Federal Judges Uphold Section 230 Protections in Recent Decisions

LOS ANGELES—Even as the Federal Communications Commission prepares to “review” the 24-year-old law known as the “First Amendment of the Internet,” following a Donald Trump executive order, two court decisions in the past week have seen that law — Section 230 of the Communications Decency Act — upheld by federal judges. At the same time, the FCC has solicited comments from the public on its proposed review of Section 230, only to find its website flooded with comments opposing the law from a well-known anti-LGBTQ rights organization.  In 2017, when the FCC solicited comments on its then-upcoming repeal of net neutrality rules, the system was bombarded with half a million fake posts originating from Russian email addresses, as well as another 1.5 million from a professional broadband industry lobbyist.  This time, there have been many fewer overall comments posted as of last week — just 183. But of those, 18 — about 10 percent — appear to come from Liberty Counsel Action, a Florida nonprofit which the Southern Poverty Law Center describes as “a legal organization advocating for anti-LGBT discrimination under the guise of religious liberty.” But in two court cases, lawsuits against big internet companies failed over the past week, because federal judges ruled that Section 230 — which shields platforms from liability over content posted by users — protected the tech firms. In one case, Philadelphia TV news anchor Karen Hepp sued several platforms, including Facebook and Reddit, after a photo of her appeared without her consent in an online ad enticing users to “meet and chat with single women.” The photo was later reposted on various online message boards, including Reddit, often in digitally altered form to make the image appear to be porn, according to a report by Philadelphia magazine. But Eastern District of Pennsylvania federal Judge John Milton Younge threw the lawsuit out, partly on the grounds that Section 230 protects platforms from liability for third-party content. In other words, Hepp may have been able to sue the creators of the ad itself, who used her photo without permission, but not the platforms where the ad appeared. Younge was appointed to the federal bench by Trump in 2019. Trump has been outspoken in his opposition to Section 230, even beyond his executive order demanding the law’s review by the FCC.  In a second case, Enhanced Athlete Ltd., a maker of nutritional supplements, sued YouTube and parent company Google for taking down its ads, on the stated basis that the advertisements promoted “violent or dangerous acts,” according to a Bloomberg Law report.  The ads contained information about selective androgen receptor modulators, or SARMs, a steroid-like substance purported to enhance muscle building but had not been approved by the U.S. Food and Drug Administration. Enhanced Athlete sued, saying that the ads did not violate YouTube’s terms of use and that the platform engaged in unfair trade practices by taking the ads down. But Northern District of California Judge Haywood Gilliam — a 2014 Barack Obama appointee — disagreed.  Gilliam ruled that YouTube’s actions were protected by Section 230, which also gives platforms the right to moderate content posted by users. The YouTube terms of use agreement gives the platform the right to delete any content it believes should be taken down, and Enhanced Athlete had previously agreed to those terms, Gilliam ruled. Courts have so far been largely supportive of Section 230 when it is challenged in lawsuits. Last year, a San Francisco Superior Court judge dismissed a lawsuit by 50 women against Salesforce, a software infrastructure company. The suit alleged that Salesforce provided software for Backpage, and should therefore be liable for incidents of alleged sex trafficking occurring on the now-shuttered site. In a March, 2019, case, a federal court in New York ruled that the gay dating site Grindr was protected by Section 230 from being sued over the abusive behavior of one of its users against another man whom he met on the app. Photo by Tracy Le Blanc / Pexels