Section 230 Empirical Study

This page compiles information related to Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loyola of Los Angeles Law Review 373 (2010).  The article is available in its entirety on SSRN.

From the abstract:

In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law's distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.

This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute's enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.

The Article closes by discussing the study's findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary's defense under section 230.

Summary of Study Methodology

This study attempts to bring the methodological rigor of social science research to our understanding of the section 230 case law by collecting all judicial decisions involving the application of section 230 and applying "content analysis," a methodology that seeks to "generat[e] objective, falsifiable, and reproducible knowledge about what courts do and how and why they do it." The population of interest is all decisions from February 8, 1996, the effective date of section 230, through September 30, 2009, in which a party or the court interposed section 230 as a defense to liability for online content or acts.  

A more detailed description of the methodology is available in the article and its appendix.  The case database coding form, with measures of inter-coder reliability, is available here.

Summary of Findings

More coming soon....

Last updated on February 18th, 2011

   
 
Copyright 2007-13 Digital Media Law Project and respective authors. Except where otherwise noted,
content on this site is licensed under a Creative Commons Attribution-Noncommercial-ShareAlike 3.0 License: Details.
Use of this site is pursuant to our Terms of Use and Privacy Notice.