Have you ever been on Twitter or Facebook and come across a post that left you thinking, “Whoa… How on earth do they get away with posting that?” Even more surprising is how the host platforms avoid getting sued over the information or “misinformation” that their users post on their platform.
The answer to this lies in the Communications Decency Act. So, what is it exactly? What does it do? And why does it exist? This article explores everything you need to know about this often misunderstood law.
What Is the Communications Decency Act?
In 1996, Congress enacted Title V of the Telecommunications Act, otherwise known as the Communications Decency Act (CDA), in an attempt to protect minors from accessing or getting exposed to sexually explicit materials on the internet.
In the initial draft stages of the Telecommunications Act – whose primary purpose, by the way, was to reduce regulation of the industry and promote competition – the CDA was not included. But, after several congressional hearings, it was proposed as an amendment.
It prohibited any individual from intentionally broadcasting indecent or obscene content to children below 18. It also banned the intentional transmission of “patently offensive” content in a way that made it freely available to minors. Internet service providers had to have a foolproof mechanism of verifying their viewer’s age.
To side-step the hefty fines and imprisonment penalties that came with violating both of those provisions, content providers had to integrate costly screening procedures to ensure that they remained on the right side of the law.
The Miller Test
To ensure that the CDA remained airtight against any potential challenge under the First Amendment right to freedom of expression, Congress put in place certain measures to ensure that the provisions of the Act remained as-is.
So, it intentionally mirrored the language used in Miller v California (1973) to define what constituted obscene speech. It was an exception to the protections provided by the First Amendment provisions.
The Miller Test explicitly defines the materials that can be considered “patently offensive” by “contemporary community” standards.
This language was used in the CDA, to ban the use of any online computer services, to display any images, proposals, suggestions, requests, comments, or any other form of communication, that describes or depicts content that, according to “contemporary community standards,” would be deemed patently offensive. It included displays of sexual or excretory organs or activities.
The ACLU Challenges the Constitutionality of the CDA
Soon after President Clinton signed the new legislation into law, the American Civil Liberties Union (ACLU) was one of several organizations that challenged the constitutionality of the statute.
The lawsuit targeted the provisions of the Act that criminalized “patently offensive” and “indecent” online expression. In the suit, a judge issued a temporary injunction to stop its enforcement since the term “indecent” was too vague to form a solid basis for criminal prosecution. As a result, it could violate the Fifth Amendment.
A three-judge district court panel later ruled that the CDA did indeed violate both the First and Fifth Amendments. It, however, upheld that the provisions relating to obscenity and child pornography laws would remain as they were.
Needless to say, the government was not too happy with this ruling. So, it appealed, and the case was handed over to the Supreme Court.
Reno v ACLU
In Reno v. American Civil Liberties Union (1997), the Supreme Court upheld the district court ruling citing that the CDA was unconstitutional. That, to protect minors from obscene, indecent, and harmful speech, it ended up suppressing a significant amount of adult speech that was protected under the provisions of the Amendments.
CDA Section 230 – What Does It Do
Section 230 of the Communications Decency Act is arguably the most important law as it applies to the internet. Its purpose is to protect “interactive computer services” from getting sued over what the users of their platform post there.
It is what allows social media sites like Facebook and Twitter, as well as blogs and news sites with a comment section, to operate without the risk of publisher liability.
The provisions of CDA Section 230 also prevent you from getting sued when you edit the content posted or delete entire posts, which is well within the usual prerogative of any publisher.
Keep in mind that the edits you make should not change the meaning of the original information by making it defamatory. Now, that could be a lawsuit in the making.
CDA 230 Amendment
On April 11, 2018, President Trump signed into the law the Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act of 2017. It is commonly referred to as FOSTA SESTA. So, what is FOSTA SESTA, and why was it passed?
This human trafficking law was an amendment to Section 230 of the Communication Decency Act. It limits immunity for online computer services providers that intentionally host third-party content on their platform that facilitates or promotes sex trafficking.
The law was initially drafted in response to a massive number of reports that the escorts section of the online “classifieds” website Backpage.com, had evolved into a human trafficking haven for individuals promoting the illicit sex trade.
Although there was compelling evidence showing that several minors had been sexually assaulted by the adults who responded to these ads, a 2015 Backpage lawsuit brought against the owners of the rogue site, was dismissed by the courts citing CDA immunity.
The good news is the amendment now creates an exception to the Section 230 protections. This means that website owners will be liable if users of their platforms are found breaking federal human trafficking laws or even allowing individuals to post ads for sex work – even if it’s consensual.
The CDA – Protecting Your First Amendment Rights Since 1996
While the Communication Decency Act provides immunity against publisher liability for third-party user-generated content posted on their platforms, there is an exception to the rule. If users of a particular site are found to be breaking federal trafficking laws, then the Section 230 protections don’t apply to the platform owners.
Remember: the spirit of the CDA is to promote every individual’s First Amendment right to their freedom of speech and expression. If the law held publishers responsible for what users post on their platforms, rather than face the very real likelihood of criminal prosecution, they would much rather shut them down entirely.
This would effectively mean that the social media sites that you have grown to love would no longer exist.
If you have any legal questions, feel free to chat online with a Laws101.com to shed some light on your specific issue or question.