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95 Notre Dame L. Rev. Reflection 33 (2019-2020)
Why Section 230 Is Better than the First Amendment

handle is hein.journals/ndalro95 and id is 33 raw text is: WHY SECTION 230 IS BETTER THAN THE FIRST AMENDMENT Eric Goldman* 47 U.S.C. § 230 (Section 230') immunizes Internet services from liability for third-party content. This immunity acts as a crucial legalfoundation for the modern Internet. However, growing skepticism about the Internet has placed the immunity in regulators' sights. If the First Amendment mirrors Section 230's speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that is not the case. Section 230provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230's scope pose serious risks to Internet speech. INTRODUCTION In 1996, Congress enacted a major free speech law, Section 230.1 Section 2 230(c)(1) says Internet services categorically are not liable for third-party content, subject to a few statutory exceptions including intellectual property claims and federal criminal prosecutions.3 Since 1996, the Internet has emerged as one of the most important innovations ever. The Internet has created valuable, new user-generated content (UGC) services that never existed in the offline world, such as Wikipedia's crowdsourced encyclopedia, consumer review websites like Yelp,4 and user-uploaded video sites © 2019 Eric Goldman. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to Notre Dame Law Review Reflection, and includes this provision and copyright notice. * Professor of Law and Co-Director of the High Tech Law Institute, Santa Clara University School of Law. Email: egoldman@gmail.com. Website: http://www.ericgoldman.org. I appreciate comments from Cindy Cohn, Daniel Douglas, Charles Duan, David Gingras, Cary Glynn, James Grimmelmann, Daphne Keller, Jeff Kosseff, Geoffrey Manne, Jess Miers, Brian Pettis, David Post, Julio Sharp-Wasserman, and Rebecca Tushnet. 1 47 U.S.C. § 230 (2012). See generally JEFF KOSSEFF, THE TWENTY-SIX WORDS THAT CREATED THE INTERNET (2019). 2 See Eric Goldman, An Overview of the United States'Section 230 Internet Immunity, in THE OXFORD HANDBOOK OF ONLINE INTERMEDIARY LIABILITY (Giancarlo Frosio ed., forthcoming). 3 See47 U.S.C. § 230(e). 4 See Eric Goldman, The Regulation of Reputational Information, in THE NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET 293, 294 (Berin Szoka & Adam Marcus eds., 2010).

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