act then before the Congress in response to the Exxon CDA. Essentially, the House (by an overwhelming vote) took a wholly different approach to the problem of objectionable speech than the Senate.
Heading into conference, pressure from family groups supporting the Exon CDA mounted; and neither Wyden nor Cox was appointed as conferees. But our coalition put up enough of a fight to persuade the conferees to adopt all of §230. The provision, as opposed to the creation of a “Federal Computer Commission,” nevertheless remained in the final CDA section of the Telecommunications Act to shield intermediaries from legal liability for defamation and other forms of objectionable speech or “Good Samaritan” efforts to protect and empower users against such speech. For more on this, see the panel discussion featuring Sen. Ron Wyden, Jerry Berman, Danny Weitzner and others on the Statute that Saved the Internet in 2013, celebrating §230 on its 15th Anniversary.
The subsequent court battle resulted in a Supreme Court decision striking down the Exon CDA as violating the First Amendment, but also upholding as constitutional both the findings and operative provisions of §230. While we know the case as ACLU v Reno as the ACLU was the first to file a challenge to the law in court, the Circuit and Supreme Court adopted the reasoning of a second challenge to the CDA.
After the ACLU filed, three members of the IWG (CDT, AOL, and the American Library Association) organized a second challenge to the CDA, American Library Association v. Reno (hereinafter the ALA case), that was consolidated with the ACLU challenge. For the inside story of these challenges, see Kara Swisher, AOL.COM.
In court, ALA lawyers presented the case and focused on the nature of the technology. They argued that in this vast sea of content, the CDA violated the First Amendment because the most effective and least restrictive means for addressing objectionable content was to empower users to choose what content to access themselves. Adopting this rationale to strike down the Exon CDA but leaving §230 in place, the decision transformed the Communications Decency Act into the “Communications Freedom Act.”
The lesson going forward is that a legal challenge was not enough to address the threat to the Internet. It required the presentation of an alternative solution that could prevail in Congress and pass muster in the courts. See John B. Morris, Jr and Cynthia M. Wong, Revisiting User Control: The Emergence and Success of a First Amendment Theory for the Internet Age. To achieve this result, defenders of the Internet had to engage in legislation and litigation and devise practical effective policy alternatives and solutions.
Today, pressure is mounting to enact exceptions to §230. Civil liberties groups are making the case in litigation that exceptions that expose intermediaries to broad liability would fundamentally shift the Internet to a gatekeeper regime. But even if the 230 defense holds, there are problems to resolve that involve new policy initiatives in forums other than the courts.
Ironically, the Good Samaritan provisions that exempt intermediaries from liability for taking steps to limit “objectionable speech” could begin to have unintended negative impacts on speech if ISPs bow to pressure and censor hate speech or fake news and other forms of controversial speech under the “Good Samaritan” protection of §230 that shields them from liability for doing so. The drafters of §230 at the time envisioned an Internet of many ISPs competing for customers and providing such a wide range of speech platforms that censorship would be minimized. And this has worked well.
But today, with few ISPs exercising huge network effects (like Facebook that serves over 2 billion users), “Good Samaritan” speech limitations, however well intentioned, might curtail the ability of all to speak and access information because few entities control the platforms. This, in turn, might create pressure for government to regulate content decisions by intermediaries for or against one form of speech or another.
To address these new speech issues, we need a new Interactive Working Group coalition to oppose unwise tampering with §230 but who work together to flesh out and propose workable solutions and best practices to foster Internet industry self-government. If “intermediaries” like Backpage are in fact producing the content advertised on a site, lawmakers could find a solution that treated such a provider as a content producer outside the intermediary liability protection of §230. And if intermediaries take steps to limit content, they should be working together to develop “best practices and standards” to control objectionable speech without harming the First Amendment. Without workable private sector alternatives, the government may step in and pass legislation that would pass constitutional muster but hamper an open Internet.
The Internet was not born free. It was made free and will only remain free if a concerted effort is made to keep it free.
Jerry Berman is the founder of the Center for Democracy and Technology (CDT), a Washington, D.C.-based Internet public policy organization founded in 1994. CDT plays a leading role in free speech, privacy, Internet Governance and architecture issues affecting democracy and civil liberties on the Internet. Berman is also the President and Chairman of the Internet Education Foundation (IEF), a Washington, D.C.-based non-profit established by Internet companies and public interest groups to conduct programs designed to educate policy makers and the public about the commercial and democratic potential of today’s decentralized, global Internet.
This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Jeff Kosseff.