ABSTRACT
The debate over Section 230 of the Communications Decency Act – the most important law governing the internet – rages on. Yet this debate has been conducted largely without the input of a textualist method of statutory interpretation, as judges have employed purposivism to apply the statute broadly while scholars and critics have relied on intentionalism or consequentialism to favor a narrower interpretation.
This Article offers the first comprehensive textualist interpretation of Section 230’s text and structure. Section 230 means what it says: it excludes from its protection entities that act as publishers rather than intermediaries; treats, by default, all intermediaries as distributors; and offers extra protection to certain intermediaries – ‘Computer Good Samaritans’ – who clean up objectionable content on the internet.
This Article has dramatic implications. It finds that judges have consistently misinterpreted Section 230; therefore, judges should alter the main doctrinal inquiries for whether Section 230 immunity attaches, the entities to which it attaches, and the nature of that immunity. This Article also undermines current political debates because Section 230 already incorporates the substance of many proposed reforms: Section 230 does not need to be reformed or re-written, only re-read. And this Article contributes to the current scholarly reconceptualization of textualism and suggests a new avenue of research: the intersection between inequality and interpretation.
Klapper, Shlomo, Section 230 Textualism (March 14, 2022). Buffalo Law Review volume 70, no 4, forthcoming.
First posted 2022-03-17 13:00:05
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